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Monday, October 08, 2012

Public interest in disclosure of source of patently false allegations

In situations where access is sought under FOI type laws to the name of a complainant and some assurance of confidentiality has been given to the confider, relevant exemptions or considerations against disclosure of identity based on protection of the source usually prevail. However in a recent GIPA act case, NSW Administrative Decisions Tribunal Judicial Member Isenberg (Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181)) decided the allegations of the complainant "which were very serious and alleged gross impropriety" by the applicant in running two local charities, were, on the whole, patently false [31], found in addition to other public interests in favour of disclosure that there is a general public interest in disclosing the identity of a complainant who makes false complaints [32], and decided that disclosure of the name in this case on balance was not contrary to the public interest [82]. The Office of Information Commissioner in an earlier review considered that releasing identifying information would reveal personal information and that, in the circumstances, this public interest consideration against overrode the public interest considerations in favour of disclosure. Judicial Member Isenberg [30] made a distinction between allegations which, while based on genuinely-held beliefs are found to be erroneous, and allegations which are malicious or which are made with disregard to basic facts.

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