Privacy Law and Policy Reporter
The Australian Law Reform Commission and the Administrative Review Council are reviewing the Freedom of Information Act 1982 (Cth). They recently released a discussion paper (DP 59) proposing a number of reforms designed to make the FOI Act more accessible and effective. This article briefly outlines some of the privacy issues addressed in the paper.
The vast majority of FOI requests are for the applicant's own personal information. This highlights the duplication between the FOI Act and the Privacy Act, which also provides for access to personal information. Both Acts also provide for correction of personal information.
The FOI issues paper released by the Commission and Council in October 1994 asked whether this duplication of access and amendment should be eliminated by removing the relevant provisions from the FOI Act. The question elicited a mixed response. Some people consider the current duplication an historical accident and support a rationalisation but others strongly oppose it on the basis that access and amendment rights are as much about open and accountable government (that is, FOI) as about privacy.
Problems that might arise from the current overlap are avoided largely because the Privacy Commissioner has to date chosen to leave access and amendment requests to be dealt with in accordance with the FOI Act. The Commission and the Council consider that the overlap should be addressed. The discussion paper does not, however, propose an immediate rationalisation. Instead, it suggests that legislation dealing with government information practices should, in the medium term, be rationalised by combining the FOI Act, the Privacy Act and the Archives Act into a single Act. Combined FOI and Privacy Acts already exist in other jurisdictions, for example, several Canadian provinces.
The paper makes several proposals to bring the amendment provisions in the FOI Act more into line with those in the Privacy Act. It also proposes that access to one's own personal information be free.
FOI and privacy can conflict: one person's right to information may impinge on another's right to privacy. Both the FOI Act and the Privacy Act restrict access to the personal information of third parties (see s 41 and IPP 11 respectively) but not in the same way. The paper proposes that s 41 of the FOI Act be re-worded more like IPP 11 and to provide more guidance to agencies in determining whether a document is exempt on the ground of breach of privacy. It proposes that there be restrictions on what personal information is exempt under s 41. For example, documents that would reveal the name or position of a public official should not be exempt.
Where an FOI request covers third-party personal information, the agency must consult the third party if he or she might reasonably wish to contend that the information is exempt. Because consultation can be very time consuming and delay the processing of an FOI request, it is important that it only be undertaken where necessary. The proposed exceptions to s 41 would reduce the need for consultation. The paper makes several other suggestions to reduce unnecessary consultation, including that agencies try to ascertain whether an applicant wants access to the third-party personal information
covered by his or her request before consulting the third party. If the applicant is not interested in the information, it could be deleted and the request finalised quickly.
Requests for joint personal information can be problematic if the third party does not want the applicant to have access to the information. Such requests are yet another example of the need to balance one person's FOI rights against another's right to privacy. The Commission and the Council consider that there is a public interest in people having access to their own information and propose that this be stated in the FOI Act. The paper also proposes that it should be open to argument that the public interest in disclosure outweighs a possible breach of privacy. These two proposals would enable an applicant to argue that the public interest in him or her getting his or her personal information outweighs the potential breach of the other person's privacy.
The Commission and the Council were asked to consider whether the FOI Act should extend to the private sector. Their preliminary view is that it should not but that people should be able to gain access to information about them held by private-sector bodies. The paper proposes that the Privacy Act should be extended to the private sector but only become enforceable in a particular industry if and when the Privacy Commissioner issues a code in respect of that industry.
Copies of DP 59 can be obtained free from the Commission by calling Bridie Healy on (02) 284 6304.
Frith Way, ALRC