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Tuesday, June 09, 2009

"Disclosure to the world" not an automatic presumption in NSW

The NSW Administrative Decisions Appeal Panel has taken another look at whether "disclosure to the world" should be the default position in considering whether release of documents containing information about the personal affairs of someone other than the applicant under the NSW Freedom of Information Act was unreasonable. In an earlier decision the Appeal Panel had specifically disagreed with the views of Hansen J in Marke v Victoria Police [2007] VSC 522 that in some circumstances the consideration of "unreasonableness" required consideraration of the interests of the applicant and what the applicant intended to do with the information.The decision in Marke was subsequently upheld by the Victorian Court of Appeal. Acting Justice Smart of the NSW Supreme Court in Simring had since commented that he would hesitate before deciding not to follow the majority view of a court of appeal.

The Appeal Panel in Department of Education and Training v GJ [2009] NSWADTAP 33
found, following Marke, that while it was of no help to the applicant in this case, an FOI decision maker, and the Tribunal where exercising such powers, "must not, uncritically, exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use":
"47 Clause 6 of the NSW Act and s 33 of the Victorian Freedom of Information Act 1982 are materially identical. Having regard to their respective places in the hierarchy of the Australian legal system, an Appeal Panel of this Tribunal ought, we consider, where there is no material difference in the law under scrutiny, follow any considered decision of an interstate appellate court where it conflicts with a prior decision of the Appeal Panel.

48 These issues received some attention in a recent Supreme Court decision, Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [70] ff. Smart AJ found it unnecessary to rule on an agency submission that Marke was not correctly decided. His Honour stated at [71] that he ‘would hesitate before not following the majority view of the Victorian Court of Appeal on legislation which has so many similarities to the NSW FOI Act.’

49 Consequently, the FOI decision-maker (agency or review tribunal) must not, uncritically, exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use. As the Victorian Court noted, that does not mean that the decision-maker must give effect to the applicant’s plea. The decision-maker may form a negative view as to the likelihood that the promise will be kept, and the attributes of the applicant may militate against acceptance of the promise. The Victorian Court gave the following illustrations of this point: the applicant who is a political activist, a journalist or a member of parliament, all of whom might reasonably be assumed to be likely to seek maximum publicity for the material released."

"Disclosure to the world" will not be the default position in NSW under the proposed Open Government Information Bill either as one of the provisions states personal factors can be taken into account in some circumstances in determining an application. Clause 52 provides:

"Consideration of personal factors of the application


(1) In determining whether there is an overriding public interest against
disclosure of information in response to an access application, an
agency is entitled to take the following factors (the personal factors of
the application) into account as provided by this section:


(a) the applicant’s identity and relationship with any other person,


(b) the applicant’s motives for making the access application,


(c) any other factors particular to the applicant.

(2) The personal factors of the application can be taken into account as
factors in favour of providing the applicant with access to the
information.

(3) The personal factors of the application can be taken into account as
factors against providing access if (and only to the extent that) those
factors are relevant to the agency’s consideration of whether the
disclosure of the information concerned could reasonably be expected
to have any of the effects referred to in clauses 2–5 (but not clause 1, 6
or 7) of Schedule 2.


(4) An applicant is entitled to provide any evidence or information
concerning the personal factors of the application that the applicant
considers to be relevant to the determination of whether there is an
overriding public interest against disclosure of the information applied
for.


(5) An agency may, as a precondition to providing access to information to
an applicant, require the applicant to provide evidence or information
concerning any personal factors of the application that were relevant to
a decision by the agency that there was not an overriding public interest
against disclosure of the information.


(6) An agency is under no obligation to inquire into or verify claims made
by an access applicant about the personal factors of the application but
is entitled to have regard to evidence or information provided by the
applicant.


Note. An agency is not entitled to impose any conditions on the use or
disclosure of information when the agency provides access to the information in
response to an access application. See section 70."

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