Greenleaf, Graham --- "Complaint: Wollondilly Council (NSW)" [1994] PrivLawPRpr 70; (1994) 1(5) Privacy Law & Policy Reporter 92

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Complaint: Wollondilly Council (NSW)

NSW Ombudsman - Annual Report 1993

Freedom of Information Act 1989 (NSW), cl 6 Sched 1 - ''unreasonable disclosure' - identity of complainants

Mrs S made a number of complaints to Wollondilly Council concerning the operation of a transport business next to her property. The transport business sought access under the Freedom of Information Act 1989 (NSW) to Mrs S's letters of complaint. The Council consulted with Mrs S (under the consultation provisions) and she objected to disclosure. ''Mrs S believed she had submitted the information to the council in confidence and was concerned she would be perceived as a ''troublemaker' should her identity be revealed to the applicant. She also felt rate payers have the right to forward correspondence on relevant matters to councils without the worry that such correspondence will be provided to third parties'. Despite this, the Council considered that disclosure was not an unreasonable disclosure of her personal affairs (the cl 4, Schedule 1 exemption) and proposed to release the information.

The Ombudsman agreed with the Council's decision that disclosure was not ''unreasonable', stating that there was no evidence that Mrs S had submitted the letters to the Council in confidence, either explicitly or impliedly.

''There was also no evidence to show that the applicant intended to use the information in the letters for malicious purposes or intentions not considered to be in the public interest. Conversely, there was some evidence to show that the applicant wished to use the information productively. It was felt a release of the letters would not necessarily stop rate payers complaining to councils about issues which affect them'.

However, he cautioned that:

it is not necessarily the case that all written complaints received by councils about third parties should be released in full. Each case ... must be examined individually.

He also noted that councils with open access policies might choose to provide letters of complaint about third parties voluntarily, without requiring an FOI application.

Comment

The NSW Ombudsman's approach to disclosure of identity of ''complainants' makes a very interesting contrast with both his own and the NZ Privacy Commissioner's approach to disclosure of the identity of ''informants'. When does a complainant become an informant?

If the Privacy and Data Protection Bill 1994 (NSW) is enacted, agencies, such as councils, would have to justify disclosure of the identity of complainants as an exception to DPP 9 (the disclosure limitation principle), or Mrs S could take proceedings for a breach of the Act. This would be so in relation to both disclosures under the FOI Act and under ''open access' policies. It may be that what the FOI Act giveth, the Privacy Act taketh away.

Graham Greenleaf.