FEDERAL COURT OF AUSTRALIA Smallbone v New South Wales Bar Association [2011] FCA 1145 Citation: Smallbone v New South Wales Bar Association [2011] FCA 1145 Parties: DAVID ANDREW SMALLBONE v NEW SOUTH WALES BAR ASSOCIATION ACN 000 033 652 File number(s): NSD 1685 of 2011 Judge: YATES J Date of judgment: 6 October 2011 Catchwords: HUMAN RIGHTS – privacy – personal information about applicant held by respondent – information provided for collection on express assurance of confidentiality – whether providing access would have an unreasonable impact upon the privacy of other individuals Legislation: Privacy Act 1988 (Cth) ss 6, 16A(2), 98, Sch 3 National Privacy Principle 6 Cases cited: C v Insurance Company [2006] PrivCmrA 3 Phillips v Military Rehabilitation and Compensation Commission [2006] FCA 882 Date of hearing: 5 October 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 77 Counsel for the Applicant: Mr T Molomby SC Counsel for the Respondent: Dr J Griffiths SC with Ms S Pritchard Solicitor for the Respondent: Hicksons Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1685 of 2011 BETWEEN: DAVID ANDREW SMALLBONE Applicant AND: THE NEW SOUTH WALES BAR ASSOCIATION ACN 000 033 652 Respondent JUDGE: YATES J DATE OF ORDER: 6 OCTOBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to section 98 of the Privacy Act 1988 (Cth) the respondent, within 4 business days after the making of these orders, provide the applicant with access to the personal information about him that the respondent has collected in relation to the applicant's application for appointment as Senior Counsel in 2011, including responses that it has collected about the applicant from members of the consultation groups established under the Senior Counsel Protocol dated June 2011 published by the respondent, save that the respondent is not obliged to provide access to information which discloses: (a) the identity of persons who are members of the consultation groups who have provided information to the respondent and, in the case of members of the consultation groups who are judicial officers, the identity of the court to which that member has been appointed, if it is a court other than the Supreme Court of New South Wales; or (b) the identity of or information about other persons who are applicants for appointment as Senior Counsel in 2011 or who have provided information about persons who are applicants for appointment as Senior Counsel in 2011. 2. The access referred to in order 1 be provided by the respondent by permitting the applicant to inspect in private the records of the information that the respondent has in its possession, custody or control, at the premises of the respondent at 174 Phillip Street, Sydney during ordinary business hours, or by the provision of copies of those records, or in such other manner as may be agreed in writing by the applicant and the respondent. 3. Until the later of: (a) the expiry of 7 days after completion of the inspection or other provision of the access provided in order 1; or (b) the date on which the applicant notifies the respondent in writing that he no longer requires the personal information to which access has been granted to be retained for the purpose of consideration of the outcome of his application for appointment as senior counsel, or for the purpose of any complaint, review, suit, proceeding or other procedure concerning his application for appointment as senior counsel, the respondent be restrained from, by itself, its officers, servants or agents, destroying or disposing of any record of any personal information about the applicant to which the applicant has been provided access in accordance with order 1. 4. Until the expiry of 7 days after completion of the inspection or other provision of access given in accordance with order 1, the respondent be restrained from, by itself, its officers, servants or agents, making any adverse determination of the applicant's application for appointment as Senior Counsel lodged with the respondent in July 2011. 5. Liberty be granted to each of the parties to apply upon 1 day's notice for further directions concerning the manner of executing these orders or otherwise for the working out of these orders and/or for extension or amendment of any time limited by these orders for the taking of any step. 6. The proceeding stand over to a date to be fixed to determine any disputed question about costs. Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1685 of 2011 BETWEEN: DAVID ANDREW SMALLBONE Applicant AND: THE NEW SOUTH WALES BAR ASSOCIATION ACN 000 033 652 Respondent JUDGE: YATES J DATE: 6 october 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This proceeding was commenced on 30 September 2011 and listed for final hearing on 5 October 2011. 2 The applicant seeks injunctive relief under s 98 of the Privacy Act 1988 (Cth) (the Act) and ancillary relief. 3 The applicant is a barrister and a member of the respondent company. On 29 July 2011 he applied to the respondent to be appointed as Senior Counsel in response to a general invitation for applications issued on 1 July 2011 by the President of the respondent to all members of the Outer Bar. 4 For the purpose of considering that application, the respondent collected personal information, including opinions, in relation to the applicant from a variety of sources, including opinions and comments from the Consultation Group (comprising senior counsel, junior counsel and solicitors specialising and experienced in the conduct of litigation) and the Judicial Consultation Group (comprising the President of the Court of Appeal, the Chief Judge in each Division of the Supreme Court of New South Wales, the Chief Judge or most senior member of at least one of any other court or tribunal of New South Wales and of the Commonwealth in which an applicant may have practised to a substantial extent, and other judicial officers) described in the respondent's Senior Counsel Protocol as at June 2011. 5 In 2011, 579 persons were consulted in relation to all applications for appointment as Senior Counsel. Of those who were consulted, 458 persons responded, comprising: 156 judicial officers or retired judicial officers, 169 senior counsel, 71 junior counsel and 62 solicitors. Some of those who responded provided information in relation to the applicant. 6 On 22 September 2011 the applicant claimed a right of access to the information collected about him in relation to his application. On 28 September 2011 the respondent notified the applicant that it refused to give such access. 7 It is common ground between the parties that the respondent is an organisation within the meaning of s 6C(1) of the Act and that the collection, use and destruction of information relating to the appointment of Senior Counsel is governed by the National Privacy Principles (NPPs) set out in Schedule 3 of the Act. The respondent is not bound by a privacy code approved by the Privacy Commissioner or by the Australian Information Commissioner. Background The protocol for the appointment of Senior Counsel 8 Since 1992 the respondent has had a protocol for the appointment of Senior Counsel. The protocol is approved by the Bar Council which, in accordance with clause 14.1.1 of the respondent's Constitution, administers the respondent's business and affairs. The protocol sets out the process by which Senior Counsel are selected by the Senior Counsel Selection Committee each year. The Selection Committee comprises the President and Senior Vice President of the respondent, three other senior counsel (whether Queen's Counsel or Senior Counsel) nominated by the President and approved by the Bar Council (not more than one of whom may be a member of the Bar Council) and one person who is not a practising barrister but who, by virtue of that person's qualifications, is an appropriate person to be the non-practising representative on the Committee. The protocol is written for members of the respondent who are considering making application for appointment as Senior Counsel. It also provides information to members of the public who wish to be informed of that process. 9 Clause 27 of the Senior Counsel Protocol as at June 2011 (the Protocol) provides that the Selection Committee should use its best endeavours to ensure that the process of selection is completed so as to permit public announcements of the successful applications on or before the first Friday in October. This year that date is 7 October 2011. 10 The urgency of the present proceeding resides in the fact that the applicant seeks, as part of his claimed relief, an injunction that the respondent be restrained from making any adverse determination of his application for Senior Counsel for a period of seven days after completion of his inspection or other access to the information he seeks. Provisions in relation to the confidentiality of information 11 The Protocol contains the following provisions in relation to the confidentiality of information collected as part of the selection process: 15. The collection of information relating to appointment of Senior Counsel is governed by National Privacy Principle 2 and will not be used or disclosed for a purpose other than the selection of Senior Counsel and the giving of counselling by the President to unsuccessful applicants. 16. In accordance with National Privacy Principle 4, to protect the confidentiality of the material it gathers, the Bar Association will destroy or permanently de-identify all documentation in its possession in relation to the selection process as soon as practicable after each year's appointments are announced. 17. It is a requirement of making an application for appointment of Senior Counsel that the applicant agrees that information collected by the Bar Association in conjunction with their application, including information obtained by third parties, is confidential information in terms of the National Privacy Principle 6(1)(c). 18. Applicants are to be made aware that their applications will be the subject of distribution during the selection process and it will therefore be impossible to keep confidential the fact that an application has been made. 12 The general invitation for applications that was issued on 1 July 2011 contained provisions in relation to confidentiality in identical terms to clauses 15 to 17 set out above. It also contained a provision, more detailed than clause 18, advising that limited information from each application would be distributed to a consultation group during the selection process and that it would be impossible to keep confidential the fact that a particular application had been made. The provision also made clear the fact that basic details of that application would be disclosed to a consultation group. 13 Members of the Consultation Group and the Judicial Consultation Group were provided with a "kit" of documents that comprised a covering letter, the Protocol and instructions about the completion of an enclosed "consultation form". 14 The letter contained the following statements about the confidentiality of information: The collection, use and destruction of information relating to the appointment of Senior Counsel is governed by the National Privacy Principles. Accordingly, any information you supply will not be used or disclosed for a purpose other than the selection of Senior Counsel and the giving of counselling by the President to unsuccessful applicants. The Bar Association destroys or permanently de-identifies all documentation in its possession relating to the selection process as soon as practicable after each year's appointments are announced. All information received is treated as confidential and is made available only to the Selection Committee and its Secretariat. The Association does not distribute the list of applicants to anyone other than the Committee and members of the Consultation Group. I would ask that you keep the list confidential. 15 The letter also made reference to "a more detailed explanatory document on the practical aspects of appointment as Senior Counsel" that could be found on the respondent's website. This document contained provisions in relation to confidentiality in identical terms to clauses 15 to 17 of the Protocol. 16 The accompanying instructions about the completion of the consultation form made the following statement about the confidentiality of information: All information received will be treated as confidential, except to the Selection Committee. The Association does not distribute the list of applicants to anyone other than the Selection Committee and members of the Consultation Group. I would ask that you keep the list confidential. 17 The standard form application for appointment as Senior Counsel that was used for applications made in 2011 contained the following clause that was required to be acknowledged and agreed by applicants: I agree that information collected by the Bar Association in conjunction with this application including information obtained from third parties, is confidential information in terms of National Privacy Principle 6(1)(c). I note that the Bar Association will destroy documentation in its possession relating to the selection process as soon as practicable after this year's appointments are announced. The applicant's application for appointment as Senior Counsel 18 When the applicant submitted his application on 29 July 2011 he crossed out the clause requiring his agreement that information collected by the respondent in relation to his application would be confidential information in terms of NPP 6.1(c). He wrote next to the clause "not agreed". He also submitted a "Counter Protocol" in which he stated (amongst other things): I do not accept that information collected by The New South Wales Bar Association about me will be the subject of an exception under National Privacy Principle 6.1(c). 19 He also stated: I require access to the information (including opinions) that the Assocition [sic] collects about me in the course of the silk selection process. 20 The respondent responded to this application in a letter to the applicant dated 2 August 2011. In that letter the respondent noted that the applicant's application was not in accordance with the Protocol. The respondent invited the applicant to reconsider his position. The respondent stated that consideration was being given as to whether, nonetheless, the application should be considered. It gave the respondent no assurance that it would be. 21 In a separate letter dated 2 August 2011, the respondent noted the applicant's non-agreement with the requirement that information collected by it in conjunction with the application was confidential information in terms of NPP 6.1(c). The letter invited the applicant to submit a revised application. However, the applicant declined to do so. In a letter to the respondent dated 3 August 2011 the applicant said that, so far as NPP 6.1(c) was concerned, he adhered to his position. 22 Notwithstanding this response, it is clear on the evidence that the respondent has entertained the applicant's application, at least to the extent of obtaining information about him from members of the Consultation Group and the Judicial Consultation Group. the relevant information 23 The respondent holds the following personal information about the applicant in relation to his application for appointment as Senior Counsel in 2011: Correspondence passing between the applicant and the respondent in the period 11 March 2011 to 28 September 2011 including his application for appointment as Senior Counsel. Consultation forms returned by some members of the Consultation Group and Judicial Consultation Group indicating, in respect of the applicant, that member's attitude about the suitability of the applicant for appointment as Senior Counsel in 2011 in light of the member's personal experience of the professional work of the applicant, whether in court or otherwise during the past three years. Each member's attitude is expressed by using one of the designated responses "yes", "no" or "not yet". These forms identify, by name, including by signature, the member providing the response. An individual report in relation to the applicant based on a statistical analysis of the returned consultation forms. This report identifies, by name, the member providing the response, whether that member has had personal experience of the professional work of the applicant and the particular response made by that member according to one of the three designated responses. In the case of members of the Judicial Consultation Group who provided a response, the court to which the judicial officer has been appointed is identified. A statistical analysis in respect of each court showing the names of all applicants for appointment as Senior Counsel in 2011. This analysis includes responses made with respect to the applicant. It shows, amongst other things, by reference to the identified court, the number of responses, according to each designated category of response, that were provided in relation to each applicant for appointment as Senior Counsel in 2011. The names of the judicial officers providing the responses are not given. An individual statistical analysis by sub-category of the persons consulted (judicial officers, senior counsel, junior counsel and solicitors) who provided a designated response in respect of the applicant. In the case of responses from the Judicial Consultation Group, the courts from which a response was given are identified as well as the numbers of each designated response. However, individual judicial officers are not identified. Similar information is shown in respect of responses from the Consultation Group. It is not clear to me whether individual members from this group who provided responses in respect of the applicant are identified by name in the analysis. A statistical summary of information provided in graphical form showing numbers of responses according to one or more of the designated responses in relation to all applicants for appointment as Senior Counsel in 2011. Graphical information is shown with respect to each applicant for appointment. The information does not disclose the source of the responses given other than that it can be inferred that the responses are from members of the Consultation Group and the Judicial Consultation Group. LEGISLATIVE BACKGROUND 24 The following provisions of the Act are relevant to the present proceeding. 25 "Personal information" is defined by s 6 of the Act as meaning: … information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 26 Section 16A(2) of the Act provides that: To the extent (if any) that an organisation is not bound by an approved privacy code, the organisation must not do an act, or engage in a practice, that breaches a National Privacy Principle. 27 Section 98 of the Act provides that: (1) Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted or would constitute a contravention of this Act, the Federal Court or the Federal Magistrates Court may, on the application of the Commissioner or any other person, grant an injunction restraining the person from engaging in the conduct and, if in the court's opinion it is desirable to do so, requiring the person to do any act or thing. (2) Where: (a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and (b) the refusal or failure was, is, or would be a contravention of this Act; the Federal Court or the Federal Magistrates Court may, on the application of the Commissioner or any other person, grant an injunction requiring the first-mentioned person to do that act or thing. (3) Where an application is made to the court for an injunction under this section, the court may, if in the court's opinion it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in that subsection pending the determination of the application. (4) The court may discharge or vary an injunction granted under this section. (5) The power of the court to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised (a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. (6) The power of the court to grant an injunction requiring a person to do a particular act or thing may be exercised: (a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or (b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing. (7) Where the Commissioner makes an application to the court for the grant of an injunction under this section, the court shall not require the Commissioner or any other person, as a condition of the granting of an interim injunction, to give any undertakings as to damages. (8) The powers conferred on the court under this section are in addition to, and not in derogation of, any powers of the court, whether conferred by this Act or otherwise. 28 NPP 6 provides that: 6.1 If an organisation holds personal information about an individual, it must provide the individual with access to the information on request by the individual, except to the extent that: (a) in the case of personal information other than health information—providing access would pose a serious and imminent threat to the life or health of any individual; or (b) in the case of health information—providing access would pose a serious threat to the life or health of any individual; or (c) providing access would have an unreasonable impact upon the privacy of other individuals; or (d) the request for access is frivolous or vexatious; or (e) the information relates to existing or anticipated legal proceedings between the organisation and the individual, and the information would not be accessible by the process of discovery in those proceedings; or (f) providing access would reveal the intentions of the organisation in relation to negotiations with the individual in such a way as to prejudice those negotiations; or (g) providing access would be unlawful; or (h) denying access is required or authorised by or under law; or (i) providing access would be likely to prejudice an investigation of possible unlawful activity; or (j) providing access would be likely to prejudice: (i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law; or (ii) the enforcement of laws relating to the confiscation of the proceeds of crime; or (iii) the protection of the public revenue; or (iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct; or (v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of its orders; by or on behalf of an enforcement body; or (k) an enforcement body performing a lawful security function asks the organisation not to provide access to the information on the basis that providing access would be likely to cause damage to the security of Australia. 6.2 However, where providing access would reveal evaluative information generated within the organisation in connection with a commercially sensitive decision-making process, the organisation may give the individual an explanation for the commercially sensitive decision rather than direct access to the information. Note: An organisation breaches subclause 6.1 if it relies on subclause 6.2 to give an individual an explanation for a commercially sensitive decision in circumstances where subclause 6.2 does not apply. 6.3 If the organisation is not required to provide the individual with access to the information because of one or more of paragraphs 6.1(a) to (k) (inclusive), the organisation must, if reasonable, consider whether the use of mutually agreed intermediaries would allow sufficient access to meet the needs of both parties. 6.4 If an organisation charges for providing access to personal information, those charges: (a) must not be excessive; and (b) must not apply to lodging a request for access. 6.5 If an organisation holds personal information about an individual and the individual is able to establish that the information is not accurate, complete and up-to-date, the organisation must take reasonable steps to correct the information so that it is accurate, complete and up-to-date. 6.6 If the individual and the organisation disagree about whether the information is accurate, complete and up-to-date, and the individual asks the organisation to associate with the information a statement claiming that the information is not accurate, complete or up-to-date, the organisation must take reasonable steps to do so. 6.7 An organisation must provide reasons for denial of access or a refusal to correct personal information. Applicant's Submissions 29 The applicant's position is that, if, in his view, it be appropriate, he wishes to exercise the right to: (a) request that corrections be made to information held by the respondent about him that was collected by the respondent in considering his application for appointment as Senior Counsel in 2011, pursuant to NPP 6.5; or alternatively (b) require that a statement be associated with that information where he does not agree that the information is accurate, complete or up-to-date, pursuant to NPP 6.6. 30 He submitted that, for this purpose, he needs to know who has commented on his application, what has been said about him in that regard, and why it has been said. He wishes to take these steps before the respondent makes any adverse determination of his application for appointment as Senior Counsel so that the correction or associated statement can be taken into account by the respondent in determining his application. He submitted that, unless this is done, his rights under the Act will be rendered nugatory. 31 In support of this position the applicant also submitted that, although persons providing information in relation to his application would understand that a confidentiality regime existed in respect of that information, they would also understand and accept that this did not preclude the supplying of their responses to the applicant. 32 In this connection the applicant submitted that such use would be consistent with use of the information for the purposes of the selection of Senior Counsel and the giving of counselling by the President of the respondent to unsuccessful applicants – activities expressly referred to in the covering letter sent to members of the Consultation Group and the Judicial Consultation Group as part of the "kit" of documents. The same potential use is referred to in clause 15 of the Protocol, as well as in the explanatory document on the respondent's website about the practical aspects of the appointment process. 33 The applicant also referred, in this connection, to clause 18 of the explanatory document which states that the Selection Committee may communicate with applicants where it is thought that the communication may help to fill a gap in the Committee's knowledge or to help resolve an issue about an applicant. The applicant submitted that this envisaged the communication of actual responses to applicants, disclosing the identity of those giving the responses, to help fill a gap in the Committee's knowledge or to resolve an issue, based on that particular response. 34 These submissions were directed to how NPP 6.1(c) should be applied in a given case. The gravamen of these submissions was that, in the present case, it should not be accepted, uncritically, that the provision of access to the information collected in relation to the applicant would impact unreasonably upon the privacy of those who had provided the information. Respondent's Submissions 35 The respondent's position is that neither the identity of members of the Consultation Group and the Judicial Consultation Group nor their opinions in relation to individual applicants for appointment as Senior Counsel in 2011, including opinions in relation to the applicant himself, should be disclosed to the applicant or, indeed, to the public more generally. 36 The respondent's policy that privacy be accorded to the opinions of those who are consulted as part of the process of appointment of Senior Counsel is based upon recognition of the fact that the publication of adverse opinions is certain to cause difficulties in the form of social unpleasantness, professional acrimony and possibly proceedings for defamation. In the case of opinions expressed by judicial officers, the failure to accord privacy may be reflected in recusal applications or other questions by an unsuccessful applicant appearing before a judicial officer who is known to have given a "no" response in respect of that applicant. 37 The respondent pointed to NPP 6.1(c) and submitted that, in the present case, that provision provided an exception in relation to all information that the respondent had collected about the applicant in relation to his application for appointment as Senior Counsel in 2011, including, in particular, responses from members of the Consultation Group and the Judicial Consultation Group. 38 In that connection the respondent submitted that all persons who were consulted by it in relation to this year's applications for appointment were told that their responses would be kept confidential. That this would be so was made explicit by the statements about confidentiality made in the covering letter sent to members of the Consultation Group and the Judicial Consultation Group: see the statements quoted in [14] above. This position was supported by the other statements about confidentiality in the Protocol. This position was also supported by provisions in the Protocol and other documents about the respondent destroying or permanently de-identifying all documentation in relation to the selection process as soon as practicable after the announcement of appointments in the current year. 39 The respondent submitted that, although the applicant expressly declined to comply with clause 17 of the Protocol when making his application, he nevertheless expressly acknowledged that the Selection Committee may make enquires about him in relation to his application, including from "other persons" as the respondent might think fit, and that the applicant acknowledged that this would be done on a confidential basis. 40 The respondent submitted that, quite apart from the express statements made in the documents about the maintenance of confidentiality and the fact that responses would be kept confidential, it could be inferred that those expressing opinions about applicants would do so only on a basis that their identities and opinions were kept confidential and not disclosed to the applicants about whom those opinions were expressed. The respondent alluded to the basis for its policy of privacy in this regard and to the "chilling effect" of not maintaining strict confidentiality in a context, such as the present, which involves close professional dealings and relationships in which mutual confidence is important. 41 The respondent submitted that, although counselling unsuccessful applicants was an activity envisaged as part of the selection process, it did not require the confidentiality of particular responses to be destroyed. 42 Finally, the respondent challenged the utility of any recourse by the applicant to NPPs 6.5 and 6.6 in relation to information that was essentially an expression of personal opinion conveyed by certain designated answers: cf Phillips v Military Rehabilitation and Compensation Commission [2006] FCA 882 at [31]. I will return to that matter. Consideration 43 The following matters should be noted at the outset. 44 First, the parties did not dispute the fact that the respondent is an organisation to which NPP 6.1 applies. Thus, if it holds personal information about an individual, it must provide the individual with access to the information on request by the individual. 45 Secondly, the parties did not dispute the fact that the information collected by the respondent about the applicant in relation to his application for appointment as Senior Counsel in 2011 was "personal information" for the purposes of the Act and the NPPs, and that the applicant had requested access to that information. 46 The matter that divided the parties was the extent to which NPP 6.1(c) applies to limit the applicant's right of access to that information. The applicant's primary position was that providing access to all of the information in respect of the applicant, including the identity of persons who had supplied that information, would not have an unreasonable impact upon the privacy of other individuals. In essence his position was that NPP 6.1(c) had no relevant application in the circumstances of his case. The respondent's position was that providing access to any of that information to the applicant would have an unreasonable impact upon the privacy of other individuals, being the persons who participated in the selection process and supplied the information in respect of the applicant. In essence its position was that NPP 6.1(c) provided an absolute exemption to providing access to that information to the applicant. 47 In my view neither position is the correct position. NPP 6.1(c) provides an exception to a general rule. The general rule is that, if an organisation (such as the respondent) holds personal information (such as the information held by the respondent as a result of the selection process) about an individual (such as the applicant), access must be provided to the individual upon that person's request. The exception provided by NPP 6.1(c) is one among a number of possible exceptions that might apply in a given case. But it is not necessarily an absolute exemption. This is made clear by the words "except to the extent that" in the chapeau to NPP 6.1(c). What is required is that access to the information be provided except to the extent that it would have the unreasonable impact to which NPP 6.1(c) refers. 48 Whether providing access to the information would have that unreasonable impact is essentially a matter of practical judgment having regard to all the circumstances of the case. In short, a factual evaluation is involved. 49 In C v Insurance Company [2006] PrivCmrA 3 the Commissioner identified the following factors as being relevant to the assessment of whether the provision of access to documents containing the personal information of third parties would have an unreasonable impact on the privacy of those individuals: Whether the individual would expect that his or her information would be disclosed to a third party, including whether an assurance of confidentiality was provided. The extent of the impact on the individual's privacy. Whether any public interest reasons for providing access to the information outweigh any expectation of confidentiality. Whether masking the identifying details of the third parties would sufficiently protect the privacy of these individuals. 50 Those considerations are helpful indicators of some of the considerations that might be involved in a particular evaluation of the application of NPP 6.1(c). They are not, however, the only relevant considerations. Another relevant consideration is the nature of the information that is held by the organisation and the form in which that information is held. 51 In the present case the nature and form of the information to which the applicant seeks access is as I have described it to be in [23] above. In substance the information comprises certain designated answers ("yes", "no" and "not yet") associated with identified members of the Consultation Group and the Judicial Consultation Group based on whether those members have had, during the past three years, direct personal experience of the applicant conducting professional practice, whether in court or otherwise. That information contains matters of opinion ("yes", "no" or "not yet") in relation to the applicant's suitability to be appointed Senior Counsel. It also contains matters of fact (namely, the member's name and whether that person has had, during the past three years, the relevant direct personal experience of the applicant). 52 The evidence makes clear that members of the Consultation Group and the Judicial Consultation Group were invited to provide information on all applicants for appointment as Senior Counsel in 2011 on the express assurance that all information received in response to that invitation would be treated as confidential and made only available to the Selection Committee and its secretariat. 53 I do not accept the applicant's submission that it can be expected that, in providing information about applicants for appointment, members of the Consultation Group and the Judicial Consultation Group would have proceeded on the basis that any information that they provided as individuals would be provided to any applicant for appointment, whether as part of a counselling session or in an endeavour to fill a gap in the Selection Committee's knowledge or to help resolve an issue about an applicant. 54 Whether some particular member of the Consultation Group or the Judicial Consultation Group would, if specifically asked, give permission for information provided by him or her to be disclosed to a particular applicant for appointment is not a matter on which I should speculate. My determination proceeds on the express basis on which members of the Consultation Group and Judicial Consultation Group were invited to provide information. I have no reason to doubt that the information about the applicant (and other applicants for appointment) was provided on that basis. 55 I should add that opinions expressed in the form of one of the designated answers, as part of a formal process of selection for appointment as Senior Counsel, and intended to reflect on the professional standing and suitability of an applicant for appointment, bear the hallmark of private information not intended by the individual providing that information to be used in a way that does not take into account the interests, expectations and desires of that individual as to how that information is to be used by the person or persons to whom it is imparted. 56 Neither NPP 6.1(c) nor the Act defines the word "privacy". As used in NPP 6.1(c) in respect of "the privacy of other individuals", the word must bear its ordinary English meaning as denoting the state of being private. In my view the expression "the privacy of other individuals" as used in NPP 6.1(c) would comprehend and include an individual's expression of opinion that was proffered so as to be confined to or intended only for the person or persons to whom the opinion was expressed. The applicant did not seek to contend otherwise. 57 I am satisfied, therefore, that disclosure of the identity of members of the Consultation Group and the Judicial Consultation Group who provided information about the applicant would impact on the privacy of those members. Given the circumstances in which the information was sought and the circumstances in which it came to be provided, as well as the nature of the information itself, I am satisfied that granting access to the applicant of that information would have an unreasonable impact upon the privacy of those members. Thus, to that extent, by operation of NPP 6.1(c), the respondent is not obliged to provide access to the applicant to that information. 58 Although the applicant has submitted that he needs to know the identity of those who have provided information about him in order to exercise his rights under NPPs 6.5 and 6.6, his right to access is not unqualified. This is made clear by the various exceptions provided in NPP 6.1. However, I have taken into account the applicant's concerns in that regard. I have also taken into account the fact that his rights under NPPs 6.5 and 6.6 relate to whether the information about him is accurate, complete and up-to-date. 59 In so far as the information about him comprises opinions expressed by one of the designated answers, I am unable to see any substantial scope for challenging that information on the ground that it is not accurate, complete or up-to-date. There might be some limited scope for challenging information relating to the existence of relevant professional experience. 60 In the circumstances I am not persuaded that the applicant's desire to know the identity of those who have provided information about him, for the stated purposes, is a countervailing factor to the view to which I have come about the applicant not being granted access to information about the identity of members of the Consultation Group and the Judicial Consultation Group. 61 In the course of argument the respondent submitted that, even if not identified by name, the identity of a member of the Judicial Consultation Group might be still be disclosed if, for example, that member is the only judicial officer from a designated and disclosed court providing a response. The respondent submitted that, by a process of elimination based on direct professional experience, the applicant would be able to determine the identity of the judicial officer involved. The same position does not arise in the case of members of the Consultation Group who have provided information in respect of the applicant. 62 I accept the general thrust of the respondent's submission in this regard. Much depends upon the pattern and number of responses (either "yes", "no" or "not yet") received from judicial officers of a particular court. Plainly where there is only one response then, based on direct professional experience, the identity of the judicial officer is, for practical purposes, likely to be revealed to a particular applicant for appointment. 63 The same position may obtain where there is a small number of responses. Take, for example, the position where there are two responses from a designated and disclosed court, one being "yes" and the other "no". Based on direct professional experience, it is likely that the identity of the two judicial officers will, for practical purposes, be revealed to the applicant for appointment. The applicant for appointment will know that one or other of the judicial officers with whom he or she has had direct professional experience has proffered the "no" opinion. In those circumstances providing access to an applicant for appointment to information designating the court to which those members of the Judicial Consultation Group have been appointed would have an unreasonable impact upon the privacy of those individuals. 64 I have given consideration to that issue in the present case, based on the pattern and number of responses from particular courts shown in the documents that I have described. I am satisfied that, given the small number of responses from some judicial officers from some identified courts, disclosure of information by reference to those courts will have an unreasonable impact upon the privacy of other individuals, being the judicial officers of those courts who have provided information about the applicant. For that reason the respondent is not obliged by NPP 6.1(c) to provide information showing the identity of the court to which a member of the Judicial Consultation Group has been appointed, other than in the case of the Supreme Court of New South Wales where, in my view, there is a sufficiently large number of responses such as not to have an unreasonable impact upon the privacy of members of the Judicial Consultation Group appointed to that court. 65 I am not satisfied, however, that providing the applicant with other information about him, such as the expressions of opinion in the form of the designated answers, or the answers to the question whether the member providing the information had the relevant direct personal experience of the applicant, would have, in the particular circumstances of this case, an unreasonable impact upon the privacy of other individuals. Similarly, I am not satisfied that providing that information by reference to broad sub-categories such as "judicial", "senior counsel", "junior counsel" and "solicitors" would have such an impact. 66 For the avoidance of doubt, where information about the applicant is provided in a record that shows the identity of and information about other applicants for appointment, the respondent is not obliged to provide access to that information or to the identity of the other applicants for appointment. Access to that information would have an unreasonable impact upon the privacy of those individuals. 67 I am satisfied, based on the form of some exhibits exemplifying the documents which I have described in [23], that records can be provided in a redacted form which will provide access to the applicant to the information to which he is entitled, whilst protecting the privacy of other individuals. 68 In my view it is appropriate to make an order compelling the respondent to provide the information to which I have referred. I will also make an order providing for the mode of giving access to that information, substantially in the form of the order sought in paragraph 2 of the originating application. 69 The question then arises whether the applicant is entitled to an order restraining the respondent from making any adverse determination of the applicant's application for appointment as Senior Counsel in 2011 until after he has been given access to the information to which he is entitled. 70 As I have noted, the applicant's scope for challenge under NPP 6.5 and 6.6 is, by reason of the nature and extent of the information, limited. It is even more so given my view that the respondent is not obliged to provide access to the identity of the members of the Consultation Group and the Judicial Consultation Group who provided that information. 71 I have given anxious consideration to whether there is really any utility in restraining the respondent from making any adverse determination of the applicant's application until after he has been granted appropriate access to the information. I have come to the view that I should do so. 72 First, the respondent has not advanced any substantive submission against such a course. The respondent's submissions have been limited to the applicant's entitlement to access. Secondly, even though I consider the applicant's scope for challenge under NPPs 6.5 and 6.6 to be limited, I cannot say that it would be a barren exercise. Thirdly, I am persuaded by the submission that, unless some opportunity is provided to the applicant to exercise what rights he might have under NPPs 6.5 and 6.6, his rights under the Act will be rendered nugatory in respect of the very process for which the information about him has been collected and will be used. 73 In the circumstances I propose to make an order substantially in the form of the order sought in paragraph 4 of the originating application. I will also make an order providing for the preservation of the information, substantially in the form of the order sought in paragraph 3 of the originating application. other matters 74 In the course of the hearing objection was taken by the applicant to the tender of documents referred to in the affidavit of Philip Selth affirmed 5 October 2011 as PAS-6 to PAS-9, PAS-11 and PAS-13 to PAS-15. The objection was on the ground of relevance. The respondent was content (indeed, suggested) that those documents be admitted subject to their relevance being determined by me in the course of my deliberations. The documents are copies of various pieces of correspondence sent by the applicant to the respondent. It is not necessary for me to describe that correspondence in greater detail. I reject those documents as not being relevant to any issue to be decided in this proceeding. Disposition 75 I will make the orders as indicated. 76 The applicant has also sought an order to the effect that the respondent be restrained from making any adverse determination of the applicant's application for appointment as Senior Counsel in 2011 without first taking into account any corrections to information made pursuant to NPP 6.5 or any statement made pursuant to NPP 6.6. I decline to grant that relief. In my view there is no proper basis for granting it. Should the occasion arise for the making of any correction or any statement (events which are wholly speculative at the present time) there is nothing before me to suggest that the respondent would not take those matters into account in considering the applicant's application for appointment as Senior Counsel. 77 I will hear the parties on the question of costs. My provisional view is that the applicant has been largely successful and should have his costs. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 6 October 2011