Shirley Finn Cover Up Continues

Freedom of Information
Re Wills and Department of the Premier and Cabinet [2005] WAICmr 12 Page 1 of 11
OFFICE OF THE INFORMATION
COMMISSIONER (W.A.)
File Ref: F2004035
Decision Ref: D0122005
Participants:
Juliet Frances Wills
Complainant
- and -
Department of the Premier and Cabinet
Respondent
DECISION AND REASONS FOR DECISION
FREEDOM OF INFORMATION – refuse access to a document – transcript of evidence given in a Royal Commission
– clause 3(1) – whether disclosure of document would reveal personal information about third parties – whether
disclosure would be in the public interest.
Freedom of Information Act 1992 (WA) ss.24, 71, 74(2), 102(3); Schedule 1, clauses 3, 12; Glossary
State Records Act 2000 s.46(1)
DPP v Smith [1991] 1 VR 63
Attorney-General v Times Newspapers [1974] AC 273
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DECISION
The decision of the agency is varied. I find that the disputed document is not exempt
under clause 12, but that it is exempt under clause 3(1) of Schedule 1 to the Freedom
of Information Act 1992.
D A WOOKEY
A/INFORMATION COMMISSIONER
10 June 2005
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REASONS FOR DECISION
1. This complaint arises from a decision made by the Department of the Premier
and Cabinet (‘the agency’) to refuse Ms Wills (‘the complainant’) access to a
document requested by her under the Freedom of Information Act 1992 (‘the
FOI Act’).
BACKGROUND
2. In 1975, a Royal Commission of Inquiry was established to inquire into
Matters Surrounding the Administration of the Law Relating to Prostitution
(‘the Royal Commission’). The transcript of the hearings and other documents
relating to the Royal Commission are held by the agency as “restricted access
archives”, which will not be generally available until they are 75 years old.
Under s.46(1) of the State Records Act 2000 any right that a person may have
to be given access to a restricted access archive is to be determined under the
FOI Act.
3. On 3 November 2003, the complainant applied to the agency for access to a
copy of pages 1741-1775 of the transcript (‘the disputed document’) of the
evidence given to the Royal Commission by a specific witness whom she
named. By letter dated 19 December 2003, the agency refused the
complainant access to the disputed document on the basis that it is exempt
under clauses 3(1) and 12 of Schedule 1 to the FOI Act. The complainant
sought internal review of that decision and, on 15 January 2004, the agency
confirmed the initial decision on access, again on the ground that the disputed
document is exempt under clauses 3(1) and 12. Subsequently, on 8 March
2004, the complainant made a complaint to the Information Commissioner
seeking external review of the agency’s decision.
REVIEW BY THE A/INFORMATION COMMISSIONER
4. Following receipt of this complaint, I required the agency to produce to me the
agency’s FOI file maintained for the purposes of the complainant’s access
application and the original of the transcript of evidence. Various inquiries
were made with the agency and the complainant and endeavours were made to
resolve the complaint by conciliation between the parties, as permitted by s.71
of the FOI Act. In the event, the complaint could not be resolved by
conciliation between the parties.
5. On 23 February 2005, I informed the parties of my preliminary view of this
complaint. It was my preliminary view that the agency’s claim for exemption
under clause 12 had not been established. However, it was also my
preliminary view that the disputed document was exempt under clause 3(1) of
Schedule 1 to the FOI Act.
6. After considering my preliminary view, the agency withdrew its claim for
exemption under clause 12. In an endeavour to conciliate this complaint, I
also invited the agency, as a gesture of good will, to consider answering a
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particular query which the complainant had indicated was of greatest concern
to her – and which, from her submissions, appeared to be her primary reason
for seeking access to the document – in relation to the specific witness she had
named. The agency agreed and certain information clarifying a particular
passage of the Royal Commissioner’s Report relating to the evidence of the
witness was provided to the complainant by the agency.
7. Following receipt of that information, the complainant requested that I give
her certain assurances as to the nature of the evidence contained in the
disputed document, before she would consider withdrawing her complaint. As
the assurances requested were beyond the role and jurisdiction of my office
and would have been inappropriate for me to give, I was unable to accede to
that request from the complainant. As a result, the complainant confirmed that
she wished to pursue her complaint against the agency’s decision to refuse
access to the disputed document under clause 3(1) of Schedule 1 to the FOI
Act.
The Disputed document
8. There is one document in dispute in this matter. That document is pages
1741-1775 of the transcript of evidence given to the Royal Commission by a
particular witness.
The Exemption
9. The agency claims the disputed document is exempt under clause 3(1) of
Schedule 1 to the FOI Act.
Clause 3
Clause 3 of Schedule 1 provides:
“3. Personal information
Exemption
(1). Matter is exempt matter if its disclosure would reveal personal
information about an individual (whether living or dead).
Limits on exemption
(2) Matter is not exempt matter under subclause (1) merely because its
disclosure would reveal personal information about the applicant.
(3) Matter is not exempt matter under subclause (1) merely because its
disclosure would reveal, in relation to a person who is or has been an
officer of an agency, prescribed details relating to -
(a) the person;
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(b) the person's position or functions as an officer; or
(c) things done by the person in the course of performing functions
as an officer.
(4) Matter is not exempt matter under subclause (1) merely because its
disclosure would reveal, in relation to a person who performs, or has
performed, services for an agency under a contract for services,
prescribed details relating to -
(a) the person;
(b) the contract; or
(c) things done by the person in performing services under the
contract.
(5) Matter is not exempt matter under subclause (1) if the applicant
provides evidence establishing that the individual concerned consents
to the disclosure of the matter to the applicant.
(6) Matter is not exempt matter under subclause (1) if its disclosure would,
on balance, be in the public interest.”
Definition of “personal information”
10. In the Glossary to the FOI Act the term “personal information” is defined to
mean:
"... information or an opinion, whether true or not, and whether
recorded in a material form or not, about an individual, whether living
or dead –
(a) whose identity is apparent or can reasonably be ascertained
from the information or opinion; or
(b) who can be identified by reference to an identification number
or other identifying particular such as a fingerprint, retina
print or body sample;"
11. The definition of "personal information" in the Glossary makes it clear that
any information or opinion about a person, from which that person can be
identified, is, on the face of it, exempt under clause 3(1).
Clause 3(1) – personal information
12. I have examined the disputed document. The information contained in the
disputed document includes not only the name of the witness, but also the
names of a number of other third parties. If disclosed, the transcript would
reveal information that would clearly identify particular persons, and it would
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also reveal personal information, as defined, about a number of people
including the witness who gave the evidence. In my view, all of that matter is
exempt information under clause 3(1) unless one or more of the limits on
exemption in subclauses 3(2) – 3(6) applies.
13. The complainant did not provide any evidence that the witness or any other
third party identified in the disputed document consents to the disclosure of
personal information about them to the complainant. The limit in clause 3(5),
therefore, does not apply in respect of personal information about the witness
or the other third parties. The limits in subclauses 3(2) – 3(4) clearly do not
apply in this case, as the information contained in the disputed document does
not relate to officers of agencies. In this instance the only limit on exemption
that might apply is the limit in clause 3(6).
14. Clause 3(6) provides that matter is not exempt under clause 3(1) if its
disclosure would, on balance, be in the public interest. Pursuant to s.102(3) of
the FOI Act, the onus is on the complainant to persuade me that the disclosure
of personal information about third parties would, on balance, be in the public
interest.
The complainant’s submissions
15. In response to my preliminary view, the complainant, who says that she is
writing a book about the notorious unsolved murder of Mrs Shirley Finn in the
1970s, made the following submissions :
“Without an assurance that the material does not provide evidence of
corruption in the prostitution industry in 1975 or that it does not provide
material which may be relevant to my investigation into the Finn murder I am
not prepared to withdraw my request for access to the material. As much of
my interviews with people in relation to the Finn murder are thirty years down
the track, published material from that era, is relevant. Furthermore, [a
named] Civil Libertarian …believes [the witness] perjured herself with false
testimony about him in relation to allegations made against him during that
testimony and he has requested that I add his name to my application as he
seeks access to the material for personal reasons. As you stated the
transcripts were made available to those with a vested interest at the time.
[That person] had a vested interest and requested all the material but was
unaware until I perused the material that he had not been provided with all
the transcripts that he had requested. He was not advised that some of the
material would not be made available to him and [another person] (deceased).
Restrictive defamation laws has [sic] resulted in me being advised that parts of
my book about the murder of Shirley Finn cannot be published at this point,
however, the family require the information for a coronial inquest they are
pursuing. They are relying largely on the new information I have obtained.
These laws mean that I am greatly restricted by what I can release into the
public arena, laws which will prevent me releasing irrelevant personal
material from the information you provide me. I seek to get an overall picture
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from the material held within the pages of the transcript and perhaps an
understanding of why this material was withheld.
Australia is currently rated at the bottom of press freedoms in the developed
world by Reporters without borders [sic], the organisation which monitors
press freedoms. Restricting access to investigative material encourages
shallow journalism and adds to our rating as a poor democracy.
Lack of Justice [sic] is always in the public interest and when a family has
been unable to achieve it as John Button and Darryl Beamish have shown
even decades down the track, then it is in the public interest for it to be aired.
Shirley Finn’s family have not had justice, there is unfinished business and
until their mother’s killer is found the matter remains unresolved for them. It
is in the public interest that government agencies are seen to work towards
justice and not withhold material that may be relevant to an investigation
sought by an aggrieved family….”
The public interest
16. The term “public interest” is not defined in the FOI Act, nor is it a term that is
easily defined. However, it is not merely something that may be of interest to
the public; rather, it is something which is of serious concern or benefit to the
public. In DPP v Smith [1991] 1 VR 63, at 65, the Victorian Supreme Court
said:
“The public interest is a term embracing matters, among others, of standards
of human conduct and of the functioning of government and government
instrumentalities tacitly accepted and acknowledged to be for the good order
of society and for the well being of its members … There are … several and
different features and facets of interest which form the public interest. On the
other hand, in the daily affairs of the community events occur which attract
public attention. Such events of interest to the public may or may not be ones
which are for the benefit of the public; it follows that such form of interest per
se is not a facet of the public interest”.
17. Determining whether or not disclosure of personal information about persons
other than the access applicant would, on balance, be in the public interest
involves identifying the public interests for and against disclosure, weighing
them against each other and deciding where the balance lies.
18. The exemption in clause 3(1) is intended to protect the privacy of individuals.
I consider that there is a very strong public interest in maintaining personal
privacy which may only be displaced by some other, considerably stronger
and more persuasive public interest that requires the disclosure of personal
information about one person to another person. The FOI Act is intended to
make the Government, its agencies and their officers more accountable. The
FOI Act is not intended to call to account or unnecessarily intrude upon the
privacy of private individuals in circumstances where there is no demonstrable
public interest in doing so.
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19. I have considered the complainant’s submission in relation to the public
interest in the disclosure of the disputed document. I understand that the
complainant has a personal interest in the disclosure of the disputed document
to her. However, the public interest is not primarily concerned with the
personal interests of a particular access applicant, or with public curiosity.
Rather, the question is whether disclosure of the information would be of
some benefit to the public generally, that is, whether it would be of benefit to
the public for the information sought by the complainant – being personal
information about other people – to be disclosed to any other person, and
whether that public benefit is sufficient to outweigh any public interest in
confidentiality being maintained. I note that, although the complainant
referred to Mrs Finn’s family and a named “civil libertarian”, she did not
provide me with any evidence, by way of written authority, that she was acting
on their behalf; nor did any of them contact my office to indicate that was the
case.
20. I have considered the complainant’s submission that the family of Mrs Finn
requires the information obtained by the complainant to assist them to pursue a
request for a coronial inquest into Mrs Finn’s death. However, as indicated
above, apart from that statement, there is no evidence before me that the
complainant represents, or is acting on behalf of any other person. Further it is
not clear to me either from the complainant’s submissions or the contents of
the disputed document itself how disclosure of the document could materially
assist in pursuing an application for an inquest. In addition, as I understand it,
under the Coroners Act 1996 the Coroner has quite extensive powers to obtain
documents for the purposes of an investigation of a death and an inquest and,
if a decision to hold an inquest were made, then it would be for the Coroner to
decide whether or not to obtain that document.
21. I have also considered the complainant’s submission that she could not release
“irrelevant personal information” from the disputed document into the public
arena. A decision that a document is not an exempt document means there are
no restrictions that can be placed by an agency on the use an applicant may
make of a document once access has been provided. Other laws – such as the
law of defamation – may constrain a successful applicant from publishing all
or some of the information provided. However, neither an agency nor I is in a
position to know precisely what information will or will not be protected by
law, or whether the person to whom it is released will make themselves aware
of, or choose to observe, any legal constraint, or will republish in any event
and risk the consequences. Further, the kind of information protected from
disclosure by the FOI Act and the kind of information with which the laws of
defamation are concerned are not the same. Different considerations arise.
Accordingly, it is not relevant to my consideration of the public interest that
the complainant may choose to publish all or none of the information
contained in the disputed document.
22. In Attorney-General v Times Newspapers [1974] AC 273 at 320, Lord Simon
of Glaisdale stated:
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“The public interest in freedom of discussion (of which the freedom of
the press is one aspect) stems from the requirement that members of a
democratic society should be sufficiently informed that they may
influence intelligently the decisions which may affect themselves.”
23. I agree with the principle stated by Lord Simon, but I do not consider that the
public interest in freedom of discussion requires the disclosure of the personal
information in question in this case. That particular public interest has been
furthered by the enactment of FOI legislation in this State and the creation of a
right of access to government documents. However, the right of access
created by the FOI Act is not an absolute right. The right is subject to a
number of exemptions which are designed to protect a range of public interests
and which, in my view, recognize the broad and competing public interests in
open and accountable government on the one hand and the effective and
efficient ongoing operation of government on the other. In this case, as I have
said, it is a matter of identifying and weighing against each other those
competing public interests for and against disclosure.
24. Clearly, there is a public interest in persons such as the complainant being able
to exercise their right of access under the FOI Act. In the circumstances of
this matter, the complainant submitted that there is a public interest in the
release of the disputed document in order to allow proper public scrutiny of
the facts surrounding the prostitution industry in Western Australia. In
addition, the complainant claims that it is in the public interest for the disputed
document to be disclosed so that a murder, and the subsequent police
investigation, can also be properly scrutinised, with a view to the murderer or
murderers being apprehended.
25. Based upon my examination of the disputed document, it is not clear to me
how either of those outcomes could be achieved by its disclosure. While I
agree that there is a public interest in justice being done, particularly in respect
of such a serious crime as murder, I am not persuaded that the disclosure of
the disputed document would significantly contribute to furthering that
particular public interest. The complainant’s submissions are no more than
that it might or might not assist; she does not contend that it would assist but
rather that she wants to see it to make that assessment. Further, in respect of
the former, it seems to me that any public interest in the scrutiny of the
prostitution business in 1975 was satisfied by holding a Royal Commission of
Inquiry into it, the proceedings of which were reported by the media at the
time and a report of which was made publicly available at the time, and
remains publicly available as I understand it. Given that the information
recorded in the disputed document is almost 30 years old, it is difficult to see
how it could be of relevance to the prostitution business today, other than
being of historical interest.
26. In favour of disclosure in this case it might also be argued that the information
concerned cannot be considered private or confidential as it appears to have
been given in evidence in an open hearing and some of it was reported in the
media at the time and, therefore, has already been made public. However, as I
understand it, the transcript itself has never been made publicly available, in
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the sense that any member of the public could purchase a copy of the
transcript. I understand that, at the time, only those parties who could
demonstrate a particular interest and need for it – for example, witnesses who
may have sought to make submissions to the Royal Commission – could
purchase a copy of the transcript.
27. Further, while it may have been in the public interest at the time to have a
public airing of the issues the subject of the inquiry, which thereby involved
the public airing of sensitive personal information – and, in some cases,
allegations – about individuals, I am not persuaded that it is in the public
interest outside that context, almost 30 years later, for that sensitive personal
information to be released into the public domain. Further, in the absence of
any evidence that they consent to its disclosure, I accept the agency’s
submission that its public disclosure now may well be a matter of some
concern to the people named in the disputed document. It must also be
acknowledged in that regard that no restrictions on the use or further
dissemination of documents released under FOI can be imposed by the agency
disclosing them. With the advances in information technology that have
occurred since 1976 – such as the advent of the internet – disclosure today
could potentially result in dissemination of that sensitive personal information
to a far greater audience than was possible in 1976.
28. I agree with the complainant’s submission that there is a public interest in
ensuring that government agencies are seen to work toward justice and not
withhold material that may be relevant to an investigation sought by an
aggrieved family. However, there is no evidence put before me by the
complainant, other than unsupported assertions, that there would be a denial of
justice if the disputed document were not disclosed to the complainant.
Under s.102(3) of the FOI Act, the complainant bears the onus of establishing
that disclosure of the disputed document would, on balance, be in the public
interest. On the basis of the submissions made to me, I am not persuaded that
the complainant has established that there are any significant public interest
factors in favour of disclosure sufficient to outweigh the public interest in the
protection of personal privacy, particularly given that the majority of the
information contained in the disputed document does not relate to the murder
or the murder victim.
29. Therefore, in balancing the competing public interests, and based on the
material presently available to me, it appears to me that the strong public
interest in protecting the personal privacy of individuals is not outweighed by
the public interests favouring disclosure in this instance. Accordingly, I find
that the disputed document is exempt under clause 3(1) of Schedule 1 to the
FOI Act.
Editing to remove exempt matter
30. Section 24 of the FOI Act provides that, if an access applicant requests access
to a document containing exempt matter and it is practicable for the agency to
give access to a copy of the document from which the exempt matter has been
deleted and the agency considers from the terms of the access application or
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from consultation with the applicant that the applicant would wish to be given
access to an edited copy of the document, the agency has to give access to an
edited copy. I have considered whether it would be possible to give the
complainant access to an edited copy. However, although it may have been
possible to edit the transcript so that the identities of many of the third parties
could not be ascertained and thereby avoid the disclosure of personal
information about them, the complainant specifically requested that she be
given access to the evidence of a particular witness. Accordingly, in my
opinion, the obligation set out in s.24 of the FOI Act does not arise as it is not
possible to edit the transcript in such a way that it could be disclosed without
revealing personal information about that particular individual.
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