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Freedom of information has its risks

Freedom of information has its risks

Published on August 7, 2023 by Daniel O’Brien and Grace BrophyDaniel O’Brien and Grace Brophy

AA applied to Transport for NSW for information under the Government Information (Public Access) Act 2009. Transport for NSW identified 57 pages of information that fell within the application but initially refused access to the information relying on a public interest provision which allowed a refusal where disclosure would expose a person to a risk of harm or of serious harassment or serious intimidation. AA applied to the Information Commissioner for an external review which concluded that Transport for NSW’s original decision was not justified and recommended that it make a new decision. Transport for NSW then decided to grant AA access to the requested information subject only to very limited redactions.

The requested information was about vehicle “permits” or registrations to use ATVs, tractors and other special vehicles on roads by an independent school. The School applied to the Information Commissioner for a review of Transport for NSW’s decision to grant AA access to the information. The Information Commissioner recommended that Transport for NSW make a new decision in relation to some of the information as the release of the information could reasonably be expected to expose staff and students at the School to the risk of serious harm and intimidation. Transport for NSW decided not to reconsider its decision because it believed that its decision to release the information to AA was the correct and preferable decision.

The School applied to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT) for an order setting aside Transport for NSW’s decision to release the information. The School bore the burden of establishing that there was an overriding public interest against disclosure of information.

The School submitted that AA had been known to them for many years. The School argued that the disclosure of the requested information could “expose a person to a risk of harm or of serious harassment or serious intimidation”. This was because AA had a history of engaging in premeditated episodes of bullying, harassment and verbal abuse towards anyone associated with the School.

The School submitted that the potential risk of harm to the School outweighed the public’s interest in disclosure.

Transport for NSW was aware of AA’s history of abusive behaviour towards the School but submitted that the release of further information would not aggravate the matter. It argued that any risk that already existed would not be further exacerbated by the release of the information.

NCAT had to consider whether the public interest in favour of disclosure outweighed the public interest against disclosure. The main question considered by NCAT was whether the release of the information would further escalate the risk of harm and intimidation to the College that had already been displayed by the access applicant.

NCAT found that, on the balance of probabilities, it was likely that AA would escalate his harassment and intimidation of the School, should he receive access to the requested information regarding the vehicles used by the School.

NCAT also found that access to this information would enable AA to target the School with more accuracy, and specifically target students, parents, staff members and contractors.

NCAT ordered that access to the requested information be refused.

Key Takeaways

This case is an example of the balancing act that must be undertaken by Courts and Tribunals in weighing up the public interest in the disclosure of information. The case also sheds light on the difficult balance between promoting transparency and freedom of information against the risks that can be imposed when information is used as a tool for harassment and intimidation.

Please contact Daniel O’Brien or Grace Brophy if you require further advice on freedom of information or you are required to respond to a subpoena for information.

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