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Greenleaf, Graham --- "Bray v Workers Rehabilitation and Compensation Corporation" [1994] PrivLawPRpr 103; (1994) 1(7) Privacy Law & Policy Reporter 130

Bray v Workers Rehabilitation and Compensation Corporation

Supreme Court of South Australia, Full Court (King CJ, Bollen and Mulligahan JJ)

30 March 1994 Freedom of Information Act 1991 (SA) - ''personal affairs' - s40 ''person ... dissatisfied' - Sch 1 cl 13(a) document exempt if disclosure breach of confidence - compulsorily acquired information

A loss adjuster, R, when investigating S's claim for compensation, informed Bray and Smith that they were required to assist him in his investigations pursuant to s110 of the Worker's Compensation and Rehabilitation Act 1986 (SA). They understood from R that the information was given to him in confidence and only to be used for the purpose of determining the validity of S's claim. R made a report to the Corporation (WorkCover) which contained details provided by Bray and Smith.

S applied to WorkCover for access to R's report under the Freedom of Information Act 1991 (SA). Pursuant to s26 (the ''reverse FOI' provisions), WorkCover sought Bray and Smith's views before releasing the documents. WorkCover then made a determination refusing access to those parts of R's report that referred to statements by Bray and Smith. The Ombudsman, pursuant tos39(3)(b), directed that the WorkCover determination was not properly made and directed release of specified sections of R's report. WorkCover then made a further determination, complying with the Ombudsman's direction, and Bray and Smith appealed against that determination to the District Court, pursuant to s40.

At the request of the parties, aspects of the matter then went to the Full Court on a case stated. Bollen J, with whom King CJ and Mulligahan J agreed, held as follows.

A ''person ... dissatisfied' (s40)

Only ''a person ... who is dissatisfied with a determination' of an agency may appeal against the determination to a District Court (s40). There is no definition of ''person who is dissatisfied'. Bollen J held that Bray and Smith did have standing to appeal as ''persons dissatisfied', because they are persons on whom the determination has a greater effect than on ordinary members of the public (following Broadbridge v Stammers (1987) 76 ALR 339) in that "they face the prospect of being shown to be 'tell tales' ... [and] will suffer the scorn (at least) of other workers".

An alternative reason for granting Bray and Smith standing, based on their having a right to be consulted under s26, was rejected on the grounds that the document did not contain any information about their personal affairs.

Breach of confidence exemption

A document is exempt from disclosure if it contains matter, ''the disclosure of which would found an action for breach of confidence' (Sch 1 cl 13(a)). Bollen J held that, as the information had been obtained by compulsory powers under statutory provisions, it was held by WorkCover subject to a statutory duty of confidence (applying Johns v ASC (1993) 116 ALR 567). It was therefore exempt from disclosure.

The other exemption relied upon (cl 9(1)) and only applied to disclosures ''which would, on balance, be contrary to the public interest. Bollen J held that such ''weighing in the balance' was a question of fact, not law, and the appeal was therefore incompetent. The breach of confidence exemption was not subject to any such public interest test.


Bollen J does not appear to determine the issue of the breach of confidence exemption on the basis of the express undertaking of an obligation of confidentiality (the promise of secrecy), but rather on the basis of the implied statutory obligation of confidence. The implications of Johns v ASC (see (1994) 1 PLPR 1 - and (1994) 1 PLPR 10) for the interpretation of all ''breach of confidence' exemptions in freedom of information laws (such as Freedom of Information Act 1982 (Cth) s45(1)) have quickly become apparent as a result of this case.

Any compulsorily acquired personal information will normally (subject to the reservations expressed in Johns v ASC) be exempt from disclosure under FOI laws. This will occur without need for any resort to any ''personal privacy' exemptions, which are usually conditional upon the disclosure being 'unreasonable' (for example, s41 of the Commonwealth Act). In this case, any attempt by Bray and Smith to resort to the ''personal affairs' exemption would have failed. Johns v ASC may therefore result in a higher standard of privacy protection in freedom of information laws than would otherwise be the case

Graham Greenleaf

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