Section 47F – Personal Privacy Exemption

The Freedom of Information Act 1982 (Cth) (FOI Act) provides various public interest exemptions to the duty to disclose documents in response to FOI requests. This article explores the operation of the personal privacy conditional exemption in section 47F of the FOI Act. 

The general rule

Subsection 47F(1) provides that a document is conditionally exempt if its disclosure would involve the unreasonable disclosure of personal information about any person (including a deceased person).

Subsection 47F(3) qualifies that the exemption does not apply where the personal information contained in the document relates to the applicant alone, and no other third party.

Would disclosure involve the unreasonable disclosure of personal information? 

Subsection 47F(2) sets out the factors that a decision-maker must consider when evaluating whether the disclosure of a document would result in the ‘unreasonable disclosure’ of personal information. 

The matters for consideration include:

• the extent to which the information is well known;
• whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document; and 
• the availability of the information from publicly accessible sources.
  

What is unreasonable disclosure?

The Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (the Guidelines) state at paragraph 6.142 that the following key factors should also be considered in determining whether the disclosure is unreasonable: 

• the author of the document is identifiable;
• the documents contain third party personal information;
• release of the documents would cause stress on the third party; and
• no public purpose would be achieved through release.
  

Additionally, in ‘FG’ and National Archives of Australia [2015] AICmr 26, the leading Australian Information Commissioner decision on s 47F, other factors considered to be relevant included:

• the nature, age and current relevance of the information;
• any detriment that disclosure may cause to the person to whom the information relates;
• any opposition to disclosure expressed or likely to be held by that person;
• the circumstances of an agency’s collection and use of the information;
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act;
• any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information; and 
• whether disclosure of the information might advance the public interest in government transparency and integrity.
  

Below we consider a recent decision of the Administrative Appeals Tribunal (the Tribunal) which highlights the tension between promoting the right of access to documents and protecting personal information. 

Knight and Commonwealth Ombudsman (Freedom of information) [2021] AATA 2504

In Knight, the Tribunal determined that the Commonwealth Ombudsman could withhold the names and personal information of complainants of abuse who had applied for compensation. 

The facts 

The documents sought under the FOI Act related to the former Defence Abuse Response Taskforce (DART), an administrative body established to respond to complainants regarding physical or sexual abuse, harassment or bullying in the Australian Defence Force. In 2016, the Defence Force Ombudsman, forming part of the Office of the Commonwealth Ombudsman, assumed responsibilities for the DART. The applicant was Mr Julian Knight, who is currently serving life imprisonment for perpetrating the ‘Hoddle Street Massacre’.  On 9 August 1987, shortly after being discharged for misconduct from the Duntroon Royal Military College (Duntroon RMC), Mr Knight went on a shooting spree killing seven and injuring nineteen. 

Mr Knight claimed that while at Duntroon RMC, he and others were subject to bullying and abuse, and he sought compensation from the DART scheme. His application was denied by the Ombudsman on the basis that he had been convicted of a serious crime. Mr Knight subsequently requested documents from the Ombudsman under the FOI Act regarding his own application and those of other Duntroon RMC applicants. The Ombudsman released the relevant documents to Mr Knight; however, each document was redacted to remove the personal information of other Duntroon RMC applicants.  The Ombudsman relied on the conditional exemptions in sections 47E(d) and 47F of the FOI Act in withholding the information. It determined that other Duntroon RCM applicants had only disclosed the sensitive details of their abuse due to assurances of the strictest confidentiality, and therefor disclosure of their personal information would involve the unreasonable disclosure of personal information under section 47F of the FOI Act. 

Mr Knight appealed the decision to the Tribunal. In his appeal before the Tribunal, Mr Knight sought disclosure of the information which was redacted from the documents he had received.

In particular, Mr Knight sought:

• the personal information relating to third party individuals, including other complainants, individuals who were the subjects of abuse allegations, and witnesses; and
• the name of the solicitor at Slater & Gordon who acted for other complainants.
  

Mr Knight submitted, amongst other things, that:

• receiving personal information relating to complainants would support his claim, because their claims were similar to his;
• disclosure of information about ‘bastardisation’ (hazing) at Duntroon RMC would enable the issue to be discussed and evaluated with a view to the elimination of such behaviour; 
• disclosure may support a formal complaint to the Defence Force Ombudsman, a further claim for reparation to the DART and future litigation; and 
• he wanted access to the name of the solicitor at Slater & Gordon who acted for other complainants so that he could ask the solicitor to seek the view of their clients as to whether they would consent to the release of their personal information. 
  

The Tribunal’s findings 

The Tribunal ultimately decided that the information was conditionally exempt under section 47F of the FOI Act (as well as subsection 47E(d)). 

The Tribunal, referring to the Guidelines at paragraph 6.138, found that: 

• There was no doubt that the information sought by Mr Knight was personal information as it identified the complainants of sexual abuse, other involved third parties (such as alleged perpetrators and witnesses of abuse) and details of alleged abuse. This information was not well known or publicly available. 
  

• It was highly relevant that the complainants disclosed information to the DART on the express basis that it would be kept confidential. The consent form assured complainants that their information would be kept confidential, and the DART scheme also assured the confidentiality of information relating to alleged perpetrators and other third parties.
• The information was highly sensitive. Given that it had been provided on a confidential basis, it would be unreasonable to disclose the personal information, and likely to cause stress to those identified if released.
• The disclosure of the name of the solicitor at Slater & Gordon who acted for other complainants would also be unreasonable because the document identifying the solicitor was covered by the same regime of confidentiality.
• There was no evidence that suggested that any of the complainants had disclosed publicly any of the subject information or that they consented to its disclosure.
• Mr Knight’s public interest argument relating to the disclosure of information about bastardisation was to be rejected. There was already significant disclosure of information regarding allegations of bastardisation at Duntroon RMC. If personal details of complainants were disclosed, then this breach of privacy might deter other complainants in similar circumstances from coming forward. Consequently, it would have the opposite effect to that contended by Mr Knight.