The Australian government’s guidelines for dealing with Freedom of Information requests help balance many of the competing interests that come with having a democratic, accountable government and a public right to know. But few are happy with the current arrangements and there’s pressure on the Office of the Australian Information Commissioner to adapt the guidelines for modern challenges.
Commonwealth departments want the FOI guidelines changed so they can more easily shield the names and contact details of staff below senior executive level in line with their standard practice, which currently rests on a shaky legal foundation.
Australian Public Service Commissioner Peter Woolcott argues the present “policy position” should be changed in a submission to the Office of the Australian Information Commissioner, backed by a united throng of departments and agencies.
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There is “no basis under the FOI Act” to consider an employee’s level a factor when deciding if it is unreasonable to disclose their name, the guidelines state. But in a coordinated push, the APS is challenging this longstanding interpretation of the letter and intention of the law.
The Department of Foreign Affairs and Trade, for example, simply argues it “does not support” the guidelines in that respect, in its submission to an OAIC consultation process. DFAT defines “junior officers” as anyone up to executive level 1.
Many agencies cite harrowing tales of harassment and abuse staff members have suffered after their identities were released in FOI documents.
The default position is names stay in documents unless there are “special circumstances” – what that means is not clearly defined and depends on the case — but Woolcott wants the OAIC to remove that part of the guidelines with respect to staff below the senior executive service. In a long submission and separately in response to the OAIC’s specific discussion questions, he argues there are several problems, mainly around staff safety and wellbeing.
The APS commissioner says “disclosure can and does cause APS employees unnecessary stress and anxiety [and] expose APS employees to unjustified and repeated criticism online, including defamatory, trolling-type commentary and unsubstantiated allegations made online by anonymous individuals” along with other kinds of “unwanted attention, not just online but in person”.
Woolcott also contends that “disclosure achieves no public purpose that cannot be addressed by other, ordinary means of contacting APS agencies” and many agencies agree, with some arguing it causes problems.
“The release of contact details of agency staff will divert members of the public from using the agency’s official contact channels, resulting in unlogged enquiries not being actioned, or inefficiency from redirecting enquiries,” argues the Administrative Appeals Tribunal, for example.
There are internal supporters of the existing guidelines
Not all federal departments and agencies are in lockstep on the issue. The Australian Taxation Office and the Department of Finance do not agree with the APSC, for example. Both accept the “special circumstances” principle is sound and that it reflects the case law.
Woolcott argues the reference to special circumstances in the FOI guidelines “appears to place an additional test over and above [the] mandatory considerations for determining unreasonableness set out in section 47F of the FOI Act” and essentially calls for it to be removed.
The commissioner says it is also an outdated view, based on 1990s thinking, and there are now clear dangers in having one’s identity made available online. A major contention among the APS bloc is that times have changed and now, the risk to individual public servants almost always outweighs the value of leaving the names of non-SES officers visible in FOI releases.
Woolcott suggests the OAIC change its “policy position” and let agencies apply a simpler test of unreasonableness based only on those mandatory provisions in section 47F:
“That is, where the personal information is well known, is known to be or have been associated with the matters dealt with in the document, or is available from publicly accessible sources, the Commission is of the view that disclosure would not be unreasonable.”
Removing public accountability, custody chains
Several submissions urge the OAIC not to change the guidance; a few suggest that on the contrary it is the behaviour of FOI decisionmakers and senior executives that should change.
Past FOI applicants — including FOI expert Peter Timmins, outspoken IT consultant Justin Warren and Victorian farmer Ian Penna — make compelling arguments in favour of disclosing at least some non-SES names in FOI releases to properly fulfil the objects of the act, based on real cases.
“I do not agree that for the very small number of names that may be sensitive, that it should become default to remove all ownership and public accountability from a public servant’s work,” argues an ironically anonymous public servant who says there are already plenty of protections.
“Removing names of officials always reduces the evidentiary value of documents.
“Removing the names of the officers who have been privy to a document can remove evidence of the chain of custody, the areas of responsibility involved, the extent of dissemination, the approval workflow, the level of decision-making, and the final level of approval.
“Formal letters or documents containing broad contextual information are becoming rarer in the public service. It is now a common occurrence for matters to be communicated and determined through informal and digital forms of documents. These documents are often communicated without context or a signature block showing a person’s position (if this discussion proposal became policy I would assume this would become the default). Given this, once you remove the name and contact details (e.g. phone number, email address) from the document you have removed all relevant context and ownership for the action or decision.
“I believe it is a basic protection of transparency, accountability, provenance and probity, that the names of staff who have created, acted upon or approved actions within documents continue to be made available. Removing public accountability will not promote and uphold the APS values nor maintain the integrity of the public service.”
Standard practice is not covered by the guidelines
Many departments explain how they get around the lack of any legislative basis to limit identity exposure to the SES wherever they can, but it’s no secret. They propose to block out names of staff they consider “junior” unless the applicant objects. Very few do object, according to the APS chorus.
But they often do this anyway if the applicant does object by claiming certain legal exemptions apply to the information, as other submissions attest, forcing the applicant to appeal if it matters that much to them.
“Most applicants would perhaps shrug this off as of no great moment,” comments FOI expert Peter Timmins in his submission, before relating one occasion where he regretted raising no objections to this with the Attorney-General’s Department.
He found that every person present at a meeting — “ironically … about open government” – from AusAid and three major departments were considered “junior” in one case. “If they were senior enough to represent their agencies, they should be able to cope with their names being disclosed,” he told the AGD.
Finance suggests the current practice of asking applicants upfront if they mind the names being redacted is “a pragmatic and practical solution” that should continue.
The coordinated APS submissions generally reject part of the guidelines that says there is “no logical basis” for drawing a line of privacy between the SES and other public servants, a view of the OAIC based on legal precedent. On the contrary, they argue that in most cases the names of staff add little value to FOI requests but often put public servants in danger, with strong support from the Community and Public Sector Union.
The independent Civil Aviation Safety Authority does not seem all that worried, however. It has not had any major health and safety issues arise and has actually moved in the opposite direction to most agencies, towards greater disclosure.
While it used to redact email addresses and mobile phone numbers, CASA is now more inclined to provide them as it believes “these are not personal details, rather they are work details and thus do not form part of an individual’s personal information” — at the same time, it still follows the standard practice to avoid actually doing so if the applicant doesn’t mind.
The Commonwealth Director of Public Prosecutions suggests the guidelines would be most improved by adding a better explanation of what “special circumstances” means, without creating an exclusionary list of acceptable reasons, as does the Australian Human Rights Commission.
The CDPP suggests agencies could be advised to consider factors like “an applicant’s prior history of behaving in a menacing, harassing or offensive way towards an agency and its officers or towards others” and an assessment of the likelihood of them harming a public servant.
The AHRC argues “the range of risks faced by public servants in the online environment” are not adequately recognised in the FOI guidelines but finds they are generally appropriate in most respects, considering the relevant case law. Neither backs the APSC’s view.
Where next from here
Following a quietly released discussion paper, the federal FOI regulator received 46 submissions in total and the result is a lively discussion. A huge range of views are available from the OAIC website, including submissions from more than one ombudsman’s office as well as the FOI regulator’s counterparts in several states and New Zealand.
“Under the FOI Act, the names and contact details of public sector decision makers must be disclosed unless there are exceptional circumstances,” the OAIC told The Mandarin. “Identifying those involved in decision-making processes is an important component of our transparency framework.”
“However, documents released under FOI are increasingly likely to be shared online, and some agencies have expressed concerns about these details being published.”
After the consultation, the plan is to “consider the current guidelines, and whether additional guidance or training is required” so stay tuned.
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