NSWADT in first GIPA decision notes important FOI changes

The NSW Administrative Decisions Tribunal has published the first decision on a review application lodged under the Government Information (Public Access) Act that commenced on 1 July last year. Judicial Member Molony in Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 overruled the Department's decision, finding the public interest favoured disclosure to the applicant of the Queensland Police Service Court Brief for charges against him that had been provided to the agency by its Queensland counterpart.

The information that had been deleted from the brief partially released to the applicant, and in dispute before the Tribunal, was names of the individual complainants and their roles in public office, and details of what they told Queensland Police about Mr Richards' harassment of them- a mixture of personal information about the complainants and Mr Richards.

The only public interest consideration referred to in the decision was disclosure would reveal an individual's personal information- the complainants' details and what they told the police- a public interest consideration against disclosure listed in the GIPA act (3(a) in the Table to s 14, to be weighed against any public interests that favoured disclosure. This is of no relevance when the information concerns the applicant, only when information of this kind concerning another or others is sought.

The evidence before the Tribunal was that the applicant had sought and been granted access to a copy of the full brief including those parts redacted, by Queensland Corrective Services under the Information Privacy Act. A significant factor in the Queensland decision had been that the brief had been relied on by the Queensland Police and the content revealed at the Southport Magistrates Court, on 13 May 2010 when Mr Richards was charged with two counts of using a carriage service to menace, harass or cause offence. In deciding to release the brief in full, QCS concluded that Mr Richards was already aware of the information "as it has been put to you by police and the court" [36].

Judicial Member Molony [37] decided that as the information already had been disclosed in open court, release under the GIPA Act could not be reasonably expected to reveal the complainant's personal information (as per 3(a)) because "reveal information" was defined (Schedule 4, Clause 1) to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."

Judicial Member Molony [40] noted important changes introduced by the GIPA act where the definitions of 'government information', 'personal information', and 'reveal'  "operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information .. has been publicly disclosed."

Judicial Member Molony made no reference to 3(b) in the Table to s 14, that disclosure would contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, presumably because the agency didn't rely on this provision or argue it in the case. On the basis of the reasoning regarding 3(a), such an argument might fail because the personal information was available in a publicly available publication (PPIPA s 4(3)(b)) -the Queensland court transcript or decision. 

The effect of the GIPA act 3(b) public interest consideration against disclosure is to import  into that act the disclosure principle from the PPIPA act. It's something of a mystery in the light of the fact that the PPIPA act s 5 states:

Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009 (2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

The circularity is evident. 3(b) was included at a late stage in the drafting of the act at the initiative of the then Privacy Commissioner and Acting Information Commissioner Judge Taylor, and not subject to any public discussion as far as I am aware.