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Thursday, November 06, 2008

Assumption of FOI disclosure to the world wrong in some cases

The Victorian Court of Appeal has unanimously dismissed an appeal by the Victorian Police against a finding by Justice Hansen that in considering whether disclosure to an applicant under the Freedom of Information Act would involve unreasonable disclosure of information relating to the personal affairs of another person, it was wrong for the decision maker to assume in all cases that disclosure was "to the world at large." The decision is only relevant to the interpretation and application of the personal affairs exemption. Victoria Police v Marke [2008] VSCA 218 .

The three judges issued separate decisions, with some differences in reasoning.The common ground was that the words "involve unreasonable disclosure" in the personal affairs exemption require consideration of all relevant circumstances including the nature of the information, and what if anything was known of the applicant's interest in accessing it .The possible dissemination of the information to others may be an important consideration in some cases, and could be assumed where the applicant was a journalist or someone equally likely to publish or put the information into the public domain. In other circumstances, such as this case, it was similarly relevant that it was known that the applicant sought access for a particular, discrete purpose, not connected with public dissemination.

The Court of Appeal dismissed the appeal and followed Justice Hansen's ruling that the matter be referred to the Victorian and Civil Tribunal for a decision in the light of the proper test.

These are earlier comments about a NSW Administrative Decisions Tribunal Appeal Panel decision in May this year that declined to follow the Hansen decision, and some of the policy issues that arise in these cases.The NSW Act (and some others) personal affairs exemption is in the same terms as the exemption in the Victorian Act. A Victorian Court of Appeal decision while not binding in NSW carries significant weight, so it will be interesting to see if in relevant cases NSW applicants (and those utilising FOI acts other than the Federal and West Australian acts) can use it to some persuasive effect.

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