compassion and compliance: releasing records under australian privacy and foi legislation reclaiming...
TRANSCRIPT
Compassion and compliance: Releasing records under Australian
privacy and FOI legislation
Reclaiming Lost Childhoods – Seminar 4University of Strathclyde
23 September 2013
Associate Professor Suellen MurrayCentre for Applied Social Research
RMIT UniversityMelbourne, Australia
Overview of presentation • Context to research – Who Am I? project• RAP research – key literature and policy context• Conduct of RAP research• Legislative context – FOI and Privacy• Research findings
– Record-holders understanding of the legislation– Entitlement to records– Reasonable and unreasonable disclosure
• Policy implications
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Who Am I? research project• Led by Professor Cathy Humphreys at the
University of Melbourne• Investigating archiving and record keeping
practices to support current and adult care leavers, in the construction of their identity
• Three strands– Archiving and historical research – Current record-keeping practice– Records access
• Resulted in national Find and Connect website
Key literatureAustralian inquiries–HREOC 1997; SCARC 2001 & 2004
Australian biographical studies–Golding 2005; Penglase 2005
Australian ‘life after care’ research–CLAN 2009; Murray, Murphy, Branigan & Malone 2009; Raman & Forbes 2007
Stolen Generations access to records–Timberry 2011; Cornwall 2009; Victorian Koorie Records Taskforce 2012
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Key literatureUK access to records research– Goddard, Murray & Duncalf 2012; Kirton, Feast &
Goddard 2011; Duncalf 2010; Horrocks & Goddard 2006; Goddard, Feast & Kirton 2005; Winter & Cohen 2005; Kirton, Peltier & Webb 2001
UK guides to access to records– Feast 2009, CLA 2009
Emerging Australian access to records research– Murray 2013; Murray & Humphreys 2012; Goddard,
Murray & Duncalf 2012; O’Neill, Selakovic & Tropea 2012; Humphreys & Kertasz 2012; Swain & Musgrove 2012; Golding 2010; Murray, Malone & Glare 2008
Policy contextOutcomes of HREOC (1997) and SCARC
(2001, 2004, 2009)– Recommendations regarding access to records
Apologies state and federal (2000s)
Who Am I? in Victoria (2009-2012)
Find and Connect nationally (from 2011)
Victorian enquiries– Ombudsman (2012)– Auditor-General (2012)
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Records Access ProjectResearch aims• consider the impact of access to care records on the
construction of care leavers identity and their health and well-being, in a context where multiple other sources may also be sought
• provide evidence of the significance of personal records• document the experiences of care leavers currently
seeking access to their care records, as well as reflections on past experiences
• document record-release practices• gain insights to inform improvements in record keeping,
access and release of care records
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Records Access Project • In-depth interviews conducted with care-leavers
Jan-June 2011
• Workshop attended by 50 participants from across the sector – July 2011
• 11 phone interviews conducted Apr–Aug 2012–8 record-holding community service organisations (CSOs) (care-providers)–1 record-holding government department (Department of Human Services (DHS))–2 CSOs that provides support to adult care-leavers
Legislation
CSOs subject to Privacy Act
DHS subject to Freedom of Information Act - ‘ward of the state’files
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Relevance of FOI and Privacy• FOI – ‘promotes openness and transparency
through access to information’ (Turle, 2007: 514).
• DPA (Privacy)- ‘restricts access in the interests of privacy’ (Turle, 2007: 514).
• ‘FOI is fundamentally about compelling disclosure. Privacy compels discretion’ (OVPC, 2001:5)
• However, privacy confers a right of access to the subject of the personal information (OVPC, 2011:5)
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Restrictions on accessPrivacy Act: ‘6.1 If an organisation holds personal information about a individual, it must provide the individual with access to the information on request by the individual, except to the extent that … (b) providing access would have an unreasonable impact on the privacy of other individuals’ (IPP6)
FOI:‘33.1 A document is an exempt document if its disclosure … would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).’
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‘Unreasonable’Guidelines assist in determining whether disclosure is ‘unreasonable’ according to the nature of the information, whether the information is already in the public domain, whether disclosure is likely to endanger the life or physical safety of any person and the applicant’s reasons for seeking the documents (VDoJ, 2012).
‘The crucial tension is that between the identity needs and rights of post-care adults and the rights of other family members to privacy and confidentiality’ (Kirton, Feast & Goddard, 2011: 920).
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Record holders understanding of the legislation
‘There continues to be a great deal of confusion surrounding the access to information for postcare adults … A common misperception is that the [DPA] Act is a tool that organisations should use to restrict access to information (emphasis added) (Feast 2009:9)
Seeming contradiction between privacy and access to information is confusing, and was evident in Australia as well.
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Entitlement to recordsUnderpinning records release is an entitlement to access personal information. This was not well known – it was thought by some to be discretionary.
Practice of deleting a whole page of information from the records if any part of it was grounds for exemption– source of a complaint to the OVPC (2011).– OVPC was more concerned with releasing too little
rather than too much.
Reasonable and unreasonable
• ‘Away from disclosure ‘(Kirton et al., 2011:921)• Lack of confidence, over protection of subject of
records, others, and/or organisation
•‘Towards disclosure’ (Kirton et al., 2011:921)– Maximum release of information– Seeking out additional information from other sources
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Conclusion• Understanding the importance of records
is fundamental to the work of record-holders – compassion and compliance
• Training and guidance needed to facilitate compassionate and compliant responses
• Review of legislation – greater legal rights to information is needed
