Can a public service press release contain ‘sensitive’ personal information?

By Stephen Easton

Monday September 18, 2017

Just “correcting the record” is not always a good enough reason for the public service to release someone’s personal details, and although it can be in some circumstances, doing this still might be more trouble than it’s worth.

The Australian Public Service Commission has published the advice it provided in response to an interesting question that was sent to its agony aunt service for integrity questions:

“I’m working in a media unit and I’ve been asked to develop a press release that incorporates some personal material that I think might be sensitive. What should I do?”

The commission can’t really help much without more specifics (and if there were more details it probably couldn’t have published them) so it points to the need to follow the CoC and APS Values, as well as any applicable laws. It also stresses a core tenet from the Privacy Act and Australian Privacy Principles:

“A central consideration regarding any disclosure is the purpose for which a piece of information was collected.”

It breaks this down into three questions: why did the agency collect the information to start with, why is it being disclosed, and who is the intended audience?

If there are limits on disclosing information collected for a specific purpose under a particular act, these should be fairly obvious although legal advice may be required. The reason to disclose the personal information must also be consistent with whatever specific law governs its use.

“For example, simply correcting wrong information may not be sufficient justification for disclosing personal information,” says the APSC.

And the question of the intended audience could also affect whether it is legal to disclose. “In some situations, the authority to disclose may come from the body requesting the information, such as a Senate committee,” says the new advice.

It goes without saying that Minister for Human Services Alan Tudge and his department caused quite a stir when he decided to release some personal information from Andie Fox’s personal Centrelink file to a journalist, claiming the need to “correct the record” after Fox wrote critically about her experience of recent efforts to chase potential debts.

It turned out the journalist who published the information, Paul Malone, received a fulsome series of emails in response from Tudge’s office and the department, which he found surprising. Malone says this information showed that hers “was not a robo-debt matter” among other things.

The department said doing this was totally legal “in cases where a person makes a public statement or complaint about the department’s handling of their welfare payments that does not accord with our records, including via the media” and did not require the secretary’s authorisation. DHS added it would do so again whenever it felt “unfounded allegations” merited such a response.

This justification relied on specific laws, as suggested by the APSC, which don’t apply across the board in the public service. Specifically, DHS cited Section 202 of the Social Security (Administration) Act 1999 and Section 162 of the A New Tax System (Family Assistance) Administration Act 1999.

While it was allowable based on legal advice, the decision to background Malone on Fox’s case was widely perceived as a big powerful arm of government bullying an individual. It’s doubtful that it was worth doing in the first place, as the negative publicity probably eclipsed anything caused by the original blog post.

The outcry highlighted the fact that public servants, as a group, tend to think very differently about privacy than the average person, and legal is a long way from ethical in the court of public opinion.

“Finally, think through the implications of any disclosure before making it, particularly where personal information is involved,” advises the APSC.

“Any value arising from disclosing this type of information needs to be measured against a possible risk to public confidence.”

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