Timmins, Peter --- "Decisions on the 'personal affairs' exemption in NSW FOI" [2003] PrivLawPRpr 29; (2003) 10(3) Privacy Law and Policy Reporter 43

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Decisions on the ‘personal affairs’ exemption in NSW FOI

Peter Timmins INFORMATION CONSULTANT

This article is an extract of a paper presented to a seminar organised by the Australian Institute for Administrative Law in Sydney in May 2003.

There have been many cases in the NSW Administrative Decisions Tribunal (ADT) that deal with the personal affairs exemption (cl 6 Sch 1) under the New South Wales Freedom of Information Act 1989 (FOIA). While the meaning of ‘personal affairs’ has been clarified, the Tribunal has not taken a consistent approach to what constitutes the ‘unreasonable’ disclosure of such information.

The basis for decisions in the ADT about the meaning of the term ‘personal affairs’ are comments made by the then President of the Court of Appeal in Commissioner of Police v District Court (1993) 31 NSWLR 606 (Perrin’s case) — while the term cannot be precisely or exhaustively defined, the words mean ‘the composite collection of activities personal to the individual concerned’.

In the Perrin case information that would reveal the names of police officers carrying out functions associated with their official duties was held not to relate to their personal affairs.

The ADT has previously held that names of agency employees on a petition and comments endorsed by them about another employee did not constitute the personal affairs of the petitioners or the person the subject of the comment (Deputy President Hennessy in Woods v State Rail Authority [2002] NSWADT 253). Similarly, the names of public servants in other contexts that do not reveal personal information have been held not to relate to their personal affairs (for example Robinson v Department of Health [2002] NSWADT 222).

It is clear that the term ‘personal affairs’ covers a narrower range of information than ‘personal information’, the term used in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA).

ADT consideration of what constitutes ‘unreasonable’ disclosure of information concerning a person’s personal affairs to another person has produced some differences between Tribunal members, as illustrated in the following approaches.

Judicial Member Robinson has stated that in weighing factors relevant to ‘unreasonable’ disclosure of information concerning a person’s personal affairs, the Tribunal must have regard to all the factors in the particular case. At its core unreasonableness involves public interest considerations. A fundamental aspect of this will be whether withholding the document is ‘reasonably’ necessary for the proper administration of the government (Gliksman v Health Care Complaints Commission [2001] NSWADT 47).

While it is clear that the motive or interest of an applicant in making an FOI application is irrelevant, some cases have been decided on the basis that the particular interest or motive of the applicant is a relevant matter in deciding whether disclosure is reasonable or unreasonable in the circumstances.

In Gilling v Hawkesbury Council (1999) NSWADT 94 Judicial Member Flemming said that in weighing whether disclosure was unreasonable there was a need to weigh public interest factors for and against disclosure. The ADT accepted that the applicant’s motive in seeking access to details of those who had complained to the Council about her was ‘to better understand the complaint and be able to respond to it. This is not an unreasonable purpose’ and disclosure was consistent with the objects of the Act. Deputy President Hennessy had followed a similar line of reasoning in another case involving the same parties ([1999] NSWADT 43).

In another case the ADT found that an application for access to the details (names and addresses) of holders of licences issued by the National Parks and Wildlife Service to cull flying foxes in order to protect their commercial orchards did not involve the unreasonable disclosure of information concerning their personal affairs. An important consideration in weighing unreasonableness was the motive of the applicant, who was planning to undertake research and observe the effects of such licences. In this case the motive went beyond mere curiosity and there was no evidence that the applicant intended to harass or otherwise interfere with the affairs of the licence holders (Judicial Member Robinson in Humane Society v National Parks and Wildlife Services [2000] NSWADT 133).

President O’Connor however has now stated that the motive or interest of a particular applicant is an irrelevant consideration except perhaps where that interest in access is so strong that it could amount to a public interest in disclosure. His views were explained as follows:

The question whether disclosure would result in the unreasonable disclosure of information concerning a person’s personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though not conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgement required in considering whether Clause 6 should be invoked.

In theory, at least, once access is given under FOI to one citizen any other citizen who makes the same request should have the same rights. But some authorities do recognise that a point may be reached where an applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right.

I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else’s personal records, and under which agencies can make varying calculuses as to the reasonableness of disclosure in that way [Saleam v Department of Community Services [2002] NSWADT 41].

This approach was subsequently followed by Deputy President Hennessy in determining that a father had no special status to be given information about the religion of his child as notified in hospital records (Uddin v South Eastern Area Health Service [2002] NSWADT 228).

It is difficult to discern what the law is in NSW on this issue. Commonwealth AAT cases are similarly not consistent on this issue. In Victoria, in a long line of cases the Victorian Civil and Administrative Tribunal (and its predecessor) has taken the view that motive and purpose need to be considered, and may weigh in favour of disclosure to a particular applicant information which would not be disclosed to someone other than the applicant (see for example Birrell v Department of State Development [2001] VCAT 258).

If public interest considerations are relevant to an examination of unreasonableness, the general public interest in justice to the individual may warrant disclosure on some occasions; and in the Uddin case, there appears to have been no evidence of possible adverse consequences should the father be given information about the nominated religion of his child.

While the motives and interests of Mr Saleam in the case cited above were held to be irrelevant in weighing whether he should be given access to information held by the agency about the health of his ex-wife, in another case not to do with personal affairs, the context and circumstances of an application made by him for access to police records were relevant factors in justifying non-disclosure.

In that case Judicial Member Robinson found that the application and applications lodged by others were part of a systematic attempt to gain access to pieces of information which when put together would provide more than any one applicant could obtain. In the only case to date of this kind he found in the circumstances that the ‘mosaic effect’ of disclosure could be taken into account to justify non-disclosure to Mr Saleam. The motive of the applicant in this case was a relevant factor (Saleam v NSW Police Service [2002] NSWADT 40).

This is an area where FOI practitioners are understandably a little confused. l

Peter Timmins is an Information Consultant based in Sydney <[e-mail]>.