Saturday's edition of the Sydney Morning Herald includes this article about the Court of Appeal decision in WorkCover Authority v Law Society. The report highlights the important ramifications of the decision and as for the views of the experts they quote, well......
As stated in the earlier blog the most significant aspects of these decisions are those parts that deal with public interest issues associated with internal working documents after a decision has been taken on a particular matter, and the interpretation of the secrecy provisions in other acts exemption in Clause 12 of Schedule 1.
The Court of Appeal found no error of law in the ADT Appeal Panel decisions, so it needs to be read in conjunction with those decisions. This decision contains the Appeal Panel conclusions regarding legal professional privilege; this second decision deals with the other aspects of the exemption claims - internal working documents, confidentiality, and secrecy provisions in another act.
I'm off to Melbourne for a couple of days but will be keeping an eye on developments. I plan to have more substantial analysis of the Court of Appeal decision posted by the end of the week.
This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. Information contained on this site is general in nature and does not constitute legal advice. Follow Peter Timmins on Twitter: @foiguru Follow the open government cause through the Australian Open Government Partnership Network. www.opengovernment.org.au and @opengovau
Sunday, April 30, 2006
Friday, April 28, 2006
ADT decision: exclusions from definition of personal information
This ADT preliminary decision (PN v Department of Education and Training (2006) NSW ADT 124) includes discussion about what is meant by “information or opinion about an individual’s suitability for appointment or employment as a public sector official”.
Why is this important?
Well, that sort of information is not covered by the NSW Privacy and Personal Information Protection Act.
Doesn’t make much sense but that’s the law so we have had cases like this one dissecting the meaning of this exclusion in order to find out whether the NSW ADT has jurisdiction to consider a matter.
In this case the ADT decided that all of the complaints (about information provided to an insurer and rehabilitation organisation arising from a workers compensation claim) was personal information. Paragraphs 47 and following discuss previous decisions on the exclusion and the ADT's findings in this case.
Now the Tribunal will be able to proceed to consider the substance of the complaint.
Unfortunately we will probably have plenty more of these jurisdictional issues before the NSW Law Reform Commission completes its review of NSW privacy laws. The many exclusions from the definition of personal information (this is one of 11) create unjustified gaps in the law.
Why is this important?
Well, that sort of information is not covered by the NSW Privacy and Personal Information Protection Act.
Doesn’t make much sense but that’s the law so we have had cases like this one dissecting the meaning of this exclusion in order to find out whether the NSW ADT has jurisdiction to consider a matter.
In this case the ADT decided that all of the complaints (about information provided to an insurer and rehabilitation organisation arising from a workers compensation claim) was personal information. Paragraphs 47 and following discuss previous decisions on the exclusion and the ADT's findings in this case.
Now the Tribunal will be able to proceed to consider the substance of the complaint.
Unfortunately we will probably have plenty more of these jurisdictional issues before the NSW Law Reform Commission completes its review of NSW privacy laws. The many exclusions from the definition of personal information (this is one of 11) create unjustified gaps in the law.
The Card: Don't leave home without it
The Federal Government’s announcement about the introduction of an access card (not a national ID card, and not compulsory except for your dealings with the Government on benefits including Medicare) has had a mixed reception. The Federal Privacy Commissioner and others have been quick to ensure that the privacy issues are flagged. The Government’s announcement said that a decision had been made “in principle” so this may still have a long way to run.
There isn’t much emphasis in the announcement on the card’s potential contribution to security and the proposal now seems strongly relating to an unreleased cost benefit survey by KPMG. Today’s Australian Financial Review and the Daily Telegraph report that Adrian McCullaugh of the Information Security Institute Qld University of Technology says that the initial estimate of costs of $1 billion may prove to be well wide of the mark. He suggests we will probably need to double it.
The NSW Premier Morris Iemma says the idea is ok as long as there are adequate privacy protections. Civil liberties groups including the Australian Privacy Foundation and the Australian Council of Civil Liberties are critical.
Will we see the card linked to the provision of state government services?
There isn’t much emphasis in the announcement on the card’s potential contribution to security and the proposal now seems strongly relating to an unreleased cost benefit survey by KPMG. Today’s Australian Financial Review and the Daily Telegraph report that Adrian McCullaugh of the Information Security Institute Qld University of Technology says that the initial estimate of costs of $1 billion may prove to be well wide of the mark. He suggests we will probably need to double it.
The NSW Premier Morris Iemma says the idea is ok as long as there are adequate privacy protections. Civil liberties groups including the Australian Privacy Foundation and the Australian Council of Civil Liberties are critical.
Will we see the card linked to the provision of state government services?
FOI in the News
Media reports based on FOI applications over the last week include:
The Advertiser, 24 April: The Rann Government spent $2 million on advertising in the lead-up to the SA election in March including $49,500 on publishing and recording rights for the Ben Lee song “We’re in this together”.
The Australian, 26 April: Promised Federal Government funding for the proposed private initiative to develop a space port on Christmas Island was withdrawn after the Asia Pacific Space Centre failed to meet every key condition and milestone including its first launch by the end of 2003.
The Age, 28 April: The Victorian Ombudsman’s investigation into a complaint from an Opposition MP has revealed that the Department of Human Services obstructed the release of information concerning ministerial media opportunities. The Age says that the FOI unit took instructions from the Department’s media unit while processing the application.
I know I’m running a risk of being seen as “Crookwell centric” but the Crookwell Gazette has followed up its earlier report about the dire consequences of the Upper Lachlan Shire Council having to deal with FOI applications. In this report the Friends of Crookwell comment that the Council claims are absurd. They also have views about the need for greater openness and transparency in Council operations.
The Advertiser, 24 April: The Rann Government spent $2 million on advertising in the lead-up to the SA election in March including $49,500 on publishing and recording rights for the Ben Lee song “We’re in this together”.
The Australian, 26 April: Promised Federal Government funding for the proposed private initiative to develop a space port on Christmas Island was withdrawn after the Asia Pacific Space Centre failed to meet every key condition and milestone including its first launch by the end of 2003.
The Age, 28 April: The Victorian Ombudsman’s investigation into a complaint from an Opposition MP has revealed that the Department of Human Services obstructed the release of information concerning ministerial media opportunities. The Age says that the FOI unit took instructions from the Department’s media unit while processing the application.
I know I’m running a risk of being seen as “Crookwell centric” but the Crookwell Gazette has followed up its earlier report about the dire consequences of the Upper Lachlan Shire Council having to deal with FOI applications. In this report the Friends of Crookwell comment that the Council claims are absurd. They also have views about the need for greater openness and transparency in Council operations.
Thursday, April 27, 2006
Major NSW Court of Appeal decision boosts FOI
In the most important court decision in the 17 years since the NSW FOI Act was introduced, the Court of Appeal in WorkCover Authority of NSW v Law Society of NSW (2006) NSWCA 84, has strongly reinforced the importance of the openness and accountability objectives of the FOI Act.
The Court of Appeal rejected arguments that the Administrative Decisions Tribunal Appeal Panel had erred in law in deciding that a consultant’s report prepared by a legal costs expert as part of a legislative review of costs in workers compensation matters, was not an exempt document.
The 45 page decision includes important clarifications about some of the FOI Act exemption provisions: legal professional privilege (does not apply where a lawyer is acting in another capacity); internal working documents (after decisions have been made, public interest arguments for non disclosure of “thinking process” documents cannot be based on formulaic. theoretical propositions developed in an era of closed government but must be supported by facts); and secrecy provisions in other acts (must be read narrowly and in any event do not prevent disclosure under FOI when qualified by a provision which permits disclosure “with other lawful excuse”).
While lawyers will find the legal professional privilege elements of the decision of interest, the more significant aspect are the Court’s views about public interest in the context of internal working documents. The Court says in effect that tick and flick approaches based on what are known as the “Howard factors”, a 1985 Federal Administrative Decisions Tribunal decision in a case initiated by the current Prime Minister, do not represent the proper approach.
WorkCover had relied on 3 of these factors – communications at high levels of government, documents relating to the development of policy, disclosure would not fairly disclose the reasons for a decision subsequently taken – in arguing that it was contrary to the public interest to release the report.
The Court says that when considering documents after decisions have been made, there is a need for factual information in order to identify tangible harm that will flow from disclosure in order to satisfy the public interest test.
The judgement gives some legal standing to the scepticism expressed in other NSWADT decisions (and elsewhere including the Queensland Information Commissioner decision in Eccleston and Department of Family Services and Aboriginal and Island Affairs (1993) 1QAR 60) about the “Howard factors.
It will provide some useful support for arguments in the High Court of Australia when it considers on 18 May the case to be put on behalf of The Australian’s FOI Editor, Michael McKinnon when he challenges a Federal Court finding regarding a ministerial certificate issued by the Federal Treasurer. Public interest considerations are a key element in the case.
One intriguing aspect of the Court of Appeal case is that the WorkCover Authority declined to make the documents for which exemptions were claimed available to the judges. As two of them comment, WorkCover created a problem of its own making, in that this made it virtually impossible to satisfy the Court regarding the claim for legal professional privilege
On another tack, there has to be a question about the time, cost, and energy that WorkCover invested in seeking to protect a document now 4 years old and regarding a matter that the ADT and the Court of Appeal found had been concluded some years ago.
Will the eagle eyed NSW Treasurer wrestling with budget problems, be concerned about the use of taxpayers’ funds in all this, particularly as WorkCover have been stuck with an order to pay the Law Society’s costs of the Court of Appeal case.
The Court of Appeal rejected arguments that the Administrative Decisions Tribunal Appeal Panel had erred in law in deciding that a consultant’s report prepared by a legal costs expert as part of a legislative review of costs in workers compensation matters, was not an exempt document.
The 45 page decision includes important clarifications about some of the FOI Act exemption provisions: legal professional privilege (does not apply where a lawyer is acting in another capacity); internal working documents (after decisions have been made, public interest arguments for non disclosure of “thinking process” documents cannot be based on formulaic. theoretical propositions developed in an era of closed government but must be supported by facts); and secrecy provisions in other acts (must be read narrowly and in any event do not prevent disclosure under FOI when qualified by a provision which permits disclosure “with other lawful excuse”).
While lawyers will find the legal professional privilege elements of the decision of interest, the more significant aspect are the Court’s views about public interest in the context of internal working documents. The Court says in effect that tick and flick approaches based on what are known as the “Howard factors”, a 1985 Federal Administrative Decisions Tribunal decision in a case initiated by the current Prime Minister, do not represent the proper approach.
WorkCover had relied on 3 of these factors – communications at high levels of government, documents relating to the development of policy, disclosure would not fairly disclose the reasons for a decision subsequently taken – in arguing that it was contrary to the public interest to release the report.
The Court says that when considering documents after decisions have been made, there is a need for factual information in order to identify tangible harm that will flow from disclosure in order to satisfy the public interest test.
The judgement gives some legal standing to the scepticism expressed in other NSWADT decisions (and elsewhere including the Queensland Information Commissioner decision in Eccleston and Department of Family Services and Aboriginal and Island Affairs (1993) 1QAR 60) about the “Howard factors.
It will provide some useful support for arguments in the High Court of Australia when it considers on 18 May the case to be put on behalf of The Australian’s FOI Editor, Michael McKinnon when he challenges a Federal Court finding regarding a ministerial certificate issued by the Federal Treasurer. Public interest considerations are a key element in the case.
One intriguing aspect of the Court of Appeal case is that the WorkCover Authority declined to make the documents for which exemptions were claimed available to the judges. As two of them comment, WorkCover created a problem of its own making, in that this made it virtually impossible to satisfy the Court regarding the claim for legal professional privilege
On another tack, there has to be a question about the time, cost, and energy that WorkCover invested in seeking to protect a document now 4 years old and regarding a matter that the ADT and the Court of Appeal found had been concluded some years ago.
Will the eagle eyed NSW Treasurer wrestling with budget problems, be concerned about the use of taxpayers’ funds in all this, particularly as WorkCover have been stuck with an order to pay the Law Society’s costs of the Court of Appeal case.
Wednesday, April 26, 2006
ADT decision upholds Council FOI determination
The ADT in Franks v Warringah Council (2006) NSWADT 124, upheld Council decisions to refuse access to identifying particulars of complainants (who objected to disclosure) on the grounds that this would be unreasonable disclosure of personal affairs information (Clause 6 Schedule 1) and to other documents on the grounds of legal professional privilege (Clause 10 Schedule 1).
No new ground here.
No new ground here.
ADT Appeal Panel clarifies jurisdiction concerning Schedule 2 of FOI Act
The ADT Appeal Panel (McGuirk v ICAC (2006) NSWADTAP 17) has decided that the Tribunal has jurisdiction to review a determination by the ICAC to refuse access to a report on the grounds that it concerns the corruption prevention and investigative functions of the Commission.
In the original decision and a previous decision the ADT had concluded that it did not have jurisdiction where an agency refused access to a document relating to a function specified in Schedule 2 of the FOI Act.
The Appeal Panel said that the Tribunal only lacked jurisdiction where all functions of a particular agency were excluded from the operation of the Act by such a reference in Schedule 2.
As only some, not all functions of the ICAC were excluded, the Tribunal was able to consider the matter.
The Appeal Panel also found that even though some functions of the ICAC were excluded from operation of the Act, Section 24 imposed a duty on the agency to make a determination where it was in receipt of a valid FOI application.
The application in this case has been referred back to the ICAC.
In the original decision and a previous decision the ADT had concluded that it did not have jurisdiction where an agency refused access to a document relating to a function specified in Schedule 2 of the FOI Act.
The Appeal Panel said that the Tribunal only lacked jurisdiction where all functions of a particular agency were excluded from the operation of the Act by such a reference in Schedule 2.
As only some, not all functions of the ICAC were excluded, the Tribunal was able to consider the matter.
The Appeal Panel also found that even though some functions of the ICAC were excluded from operation of the Act, Section 24 imposed a duty on the agency to make a determination where it was in receipt of a valid FOI application.
The application in this case has been referred back to the ICAC.
Survey reveals preparedness to trade some privacy
A survey in 14 countries (including a small sample of Australians) undertaken on behalf of Unisys says that a majority of people are prepared to trade some privacy for convenience.
I guess the question is exactly what "some privacy" means and what does the "trade" involve?
Thanks to David Fraser's Canadian privacy blog for the lead
I guess the question is exactly what "some privacy" means and what does the "trade" involve?
Thanks to David Fraser's Canadian privacy blog for the lead
Tuesday, April 25, 2006
Things are crook in Crookwell
Sir Humphrey would be proud of this effort.
The Crookwell Gazette reports the difficulties facing the Upper Lachlan Shire Council in dealing with FOI applications: two applications in January and unless these things stop "its likely to have a direct impact on other large jobs such as the Taralga Sewer Scheme and the Frail Aged Facility". (They're probably dealing with more than two requests but we just could'nt resist this).
This report suggests that some of the councillors have a pretty good understanding of the need for transparency and accountability, as does the apparent applicant, the Gunning Sustainable Development Association.
Council staff might need a refresher on Council obligations under the Local Government Act and the Environmental Planning and Assessment Act (not to mention the FOI Act) to disclose documents relevant to development control matters.
We don't get to see too many local and regional newspapers but if there are any more gems like this one out there we'd love to hear.
The Crookwell Gazette reports the difficulties facing the Upper Lachlan Shire Council in dealing with FOI applications: two applications in January and unless these things stop "its likely to have a direct impact on other large jobs such as the Taralga Sewer Scheme and the Frail Aged Facility". (They're probably dealing with more than two requests but we just could'nt resist this).
This report suggests that some of the councillors have a pretty good understanding of the need for transparency and accountability, as does the apparent applicant, the Gunning Sustainable Development Association.
Council staff might need a refresher on Council obligations under the Local Government Act and the Environmental Planning and Assessment Act (not to mention the FOI Act) to disclose documents relevant to development control matters.
We don't get to see too many local and regional newspapers but if there are any more gems like this one out there we'd love to hear.
FOI and Australia's wheat trade scandal
ABC’s Radio National Law Report today included a segment on FOI and the AWB scandal. The program includes a discussion with the Opposition spokesman on public accountability, Kelvin Thompson, about a series of FOI applications he has made for documents concerning communication between various ministers’ offices and AWB. He hasn’t got anywhere so far. The Department of Foreign Affairs and Trade told him that the application would involve examination of over 100 files and over 7000 folios and would be a substantial and unreasonable diversion of resources. As Thompson points out, all such documents have probably been catalogued and provided to the Cole Royal Commission so its hard to see why so much effort would now be required to respond. He is having another go, and applications to other ministers' offices are still to be dealt with.
The program also includes an interview with Rick Snell of the University of Tasmania who comments that one of the reasons why FOI applications of this kind chew up resources is that an agency looks at every line on every page trying to identify material that would justify an exemption claim - the exact opposite of what should be a general presumption in favour of disclosure.
One can only imagine the search for exemptions that would have been underway in the event of FOI applications for documents relevant to AWB’s trade with Iraq before all of this started to spill into the public domain. The Volker inquiry and the Cole Royal Commission have put the issues (or most of them) into the public domain. The usual suspects in the Federal FOI Act – damage to international relations, Cabinet documents, internal working documents, business affairs documents – would no doubt get a good workout. Only one of these exemptions (internal working documents) includes a public interest test. Its a fair guess that a lot of what has emerged as a result of the inquiries would never have seen the light of day.
The program also includes an interview with Rick Snell of the University of Tasmania who comments that one of the reasons why FOI applications of this kind chew up resources is that an agency looks at every line on every page trying to identify material that would justify an exemption claim - the exact opposite of what should be a general presumption in favour of disclosure.
One can only imagine the search for exemptions that would have been underway in the event of FOI applications for documents relevant to AWB’s trade with Iraq before all of this started to spill into the public domain. The Volker inquiry and the Cole Royal Commission have put the issues (or most of them) into the public domain. The usual suspects in the Federal FOI Act – damage to international relations, Cabinet documents, internal working documents, business affairs documents – would no doubt get a good workout. Only one of these exemptions (internal working documents) includes a public interest test. Its a fair guess that a lot of what has emerged as a result of the inquiries would never have seen the light of day.
Monday, April 24, 2006
Victorian privacy materials
The Victorian Privacy Commissioner's website has useful, up to date material on a wide range of privacy issues. Posted on 18 April is a copy of the latest edition of Privacy Aware (which includes a summary and comment on the NSW ADT case about the use of an official camera to take non work related photographs, the subject of an earlier blog on 15 March) and on 20 April a new Information Sheet on who is covered by Victoria's Information Privacy Act. The list makes interesting reading when compared with the scope of the NSW Privacy and Personal Information Protection Act - ministers and state owned corporations are not covered in NSW and the Police Service is exempt in respect of its policing functions.
Perhaps the NSW Law Reform Commission which has now been asked to examine the adequacy of NSW laws (see earlier blog ) will enlighten us on any special reasons for these NSW exemptions.
The Victorian Privacy Commissioner, not limited on jurisdictional issues regarding the Police has an investigation under way into Police disclosures of information which is the subject of a story in today's Herald Sun.
Perhaps the NSW Law Reform Commission which has now been asked to examine the adequacy of NSW laws (see earlier blog ) will enlighten us on any special reasons for these NSW exemptions.
The Victorian Privacy Commissioner, not limited on jurisdictional issues regarding the Police has an investigation under way into Police disclosures of information which is the subject of a story in today's Herald Sun.
Sunday, April 23, 2006
ADT privacy decision: no breach where another act requires disclosure
The ADT (NZ v Health Care Complaints Commission (2006) NSWADT 111) found no breach of privacy principles when the Commission, acting in response to a letter from NZ, informed the nurse complained about (NZ's sister) , that NZ had made a complaint about her. The Tribunal was satisfied that the Health Care Complaints Act required the Commission to inform the person concerned after a complaint had been recieved even though NZ had indicated that the information was provided on a confidential basis and the Commission decided not to investigate.
Perhaps as a result of this case the decision indicates that the Commission has changed its procedures to ensure that a person providing information fully understands the disclosure requirements before acting on a complaint.
The ADT may be coming to know NZ well as there were 7 cases involving a party identified in this way in the ADT last year!
Perhaps as a result of this case the decision indicates that the Commission has changed its procedures to ensure that a person providing information fully understands the disclosure requirements before acting on a complaint.
The ADT may be coming to know NZ well as there were 7 cases involving a party identified in this way in the ADT last year!
FOI in the news
Media reports based on FOI applications over the last week included:
The Australian 17 April – documents reveal that the NSW Government has spent $385,442 since 2003 on its trial of a digital TV channel “Channel NSW”. It seems not many viewers tune in to live traffic reports, weather forecasts and announcements from some government entities.
The Opposition points out that this trial is in stark contrast with the fact that the Premier seems to the only government leader anywhere in Australia who doesn’t have a website providing access to media releases and speeches. Most NSW ministers are in the same boat.
Although the Federal Government has its own weaknesses when it comes to transparency, the Prime Minister has set a high standard on his website which contains a very public record of everything he says about anything.
If you like I had never heard of Channel NSW you will find details here.
Daily Telegraph 19 April – Collapse of the Safe House Program in many Sydney suburbs.
Courier Mail 20 April – Plans for civilianisation of key Police operational jobs.
Daily Telegraph 20 April – Crime rife on University campuses (the headline writer seems to have got a little carried away here). The report had information about security incidents at Macquarie, Sydney and UNSW universities.
Tony Stephens in the Weekend edition of the Sydney Morning Herald (“Enemies in the corridors of power”) has a look at the history of the Herald’s relationship with government over its 175 year history. The article includes reference to the 1971 clash with the NSW government over Philip Arantz who blew the whistle about public deception over the Police clean up rate on major crime. (In our view Arantz should be regarded as the Godfather of FOI and protected disclosure legislation in this state). Stephens comments that the most serious clashes with government these days now centre on the law, in the areas of FOI, court suppression orders and extension of Police powers to access journalists records.
As always some links 'disappear' quickly from the free content.
The Australian 17 April – documents reveal that the NSW Government has spent $385,442 since 2003 on its trial of a digital TV channel “Channel NSW”. It seems not many viewers tune in to live traffic reports, weather forecasts and announcements from some government entities.
The Opposition points out that this trial is in stark contrast with the fact that the Premier seems to the only government leader anywhere in Australia who doesn’t have a website providing access to media releases and speeches. Most NSW ministers are in the same boat.
Although the Federal Government has its own weaknesses when it comes to transparency, the Prime Minister has set a high standard on his website which contains a very public record of everything he says about anything.
If you like I had never heard of Channel NSW you will find details here.
Daily Telegraph 19 April – Collapse of the Safe House Program in many Sydney suburbs.
Courier Mail 20 April – Plans for civilianisation of key Police operational jobs.
Daily Telegraph 20 April – Crime rife on University campuses (the headline writer seems to have got a little carried away here). The report had information about security incidents at Macquarie, Sydney and UNSW universities.
Tony Stephens in the Weekend edition of the Sydney Morning Herald (“Enemies in the corridors of power”) has a look at the history of the Herald’s relationship with government over its 175 year history. The article includes reference to the 1971 clash with the NSW government over Philip Arantz who blew the whistle about public deception over the Police clean up rate on major crime. (In our view Arantz should be regarded as the Godfather of FOI and protected disclosure legislation in this state). Stephens comments that the most serious clashes with government these days now centre on the law, in the areas of FOI, court suppression orders and extension of Police powers to access journalists records.
As always some links 'disappear' quickly from the free content.
PM's comments about national ID card took others in government by surprise
It’s not clear exactly what is going on behind the scenes regarding the Federal Government’s thinking about a national ID card. This article in the Age on 21 April, says that ministers and departments were taken by surprise by the Prime Minister’s public supportive comments, and that there are lots of reservations, on privacy and cost grounds. There is also scepticism about what, if any contribution a national ID card would make to national security.
ID cards are a hot topic in many countries as illustrated by these reports over the last few days from the UK, Canada and the Philippines.
Thanks to pogowasright for the lead
ID cards are a hot topic in many countries as illustrated by these reports over the last few days from the UK, Canada and the Philippines.
Thanks to pogowasright for the lead
Friday, April 21, 2006
Landmark privacy decision in abortion case
The Victorian Court of Appeal has ruled that the medical records of a woman who underwent a late term abortion in a public hospital must be provided to the Medical Practitioners Board in connection with its investigation into the conduct of the doctor in undertaking the procedure.
The case has dragged on for three years, received wide press coverage and has been highly controversial. The matter was brought to the attention of the Board by (former National Party and now Liberal Party) Senator Julian McGuaran, and was seen by some as part of an anti abortion campaign.
The Court of Appeal had to consider the privacy issues associated with confidential records relating to the treatment of the woman in a public hospital, and the claim by the hospital that it did not need to comply with an order to provide the records on the grounds of a public interest immunity claim. The Court rejected this argument confirming that public interest immunity to refuse to provide documents only applies where documents are governmental in character and disclosure would have an adverse effect on the proper functioning of the executive arm of government. It cites with approval two NSW decisions including a NSW Court of Criminal Appeal decision where it was held that public interest immunity did not apply to sexual assault counselling records of a patient at a public hospital.
The decision illustrates the qualified nature of a right to privacy. While the Court was of the view that the hospital’s argument regarding public interest immunity was ill conceived, the discussion includes reference to the need to balance privacy rights with other considerations including the conduct of the investigatory functions of the Board.
The decision includes [paragraphs 44 and 45] comment about the possible exemption claims that could apply if the documents were sought from the Board under FOI - there seems little doubt that the documents, in the absence of consent of the person concerned, would be exempt.
Another interesting aspect of the decision is the consideration of the application in this case of international human rights treaties and conventions.
The Hospital apparently is still considering the possibility of an appeal to the High Court
The case has dragged on for three years, received wide press coverage and has been highly controversial. The matter was brought to the attention of the Board by (former National Party and now Liberal Party) Senator Julian McGuaran, and was seen by some as part of an anti abortion campaign.
The Court of Appeal had to consider the privacy issues associated with confidential records relating to the treatment of the woman in a public hospital, and the claim by the hospital that it did not need to comply with an order to provide the records on the grounds of a public interest immunity claim. The Court rejected this argument confirming that public interest immunity to refuse to provide documents only applies where documents are governmental in character and disclosure would have an adverse effect on the proper functioning of the executive arm of government. It cites with approval two NSW decisions including a NSW Court of Criminal Appeal decision where it was held that public interest immunity did not apply to sexual assault counselling records of a patient at a public hospital.
The decision illustrates the qualified nature of a right to privacy. While the Court was of the view that the hospital’s argument regarding public interest immunity was ill conceived, the discussion includes reference to the need to balance privacy rights with other considerations including the conduct of the investigatory functions of the Board.
The decision includes [paragraphs 44 and 45] comment about the possible exemption claims that could apply if the documents were sought from the Board under FOI - there seems little doubt that the documents, in the absence of consent of the person concerned, would be exempt.
Another interesting aspect of the decision is the consideration of the application in this case of international human rights treaties and conventions.
The Hospital apparently is still considering the possibility of an appeal to the High Court
Thursday, April 20, 2006
FOI delivers but not without a battle
Now, this wasn't too difficult was it?
After a long and losing legal battle over an FOI application by Associated Press, the Pentagon has released the names of 558 detainees at Guantanamo Bay by posting the list on its website.
The sun continues to shine, and the earth continues to turn on its axis!
After a long and losing legal battle over an FOI application by Associated Press, the Pentagon has released the names of 558 detainees at Guantanamo Bay by posting the list on its website.
The sun continues to shine, and the earth continues to turn on its axis!
Defamation laws and claims of privacy
The Australian's Legal Affairs Editor Chris Merritt, takes issue with ABC's Media Watch summary of the likely impact of changes in defamation laws on claims for breach of privacy in the light of the new situation in most states that truth alone is a defence against an action for defamation.
What's a Cabinet document?
The NSW Cabinet Office has issued guidelines regarding aspects of the Cabinet document exemption (Clause 1 Schedule 1) of the NSW FOI Act. The guidelines address what constitutes a document “prepared for submission to Cabinet” and some of the circumstances in which a claim can be made for exemption on the grounds that disclosure would reveal information “concerning any deliberation or decision of Cabinet”. Guidance offered on the latter point is complex and contentious. The argument that a document prepared before Cabinet consideration of an issue would, if disclosed after the event, reveal a deliberation of the Cabinet is open to question and although supported by the Crown Solicitor is not the view taken in some ADT (and Queensland Information Commission) decisions.
The guidelines indicate a serious attempt to get some consistency in matters where the Cabinet exemption is being argued before the Administrative Decisions Tribunal - all state government agencies are to “ensure that they also retain the Crown Solicitor to act” whenever a Cabinet document claim is being challenged.
The guidance also refers to circumstances in which the Cabinet Office will issue a certificate under Section 22 of the Ombudsman Act that a document is a Cabinet document and therefore not subject to disclosure to the Ombudsman where a formal investigation under that Act is underway.
I can’t recall the last formal guidance offered by the Premier’s Department or the Cabinet Office on the interpretation of the FOI Act. As the Ombudsman’s last Annual Report (Chapter 10 page 127) noted, that office has been in dialogue with Premier’s since 1999 on updating the FOI Procedures Manual (last published in 1994) and hopelessly out of date in many respects. The Annual Report said that it had been agreed that the Cabinet Office would take responsibility for the update to be completed by the end of 2005 – another deadline that came and went.
Is this circular is a sign of things still to come?
Thanks to yesterday's item in the Stay in Touch column in the Sydney Morning Herald for this lead.
Meanwhile over at the ICAC they have uncovered who leaked draft Cabinet documents but couldn't reach a conclusion about the effects or corrupt conduct.
The guidelines indicate a serious attempt to get some consistency in matters where the Cabinet exemption is being argued before the Administrative Decisions Tribunal - all state government agencies are to “ensure that they also retain the Crown Solicitor to act” whenever a Cabinet document claim is being challenged.
The guidance also refers to circumstances in which the Cabinet Office will issue a certificate under Section 22 of the Ombudsman Act that a document is a Cabinet document and therefore not subject to disclosure to the Ombudsman where a formal investigation under that Act is underway.
I can’t recall the last formal guidance offered by the Premier’s Department or the Cabinet Office on the interpretation of the FOI Act. As the Ombudsman’s last Annual Report (Chapter 10 page 127) noted, that office has been in dialogue with Premier’s since 1999 on updating the FOI Procedures Manual (last published in 1994) and hopelessly out of date in many respects. The Annual Report said that it had been agreed that the Cabinet Office would take responsibility for the update to be completed by the end of 2005 – another deadline that came and went.
Is this circular is a sign of things still to come?
Thanks to yesterday's item in the Stay in Touch column in the Sydney Morning Herald for this lead.
Meanwhile over at the ICAC they have uncovered who leaked draft Cabinet documents but couldn't reach a conclusion about the effects or corrupt conduct.
Wednesday, April 19, 2006
New Matilda article on privacy as a human rights issue
My contribution on privacy as an element in the broad campaign for an Australian human rights bill appears in the 19 April edition of New Matilda. I'm afraid the free content won't tell you much and subscribers can read the lot.
Its a familiar refrain about the mess our privacy laws are in but I guess we won't see much change until the Australian and NSW Law Reform Commissions report (2008).
Comments and brickbats always welcome.
Its a familiar refrain about the mess our privacy laws are in but I guess we won't see much change until the Australian and NSW Law Reform Commissions report (2008).
Comments and brickbats always welcome.
NSW privacy laws: new review before last review completed
Well those waiting expectantly for the long overdue statutory review of the NSW Privacy and Personal Information Protection Act (required to be tabled in Parliament by November 2004) can now relax (or tear their hair out) and wait for a report by the NSW Law Reform Commission.
The Attorney General has written to the Commission setting out terms of reference for an inquiry into whether existing laws provide an effective framework for the protection of privacy. Presumably the Attorney General’s Department will have the results of its work on the topic since early 2004 at the ready.
It should take about 2 seconds for the Commission to consider two specific questions raised by the Attorney General: the desirability of privacy protection principles being uniform across Australia and the desirability of a consistent legislative approach to privacy in the Privacy and Personal Information Protection Act 1998, the Health Records and Information Privacy Protection Act 2002, the State Records Act 1998, the Freedom of Information Act 1989 and the Local Government Act 1993.
The answers to these questions are simply yes, and yes!
There will be great deliberation about another question: the desirability of introducing a statutory tort of privacy in New South Wales.
The Commission has been instructed to liaise with the Australian Law Reform Commission which is reviewing the Privacy Act 1988 (Cth) as well as other relevant Commonwealth, State and Territory agencies.
Don’t hold your breath.
If you were wondering why you hadn’t heard about this development last week its because its pretty hard to find. The letter from the Attorney General is on the Law Reform Commission website. It doesn’t rate a mention so far on the What’s new pages of the Government's Lawlink or Privacy NSW websites and we can’t locate any media release from the Attorney General.
The Attorney General has written to the Commission setting out terms of reference for an inquiry into whether existing laws provide an effective framework for the protection of privacy. Presumably the Attorney General’s Department will have the results of its work on the topic since early 2004 at the ready.
It should take about 2 seconds for the Commission to consider two specific questions raised by the Attorney General: the desirability of privacy protection principles being uniform across Australia and the desirability of a consistent legislative approach to privacy in the Privacy and Personal Information Protection Act 1998, the Health Records and Information Privacy Protection Act 2002, the State Records Act 1998, the Freedom of Information Act 1989 and the Local Government Act 1993.
The answers to these questions are simply yes, and yes!
There will be great deliberation about another question: the desirability of introducing a statutory tort of privacy in New South Wales.
The Commission has been instructed to liaise with the Australian Law Reform Commission which is reviewing the Privacy Act 1988 (Cth) as well as other relevant Commonwealth, State and Territory agencies.
Don’t hold your breath.
If you were wondering why you hadn’t heard about this development last week its because its pretty hard to find. The letter from the Attorney General is on the Law Reform Commission website. It doesn’t rate a mention so far on the What’s new pages of the Government's Lawlink or Privacy NSW websites and we can’t locate any media release from the Attorney General.
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