APSC leading by example: the interpretative dance of FOI battles in the estimates spotlight

By Stephen Easton

Monday July 2, 2018

The Australian Public Service Commission has some prickly questions to answer about why it greyed out large swathes of documents it released to Senator Jenny McAllister in response to a freedom-of-information request.

Opposition senators probed the commission’s liberal use of the FOI exemption that protects personal privacy, in the recent estimates session that heard a complaint against APS commissioner John Lloyd was deemed serious enough for a formal inquiry. They will have to wait for the agency to respond, as staff took nearly every question on notice.

McAllister and her Labor colleague Penny Wong questioned APSC corporate group manager Clare Page about why she decided that big chunks of a ministerial briefing — page two of the FOI release — had to be redacted for privacy reasons. It is not clear whose privacy she believed was at risk.

“You are relying on personal privacy to heavily redact a document produced by the head of the APSC and provided to a minister’s office,” said McAllister, growing frustrated at the surprisingly few details of recent work that APSC officials could recall on the spot.

“Can you explain that? Why is Mr Lloyd’s privacy relevant to a formal document prepared in response to a request from a [department liaison officer] in a minister’s office?”

Deputy commissioner Jenet Connell tried to save her by politely noting the senator could appeal the decision, like any other FOI applicant. McAllister reminded her it was also “perfectly legitimate” for her to ask the questions there and then.

A lot of FOI applicants complain that APS decision-makers regularly play hardball and turn the situation into a combative experience, rather than acting in the spirit of the 2010 legislation’s lofty ideals. Many would love to have the opportunity to grill the decision-maker face-to-face, and McAllister relished it.

“I’m just asking a logical question. How can a section which relates to personal privacy possibly be relevant to Mr Lloyd, acting in his official capacity, providing advice to a minister? How can that possibly be the case?”

From Labor’s point of view, Lloyd has not acted as an apolitical public servant — or at least has failed to maintain the appearance of one — and the senator clearly hoped the redacted information itself and the decision to redact it would both provide more fuel for claims that the commissioner has failed to lead by example.

The five-megabyte FOI release contains emails, talking points and other documents referring to the commissioner’s views on public statements made by Wong, and his clashes with the Finance and Public Administration committee members in previous hearings. To Page, processing it was presumably something like walking through a minefield.

“I would have been provided with briefing around this particular matter,” she pleaded. “It’s not my area of expertise. I would have taken the briefing and the advice that I received into account in making the decision. I can review those matters and provide a response to the question. I’m unable to answer that for you now.”

McAllister replied that, in her view, “if Mr Lloyd is providing further personal, non-professional material in the context of his role in this office, it is absolutely extraordinary” and asked him to explain or defend himself.

“Can you defend the redaction of almost an entire page of material that you provided to a minister’s office on the grounds that it would infringe your personal privacy? Does that seem rational to you?”

He took it on notice, adding: “It is advice to the minister, so there is that issue as well.”

But that would mean a different exemption applied, not the personal privacy one, and McAllister had a further example from page 13 of the package, another email sent from Lloyd in his professional capacity which is also largely redacted for the same reason.

“How much personal privacy do you really think the APS Commissioner requires in performing his formal duties?” asked McAllister. Lloyd then claimed that particular email exchange referring to Wong and their past clashes in estimates was redacted to protect the privacy of a friend and former colleague who had contacted him to catch up (but did not work at the Institute of Public Affairs).

“Is that not a conflict of interest?”

McAllister also pointed out that Clare Page was mentioned in some of the documents, for which she was the FOI decision-maker. “Is that not a conflict of interest?” she asked.

To cut a long story short, Page said “the legal team” selected her to be the FOI decision-maker and Connell, backing her up, said they always chose whoever was “most familiar” with the material.

“It’s ironic, isn’t it, because Ms Page can’t remember anything about the material, apparently,” the senator replied.

Did Page take any steps to ensure there was not even a perception of bias in the FOI decisions? She couldn’t remember again, but argued she was “obviously comfortable” making the decisions — the logic being that she must have been, since she did in fact accept the job that was assigned to her.

She assured McAllister that as an “experienced public servant” she would have made the right choice, but was short on details like names, times and places.

“I haven’t filled in a risk assessment or done a period of self-reflection, but, after discussing the matter with the person who was providing me with advice, the people who selected me to do it obviously felt comfortable that there wasn’t a conflict of interest, and at the time I obviously agreed with them,” Page said. “I’d stand by that.”

Lloyd strongly endorsed her approach. “I think Ms Page answered that question quite well,” he said. “She’s an experienced person with good judgement.”

But McAllister refused to accept Page’s vague assurance, given she was unable to recall the details, and wanted another question on the notice paper. The APSC does not take any formal steps to consider a potential conflict in FOI decisions, according to Connell’s testimony, unless there is an allegation or complaint.

“The question you’re asking would merely be an attestation by those involved that they acted in an unbiased way,” said the deputy, adding she also had faith that Page would have done the job in a “completely unbiased” manner.

McAllister argued this should have been done as part of the agency’s normal “operating procedures” while Connell contended it was done — presumably — as part of the quick decision about who should handle the request.

More questions were taken on notice, and the hearing drew to a close. It was time for then-acting Merit Protection Commissioner Mark Davidson to front up, at the end of his second-last day in the role.

His appearance was a textbook study in how to survive a controversial committee hearing, without painting a target on your back or being credibly accused of stonewalling, stalling and hiding embarrassing information.

Page unfortunately got McAllister’s goat early on, when she couldn’t even remember the meaning of “47F” — the reference to the extremely common FOI exemption that protects personal privacy, and which she used to justify the blocks of grey ink in question.

“That is absolutely incredible,” the senator replied, and it only got more uncomfortable from there. Page tried to clarify that it was the specifics of this decision she couldn’t remember, but McAllister hadn’t got that far.

“I am not asking for the specifics. I am asking for a general explanation of the operation of section 47F, which is the section you’ve chosen to apply to all of the material on this page.” Even that was taken on notice, giving McAllister a prime opportunity to tighten the screws.

“You’re responsible for administering the act but you don’t know what’s in it? You don’t have any familiarity with it, to the point where you could explain it to the Senate?”

According to the answer, it’s a bit like the Google effect; when you need to know such things, you just look them up.

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