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Privacy Law and Policy Reporter (PLPR)
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Waters, Nigel --- "FOI up for review" [1994] PrivLawPRpr 120; (1994) 1(8) Privacy Law & Policy Reporter 154

FOI up for review

Australian Law Reform Commission and the Administrative Review Council Freedom of Information - Issues Paper 12, September 1994

Twelve years after the passage of the Commonwealth Freedom of Information Act in 1982, and six years after the Privacy Act 1988, the relationship between FOI and privacy law is now under review.

The Australian Law Reform Commission (ALRC) and the Administrative Review Council (ARC) are responding to a request from the Minister for Justice, Duncan Kerr MP, to review the FOI Act. The Minister specifically requested consideration of a possible extension of the FOI Act to cover the privatesector. In an issues paper launched by the Minister for Justice on 14 October, the ALRC and ARC invite submissions, by 16 December, on a wide range of matters, including

  1. The privacy objective of the Act defined as its provision of a right of access and correction to personal information.
  2. The operation of the ''third party' personal information exemption (s41 and s27A).
  3. The relationship with the Privacy Act including the possibility of re- locating the personal information access and amendment provisions of the FOI Act into the Privacy Act.
  4. The arguments for and against extending the personal information access and amendment rights into some or all parts of the private sector.

The paper draws a useful distinction between the privacy objective of the FOI Act and what it describes as the ''democratic' objective, encompassing goals of participation, open government and accountability. Although records on FOI Act usage are incomplete, it appears that the bulk of requests are for access to personal information. The paper cites criticism that the focus on meeting the privacy objective diverts attention from, and arguably undermines, the achievement of the broader democratic objective. The paper also asks questions about the extent to which administration of the Act has come to be dominated by the exemption provisions (including a necessary concern for protecting the privacy of third parties), possibly to the detriment of both primary objectives.

In raising the question of the relationship between the personal information provisions in the FOI and Privacy Acts, the paper acknowledges the significantly different enforcement and review provisions, which would need to be overhauled if there was to be any rationalisation.

The other aspect of the paper of particular relevance to privacy is the discussion of the possible extension of FOI legislation to the private sector. There is discussion of accountability arguments for an extension in relation to non-personal information (particularly in areas such as health and safety and environmental impact), and commentary on the likely contrary arguments. This chapter of the paper also deals, somewhat briefly, with the pros and cons of extending personal information access and correction rights.

The paper acknowledges the trend towards provision of these rights in specific industry sectors, either by statute (for example, the credit reporting provisions of the Privacy Act) or by self regulation (for example, in banking, telecommunications and insurance). Reference is also made to overseas experience, and particularly to the comprehensive NZ Privacy Act 1993 which gives enforceable rights of access and amendment in relation to personal information held in both the public and private sectors.

The paper highlights the current anomaly whereby certain types of personal information (for example, medical records) may be accessible if they happen to be held by a public authority but not (in this example) by a doctor or private hospital. There is a growing momentum towards access to personal health records (notwithstanding the recent NSW Supreme Court decision in Breen v Williams see (1994) 1 PLPR 141 which affirmed ownership by a doctor of medical records, and rejected the claims of a patient for access), and similar pressures from consumers in many other areas.

Although the paper is largely successful in separating the personal privacy and democratic objectives of FOI legislation, the distinction may be less clear in the brief chapter on extension to the private sector. It is to be hoped that submissions on the issues paper will be able to discuss the arguably better- established case for personal access and correction rights without getting caught up in the newer and possibly more contentious issues surrounding commercial confidentiality and private sector accountability.

The paper makes the point that ''If an individual is unable to ascertain the basis upon which decisions that affect him or her were made, he or she may be denied his or her rights under (anti-discrimination) legislation'. This point is equally applicable to a broader view of consumer rights that are necessary for markets to operate effectively, and is also one of the key principles underlying privacy legislation around the world.

The ALRC-ARC paper provides a valuable opportunity for a discussion of the co- incidence of trends in protection of human rights, including privacy safeguards, and consumer protection.

After analysing submissions on the issues paper, the ALRC and ARC plan to release a further discussion paper around March 1995, and will be reporting to the government by the end of that year. Copies of the issues paper can be obtained from the ALRC Tel: (02) 284 6333, fax: (02) 284 6363, or by writing to GPO Box 3708, Sydney, 2001

Nigel Waters


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