6. A separated model
Updates and background for this project (Digest)
RECOMMENDATION 18
If distinct statutory authorities continue to exercise discrete privacy and FOI functions in NSW:
(1) the Information Commissioner should be required to consult with the Privacy Commissioner before issuing guidelines on privacy-based public interest considerations against disclosure;
(2) the Information Commissioner should be required to consult with the Privacy Commissioner before making a recommendation involving one or more of the privacy-based public interest considerations against disclosure;
(3) the Privacy Commissioner should have the right to appear and be heard in any proceedings before the Administrative Decisions Tribunal in relation to a review under Part 5, Division 4 of the Government Information (Public Access) Act 2009 (NSW), where such proceedings involve one or more of the privacy-based public interest considerations against disclosure;
(4) the Minister should be required to consult with the Privacy Commissioner before making regulations under s 129(3) of the Government Information (Public Access) Act 2009 (NSW), where such regulations affect privacy or involve one or more of the privacy-based public interest considerations against disclosure; and
(5) the Joint Committee should be required to consult with the Privacy Commissioner when conducting a review of the public interest provisions of the Government Information (Public Access) Act 2009 (NSW) insofar as such a review relates to privacy issues arising from the operation of the public interest provisions.
6.1 If the model we propose in this report is not adopted and a separated model continues to operate in NSW, changes need to be made to ensure that privacy and FOI are applied consistently and fairly.
GUIDELINES
6.2 Under the GIPA Act the Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information listed in the table in s 14. Agencies are required to “have regard to any relevant guidelines issued by the Information Commissioner” when determining whether there is an overriding public interest against disclosure of government information.1 Two of the considerations listed in the table in s 14 include where disclosure reveals an individual’s personal information or where disclosure contravenes an IPP or an HPP (“privacy-based public interest considerations against disclosure”). If consultation with the privacy commissioner is undertaken prior to issuing guidelines relating to privacy-based public interest considerations against disclosure it would help to ensure that such guidelines adequately achieve the objectives of the GIPA Act as well as appropriately apply the relevant requirements in PPIPA and HRIPA. 2
6.3 If a separated model is implemented in NSW the Information Commissioner should be required to consult with the Privacy Commissioner before guidelines are issued relating to privacy-based public interest considerations against disclosure.
COMPLAINTS
6.4 A list of “reviewable decisions” of agencies is provided for under s 80 of the GIPA Act. This includes “a decision to provide access or refuse to provide access or to refuse to provide access to information in response to an access application”. The Information Commissioner has the power to review “reviewable decisions” of an agency under pt 5, div 3 of the GIPA Act. Upon review, the Information Commissioner may make such recommendations to the agency as the Information Commissioner considers appropriate.3 Judge Taylor submits, “[w]here a decision involves one or more of the privacy-based public interest considerations against disclosure … the Information Commissioner should be required to consult with the Privacy Commissioner before making his or her proposed recommendations under s 92”.4
6.5 Section 93 indicates that the Information Commissioner may recommend that an agency reconsider the decision that is the subject of review. Under s 94, the Information Commissioner can make a recommendation against a decision that there is an overriding public interest against disclosure. Section 95 gives the Information Commissioner the power to recommend that any general procedure of an agency in relation to dealing with access applications be changed to conform to the requirements in the Act.
6.6 In our view, the Information Commissioner should be required to consult with the Privacy Commissioner when making any recommendation that involves one or more of the privacy-based public interest considerations against disclosure. This will assist in ensuring a balanced and consistent approach is adopted when balancing privacy and FOI.
6.7 Under s 104 of the GIPA Act the Information Commissioner has the right to appear and be heard in any proceedings before the ADT in relation to an ADT review under pt 5, div 4. The Privacy Commissioner has a similar power in relation to complaints under PPIPA.5 In the interests of balance and consistency we believe that the Privacy Commissioner should also have the right to appear and be heard in ADT proceedings that involve one or more of the privacy-based public interest considerations against disclosure under the GIPA Act.
REGULATIONS
6.8 The Minister is required to consult with the Information Commissioner before recommending the making of regulations under the GIPA Act.6 There is a fine balance between privacy and FOI and there is the danger that privacy protections built into the GIPA Act could be subverted through the implementation of regulations. To minimise the danger of this occurring we believe that where regulations impact upon privacy, or involve the privacy-based public interest considerations against disclosure, the Minister should also be required to consult with the Privacy Commissioner.7
REVIEW BY THE JOINT COMMITTEE
6.9 The Joint Committee is responsible for reviewing public interest provisions of the GIPA Act to “determine whether the policy objectives of those provisions remain valid and whether the content of those provisions remains appropriate for securing those objectives”.8 These provisions include the table in s 14 containing the privacy-based public interest considerations against disclosure.9 The Joint Committee is required to consult with the Information Commissioner when conducting a review and the Information Commissioner may assist and provide advice to the Committee in connection with the review.10
6.10 Application of the GIPA Act should be as consistent as possible with the aims of privacy legislation. To ensure that the mechanisms in the GIPA Act are working effectively and appropriately to protect privacy, this obligation to consult should extend to the Privacy Commissioner where the review relates to any privacy issues that may arise under the GIPA Act.11
FOOTNOTES
1. Government Information (Public Access) Act 2009 (NSW) s 15.
2. This view is supported in submissions: K V Taylor, Submission (22 October 2009) 6-7; The NSW Department of Community Services, Submission (30 October 2009) 2, supported issuing joint guidelines and policies generally.
3. Government Information (Public Access) Act 2009 (NSW) s 92.
4. K V Taylor, Submission (22 October 2009) 7.
5. Privacy and Personal Information Protection Act 1998 (NSW) s 55(7).
6. Government Information (Public Access) Act 2009 (NSW) s 129(3).
7. This view was supported by Judge Taylor: K V Taylor, Submission (22 October 2009) 7.
8. Government Information (Public Access) Act 2009 (NSW) s 131.
9. The Joint Committee is specifically responsible for sch 1 (information for which there is conclusive presumption of overriding public interest against disclosure), sch 2 (excluded information of particular agencies) and the table to s 14 (public interest considerations against disclosure): Government Information (Public Access) Act 2009 (NSW) s 131(1).
10. Government Information (Public Access) Act 2009 (NSW) s 131(2).
11. This view was supported by Judge Taylor: K V Taylor, Submission (22 October 2009) 7.
