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Greenleaf, Graham --- "Inquiry: Access to severance payment details (British Columbia)" [1994] PrivLawPRpr 118; (1994) 1(8) Privacy Law & Policy Reporter 153

Inquiry: Access to severance payment details (British Columbia)

Information and Privacy Commissioner, British Columbia (Commissioner Flaherty), Inquiry re: A request for access to records of the Ministry of Health and Ministry Responsible for Seniors Order No 24-1994, 27 September 1994

Disclosure of personal information concerning third parties - onus of proof -Freedom of Information and Protection of Privacy Act (BC) s57(2) and s22.

A reporter, Ms Appelbe, sought access from the Ministry of Health to the severance packages awarded to non-union employees following the closure of a hospital. The Ministry argued that disclosure would constitute an unreasonableinvasion of the privacy of former employees of the hospital. Under s57(2) of the Freedom of Information and Protection of Privacy Act (BC), the applicant has the burden of proof to demonstrate that this is not so. The Commissioner decidedthat even if s22(3) (which provides that certain disclosures are presumed to beunreasonable) was prima facie applicable, s22(4) (which deems certain disclosures not to be unreasonable) was applicable because the disclosure was authorised by an enactment (theFinancial Information Act) (s22(4)(c)).

The answer was therefore to be found in a consideration of the factors set outin s22(2) (a non-exhaustive list of circumstances to be taken into account in determining whether disclosure of personal information is unreasonable). TheCommissioner held that the circumstance in s22(2)(a), that ''the disclosure is desirable for the purposes of subjecting the activities of the government of British Columbia or a public body to public scrutiny' applied here, whereas thecircumstance in s22(2)(e) that ''the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant' did not apply. The Commissioner commented, in explaining his decision on these points:

I am moved, in this particular case, by the need for the public, through the media, to learn more about how public funds are spent on such matters as severance payments, since there appears to be considerable public suspicion and political concern about such matters as double-dipping. One of the fundamental purposes of the Act is to promote scrutiny of expenditures from the public purse and, thereby, seek to ensure accountability of the taxpayers. ... This will sometimes result in detailed scrutiny of a particular person; that is a risk run by all of us who are paid from the public purse. ... I am well aware from other aspects of my work as Information and Privacy Commissioner that some politicians, editorialists and members of the general public are quite enthusiastic about data-matching of public records to identify double-dipping among those on income assistance and other alleged forms of criminal fraud. Those targeted are among the less fortunate in our society. In both the US and Canada such tracking measures are rarely used against the ''haves' as opposed to the ''have nots'. Recipients of severance payments from public funds deserve at least as much scrutiny as recipients of income assistance payments from the Ministry of Social Services.

The Commissioner therefore concluded that the disclosure of severance payments would not ''unfairly' damage reputations.

Comments

Commissioner Flaherty's comparison between the role of the media in revealing abuses by those who make and apply the rules, and the role of data-matching in revealing abuses by those who are the clients of bureaucracies is very different from the type of reasoning in FOI cases that we would expect from an Australian court or tribunal.

British Columbia's Freedom of Information and Privacy Association (FIPA) made submissions in the inquiry. It would be difficult for an equivalent Australian organisation to obtain a hearing in the AAT or the Federal Court because of our rules concerning standing

Graham Greenleaf


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