Relevant decisions from other jurisdictions

Department of Agriculture and Rural Affairs v Binnie [1989] VR 836

This decision highlights that an expectation of endangerment, not necessarily of actual harm, is required. The decision was referred to in Murphy.

There are two important distinctions between section 42(1)(c) of the FOI Act and the Victorian section which is applied here. The Victorian section:

• contains the words 'would be reasonably likely to', rather than 'could reasonably be expected to'
• deals with endangerment to the lives or physical safety of 'persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to enforcement or administration of the law', ie, it protects a narrower class of people than section 42(1)(c) of the FOI Act. Mr Binnie applied for documents containing detailed information about animal experiments. The Department granted access but removed the names and signatures of individual experimenters and the names of institutions.

Mr Binnie accepted the deletion of names and signatures but not the deletion of the names of institutions.

Consideration was given to the facts of the case and the objects of the legislation. [844]

• in this circumstance, the names of the institutions where specific experiments were performed would provide sufficient information to identify the individual experimenters
• the Department provided evidence of bomb threats and break-ins at institutions following details of experiments being publicised
• the exemption applies where it would be reasonably likely that there be a danger to physical safety, not that physical harm will occur
• Mr Binnie was quoted as saying that the identification of institutions was necessary as he wanted to be able to 'target' those responsible for particular experiments
• no legal reason could be established for requesting the specific information
• it is not necessary to show the risk is from the respondent, rather anyone should the information become generally known
• the object of the Act is to promote public accessibility to matter while at the same time protecting persons who have contributed to those documents. As stated above, the Victorian legislation applies to protect a narrow class of people, whereas section 42(1)(c) of the FOI Act applies when anyone may be endangered by disclosure.

The Court acknowledged that the exemption applies where it 'would be reasonably likely' that a danger to physical safety might occur, not that physical harm will actually occur. The risk to be guarded against is of a person being under threat, not necessarily harmed.

On the above considerations, the exemption was satisfied.

Toren and Secretary, Department of Immigration and Ethnic Affairs [1995] AATA 60 (8 March 1995)

The decision concerns what evidence might suggest a risk of violence. This decision was referred to in Murphy.

The application sought access to letters from Mr Wachtel, to the Department of Immigration and Ethnic Affairs, against Mr Toren's immigration to Australia. Forgie J applied the equivalent section of the FOI Act (Cth).

In considering the risk of endangerment, she had regard to the relationship between the applicant and Mr Wachtel as the author of the documents. She found that personal vendettas and bad blood alone do not satisfy the exemption.

Despite all of the personal vendettas and obvious bad blood between Mr Dan Toren and Mr Wachtel, I am not satisfied that either has made any threat of physical harm to the other.

Personal vendettas and bad blood, however undesirable, are not inevitably accompanied by physical harm, or the threat of it, by one person to another…although they may cause immeasurable harm to a person… for example, (they could) cause such emotional damage to a person, or ruin him or her financially, that they could be said to "destroy" his or her life. It is difficult to say that those subtle ways would or could reasonably be expected to endanger a person's life or physical safety unless the "destruction" of the person's life were so great that the person who is the object of the personal vendetta were driven to commit suicide or harm himself or herself in some way. There is no suggestion in this case that disclosure… could reasonably be expected to lead to Mr Toren's, Mr Dan Toren's or Mr Wachtel's harming himself in this way.