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Greenleaf, Graham; Wynter, Marie --- "Commissioner of Police v District Court of NSW and Anor" [1994] PrivLawPRpr 57; (1994) 1(4) Privacy Law & Policy Reporter 72

Commissioner of Police v District Court of NSW and Anor

Court of Appeal of NSW, Kirby P, Mahoney and Clarke JJA, unreported, 2 September 1993

Freedom of Information Act 1989 (NSW) - availability of judicial review - Sched 1, cl 6 - ''personal affairs' - identity of police officers

In 1990 the NSW Commissioner of Police (the Commissioner) supplied information compiled by NSW police officers to the Criminal Justice Commission of Queensland. The Commission was inquiring into the gaming industry and some of the information supplied related to Mr Ainsworth and the Ainsworth Group of companies. Mr Ainsworth objected to the release of this information and as a result an inquiry took place and a report was made. Mr Ainsworth applied for further information concerning the report including ''Access to the names of police officers responsible for the supplying or preparing of that information.'

The Commissioner complied with the request for further information, but deleted the names of each officer responsible for the supplying or preparing of that information. He stated this information was exempted by cl 6, Sched 1, Freedom of Information Act 1989 (NSW): ''A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).'

Mr Ainsworth appealed against the Commissioner's decision to the District Court of NSW. Bell DCJ found that the deleted names did not constitute ''information concerning the personal affairs of any person' and that ''the disclosure of that information would not be unreasonable'. He ordered the release of the names.

The Commissioner made an application for judicial review by the prerogative writ of certiorari to the Supreme Court, arguing that Bell DCJ had misconceived the import of cl 6, and therefore made an error of law on the face of the record. The Supreme Court unanimously rejected the Commissioner's application.

Judicial review and the FOI Act

The FOI Act makes no provision for appeal to the Supreme Court following a decision of a District Court reviewing the determination of an ''agency' (here, the Commissioner of Police). The Supreme Court may, however, review the decision of the District Court in proceedings in the nature of certiorari for an error of law on the face of the record.

Held (1) by the court: The ''record' of the District Court for this purpose includes the court's judgment and reasons for decision, and (per Kirby P) the affidavits referred to in the originating process also form part of the ''record'.

In obiter dicta, Kirby P was of the view that ''other materials which were before the District Court were also part of the record as being necessary (or at least relevant) to understand the reasons and the orders which those reasons sustained', the approach taken in the UK in R v Lord President of the Privy Council; ex parte Page [1992] 3 WLR 1112 (HL). Mahoney JA was of the view that the evidence presented to the District Court does not form part of the record, but noted that there had been no definitive consideration of the matter by the High Court.

Are names ''personal affairs'?

The Commissioner had argued that the names of officers and employees of agencies are personal, so a disclosure of their names involves making a disclosure of information which concerns their ''personal affairs' per cl 6. The fact that they work for the Police Department should not affect this. All officers and employees of the Department have a right to privacy and, if they so desire, should be able to proceed in their work without the need for unnecessary disclosure of their involvement in particular decisions. The FOI Act was intended to allow access to government documents, not to undermine the ''traditional anonymity' of public servants. The court should protect the privilege of individuals to keep their employment to themselves, at least to the extent of testing whether the disclosure of particular information is reasonably necessary.

Held (2) by the court: The name of a person is not necessarily information concerning personal affairs. It is a question of fact in the circumstances of the case (Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 approved; Re Cremmen v Frankston Hospital (1989) VAR 7 not followed).

The court rejected the proposition that the disclosure of a person's name will always amount to a disclosure concerning their ''personal affairs'. Whilst it is information concerning the person, it does not necessarily concern their ''personal affairs' namely ''matters of private concern to an individual' (see Re Corkin v Department of Immigration and Ethnic Affairs (1984) 2 AAR 214). The Victorian Administrative Tribunal has held that the name of a person is information relating to their personal affairs (Re Cremmen v the Frankston Hospital (1989) VAR 7). Here the court took the view that it is a question of fact to be decided on the circumstances of the case.

Held (3) by the court: In the circumstances of this case, the disclosure of the personal identity, including the names, of the police officers performing duties in accordance with their role as such, did not involve disclosure of information concerning the personal affairs of those officers. As a result, the names of the police officers were not exempt per cl 6 of Sched 1 of the FOI Act.

Per Kirby P: ''The words "personal affairs" mean the composite collection of activities personal to the individual concerned" (Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533 (FC) considered). ''[T]he name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the ''personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency'.

Here, the persons who prepared and supplied the information requested did so in their professional capacity as police officers. Their names were attached to the documents as part of their duties as police officers. To disclose their names would be to disclose ''no more than the identity of officers and employees of an agency performing such duties'. Disclosing that a person works for a particular agency is not, except in exceptional cases, disclosing an aspect of their ''personal affairs'. Kirby P considered that to disclose information such as their personnel records or health reports would be to disclose their personal affairs; to disclose that they are an officer or an employee of the Department would not. That a person is an officer or employee of an agency is ''not that person's affairs but the affairs of the agency'.

Held (4) by the court: No error of law was shown on the face of the record in this respect.

The judgment of Kirby P involved a wide-ranging discussion of aspects of the meaning of ''personal affairs'. He noted that cl 6 was designed to protect the individual's right to privacy, that right being assured by international human rights instruments including the International Covenant on Civil and Political Rights (ICCPR) Art 17. While the clause was normally invoked to protect the privacy of persons external to the agency holding the information, officers and employees of the agency also fell within its scope.

He considered that there is no general principle protecting the ''traditional anonymity' of public servants applicable in NSW (Re Perton and Department of Manufacturing and Industry Development (1991) 5 VAR 149 not followed). He noted the Minister's Second Reading Speech of the FOI Act in which he stated that the Act is intended to prevent the public's ''feeling of powerlessness' occurring from the fact that many of the decisions which ''vitally affect their lives' are taken by ''anonymous public officials'. Mahoney JA did not find it necessary to decide the point, but said that no such principle would be based on a desire to protect the private affairs of public officers - its basis would lie elsewhere. Kirby P also indicated that he felt the FOI Act was tilted in favour of disclosure and should be approached by decision makers as such, although he did not decide on this point.

''Unreasonable' disclosure

Held (5) by the court: As the names were not information concerning ''personal affairs', the question of the ''unreasonableness' of the disclosure did not arise. No error of law on the face of the record had been shown in that regard. The decision of Bell DCJ was therefore upheld.

Although the court did not decide on the reasonableness or otherwise of the disclosure, it did comment on one element tangential to it. The Commissioner had argued that the motives of the applicant should be a relevant consideration when determining the ''reasonableness' of the disclosure. Kirby P noted that the Victorian Administrative Tribunal has considered the motives of the applicant to be relevant, but pointed out that this approach has been criticised. Mahoney JA stated that where the motive is solely for the harassment of the individual concerned, care would have to be exercised by the court, but it was not necessary to decide here whether motive would be relevant to deterring reasonableness.

Clarke JA considered that if ''the applicant wished the information for mischievous purposes it would undoubtedly be relevant' for a tribunal to take this into account in deciding ''unreasonableness'. However he rejected the Commissioner's submission that if an agency brought any evidence to support the existence of detriment to the person about whom information was being requested, and the opposing party provided no evidence in support of disclosure, then the request for disclosure should always be denied. There was no error of law by the District Court in not taking the approach favoured by the Commissioner.

Comment

Given that there is no provision in the NSW FOI Act for appeal to the Supreme Court on matters of law (contra the Freedom of Information Act 1982 (Cth) where appeals are available to the Federal Court), it is significant that the court is taking a broad view of the availability of judicial review because of error of law on the face of the record.

The Court of Appeal has interpreted ''information concerning ... personal affairs' as having a narrower meaning than ''personal information' (information about an identifiable person). The same result could have been reached in this case by the court deciding that such a disclosure was not ''unreasonable', even if it did concern ''personal affairs'. The potential problem with the approach taken by the court is that individuals can only obtain amendment to records containing information concerning their ''personal affairs' (s39 and s48). A narrow reading of ''personal affairs' therefore involves a danger that amendment rights will also be unnecessarily limited (see Greenleaf ''The expression "personal affairs" corrupts privacy protection' 63 ALJ 561-64). The Commonwealth Act no longer has this problem, because s48 (the amendment right) has been amended to refer to ''personal information' rather than ''personal affairs', and 'personal information' has been given the same broad definition (s4) as in the Privacy Act 1988 (Cth)

Graham Greenleaf, and Marie Wynter, a post-graduate research student at the Faculty of Law, University of New South Wales.


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