Overseas experience
In Ireland, there have been numerous cases on the interpretation of the corresponding section of the Irish Freedom of Information Act. 18 Although very different in its terms the intention of the Irish Act is to allow freedom of access whilst retaining a right to individual privacy of information and the same can be said for the aim of s38 of FOI(S)A. In one case under the Irish Act, 19 an individual had been an unsuccessful candidate in a competition run by the local Appointments Commission. She sought access to the interview board’s notes on her interview and details of the marks of the other candidates. The Commission gave her the notes of her own interview, the criteria and marking schemes but refused to disclose information about the other candidates. Following appeal to the Irish Commissioner, it was found that there was no public interest in granting access to the records which would outweigh the right to privacy of the other candidates and the information need not be made available.
In New South Wales, there is an exemption in the Freedom of Information Act which allows public authorities to withhold information should the disclosure ‘endanger the physical safety of an individual’. 20 Concerns have been raised 21 that such a restrictive exemption would mean that information would only ever have a slim chance of being exempt. It was felt that the threshold to demonstrate personal endangerment was so high it would make the exemption ineffective as it incorporates a mechanism to prevent only substantial endangerment. In one case, 22 a Mr McCabe wanted to start a political party and obtained 750 declarations from people who wanted to join his party. Most were rural workers and many were illiterate. The Electoral Commissioner, in line with protocol, tried to obtain confirmation from a percentage of members to ensure their authenticity. The Electoral Commissioner did not receive sufficient confirmation letters. Mr McCabe asked for a list of members who had not responded so he could follow them up. The Electoral Commissioner tried to rely on the exemption to withhold information on the basis that release could subject individuals to threats and intimidation. The NSW Administrative Decisions Tribunal held that use of the exemption had not been substantiated and the documents were not exempt as there was ‘no evidence… that any threat to life or physical safety has ever been made.’
The exemption in the NSW legislation is much narrower than that in the FOI(S)A. Section 38 focuses on protecting an individual’s personal information whereas the New South Wales legislation intends to protect the physical safety of the individual.
Footnotes
18 Freedom of Information Act 1997, s28.
19 Case 98187, Ms ABH and the Office of the Local Appointments Commissioners.
20 Freedom of information Act 1989, Schedule 1, clause 4(1)(c).
21 For example see ‘Private Fears’ by Paul Harpur Paradigmlegal Journal, Australia 25 September 2004.
22 McCabe v Electoral Commissioner, State Electoral Office (2003) NSWADT 24.
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