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Wednesday, February 10, 2010

FOI law protects confidential complainants

December and January saw quite a few Freedom of Information decisions around the country, and I'm behind in mentioning some of interest.

Two NSW Administrative Decisions Tribunal cases illustrate that the identity of complainants or those who provide similar confidential information about an individual is well protected by exemptions in the NSW Freedom of Information Act. While the personal affairs ( Clause 6, Schedule 1) and confidential information (Clause 13(b)) exemptions are the usual provisions relied upon, there are others that are rolled out from time to time.

In Head v Commissioner of NSW Police [2010] NSWADT 27 Judicial Member Montgomery acknowledged the interest the applicant in seeking access to information in relation to complaints that were made against him as a serving NSW Police officer, and his concern about aspects of a resulting investigation. The applicant contended that the information, if disclosed, would enable him to defend himself from what he believed were false allegations. Judicial Member Montgomery said any discrepancies in the investigation were matters to be pursued through appropriate channels. The Tribunal should not attempt to cure defects that might exist in those processes. The Tribunal’s role was to determine the correct and preferable decision in regard to the status of documents under the Freedom of Information Act. He found the withheld parts of documents concerning complaints- names, addresses and personal information -was information concerning personal affairs, and that disclosure in the circumstances would be unreasonable (Clause 6) ; and that statements or names and addresses of third parties were provided in confidence in a personal capacity (including some from internal sources); disclosure might undermine the provision of such information in the future; and as it was unlikely that disclosing the contents of the statements and letters would enhance the Applicant's understanding of the investigation in any significant way , the public interest in maintaining the exemption outweighed the public interest in disclosing the contents of the documents. (Clause 13(b)).

In Starr v Sydney Water Corporation[2010] NSWADT 28 Judicial Member Montgomery found details of the Corporation's employees and contractors who complained about the applicant, a person in a longrunning dispute with the Corporation, alleging bullying and harassment, were exempt under the confidential information exemption (Clause 13(b)). . Somewhat surprisingly Judicial Member Montgomery [71-77] also found that the disputed documents were exempt under the business, commercial and financial affairs exemption (Clause 7(1)(c)) as they contained information about the Corporation's treatment of employees and contractors in the performance of their duties and its response to the matters raised by them about dealing with the applicant. It was unnecessary to consider other exemption claims for the documents (legal privilege (Clause 10) and operations of agencies (Clause 16)). 

Not all complaints are made on the basis of confidentiality but those that are, or deserve such treatment are well protected.

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