APSC did not threaten FOI website, Commonwealth Ombudsman finds

By Shannon Jenkins

Wednesday October 28, 2020


The Commonwealth Ombudsman has found the Australian Public Service Commission did not intend to intimidate a Freedom of Information organisation when it asked for content that contained “unsubstantiated allegations” about APSC staff to be removed from its website.

The ombud investigated allegations made by an unnamed public servant against the APSC, including that the agency had intended to “convey a legal threat of litigation” and had breached the legal profession’s regulations.

The complaint was prompted by an article published by The Guardian earlier this year, which revealed that in October 2019, the APSC’s chief legal counsel wrote to Right to Know, a project of the OpenAustralia Foundation, asking for it to take down material.

The material in question was correspondence between the APSC and an FOI applicant regarding ex APS commissioner John Lloyd and his relationship with the Institute of Public Affairs. Lloyd resigned in June 2018 after a complaint against him was referred to the office of the Merit Protection Commissioner.

Read more: Questions continue to swirl around John Lloyd, merit and how APS review will seek truth

In the correspondence published on Right to Know, the FOI applicant named three APSC public servants and made a number of allegations, including of “politically-motivated obfuscation” and of breaching FOI law.

The APSC’s letter to the website, marked as “OFFICIAL: Sensitive legal privilege”, claimed the content was “defamatory” and contained “false and unsubstantiated allegations” against APSC staff. The letter noted that “website operators may be liable for defamatory comments published on their websites by third parties”, referencing the defamation case of former youth detainee Dylan Voller.

This week The Guardian has revealed that the ombud did investigate the complaint. It rejected the notion that the APSC was making an “actual or implied” threat to “instigate legal proceedings on the behalf of the three named employees”, and found that while marking the letter with “legal privilege” may have been “misguided”, the letter did “not seem unreasonable or indicative of an intention to intimidate”.

The ombud’s office told The Mandarin that its report on the investigation would not be made publicly available, as it came under the Public Interest Disclosure Act 2013.

“We are unable to comment more generally on this matter, noting that public interest disclosures are subject to the secrecy provisions of the Public Interest Disclosure Act,” it said.

In a push last year for FOI guidelines to be changed to conceal the identities of APS staff below senior executive level in FOI documents, APS commissioner Peter Woolcott argued that the disclosure of these details “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”.

He said that “disclosure achieves no public purpose that cannot be addressed by other, ordinary means of contacting APS agencies”.

Read more: Public servants tell harrowing tales of harassment after a mention in an FOI release. Their leaders want to shield them from the trolls, but anonymity comes with a price


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