By Sharon Sangha, Lawyer
- A reasonable expectation of confidentiality is a relevant factor for the purpose of determining whether access to an individual’s personal information should be refused under the FOI Act.
- However, agencies should consider the appropriateness of providing unqualified guarantees of confidentiality in relation to government services.
Two recent FOI decisions of the Australian Information Commissioner the highlight the tensions between protecting the privacy of individuals who access government information, and the interests of persons whose information is accessed and subsequently used or published.
The Archives Act 1983 (the Archives Act) provides a public right of access to Commonwealth records (other than certain exempt records) that are in the ‘open access period’. This period was previously 30 years, progressively falling to 20 years by 2021 following amendments to the Archives Act in 2010.
In ‘FG’ and National Archives of Australia  AICmr 26, the National Archives of Australia (Archives) had provided a journalist with access to the applicant’s Commonwealth employment file under the Archives Act in 2011. The Archives documents were used as the basis for a story that appeared on the front page of a major newspaper, and certain documents were posted online by the newspaper. In 2012, the applicant made a request under the Freedom of Information Act 1982 (FOI Act) for access to documents in relation to persons who had sought access to his record (including someone other than the journalist).
‘FH’ and National Archives of Australia  AICmr 27 involved similar facts, where parts of the applicant’s military record released under the Archives Act was later published on a website called Australian & New Zealand Military Imposters with critical comments about the applicant. The applicant made an FOI request to Archives for access to details of any person who had accessed his record
In both cases, the Commissioner affirmed Archives’ decision to exempt the identities of the Archives Act requestors under section 47F of the FOI Act (personal privacy exemption).
‘Unreasonableness’ of disclosure
The Commissioner found that in both ‘FG’ and ‘FH’, disclosure of the requestors’ identities would be unreasonable and contrary to the public interest. Persuasive factors that influenced the Commissioner’s findings were the safeguarding of personal privacy, and the importance of not undermining government service delivery. At the time of the Archives Act requests, Archives had adopted and publicised a policy of maintaining the confidentiality of people who used its services. On the basis of the policy at the time, the Commissioner was satisfied that the requestors would have had a reasonable expectation of confidentiality, and that disclosure in the absence of consent would discourage the use of the National Archives public access services.
In ‘FH’, another persuasive factor was the ability of an applicant to apply to a court for an order requiring the production of documents and information that reveal the identity of a prospective defendant, where an applicant wishes to seek legal redress against persons who have accessed and published their information.
Privacy of requestors v document subjects
The Commissioner observed that Archives’ previous policy (which was replaced with a new policy in July 2014) was consistent with:
- widespread government practice of inviting or encouraging the public to use an agency’s services with the expectation of confidentiality; and
- Australian Privacy Principle 6 in the Privacy Act 1988, which provides that information collected by an agency for a particular purpose, must not be disclosed for another purpose unless the individual consents or a specified exception applies. (This practice also seems consistent with the APP 2 anonymity principle, although the Commissioner did not address APP 2 in his decisions.)
However, in ‘FH’ the Commissioner also noted that government agencies should be aware of the ‘distinct unfairness’ and ‘possible consequence of allowing government-sourced personal information to be used under a cloak of anonymity to humiliate the record subjects’.
These FOI decisions confirm that where an individual’s personal information was obtained in confidence, that fact will be a relevant factor in considering whether the information should be exempt from disclosure under the FOI Act. At the same time, the identity and interests of an FOI applicant may also be a relevant factor in determining whether disclosure would be ‘unreasonable’ and ‘contrary to the public interest’ in the circumstances. Agencies should bear this in mind when dealing with and collecting information from individuals in the first instance.
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