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Monday, January 28, 2008

NSW Tribunal limits criteria for public interest disclosure

Another aspect of the NSW Administrative Decisions Tribunal decision in Waite v Hornsby Shire Council (2007) NSWADT 265 worth a comment is the way in which Judicial Member Higgins gave consideration to exercise of the discretion to require disclosure of an otherwise exempt document on public interest grounds.

Since a Supreme Court decision in 2006 that decided the Tribunal has such powers, the Tribunal where it finds that documents are exempt considers whether access should be given if this is the correct and preferable decision based on the material before it.

In previous decisions, Tribunal members have referred to the need for strong public interest considerations in favour of disclosure to be evident if the discretion is to be exercised.

The discretion has been rarely exercised - in this case, access was granted to some documents because disclosure would cause no harm, and the sensitive nature of some information had passed because of changing circumstances; in another, the Tribunal decided that the public interest in informed debate about the most appropriate uses of public assets overrode other considerations; and in this case a document largely covered by the exemption relating to protection of whistleblowers, was disclosed with some information deleted, to allow comparison between the report received from the St. James Ethics Centre and the the text of the same report published on a university website.

However in the Waite case (paragraph 58) Judicial Member Higgins said it was appropriate to apply a test laid down by the Court of Appeal in Victoria: that the discretion should only be exercised where the public interest requires disclosure. That is, where the public interest demands, necessitates or is imperative, or compelling.

She considered that this was consistent with previous decisions of the NSW Tribunal. However my reading is that this represents a tightening of the criteria. The words used suggest that 'strong' public interests in disclosure are not sufficient to justify grounds to exercise the discretion to order release of otherwise exempt documents. It's a mystery why the Victorian test was applied: in Victoria the word requires is the test laid down in the Act for the exercise of discretion by the Tribunal. There is no such limitation in NSW.

Lawyers representing government agencies are sure to find Judicial Member Higgins' comments encouraging. It's another potential hurdle for Freedom of Information applicants in the ADT.

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