Greenleaf, Graham --- "Queensland v Albietz (Information Commissioner) and Murphy" [1995] PrivLawPRpr 83; (1995) 2(7) Privacy Law & Policy Reporter 132

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Queensland v Albietz (Information Commissioner) and Murphy

Supreme Court of Queensland (de Jersey J), 6 October 1995

Freedom of Information Act 1992 (Qld) - disclosures which 'could reasonably be expected to ... endanger a person's life or physical safety' -meaning of 'personal affairs'

Murphy applied for access to the land tax file relating to the dealings of a company of which he was a director. The Under Treasurer decided to grant access to documents but deleted from them the names of departmental officers involved in various investigations. The Information Commissioner set aside the departmental decision, and determined that Murphy should have access to the whole documents. The State of Queensland applied to the Supreme Court, under the Judicial Review Act 1991 (Qld), to set aside the Commissioner's decision. The three grounds relied on by Queensland were rejected by de Jersey J.

Under s 42(1)(c) of the FOI Act, matter is exempt if its disclosure 'could reasonably be expected to ... endanger a person's life or physical safety'. His Honour held that these words 'obviously required an objective assessment by the Commissioner', so the Commissioner had not misinterpreted the Act in taking account of matters which the departmental officers were likely to have been unaware.

Under s 44(1), matter is exempt if 'its disclosure would disclose information concerning the personal affairs of a person ... unless its disclosure would, on balance be in the public interest'. The Commissioner had held that disclosing the names of the departmental officers would not disclose information concerning their 'personal affairs', following the NSW Court of Appeal in Commissioner of Police v Perrin (1993) 31 NSWLR 606 (see 1 PLPR 72), declining to follow contrary decisions by the Victorian AAT (including re Simons v Victoria Egg Marketing Board (1985) 1 VAR 54 and re Perton v Department of Manufacturing and Development (1991) 5 VAR 149). Justice de Jersey held there was 'no basis on which I should depart from that highly persuasive, unanimous decision [in Commissioner of Police v Perrin ] on legislation in relevantly identical terms. In fact it accords with my own interpretation of the provision'.

Murphy had stated that his motive for seeking the names of the officers concerned was to sue them for defamation. Such matters were irrelevant once it was decided that the information in question did not relate to 'personal affairs'. There was no basis for the Commissioner to proceed to consider whether the disclosure was, on balance, in the public interest.

The Commissioner was also held not to have denied the Department natural justice.

Comment

Queensland has decided not to appeal.

The result in this case seems fair, as did the results of similar decisions by the Queensland Commissioner in Nelson and Department of Education and Logan (1995) 2 PLPR 33 and Byrne and Gold Coast City Council (1995) 2 PLPR 92. However, this restrictive interpretation of 'personal affairs' in the Queensland and NSW Acts is not without its dangers. Since correction rights are also limited to information concerning a person's 'personal affairs' (for example, Freedom of Information Act 1989 (NSW) s 39), there is a danger that matters which are not regarded as 'personal affairs' such as assessments of work performance (see Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533) might be uncorrectable though inaccurate. FOI Acts which use the expression 'personal information' rather than personal affairs (for example, WA or the amended Commonwealth Act) do not have this problem.

Graham Greenleaf