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Greenleaf, Graham --- "Nelson and Department of Education and Lobal (Third Party) (Qld)" [1995] PrivLawPRpr 21; (1995) 2(2) Privacy Law & Policy Reporter 33

NELSON AND DEPARTMENT OF EDUCATION AND LOGAN (THIRD PARTY) (QLD)

Information Commissioner (Qld), Decision No 94030, 18 November 1994

Freedom of Information Act 1992 (Qld) - 'personal information' - s 44(1) - 'reverse-FOI' application - s 46 - confidential information

This was a 'reverse-FOI' application by Nelson, who objected to the department's decision to give Logan access to documents concerning disputes affecting a high school Parents and Citizens Association (P&C). The three documents in issue were by Nelson and concerned Nelson and others being deposed as P&C office bearers, and their subsequent restoration to office.

Section 44 of the Qld FOI Act provides exemptions from disclosing 'information concerning the personal affairs of a person ... unless its disclosure would, on balance, be in the public interest'. 'Personal information' is not defined in the Act (contrast the definition in Sch 2 of the WA FOI Act, discussed below).

The Information Commissioner reiterated the approach he had taken in Re Stewart and Department of Transport (unreported, Information Commissioner, Qld, Decision No 93006, 9 December), where he said that 'information concerns the "personal affairs of a person" if it relates to the private aspects of a person's life', and 'that phrase has a well-accepted core meaning which includes: family and marital relationships; health or ill-health; relationships and emotional ties with other people; and domestic relationships or financial obligations'.

He also noted with approval the approach taken by Deputy President Hall in the Commonwealth AAT in Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 4 AAR 414 where he said that circumstances where a person is referred to in a document but the reference should not be considered to be to the person's 'personal affairs' would include 'correspondence signed in the course of one's business, profession or employment [and] documents signed by the secretary of a social club or sporting body'. He said that 'things done by a person in their representative capacity on behalf of another person, body or organisation, would not normally be said to relate to that person's "personal affairs"'. To similar effect, Eames J in University of Melbourne v Robinson [1993] 2 VR 177 said (in relation to the Victorian FOI Act) that the legislature meant to exclude from 'personal affairs' those aspects of a person's life 'relating to or arising from any position, office or other public activity with which the person occupies his or her time'.

Here, the Commissioner found that Nelson, in writing the letters in issue, did believe himself to be acting in a representative capacity, 'on behalf of those parents who originally elected him president' of the P&C. While this would be sufficient to make most of the matter under consideration not 'personal affairs', the Commissioner found that most of it did not relate to Nelson or any other individual, but rather to the affairs of the P&C.

There were two minor exceptions identified by the Commissioner, brief references in the letters to Nelson's relationships with other people, which 'hence do fall within the core meaning of the term "personal affairs"'. The Commissioner noted that the Commonwealth AAT in Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533 had recognised that matter which is not ordinarily 'personal affairs' (for example, assessment of a person's work performance) could contain references to personal affairs (for example, a person's health or personal finances), which would be exempt matter. Here, the Commissioner held that both items under consideration did concern Nelson's personal affairs, and that in neither case did the public interest, on balance, justify disclosure.

The Commissioner also rejected the claim that the documents were confidential (the s 46 exemption). He found that the documents were not confidential in nature, partly because, in gathering signatures for a petition supporting the letters, there was no suggestion that the letters were confidential. Furthermore, there was no evidence that the letters were communicated in confidence to their recipients. In fact, the circumstances suggested that they were provided to the Department to assist it to resolve a dispute of a public nature, if necessary, by disclosing the letters to others.

Graham Greenleaf


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