Greenleaf, Graham --- "Stwart v Telstra - AAT" [1994] PrivLawPRpr 66; (1994) 1(5) Privacy Law & Policy Reporter 90

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Stewart v Telstra - AAT

Administrative Appeals Tribunal (Cth), No. N93/270 AAT, Deputy President McMahon, 15 April 1994, available on LEXIS, SCALE Freedom of Information Act 1982 (Cth), s41 - ''unreasonable disclosure of personal information'

The applicant, Stewart, was a former employee of the respondent (Telecom by another name). Stewart had been investigated by the NSW Independent Commission Against Corruption (ICAC) during ''Operation Tamba' concerning the unauthorised release of subscriber information held by Telecom, during which ''he gave evidence that whilst employed with organisations other than the respondent (as well as on occasions during the course of his employment by the respondent), he provided information which had been obtained from the records of the Roads and Traffic Authority (RTA) to a firm of private investigators', on occasions for a fee. He was subsequently charged with a total of ten offences of misconduct, five relating to the disclosure of subscriber information and five relating to the disclosure of RTA information. After an inquiry by the respondent's delegate, before which the applicant declined to place information, the delegate found two of the first five charges and three of the second lot of charges proven. An appeal by the applicant to the respondent's Disciplinary Appeal Board (DAB), a body established under an industrial award, was pending at the time this matter was heard.

Part of Stewart's appeal was his allegation that the release of information on subscribers was ''condoned (and even encouraged) by his superiors'. He also sought to argue that other Telecom employees, who had given similar evidence to ICAC, had not been disciplined at all. To support his case, in the absence of any subpoena procedure before the DAB, the applicant sought access under the Freedom of Information Act (FOIA) to documents held by the respondent. Telecom claimed exemption under s41(1), which provides that a document is exempt if its disclosure would involve ''the unreasonable disclosure of personal information about any person (including a deceased person)'. ''Personal information' is defined in s4 to mean ''information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion' (the same definition as in the Privacy Act 1988 (Cth)). It was not in dispute that the documents to which access was sought would disclose the names of various employees of Telecom's protective security division who had given evidence to ICAC (but who had not necessarily been under investigation themselves), and that this information would constitute ''personal information'.

Telecom claimed that the disclosure of these employees' names in the documents would be unreasonable as it ''might subject the person so named to criticism or suspicion as to whether or not those persons were themselves guilty or suspected of improper conduct'. Deputy President McMahon held that ''the real interests of the applicant far outweigh the fanciful concern for the protection of other unknown investigators. The balance of reasonableness justifies the disclosure of what is otherwise admitted to be personal information.' The claimed s41(1) exemption was rejected. He also rejected a claimed exemption under s40 (concerning adverse affects on the agency's personnel management or operations).

Deputy President McMahon noted that there is, as yet, no Federal Court decision concerning s41 since 1991 when amendments to the Act replaced the words ''personal affairs' with ''personal information' and inserted the definition of ''personal information'. ''There can be no doubt, however, that the decision of a Full Court of the Federal Court in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; 100 ALR 111 still states the correct basis for approaching the decision as to whether disclosure would be unreasonable.' In that case, Lockhart J said: What is "unreasonable" disclosure of information for purposes of s41(1)

must have as its core public interest considerations. The exemptions necessary for the protection of "personal affairs" (s41) and "business or professional affairs" (s43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in s41 and s43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.'

In Colakovski Heerey J said: Turning to the criterion of unreasonableness prescribed by the s41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary to order to make out the s41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would enure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.

Graham Greenleaf