Government, employees protected from FOI defamation actions

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Government, employees protected from FOI defamation actions

A person who receives a document under a Freedom of Information request cannot commence an action for defamation using this document against a government department, its employees, a minister or the author of the document.

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Source: Damian Ward, Senior Associate, Abbott Tout Solicitors

 

A person who receives a document under a Freedom of Information request cannot commence an action for defamation using this document against a government department, its employees, a minister or the author of the document.

In this article, Damian Ward, Senior Associate with Abbott Tout Solicitors, illustrates that the Freedom of Information Act (NSW) cannot be used as a way of getting access to documents to springboard defamation proceedings.

Purpose of legislation

Since the commencement of the Freedom of Information Act (NSW) in 1989 there has been a greater flow of information between state and local government in New South Wales and members of the community.

Given the nature of government's duties and obligations, often reports are generated or documents prepared by its employees which contain adverse or defamatory references.

When a person's suspicions are aroused that they have been referred to in a report or government document they often make an immediate Freedom of Information (FOI) request to see what is said about them and who said it. They may then wish to commence defamation proceedings against the author of the document or the government department. The difficult issue of evidence is apparently solved by simply obtaining the relevant document.

However, this strategy proceeds on a misconception.

Not a springboard to defamation proceedings

Whilst the Freedom of Information Act (NSW) provides an excellent mechanism to obtain documents relating to the mechanics of government, it cannot be used as a way of getting access to documents to springboard defamation proceedings.

A recent decision of the Supreme Court of New South Wales has reaffirmed this principle (see: Ainsworth v Burden [2002] NSWSC 172 (14 March 2002)). The facts in that case were that a member of the community sent a letter to the Minister for Police making adverse references to a senior member of the gaming industry. The person referred to obtained a copy of the letter under an FOI request. As a result of obtaining the letter he commenced defamation proceedings.

The letter writer objected on the basis of the principle stated above. The Supreme Court found that the author of the letter was protected from any defamation claim given that the member of the gaming industry suing them was doing so on the basis of a document obtained under an FOI request.

This principle significantly diminishes the capability of a person adversely referred to in governmental documents to restore his or her reputation and obtain compensation for any damage they have suffered to it.

Take for example a corporation providing services to a government department. An internal review of outsourcing may cause submissions to be made about the competence, professionalism and responsiveness of the corporation providing the services. The factual findings and the recommendations may be defamatory. Unless the document can be obtained by informal means, the only avenue open to the corporation to obtain the report or recommendation will be under the FOI Act. If the document is obtained under the FOI Act then the corporation is precluded from suing for defamation.

This principle is an important restriction on a person’s ability to seek vindication for damage to their reputation caused in governmental communication. In many limbs of government documents are simply inaccessible without making an FOI application.

The only practical remedy available to a person who has been defamed in governmental correspondence obtained under the FOI Act is to personally respond to the allegations made against them and seek to redress the damage to their reputation by less formal means.

 
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