Rees and Queensland Generation Corporation trading as Austa Electric
(1995 S0070, 14 June 1996)
In this case the Information Commissioner determined that documents concerning negotiations leading up to the settlement, and setting out the terms of settlement, of proceedings commenced by a third party against the respondent in the Human Rights and Equal Opportunity Commission (the Commission) under the Racial Discrimination Act 1975 Cth, were exempt matter under the personal affairs exemption provision (s.44(1)). The third party's complaints of racial discrimination related to workplace incidents arising from his employment with the respondent. The applicant was primarily concerned with complaints made against him by the third party, but those complaints represented only a small part of a much broader dispute, and the documents in issue did not address the detail or merits of the third party's complaints against the applicant.
The Information Commissioner reiterated the view that information which merely concerns the performance by an employee of a government agency of his or her employment duties is ordinarily incapable of being properly characterised as information concerning the employee's personal affairs. However, in this case, the Information Commissioner found that the commencement and conduct by the third party of his proceedings in the Commission against the respondent must properly be characterised as a personal affair of the third party. The Information Commissioner found that, in the commencement and conduct of those proceedings, he acted in a purely personal capacity and not as an agent or representative of his employer. The Information Commissioner pointed out however, that this finding should not be taken to mean that any involvement by an individual in litigation, or the pursuit of a legal remedy, is necessarily a personal affair of the individual. Nor should it be thought that where litigation is properly characterised as being an individual's personal affair, any document or information connected with the litigation is necessarily matter concerning the individual's personal affairs.
The Information Commissioner found that the matter in issue concerned the settlement of the proceedings in the Commission, brought by the third party, in a purely personal capacity, to pursue a legal remedy, including the third party's choices as to the basis on which he was prepared to compromise his rights to pursue that legal remedy to the full extent permitted by the law. The Information Commissioner considered that the documents in issue comprised information which was properly to be characterised as information concerning the personal affairs of the third party, and which was therefore prima facie exempt from disclosure under s.44(1).
On the question of the public interest, the Information Commissioner acknowledged the public interest in promoting the fair treatment of the individual. However, in this case, the documents in issue did not contain information which, if disclosed, would be capable of answering any of the concerns raised by the applicant's submissions, apart from his express desire to know the actual terms of settlement. Disclosure of the documents in issue would not further the applicant's understanding of the details of the third party's complaints against the applicant (which were a small part of a much wider dispute between the respondent and the third party), or of the views that were held by the respondent or the Commission in respect of them.
The Information Commissioner also considered the general public interest in the accountability of government agencies for the conduct of their operations and the expenditure of their funds. However, the Information Commissioner found that the public interest in the accountability of the respondent for its conduct and settlement of the proceedings brought by the third party in the Commission, was outweighed, in this instance, by the public interest in assisting to secure lasting settlement of a sensitive dispute (in circumstances where settlement involved the continuation of the employer-employee relationship between the previous disputants) by respecting the agreement of the respondent and the third party that the terms of settlement remain confidential.