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Wednesday, January 09, 2008

FOI disclosure not necessarily disclosure to 'world at large'

There were a few important Freedom of Information decisions around the country over the last month or so (will try to catch up soon) but a decision by Justice Hansen in the Victorian Supreme Court has overturned in that state at least, a time honoured concept that a decision about disclosure of documents in response to an FOI application should be dealt with on the basis that disclosure, in effect releases documents into the public domain and should be considered disclosure to the 'world at large'.

In Marke v Victoria Police (2007) VSC522, Justice Hansen found that the Victorian Civil and Administrative Tribunal had erred in law in taking this approach in deciding whether disclosure of information to the applicant involved unreasonable disclosure of information concerning another person's personal affairs.

Justice Hansen said that the personal affairs exemption, and the test of unreasonableness of disclosure required an assessment of all relevant circumstances. One relevant consideration was the extent of the likely disclosure. In some cases, for example where the applicant was a journalist or someone else clearly in a position to make information publicly available, disclosure to the 'world at large' was likely. However, while subsequent use of documents released under the Act was entirely in the hands of the applicant -
"it does not follow as a matter of logic that the applicant will disseminate the documents widely, or at all. Further in my view there is nothing in the FOI Act or the authorities that require the Tribunal in this case to assume, without reference to the appellant, that disclosure to the appellant would effectively be disclosure to the world at large".
Justice Hansen said that any person was entitled to make an application for documents, and there was no requirement that the applicant have standing or have any special interest in the document. In this respect the characteristics of the person making the request are irrelevant. However in deciding whether a document was exempt, a decision maker must apply the relevant exemption provision. Where this involved assessment of "unreasonability", the characteristics of the person making the request (to the extent they may be known) are relevant. The Tribunal was wrong in law in concluding that release of the documents, including the identity of people who had complained about the FOI applicant, would be unreasonable because the world at large would then know who they were. Justice Hansen referred the matter back to the Tribunal for a proper assessment of whether disclosure in this case would be unreasonable.

The Federal Freedom of Information Act (Section 11) is the only Australian FOI Act with a specific provision that says that the identity or purposes of the applicant in seeking access, are not to be taken into account in assessing whether a document should be disclosed - a provision that the Australian Law Reform Commission 12 years ago said should be amended.

There and in the other states however the general guidance on the interpretation of the Act (and decisions by the NSW Administrative Decisions Tribunal, and the Information Commissioners in WA and Queensland), has been that disclosure should be judged on the basis that disclosure is to the world at large. This approach has produced some strange results. The Victorian decision may mean that it's back to the drawing board not only in Victoria but in other jurisdictions where this has been the recommended approach to assessing "unreasonable" disclosure.

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