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Wednesday, May 04, 2011

NSW Information Commissioner on the public interest

The NSW Information Commissioner is yet to issue guidelines on the application of the public interest test in the GIPA act but this submission on behalf of the Commissioner in a matter currently before the Administrative Decisions Tribunal provides an indication of how the office interprets aspects of the relevant provisions. 

The NSW ADT has not published a decision so far on a review application under the GIPA act that commenced in July 2010. The Information Commissioner has a right  that may be unique in Australian law to appear and be heard in such cases.

The submission is obviously tailored to matters relevant to the case involving NSW Police, but parts of general interest include:

Lean in favour of disclosure
The GIPA act requires a pronounced tilt or lean in favour of disclosure, except in regard to information of the kind specified in Schedule 1 for which there is a conclusive presumption that disclosure would be contrary to the public interest.
"The line of cases considering whether such a "tilt" or "lean" inferred in the previous FOI act are of no relevance to the construction or application of the GIPA act. In cases where the balance between considerations in favour and considerations against  disclosure are close, this "tilt" will tip the balance in favour of disclosure..[15] 
(Comment: where the for and against considerations are evenly balanced it goes without saying that disclosure on balance would not be contrary to the public interest.)

Personal characteristics of the applicant
Section 55 of the act sets out the personal characteristics that may be of relevance in determining an application ( the applicant’s identity and relationship with any other person, motives for making the access application, any other factors particular to the applicant.
" the extent that personal characteristics are relied on to refuse disclosure they are relevant if and only to the extent that they tend to establish the public interest considerations against disclosure set out in Clauses 2-5 (but not 1,6 or 7) of the table to section 14....There is no express limitation on the type or relevance of personal characteristics in relation to considerations in favour of disclosure. Therefore personal characteristics may in certain circumstances "carry the day" in their own right.
 Public interest considerations in favour of disclosure 
 In addition to the factors listed in the note to section 14 of the act, others considered in NSW  FOI cases that may be relevant include where information would be of benefit to the local community, and the restoration of community harmony [21]

In order to refuse access a finding must be made that disclosure on balance would be contrary to the public interest, based on a reasonable expectation. "Reasonableness" may involve considerations that favour disclosure in the public interest for example drawing from Commonwealth FOI cases: notoriety of a fact notwithstanding it is personal information, the information tends to establish an offence, in the case of confidential information the reason for confidentiality has passed, and the information has previously been disclosed to the applicant.[32]

Public interest considerations against disclosure
The submission discusses confidentiality including significant changes to the FOI exemption concerning disclosure of information that could impact on agency performance [34-46] and privacy, noting changes in the scheme overall, the relationship between GIPA and privacy legislation and particular changes relevant to NSW Police [47-56].

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