Colakovski v. Australian Telecommunications Corporation
(1991) 100 ALR 111(1991) 29 FCR 429
(1991) 23 ALD 1
(1991) 13 AAR 261
(Decision by: Heerey J)
Colakovski
v Australian Telecommunications Corporation
Judges:
Lockhart J
Jenkinson J
Heerey J
Subject References:
Administrative law
Freedom of information
Personal affairs
Evidence of criminal offence
Judgment date: 17 April 1991
Melbourne
Decision by:
Heerey J
Subject to the following comments, I agree with the reasons of Lockhart J and the orders which his Honour proposes.
This case is not confined to the disclosure of the name and number of a telephone subscriber. The case descends to two levels of particularity. At the first level it is concerned with documents which show at least the dates and time on which calls were made from that number to another number. At the second, there is evidence, contained in confidential Exs 2 and 3, of reasons or explanations for the making of those calls.
If the case did not go beyond the first level, a document that disclosed only that information might be said to disclose information relating to the personal affairs of a person, at least if the name and address of the subscriber were consistent with the call being made from a private home. The fact that the call was made in itself is a personal affair of the cALL ER. The personal affairs of a person are made up of a myriad of "acts, facts, matters and circumstances". A single act, such as the making of a telephone call, can be a personal affair. Evidence of the subject matter of the call, for example that it was connected with the cALL ER's duties as a public employee, might compel the conclusion that no question of personal affairs was involved. Absent such evidence, however, and with just the bare fact of the call being made, it might be thought that the onus which rests on the agency seeking to make out the exclusion had been satisfied.
Turning to the criterion of unreasonableness prescribed by the s 41(1) exclusion, it seems to me that attention is directed, amongst other things, to whether or not the proposed disclosure would serve the public interest purpose of the legislation, which is to open to public access information about government which government holds, this being information which in truth is held on behalf of the public. I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would enure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.
Under United States freedom of information legislation (5 USC s 552(b)(6)) the comparable exclusion imposes a considerably stricter test. It protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy". Even under that test, which United States courts, understandably, have held indicates a "tilt" in favour of disclosure, the principle appears to be that disclosure will be ordered where it has a public interest purpose and the particular information sought will contribute to this purpose: Department of the Air Force v Rose (1976) 425 US 352; Ferry v Central Intelligence Agency (1978) 458 F Supp 664. Put another way, a court having found invasion of privacy must weigh against the seriousness of that invasion whatever gain would result to the public: Committee on Masonic Homes of RW Grand Lodge v NLRB (1977) 556 F 2d 214.