The Bar Association invited applications earlier this year for appointment to silk, ie elite barristetrs. In connection with those applications the Association collected personal information, including opinions relating to Smallbone, such as comments from the barristers and solicitors Consultation Group and the Judicial Consultation Group (ie judges and judicial officers). The Court noted that 579 people were consulted in relation to all applications. 458 persons responded: 156 judicial officers or retired judicial officers, 169 senior counsel, 71 junior counsel and 62 solicitors. Some of those who responded provided information in relation to the applicant.
Smallbone claimed a right of access to the information that concerned him; the Association notified Smallbone that it refused to provide such access.
In the ensuing litigation both the Association and Smallbone agreed that the former is an 'organisation' within the meaning of section 6C(1) of the Act. There was no dispute that collection, use and destruction of information relating to the appointment of Senior Counsel is governed by the National Privacy Principles (NPPs) in Schedule 3 of the Act. The Association is not covered by a formal Privacy Code under the Act.
NPP 6.1 provides that information holding 'personal information' about an individual must - subject to some exceptions - provide that person with access to the information if requested by the individual. Smallbone had made such a request. The issue considered by the Federal Court was the extent to which provisions in NPP 6.1 limit the right of access.
Yates J noted that an organisation's provision of access to personal information is bounded by exceptions, notably NPP 6.1(c) which covers circumstances where "providing access would have an unreasonable impact upon the privacy of other individuals".
Smallbone argued that providing access to all of the information, including the identity of people who had supplied that information, would not have an unreasonable impact on the privacy of other individuals. In contrast the Association argued that providing access to any of that information would have an unreasonable impact upon the privacy of other individuals: NPP 6.1(c) was to be read as providing an absolute exemption to provision of access.
Consistent with the spirit of the legislation the Court indicated that the assessment of an "unreasonable impact" involved having regard to all circumstances of the particular case. Yates J referred to C v Insurance Company [2006] PrivCmrA 3, in which the Privacy Commissioner identified considerations regarding whether access to documents containing the personal information of third parties would have an unreasonable impact on the privacy of those individuals. They included -
• whether the individual would expect that his or her information would be disclosed to a third party, including whether an assurance of confidentiality was provided.The Court stated that -
• the extent of the impact on the individual’s privacy.
• whether any public interest reasons for providing access to the information outweigh any expectation of confidentiality.
• whether masking the identifying details of the third parties would sufficiently protect the privacy of these individuals.
Those considerations are helpful indicators of some of the considerations that might be involved in a particular evaluation of the application of NPP 6.1(c). They are not, however, the only relevant considerations. Another relevant consideration is the nature of the information that is held by the organisation and the form in which that information is held. ... The evidence makes clear that members of the Consultation Group and the Judicial Consultation Group were invited to provide information on all applicants for appointment as Senior Counsel in 2011 on the express assurance that all information received in response to that invitation would be treated as confidential and made only available to the Selection Committee and its secretariat.The Court found that Smallbone was entitled to access the personal information that the Bar Association collected in relation to his application. However the Association is not obliged to provide access to information that discloses -
a) the identify of persons who are members of the consultation groups who have provided information to the Respondent and, in the case of members of the consultation groups who are judicial officers, the identity of the court to which each member has been appointed, if it is a court other than the Supreme Court of New South Wales; orGiven the "circumstances in which the information was sought and the circumstances in which it came to be provided, as well as the nature of the information itself" access to that information would have an unreasonable impact on the privacy of Judicial Consultation Group and Consultation Group members. The small number of responses from "some judicial officers from some identified courts" mean that "disclosure of information by reference to those courts will have an unreasonable impact upon the privacy of other individuals, being the judicial officers of those courts who have provided information" about Smallbone.
b) the identity of or information about other persons who are applicants for appointment as Senior Counsel in 2011 or who have provided information about persons who are applicants for appointment as Senior Counsel in 2011.
Provision of access to documents that feature the identity of and information about other applicants for appointment will have an unreasonable impact upon the privacy of those individuals.
The outcome is that Smallbone has access to the documents except for the exceptions and that the Association is restrained from making any adverse determination of his application until eight days after his inspection of the records.
