Keeping names of public servants out of FOI: privacy protection ... or just a bit precious?

By Stephen Easton

July 18, 2019

Picture: Getty Images

It is standard practice to block out the names of all but the most senior public servants from documents released under the Freedom of Information Act, often in the name of protecting their personal privacy or safety, but that’s not really how the system is supposed to work.

In fact, ranks have nothing to do with it.

“When considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose,” state the federal FOI guidelines.

The Office of the Australian Information Commissioner highlights this and several other points about the FOI rules in a recent discussion paper published as part of a public consultation process.

It appears the privacy and FOI regulator has noticed the issue is a common sticking point between government agencies and FOI applicants. It is taking submissions on the issue until July 26.

This week the ABC revealed that in January the Adani mining company asked the Department of the Environment and Energy for the names of all CSIRO and Geoscience Australia employees involved in a review of its groundwater management plan for the Carmichael coal mine in Queensland.

“Adani simply wants to know who is involved in the review to provide it with peace of mind that it is being treated fairly and that the review will not be hijacked by activists with a political, as opposed to scientific, agenda,” it reportedly argued. The ABC report notes the company received a proposed legal strategy to put pressure on individual decision-makers in government agencies, but Adani says it rejected the idea.

In this case, the unusual demand was revealed by an FOI release. It was denied by the department.

The OAIC paper points out agencies should not assume a particular type of information — like names of officers below a certain level — is always exempt from release. Names of officers are usually redacted or one of four reasons, including personal privacy or because they are deemed irrelevant to the request. Agencies also often claim “a substantial adverse effect on the management or assessment of personnel” or a “substantial adverse effect on agency operations” would result from leaving names visible in documents released to the public.

The presumption is supposed to be in favour of disclosure, with exemptions based on specific circumstances, but a lot of applicants think the default is to disclose as little information as possible to manage risk. The OAIC quotes a memo written by the Attorney-General’s Department in 1994:

“It was not Parliament’s intention to provide anonymity for public officials each time one of them is mentioned in a file. That would be contrary to the stated aims of the FOI Act and would not assist in promoting openness or accountability.”

That was 16 years before the most recent changes to the 1982 legislation, which went through parliament in 2010 and intended to encourage even greater disclosure. Senior public servants pushed back against the expanded requirements and have continued to do so, sometimes publicly.

The 1994 AGD memo quoted by the OAIC states that when “the name of an official appears in a document in the normal course of the official’s duties” their privacy should not be a concern.

“The situation would be different, however, where the information related to something in which there may be some real privacy concern, such as work performance information concerning an individual official, or information relating to alleged disciplinary offences or sexual harassment. Other information relating to an official may be entirely private in nature, such as information relating to the official’s entitlement to bereavement leave because of the death of a close relative…”

The OAIC takes the same view in the current guidelines: it is reasonable for a public servant’s name to be mentioned in the course of their usual duties and only in “special circumstances” is it unreasonable. “Such information may often also be publicly available, such as on an agency website.”

On the other hand, the guidelines still recognise that information about a public servant’s private matters should always be kept confidential, as the AGD advised back in the ’90s. They also state that it may be unreasonable for an agency to expose the name of a staff member to an FOI applicant who “has a propensity to pursue matters obsessively” and does not need to contact that particular public servant in the future.

The paper includes eight questions for government agencies to consider:

  • Does your agency have concerns about releasing the names and contact details of staff in response to FOI requests? If so, what are your concerns? Has your agency experienced any specific work health and safety issues as a result of a person’s name or contact details being released in response to an FOI request?
  • Have your agency’s views on this issue changed over time? If so, please describe any factors that have affected your agency’s approach, including technological, environmental or legal factors.
  • Does your agency advise staff, including contractors undertaking functions on behalf of the agency, that names and contact details may be released in response to an FOI request as part of your agency’s training and induction programs?
  • How do you balance work health and safety considerations with the objects of the FOI Act, which include increasing public participation in government processes with a view to promoting better-informed decision making and increasing scrutiny, discussion, comment and review of the government’s activities?
  • If your agency considers that disclosure of a public servant’s name or contact details will negatively impact their health or safety, what evidence do you require before deciding that their name or contact details are exempt from disclosure?
  • Do you consider the FOI guidelines provide enough guidance for agencies when considering these issues?
  • In what circumstances do you consider that a public servant’s personal information (name and contact details) are irrelevant to the FOI request
  • Where you have withheld the names and contact details of public servants, what impact does deleting this information from documents have on the time it takes to process FOI requests?

The agency would also like to hear what other members of the public think about the issue, and why.

The OAIC would especially like to hear from people who have requested information through the federal FOI system, and whether this information was blocked out in any documents they received. If so, the question is: “Did you consider this decision was justified? If no, why not?”

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