Private Information in Public Hands: Confidentiality, Court Disclosure and the Public Interest
| Date | 01 December 1979 |
| DOI | 10.1177/0067205X7901000401 |
| Author | Garth Nettheim |
| Published date | 01 December 1979 |
| Subject Matter | Article |
PRIVATE INFORMATION
IN
PUBLIC HANDS:
CONFIDENTIALITY, COURT DISCLOSURE AND
THE
PUBLIC INTEREST
By GARTH
NETTHEIM*
Individuals and organisations are frequently required
to
provide
public agencies with information about their affairs which they
would
not
wish disseminated toloth,ers. Incometax returns represent
one illustration. From time to time attempts are made
to
compel
the recipient public agencies
to
produce such material
as
evidence
in court proceedings. The agency
may
resist disclosure
on
the
basis
of
a
st~tutory
secrecy provision an,d/or aclaim to Cro'wn privilege.
The court
is
thus required
to
resolve aconflict between competing
public interests: the public interest in the proper administration 0/
justice,
an,d
the public interest in
th,e
ability
01
the agency to main-
tain the confidentiality 0/ information entrusted
to
it. Professor
Nettheim considers anumber
of
decided cases and concludes that,
on
the whale, the courts have failed to
develop:
abody 0/ principles
adequate todeal
with,
thesituation. In particular, established Crown
privilege doctrines about waiver
an,d
secondary evidence are
inappropriate in this context. The author puts /orw'ard asuggested
model
of
principles
an,d
procedures, and notes that similar issues
may
arise for adjudication under Freedom
of
In/ormation. legis-
lation, particularly in the form 0/ the "reverse FOIA lawsuit".
"If
the state insists on aman disclosing his private affairs for a
particular purpose
it
requires avery strong case to justify
that
disclosure being used for other purposes."!
How does the law give effect to this principle?
In
particular, how do
judges deal with attempts to use such disclosure for the purpose of
litigious proceedings before the judges themselves? T'he question has
most frequently come to court in regard to income tax returns,2 but the
issues apply similarly to other forms of private information collected by
public agencies.
*LL.B. (Syd.), A.M. (Tufts, U.S.A.); Professor of Law, University
of
New
South Wales. I
am
grateful
to
my colleague, Associate Professor
Mark
Aronson,
for his helpful comments, though, in fairness to him, Ishould point
out
that he is
in substantial disagreement with some
of
the propositions Iput forward.
1
Conway
v.
Rimmer
[1968] A.C. 910, 946
per
Lord Reid.
2Several journal articles have focussed
on
aspects
of
the particular area
of
income tax returns, e.g. McTavish and Casey, "Moving for the Production
of
Income Tax Return Copies in Civil Litigation" (1955)
41
Iowa Law Review 98;
McKee, "Is Production of Copies of Income Tax Returns Governed by the
Common Law Rule
of
Public Policy?" (1958) 32 A.L.J. 178; Carlson, "The
Confidentiality of Income Tax Returns during Pre-Trial Discovery" (1973)62
Illinois Bar Journal 188; Caridi, "The Use
of
Tax Returns in Non-Tax Prosecutions"
(1975)
41
Brooklyn Law Review 580.
329
330 Federal
Law
Review
[VOLUME 10
The
Issues
The problem
is
not new. After all, governments have exacted infor-
mation from subjects from
at
least as far back, in
our
system, as the
Domesday Survey. Butmodern governments require increasing quantities
and types of information from
us-all,
of course, for good public
purposes. More to the point, modern techniques of data storage and
retrieval make such information about our private affairs temptingly
accessible to
those-public
or
private-who
would wish to utilise it for
purposes other than the purpose for which it was disclosed.
Various barriers are commonly constructed to limit access to such
information-physical security barriers, ,ethical barriers, legal barriers.
Legal barriers may be constructed not
(or
not solely) in deference to
newfangled notions
that
privacy
as
such
is
an interest which deserves
legal recognition; they are commonly constructed for the much more
pragmatic reason that Imay be unwilling to tell the tax man,
or
the
census collector, or the health authority
or
the social security department
all they need to know about my personal affairs unless Iam given
reasonable assurances that the information will be used only by the
relevant agency for its relevant purposes. Confidentiality
is
a
quid
pro
quo
for co-operation, completeness and candour.3
The most obvious way for agovernment
or
public authority to make
apromise of confidentiality credible is to make abreach of that
confidentiality unlawful. This may be achieved
at
two levels.
At
the
more general level
we
find
legislative provisions in Official Secrets Acts
or
public service regulations designed to prohibit the unauthorised
disclosure by civil servants of any information they acquire in the
course of their employment.4
At
the more specific level, particular
statutes (including statutes which require the furnishing to government
of private information) commonly make particular provision against
the unauthorised disclosure of information.sThe courts, therefore, can
3Rowell v. Pratt [1938] A.C. 101, 113 per
Lord
Maugham.
4On the situation in the United Kingdom concerning the Official Secrets Act,
1911 see Williams,
Not
In The Public Interest
(1965);
Report
of
the Departmental
Committee on Section 2
of
the Official Secrets
Act
1911
(The
Franks
Report)
Cmnd 5104
(1972);
Birtles, "Big Brother Knows Best:
The
Franks
Report
on
Section
Two
of
the Official Secrets Act" [1973] Public
Law
100; Jacob, "Some
Reflections
on
Governmental Secrecy" [1974] Public
Law
25.
The New Zealand situation
is
considered in the light
of
the
Franks
Report
in
Wardell, "The Official Secrets
Act
1951
and
the Unauthorised Disclosure
of
Information" (1976) 3Auckland University
Law
Review 25.
For
asurvey
of
Australian federal
and
State law see Campbell
and
Whitmore,
Freedom in Australia (2nd ed. 1973) Ch. 18.
SAlist
of
Commonwealth legislative provisions
of
this nature appears in the
Report
of
the Royal Commission on Australian Government Administration
(1976) Appendix Volume Two, 53-54. Alisting
of
some British provisions can be
found in Halsbury's Laws
of
England
(4th
ed.) Vol. 13, para. 93.
An
account
of
some U.S. provisions is provided in Wallace, "Discovery of Government Documents
and
the Official Information Privilege" (1976) 76 Columbia
Law
Review 142,
149-152.
1979] Private Information in Public Hands 331
be expected to be strict in punishing instances of unauthorised disclosure.
Of
course there
is
always the risk, with
or
without corruption, that
officials may take achance of not being detected and make unauthorised
disclosure of such information to other public agencies,
or
to private
individuals
or
bodies such as inquiry agents, employers, credit insti-
tutions, insurance companies, the press.
The
market for information
can be strong.'
The problem of inter-agency transfers
of
private information
is
of
special complexity and significance. To what extent, for example, do
police
or
security forces have access to personal information in the
hands of taxation authorities
or
social security agencies? Should such
inter-agency access be permitted?
To
what extent and on what terms?
The issue surfaces occasionally in the Australian press."
It
has had some
discussion in the United Kingdom.8
In
the United States it has received
considerable attention and amajor attempt
at
legislative resolution,9
but
it
is
beyond the scope of this article to do more than note the fact.
Leaving aside, then, questions of clandestine "leaks" and inter-agency
transfers, the question to be pursued here
is
how the judges deal with
attempts to gain access to private information in official hands when
such attempts are made for the purpose of proceedings in the courts
themselves?
When the question
is
seen as turning on statutory secrecy provisions
alone, the question becomes a
matter
of
interpretation-whether
or
not
the prohibition should be read as including prohibition of disclosure in
court proceedings. Typically the legislation
is
not completely explicit on
the point
so
that
the court may seek
an
answer on the basis of its
perception of the public interest.
But
the question
is
frequently decided
not on the basis of statutory provisions alone, and sometimes not on the
6Recent illustrations of "leaks" that have led
to
litigation are Rogers
v.
Home
Secretary [1973] A.C. 388, 400 and
New
York
Times Co.
v.
United States
(The
Pentagon Papers Case) (1971) 403 U.S. 713. D.P.P.
v.
Withers [1975] A.C. 842
provides an illustration
of
the acquisition
of
such information by deception.
'1
E.g. The Australian, 24 August 1973, 5("Tax laws hinder police. They can't
gain access to information
on
where criminals get their money"); ct. The National
Times, 3February 1978, 9-13.
8Jacob, "Some Reflections on Governmental Secrecy" [1974] Public Law 25,
32-38 citing, especially, Rule, Private Lives and Public Surveillance (1973).
9The Privacy Act, 5
V.S.C.A.
§552a, enacted by Congress in 1974, was the
culmination of intensive consideration of the issues
at
congressional and denart-
mental levels and in such agencies as the Administrative Conference of the Vnited
States.
For
an account
of
effects
of
the new legislation, see Belair, "Agency
Implementation of the Privacy Act and the Freedom
of
Information Act: Impact
on
the Governments' Collection, Maintenance and Dissemination
of
Personally
Identifiable Information" (1977) 10 John Marshall Journal of Practice and
Procedure 465.
On the specific issue of income tax returns, post-Watergate revelations
of
attempted
abuse
of
Presidential access
to
income tax records has led to measures to confine
use
of
such returns
to
tax purposes: Caridi, "The Use
of
Tax Returns in Non-Tax
Prosecutions" (1975)
41
Brooklyn Law Review 580.
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