Australian Media Law - (7 Confidentiality and Sources of Information) PDF

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Confidentiality and Sources of Information

7

[7.10] INTRODUCTION ...................................................................................... 461 [7.20] ACCESSING GOVERNMENT INFORMATION – FREEDOM OF INFORMATION ......................................................... 462 [7.20] Rationale ................................................................................................... 462 [7.30] Process ...................................................................................................... 462 [7.40] Exemptions ............................................................................................... 463 [7.50] PUBLICATION OF INFORMATION IN BREACH OF CONFIDENCE ...... 464 [7.50] Elements of an obligation of confidence ............................................... 464 [7.60] [7.230] [7.250] [7.300]

Necessary quality of confidence ........................................ 465 Information received in circumstances giving rise to obligation of confidence ............................................... 473 Threatened or actual unauthorised use of the information ....................................................................... 477 Identification of the information ........................................ 480

[7.370] Remedies and sanctions ........................................................................ 486 The proper plaintiff ........................................................... 487 Interlocutory injunction ..................................................... 488 Permanent injunction ........................................................ 489 Damages ........................................................................... 490 Account of profits .............................................................. 490 Criminal contempt by publication ..................................... 491 [7.500] Whistleblowers and the media ............................................................. 494

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[7.380] [7.410] [7.420] [7.430] [7.440] [7.450]

[7.510] [7.510] [7.520] [7.530]

DISCLOSURE OF JOURNALISTS’ SOURCES ......................................... 497 Introduction ........................................................................................... 497 Options for a journalist’s privilege ....................................................... 499 The common law position .................................................................... 500 [7.540]

Instances where journalists have refused to answer questions .......................................................................... 502 [7.580] The newspaper rule ........................................................... 504 [7.590] Pre-trial discovery orders ................................................... 507 [7.650] Statutory reform .................................................................................... 514 [7.650] A guided judicial discretion ................................................ 514 [7.660] A rebuttable presumption of non-disclosure ...................... 516

Introduction [7.10] Sources of information are vital to the media’s functioning. The media without information is unable to inform, educate or entertain. However, accessing or disclosing sources of information may raise a number of legal issues. This chapter examines the legal

Des, B., & Sharon, R. (2015). Australian media law. ProQuest Ebook Central http://ebookcentral.proquest.com Created from vu on 2021-10-10 04:42:47.

[7.10] 461

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issues which attend three types of sources: accessing government information by means of freedom of information, publication of information that others may wish to keep confidential including disclosures by whistleblowers, and attempts by journalists to keep secret their own confidential sources.

Accessing government information – Freedom of information Rationale [7.20] Whatever the previously-held views about the necessity or desirability of secrecy in government, freedom of information (FOI) is a hallmark of an open and democratic society. It has been said that a popular government without a means of acquiring popular information “is but a prologue to a farce or a tragedy, or perhaps both”. 1 A 1979 Senate Report identified three major justifications for FOI legislation: providing individuals with a right of access to information held by government; improving public scrutiny and accountability of government; and increasing public participation in the processes of government decision making. 2 Freedom of information was first enacted by the Commonwealth based on an American precedent and has been mirrored by legislation in all other Australian jurisdictions, whether under the nomenclature of freedom of information or a right to information. 3

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The legislation in most Australian jurisdictions is designed to create a legally enforceable right of access to documents in the possession of a government agency or Minister, other than exempt documents. 4 In New South Wales, by contrast, it is expressed as a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 5 However, the legislation is only intended to provide a mechanism for the making of, and responding to, formal requests for information. The legislation does not seek to provide an exclusive means by which government documents or information may be obtained.

Process [7.30] In most jurisdictions access is requested by filling in a form and paying the requisite fee. The relevant agency or Minister then has a prescribed time, such as 30 days, to take all 1

J Madison, cited in E M Kennedy, “Foreword: Is the pendulum swinging away from freedom of information?” (1981) 16 Harvard Civil Rights – Civil Liberties Law Review 311.

2

Report of the Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information (1979), Paper No 272/1979, Vol 14, pp 21-22.

3

4

Freedom of Information Act 1982 (Cth); Freedom of Information Act 1989 (ACT); Government Information (Public Access) Act 2009 (NSW); Information Act (NT); Right to Information Act 2009 (Qld); Freedom of Information Act 1991 (SA); Right to Information Act 2009 (Tas); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1992 (WA). The State Acts are based substantially on the Commonwealth model, but have minor variations. For a detailed discussion of freedom of information see, for example, “Freedom of Information” in The Laws of Australia (Lawbook Co., Sydney). All provisions mentioned in this chapter will be referring to the above Acts unless otherwise indicated. Cth: s 11; ACT: s 10; NT: ss 15 – 16; Qld: s 23; SA: s 12; Tas: s 7; WA: s 10(1); Vic: s 13.

5

NSW: s 5.

462 [7.20]

Des, B., & Sharon, R. (2015). Australian media law. ProQuest Ebook Central http://ebookcentral.proquest.com Created from vu on 2021-10-10 04:42:47.

Chapter 7 – Confidentiality and Sources of Information

reasonable steps to enable the applicant to be notified of a decision on the request. 6 Access may include allowing inspection or obtaining a copy. Where a request is refused, an internal review may be requested within another period, such as 30 days (or 15 days of limited access being granted). If the applicant is still dissatisfied, it may be possible to obtain external review by, for example, the Administrative Appeals Tribunal. In New South Wales such a reactive approach to open government was replaced by a more proactive model in 2009. Under the Government Information (Public Access) Act 2009 (NSW) there are four ways by which government information may be released: • “open access”, which requires that certain information such as an agency’s current publication guide, policy documents and register of government contracts must be available without charge and appear on the agency’s website; 7 • “proactive release”, which requires that agencies release as much information as possible without charge; 8 • “informal release of information”, which entails information being provided to members of the public who request information, subject to “reasonable conditions”; 9 and • “access application”, which is a formal method of seeking access to information that is not accessible by the other three means. 10 The “access application” is similar to the traditional reactive model of FOI previously operating in New South Wales and still operating in the other jurisdictions.

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Exemptions [7.40] Information may be exempt from disclosure on the basis of the agency involved. Thus, for example, under the Commonwealth Act there is absolute protection for the documents of the security organisations ASIS and ASIO. 11 Alternatively, the content may be covered by a specific exemption. Specific exemption is normally provided for documents or parts of documents which concern the essential interests or functions of government including those concerning national security, relations between the Commonwealth and a State/Territory, cabinet documents, executive council documents, and documents involved in the deliberative process of government where disclosure would, on balance, be contrary to the public interest. Other common exemptions include documents that if disclosed would prejudice law enforcement or a fair trial, the financial or property interests of the Commonwealth or a State/Territory, the operations of an agency or the ability of the Commonwealth or 6

Cth: s 15(5) (30 days); ACT: s 18 (30 days); NT: s 32 (30 days); Qld: s 18(1) (25 business days); SA: s 19 (30 days); Tas: s 15 (20 days with a possible extension of 20 days in some cases); WA: s 13 (45 days unless otherwise agreed); Vic: s 21 (45 days).

7

NSW: s 6.

8

NSW: s 7.

9

NSW: s 8.

10

NSW: s 9. An agency must decide an access application and give notice of the decision within 20 working days, with the possible extension of 10 working days in some cases: NSW s 57.

11

Cth: s 7 and Sch 2, Pt I.

Des, B., & Sharon, R. (2015). Australian media law. ProQuest Ebook Central http://ebookcentral.proquest.com Created from vu on 2021-10-10 04:42:47.

[7.40] 463

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State/Territory to manage the economy, or would unreasonably disclose personal information, breach legal professional privilege, reveal trade secrets, give rise to an action for breach of confidence, or constitute a contempt of court. In addition, some States have enacted State-specific exemptions, such as Tasmania’s exemption for documents that if disclosed would be likely to threaten endangered species of flora or fauna, Western Australia’s exemption for documents concerning information concerning gold or other precious metal transactions and Queensland’s exemption for documents submitted for consideration by the Brisbane City Council, in recognition of its status as the country’s biggest local authority and the similarity between these documents and cabinet documents. FOI can be an important source of information for the media. However, even where they have stated their commitment to open and transparent processes, governments do not always welcome public scrutiny of their affairs. This has led to instances of governments using the exemptions in the FOI legislation in a manner which has avoided disclosure of documents containing information which may subject them to public criticism. An exemption commonly relied upon in this connection has been that for cabinet documents, 12 with a liberal interpretation applied to what constitutes such a document. For example, is it a document merely taken into the Cabinet room even if it is not essential to any deliberations undertaken there? Another source of controversy has been that of the mechanism of the “Minister’s certificate”. Under the FOI legislation in some jurisdictions a Minister may certify that it would be contrary to the public interest for a particular document to be disclosed. 13 Where such a certificate is issued, it can be reviewed but such a review is generally limited to determining whether reasonable grounds existed for the claim that disclosure would be contrary to the public interest. There is no provision for a full merits review of the Minister’s decision. 14 Criticism of minister’s certificates as being antithetical to the notion of a right to access has led to most jurisdictions removing the mechanism from their legislation.

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Publication of information in breach of confidence Elements of an obligation of confidence [7.50] Generally, the three elements to be proved by someone seeking to restrain the publication of confidential information are: • that the information was of a confidential nature; • the information was communicated in circumstances importing an obligation of confidence; and 12

Cth: s 34; ACT: s 35; NSW: Sch 1; NT: s 45; Qld: Sch 3; SA: Sch 1 Pt 1; Tas: s 26; WA: Sch 1; Vic: s 28.

13

NT: s 60; WA: ss 36 – 38.

14

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 (FOI application for information of “bracket creep” denied on the basis of them being the internal working documents involved in deliberative processes of government, the disclosure of which would be contrary to the public interest – on application for review by the AAT, the Federal Treasurer signed a Minister’s certificate in relation to the documents).

464 [7.50]

Des, B., & Sharon, R. (2015). Australian media law. ProQuest Ebook Central http://ebookcentral.proquest.com Created from vu on 2021-10-10 04:42:47.

Chapter 7 – Confidentiality and Sources of Information

• an actual or threatened unauthorised use of the information to the detriment of the person who communicated the information. 15 In some cases before these elements can be applied it is first essential to identify the relevant information with sufficient specificity. 16 This may not always be an issue because often the information that is claimed to be subject to an obligation of confidence will be clear. In Australia, the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. 17 A media defendant may oppose any attempt to restrain disclosure at any one or all of the three levels, namely whether the action has been made out (in particular, whether the information has entered the public domain), whether disclosure was justified and in relation to the appropriate relief. 18

Necessary quality of confidence Relevant information

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[7.60] A quality of confidence is easily recognised in the case of business or trade secrets and other commercially valuable information 19 including, for example, a concept for a television program, 20 photographic images of the wedding of two famous actors 21 and valuations placed on insurance claims. 22 This has now been extended to protection for personal secrets, such as domestic confidences passing between a husband and wife during marriage, 23 and sexual affairs. 24 In an appropriate case it may cover a person’s identity, 25 or 15

Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39.

16

See [7.300].

17

Moorgate Tobacco Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438; Johns v Australian Securities Commission (1993) 178 CLR 408.

18

See Kirby P in Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86 at 153. For a recent example of the media arguing on these three fronts, see Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 (public domain and justified disclosure) and Australian Football League v The Age Company Ltd (No 2) [2006] VSC 326 (appropriate relief).

19

See, for example, Coco v AN Clark (Engineers) Ltd [1969] RPC 41; Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513.

20

See, for example, Talbot v General Television Corporation Pty Ltd [1980] VR 224.

21

See, for example, Douglas v Hello! Ltd [2007] UKHL 21 at [124].

22

See, for example, Earthquake Commission v Krieger [2013] NZHC 3140.

23

Argyll v Argyll [1967] 1 Ch 302.

24

Stephens v Avery [1988] 1 Ch 449; A v B plc [2003] QB 195; [2002] 2 All ER 545 (CA). However, there may be difficulty defining the precise relationships involved: see, for example, R Wacks, Personal Information: Privacy and the Law (1993), especially pp 100-134; W Wilson, “Privacy, confidence and press freedom: A study in judicial activism” (1990) 53 Mod LR 43 at 51-56.

25

See, for example, G v Day [1982] 1 NSWLR 24 (identity of a police informant); Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 (identity of AFL players alleged to have failed drug tests).

Des, B., & Sharon, R. (2015). Australian media law. ProQuest Ebook Central http://ebookcentral.proquest.com Created from vu on 2021-10-10 04:42:47.

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new identity. 26 Advice provided by lawyers to their clients is confidential by nature. This includes any summary of relevant facts produced with the skill of a lawyer. 27 By contrast, it has been held that a person suspected of committing a crime cannot claim that either any information that might inculpate them in the commission of the offence or the fact that police suspect them of committing the crime has the necessary quality of confidence. 28 In England, since the Human Rights Act 1998 (UK), the action for breach of confidentiality has been used in lieu of express recognition of a right to privacy. In so doing, greater emphasis has been placed on the subject matter being private than it being subject to a duty of confidence. 29 In other words, greater emphasis is being placed on a variation of this first element at the expense of the second, resulting in a distortion of the cause of action and a shift away from its original theoretical basis. 30 Nevertheless this English approach attracted the support of Gleeson CJ in the High Court, 31 who in turn was followed in the Victorian County Court in cases involving disclosures in breach of privacy. 32 The Victorian Court of Appeal has also preferred to recognise a claim founded in breach of confidence rather than develop a tort of invasion of privacy in a case involving disclosure of personal secrets. 33 Government information may have the necessary quality of confidence. This may be a matter of degree. Some matters of national security may require indefinite protection, whereas other public secrets which may be confidential in the interests of good government, such as cabinet documents and deliberations, may have a confidential quality which lapses over time. 34 Example

Attorney-General v Jonathan Cape Ltd

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