Private Information in Public Hands: Confidentiality,Court Disclosure and the Public Interest

Abstract

Individuals and organisations are frequently required to provide public agencies with information about their affairs which they would not wish disseminated to others. Income tax 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 statutory secrecy provision and/or a claim to Crown privilege. The court is thus required to resolve a conflict between competing public interests: the public interest in the proper administration of justice, and the public interest in the ability of the agency to maintain the confidentiality of information entrusted to it. Professor Nettheim considers a number of decided cases and concludes that, on the whole, the courts have failed to develop a body of principles adequate to deal with the situation. In particular, established Crown privilege doctrines about waiver and secondary evidence are inappropriate in this context. The author puts forward a suggested model of principles and procedures, and notes that similar issues may arise for adjudication under Freedom of Information legislation, particularly in the form of the “reverse FOIA lawsuit”.