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Sunday, April 29, 2012

Differences in FOI acts in protecting against harassment or intimidation

Privacy Commissioner Pilgrim in  'I' and Australian National University [2012] AICmr 12  (the first published review decision in which he rather than Professor McMillan or Dr Popple exercised powers under the Freedom of Information Act) set aside a decision to refuse access to emails sent to climate change scientists at the ANU that had been the basis of earlier media reports that death threats had been made against them. (Update: Christian Kerr in The Australian on 3 May provided a racier account, the ANU has since decided against appealing the decison, and Chris Merritt  found scope for some point scoring against Fairfax.)
Of interest is that the Commonwealth act contains no counterpart to provisions found in Queensland,Tasmanian and NSW acts that provide grounds for refusal where, with regard to matters of this kind, the likely effect of disclosure falls short of a reasonable expectation of harm to life and safety. Those state acts throw the risk or likelihood of harassment or intimidation into the harm mix.

Access in this case had been refused by the University on the basis of Section 37(1)(c) of the FOI act, that disclosure would, or could reasonably be expected to endanger the life or physical safety of any person, and Section 47F, the conditional exemption for personal information. The latter claim failed because the applicant was not seeking information that would reveal the identity of the individuals sending or receiving the emails in question.

Commissioner Pilgrim was satisfied that disclosure of the content of the documents could not be expected to endanger life or physical safety of any person. His decision was that edited copies (with information removed that would identify the individuals sending or receiving the emails) should be released to the applicant.

The Commissioner found on reading the 10 emails that they did not contain threats to kill or threats of harm. "They contain abuse in the sense that they contain insulting and offensive language." Another email contained a recollection of an exchange which occurred during an off-campus event sponsored by members of the Climate Change Institute and other governmental agencies. The University had treated this as a security threat at the time.

Commissioner Pilgrim concluded that the exchange as described in the email "could be regarded as intimidating and at its highest perhaps alluding to a threat.... I consider the danger to life or physical safety in this case to be only a possibility, not a real chance."

The FOI exemption issue however required a judgment about the effect of disclosure of the document:
15. The question is how release of the documents could reasonably be expected to endanger the life or physical safety of any person. In other words, the question is whether release of the documents could be expected to create the risk, not whether the documents reflect an existing credible threat. Even if the threats were highly credible, the question would be how release of the documents would add to the expected threat.
16. In my view, there is a risk that release of the documents could lead to further insulting or offensive communication being directed at ANU personnel or expressed through social media. However, there is no evidence to suggest disclosure would, or could reasonably be expected to, endanger the life or physical safety of any person.
Commonwealth /state law comparisons
Section 37(1)(c) remains as it was when the Commonwealth FOI act came into operation in 1982, unaffected by the 2009 reforms.

The formulation in the act was generally replicated by the states in their Mark 1 versions of FOI legislation that followed, except in the case of Queensland where the FOI act (section 42(1)(ca)) provided an exemption if disclosure could reasonably be expected to endanger a person's life or physical safety, or "result in a person being subjected to a serious act of harassment or intimidation."  The replacement Right to Information Act (Schedule 3, section 10(1)(d)) retains an absolute exemption for information of this kind. (Coincidentally the RTI exemption was the subject of this decision, Richards and Gold Coast City Council, by Information Commissioner Kinross recently.)

In their FOI law rewrites in 2009/10, NSW and Tasmania generally followed the Queensland lead.

The Tasmanian Right to Information Act (S 30) exempts information the disclosure of which would "endanger the life or physical, emotional or psychological safety of a person, or increase the likelihood of harassment or discrimination of a person." There is no public interest test.

The NSW Government Information (Public Access) Act (Table, s 14 Note 3) lists as public interest considerations against disclosure, that release could reasonably be expected to  "expose a person to a risk of harm or of serious harassment or serious intimidation." Uniquely, these considerations must be weighed against any public interests that favour disclosure before reaching a conclusion on whether there is an overriding public interest against disclosure. In the usual circumstances significant weight would be attached to the harm factors, unlikely to be trumped in most instances to my mind.

Commissioner Pilgrim's observation that release of the emails in the ANU case could pose a risk of " further insulting or offensive communication being directed at ANU personnel or expressed through social media" gives rise to speculation about what might be the situation if this type of content was relevant to an application being dealt with under the state laws. In the case of Queensland and NSW, disclosure even without names, might constitute a risk of serious harassment or intimidation of an individual or individuals, or under the Tasmanian act, increase the likelihood of harassment, sufficient potential harm in each case to attract exemptions that don't exist in Commonwealth law.

Who has the balance right on this one?

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