In FL and Department of Human Services [2015] AICmr 30 the Information Commissioner rejected an argument from the agency that disclosure of information sought should be taken as disclosure ‘to the world at large’ and therefore ‘unreasonable’.
The Commissioner followed decisions from the Victorian Court of Appeal, the Appeal Panel of the NSW Administrative Decisions Tribunal and the Queensland Information Commissioner.
In Victoria Police v Marke [2008] VSCA 218 the Court of Appeal set aside a VCAT decision which wrongly assumed that disclosure of the information sought would be disclosure to the world at large. The evidence before VCAT was that the applicant was a professional police officer who understood sensitive and confidential information, and explicitly, that he would not release the information to the world at large.
The Court of Appeal criticised VCAT’s assumption as ‘a fiction … an absolutely worst case scenario’ (Weinberg J); that the applicant’s use of the information may be relevant to the balancing exercise in deciding whether disclosure would be ‘unreasonable’ (Pagone AJA); and that to assume so would almost always work against disclosure, which is contrary to the object of the FOI Act of giving ‘the greatest possible public access to Government information’ (Maxwell P).
Marke was followed in Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 in which it was concluded that the decision maker was wrong to ‘exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use’ (emphasis added).