This article deals with the limits of the obligations surrounding consultation and consent when a government agency intends to disclose personal information. The issue commonly arises in the context of FOI applications, where the requested material includes personal information concerning a third party.
While the general principle is that potentially affected individuals will be consulted prior to any disclosure, there are a range of exceptions to this principle. Further, even when consultation does take place, there are occasions when personal information may be disclosed in spite of an objection by the person affected. This article provides a practical overview of:
- The circumstances in which government agencies must consult a person before their personal information is disclosed, and those where consultation is not required, both by reference to the Freedom of Information Act 1982 (Cth) (the FOI Act) and Australian Privacy Principle (APP) No 6; and
- The circumstances in which government agencies may disclose personal information in spite of an objection by the person affected following consultation. It is important for practitioners and affected parties to be aware of these circumstances, and the various factors to be balanced in any government decision whether or not to disclose, so that they can best frame their submissions as part of any consultation process.
The article also considers some of the steps which can be taken by an affected party to try to prevent disclosure in the FOI context.
Take-away points and tips
- While an affected person will normally be consulted before their personal information is disclosed by a government agency, there are situations where an overriding public interest may require disclosure of personal information without consultation or consent.
- Practitioners should ensure that any submissions against disclosure in the FOI context are framed by reference to all of the relevant public interest considerations. It is particularly important that the submissions deal with the grounds on which consultation has been invited by the government agency, because these are the only submissions which the decision-maker and any review body are obliged to consider.
- Always consider whether redaction (or "de-identification") might be a sufficient protection or at least an appropriate fall-back position.
- Consider putting on evidence if the unreasonableness of the proposed disclosure is not apparent on the face of the document.
- Practitioners should be aware of the changes proposed by the Freedom of Information Amendment (New Arrangements) Bill 2014. If the Bill is passed, all FOI appeals from internal review decisions will need to be made to the AAT (in most cases with the $861 filing fee), rather than the Information Commissioner, from 1 January 2015.
Full article available Privacy Law Bulletin, March 2015, Volume 12 No 3