To reveal or not to reveal – Privacy vs disclosure

The NSW Civil and Administrative Tribunal (the Tribunal) was asked to review a decision made by a Local Health District (LHD) pursuant to the Government Information (Public Access) Act 2009  (the GIPA application) to withhold certain information from the applicant. The GIPA application sought, amongst other information, the identity of an individual who rang a Mental Health telephone access line and advised of concerns regarding the applicant’s mental health.

In response to the GIPA application, the LHD provided the applicant with partial access to the requested information, but not the identity of the caller. The redacted information was withheld by the LHD on the basis that its disclosure would:

  • prejudice the effective exercise by an agency of an agency’s functions;
  • reveal an individual’s personal information;
  • contravene an information protection principle; and
  • expose a person to a risk of harm or of serious harassment or serious intimidation.

Whilst the LHD advised the applicant that it could not release the name of the person who called the Mental Health telephone line, they did release the observations that were made concerning her behaviour.  Further, initially the applicant believed her ex-husband or his associates had made the report to the Mental Health line for the purpose of harassing or intimidating her. This caused her a significant amount of distress. The applicant was reassured by the LHD that it was not her ex-husband who made the call to the Hospital.  The individual was advised that it was a member of the public who was concerned about her behaviour.

The Tribunal considered the applicant’s medical and social history were relevant to making a determination to release the information.  The applicant had previously suffered an extremely traumatic brain injury as a result of being assaulted by her ex-husband. She continues to suffer the effects of that injury, including mobility, cognitive and memory impairment as well as behavioural issues.

The Tribunal considered that the following matters were in favour of disclosure:

  • the general public interest arising noting that the disclosure may provide information to the applicant to assist in identifying the need to seek access to appropriate health services;
  • personal interest factors including the applicant’s general curiosity and her need to know whether she has been acting bizarrely so she can adjust her behaviour.  Significant weight was placed on this consideration in circumstances where she otherwise believes that she does not engage in abusive behaviour;
  • the applicant’s legitimate and real fear that her ex-husband or his associates have located her; and
  • the applicant’s concern that her medical records have been accessed or that personal circumstances are known and being shared by unknown persons, as a result of the information relayed to her as having been included by the referrer to the Mental Health information line regarding her whereabouts.

The Tribunal concluded that there was no evidence to suggest disclosing some of the information proposed would expose the referrer to any serious harm or harassment by the applicant. That is because the referrer’s personal information was not to be released and that the information to be released was incapable of identifying a particular individual. Further, due to the applicant’s disability, she would be incapable or limited in the potential for any physical harassment or physical intimidation. The Tribunal noted that when considering harm, this requires a real and substantial detrimental effect on a person as opposed to their business interests.

The Tribunal held that the public interest considerations in favour of disclosure outweighed the public interest considerations against disclosure in relation to some, but not all, of the information sought.

This decision highlights the complexities and fine balancing act agencies are required to undertake when assessing GIPA applications in circumstances where disclosures may reveal a third party’s personal information. In circumstances where disclosure of the information would not tend to identify an individual but rather identifies them as being a member of a class of people, then this decision suggests that it is likely the public interest considerations will require the disclosure. It is trite to say, but necessary, that these type of applications will turn on the specific facts of the matter and that a careful consideration of all the circumstances is required when considering such applications.

Reference: DEY v Southern Western Sydney Local Health District [2017] NSWCATAD 301

Posted by Monica Pecker and Karen Kumar 

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