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FOI Requests and the Privacy Commissioner Continued

Thursday, May 10, 2012 - Posted by Philip Harvey

We previously reported that the RTA is refusing FOI requests (read here)

An account was referred to us following the death of a debtor where security was held.

The security was sold by the debtors parents to a 3rd party with proceeds of the sale being kept by the parents. An application was made to the Roads and Maritime Services under GIPA however even with the inclusion of the Death Certificate and Statutory Declarations from the Credit Union employees confirming that the debtor was deceased the application was declined by Roads and Maritime Services. Their decision is as follows:

In weighing up the public interest considerations for and against disclosure outlined above, I believe that there is an overriding public interest against disclosure of the third part’s personal information to you. The GIPA Act is not the appropriate mechanism for obtaining this kind of Government information, which is a special class of “personal information” in respect of which strict obligations are imposed on the RMS (Roads and Maritime Services) under the PPIP Act, the RT (DL) Act and RT (VR) Act. I believe that just because the information sough may be available from RMS by other means such as preliminary discovery in civil proceedings, this factor should not influence the RMS’s decision that the GIPA Act is an appropriate means to obtain such information.

In balance the relevant public interest considerations for and against the disclosure, for the above reasons I have determined that there are overriding public interest considerations against disclosure of the information you have requested.

As we are of the opinion that the decision by the RMS is incorrect in not disclosing this information we have now made applications to the Office of the Information Commissioner (OIC) to review the decision which has subsequently involved discussions regarding the ability of the RMS to not disclose this information. The basis of our application for review stems from the fact that a Death Certificate has been provided and there is no other reasonable way of obtaining details of the new registered owner of the security. Furthermore Judge K V Taylor AM RFD (Acting NSW Information Commissioner) in October 2009 has further made recommendations in regards to applying the GIPA Act and has noted on several occasions that there should be a presumption in favour of disclosure. Whilst there are further consideration pertaining to individuals rights, judicial process and natural justice it is noted that unreasonable disclosure of “personal affairs” information may be limited to:

  • Expose a person to a risk of harm or serious harassment or intimidation;
  • Reveal false or substantiated allegations about a person that are defamatory; and
  • In the case of a child’s personal information, the disclosure would not be in the best interests of the child.

In this regard we are of the opinion that the RMS has incorrectly interpreted the GIPA Act meaning that access to the information requested should be available.

We are currently in the process of awaiting a decision by the OIC in this regard and hope to provide a follow up story in next month’s newsletter regarding the outcome of this application.

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