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Friday, March 05, 2010

Names of public officials carrying out public functions

For another purpose I've done a little research recently on the disclosure of the names of public officials when requests under Australian freedom of information laws seek access to documents that include information about the conduct of government functions. While the comments that follow don't include detailed examination of the situation in every jurisdiction, and much depends on the particular circumstances and the law that applies in each, it's clear that generally names will not be exempt. The routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia.

 The Freedom of Information Act of Western Australia (Schedule 1 Clause 3) provides the clearest statement of the situation. The act provides specifically that matter is not exempt for the purposes of the personal information exemption merely because its disclosure would reveal, in relation to a current or past  officer of an agency, prescribed details relating to the person; the person’s position or functions as an officer; or things done by the person in the course of performing functions as an officer.  Prescribed information (Freedom of Information Regulations Clause 9) includes details of the person’s name; any qualifications held by the person relevant to the person’s position in the agency; the position held by the person in the agency; the functions and duties of the person, as described in any job description document for the position held by the person; or anything done by the person in the course of performing or purporting to perform the person’s functions or duties as an officer as described in any job description document for the position held by the person.

For some unexplained reason our other FOI laws, even new reform legislation,isn't as specific or clear. New acts in Queensland, NSW and Tasmania adopt the wider "personal information" in place of  information concerning "personal affairs". Victoria and South Australia are the only jurisdictions sticking with personal affairs.

However, the current Commonwealth Guidelines (Exemptions sections in the FOI Act prepared by AGS for the Prime Minister's Department) include these observations about the application of the personal information exemption which includes an "unreasonable" disclosure test :

-- "12.5.1 Where access is sought to information about an individual’s work related activities in the agency, such as the name of an employee, the manner in which the individual carried out tasks or behaviour in the workplace, it is unlikely that disclosure would be unreasonable unless the information went beyond work related matters to the personality, private characteristics or disposition of the individual . . .

 "12.5.2 There are several cases which look at the question and make quite strong statements that it would not be unreasonable to disclose information in the work environment ie personal information about officers engaged in work activities - it would be an exceptional case for it to be unreasonable disclosure. . . . However, the Tribunal has found disclosure of agency officers names to be unreasonable where the applicant had a propensity to pursue matters obsessively and there was no need for the officers to be contacted directly in the future . . .

 "12.5.3 The Government’s policy guidelines in (now archived) FOI memo 94 (para 12) would suggest that usually, it would not be reasonable for officers to contend that their names when associated with their work is exempt under section 41(1)."
The issue of disclosure has also been a matter considered by the courts in several jurisdictions. For example, in a unanimous decision in Commissioner of Police v. Perrin (1993) 31 NSWLR 606, the NSW Court of Appeal found that the names of police officers carrying out duties was not information concerning personal affairs, and in the circumstances of the case was not exempt from disclosure. The judgment included these observations:

-- Justice Mahoney (pp.638-9): "The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, 'involve' the disclosure of information concerning his personal affairs. Thus, it may involve that he was not at home at a particular time. Whether it will do so will depend upon the circumstances and what is suggested to be 'involved'. In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information to Queensland. That, I think, is not part of 'the personal affairs' of the persons in question: it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of 'private affairs'. Special cases apart, I do not think that this would be so. I do not think that it is this which the exemption was intended to protect."

-- President of the Court (later Australian High Court Justice) Kirby  (p.625): "[I]t cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the 'personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency."

Justice de Jersey in the Queensland Supreme Court in The State of Queensland v. F N Albietz, Information Commissioner [1995] QSC  254 saw no reason to depart from this decision in finding the names of departmental officers involved in land tax investigations was information "which merely concerns the performance by a government employee of his or her employment duties" and therefore was not exempt under personal affairs exemption in the Queensland Freedom of Information Act.  Justice de Jersey referred to the Perrin case as a  “highly persuasive, unanimous decision of the New South Wales Court of Appeal on legislation in relevantly identical terms. In fact it accords with my own interpretation of the provision."

A  more conservative approach to disclosure of this type of information has been apparent in some Victorian tribunal decisions (and where the act was amended to specify that names are included in the definition of personal affairs information) but the general situation accepted by Senior Member Davis in this decision involving the Department of Human Services where particular concerns can arise because of the nature of departmental functions, provides a summary of he situation:

(a) It is generally not unreasonable for decision makers (eg VPS 6 and above) to be identified as such within the public sphere. They have the skills and authority to act on behalf of the Department. They are of an appropriate level to be accountable for decision making of the Department.

(b) It would be unusual for an officer below VPS6 to be publicly identified and they would not expect their names to be released to the world at large. Many do not have skills necessary to deal with difficult issues or difficult members of the public. They have an expectation that they would not normally have to deal with the public in a way which identifies them individually.

(c) It would be inherently stressful and cause anxiety for such junior levels of staff to have their identifies and direct contact details (eg direct telephone numbers or mobile telephone numbers) released to the public – it would be unreasonable to do so.

(d) Names of those more junior officers are not available on publicly available staff lists or on the internet. Senior staff details are available reflecting public accountability of their roles. Even where names might be known, direct telephone lines or other means of direct contact may now be publicly available – a central number is nominated as any contact point.

(e) Direct contact with particular individuals is not appropriate given the many inherently sensitive areas handled within the Department. Where there are instances of not being able to always meet requirements, clients try to contact staff directly but there are program specific contact points to facilitate contact, not direct contact with individual officers.

Applications for lists of names per se will often be refused, but the prevailing view is that absent special circumstances the names of public officials carrying out duties is not exempt from disclosure under freedom of information laws. A distinction is  often made between an officer acting in an official capacity and one acting as an individual and not as required or in the performance of official duties, where names may concern personal affairs or personal information.

Examples of special circumstances might include where there is a reasonable expectation of harm to an individual because of the particular facts of the case, or the context that gives rise to a request, such as names of some staff working in the correctional system. As mentioned in the Victorian decision, work related information about junior employees could attract  protection from disclosure, at least in some circumstances, where the same  information about senior and middle ranking officials wouldn't.

In my view the yet to commence Government Information (Public Access) Act shouldn't change things in NSW although it includes  public interest considerations against disclosure to be weighed against others, where release of information could reasonably be expected to reveal an individual’s personal information, or contravene an information protection principle under the Privacy and Personal Information Protection Act or a Health Privacy Principle under the Health Records and Information Privacy Act,. One new element is that it also includes a relevant consideration against disclosure where this could be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.

Comments or corrections on my read and updates on the situation elsewhere are welcome.


  1. Anonymous1:46 pm

    What's the situation when the private sector is acting as an agent for the government? For example in the delivery of workers compensation services and so on? :)

  2. There is generally a different standard for public and private sector employees. Again variation between the jurisdictions in terms of the law. The WA carve out from the exemption applies as well to details of a person who performs, or has performed, services for an agency under a contract for services. I don't think this appears anywhere else.New laws in Queensland, NSW and Tasmania cover information held by service providers variously described, which is taken to be information held by the government agency. Information in the hands of an agency that contains the name of a person in a private sector entity carrying out company functions is "personal information" as defined in the acts that use this term. It might also be information concerning business affairs of the entity. This wouldn't be enough on its own to justify an exemption claim as other considerations are relevant. Much rests on context.

  3. Bunsen4:13 pm

    Go from what was said to the accepted sense of transparency (such as it is) expected in a modern democracy.

    If we wipe away the 'secretism' caused by the Bush/Howard hate of last decade we remain confronted with the situation they created where accountability, (another jaded term) these days, is still in default.
    To be accountable, according to the rules of engagement - people insisting upon operating in this society, pretending to be 'high rollers', need be visible; their activities 'transparent and accountable'.
    Lazy, stupid, capricious, greedy, crosswired, incompetent and dishonest 'professionals' and their employees continue to somehow be privileged by their occupation and/or through their association.

    A caste system is developed here - apparently hell bent on protecting the majorly overpaid and useless.(in this regard no different to elsewhere)
    Too many of this sort inhabit that particularly noissome littoral zone of politics - and touching upon politics at every level - local - state - and federal.
    They all fit their niche and manage to bleed off whatever funding and good intentions at each level.

    It is only fair in this society enduring the present intensity of surveillance that those who profess to lead should also be 'visible'; their actions also visible, therefore likewise accountable, under the scrutiny of the common herd.

    If these 'leaders' want some 'Panopticon' as the model for society then everyone should equally be under scrutiny.
    In modern Queensland, after Beattie and under Bligh, there is a fair indication that this latter day, now technically feasible, 'Panopticon' has become the model of governance. (problem with 'Panopticon - ask Jeremy Bentham, through, say, Wiki)

    I only mention the distaff side of this since my recent tussles with a certain privatised communications utility (a PtyLtd) who employ 'first rank contact people' who have been briefed by their employers to refuse providing even the names of their executive and board.
    It is probably more than their job is worth to reveal what the organisation's own home page states.
    Such is beyond belief but does indicate what profound incompetence at the top is being continually turpsed down to those at the bottom.

    Apparently a sort of 'separation of powers' is maintained there; as cynical and as corrupt, but now intentionally contrived, as Beattie's hero, Bjelke Petersen, once accidentally achieved.

    And yes.
    They exhibit no more than a similar madness, in this aspect, that during these last decades has diluted governance and 'privatised management' beyond any recall.

    My point is that Australia has perfectly good law, codes of practice, ethical standards and you name it going back beyond the Danelaw, further back past Hammurabi and coming out our ears.
    Yet none of that counts when the average Australian acts like a lemming and refuses to stand by his digs.
    Then there is the fact that law of any sort is well beyond the reach of the honest. - and bought law is only available to those mentioned above.

    At one level our governments sell citizens assets to shareholders - on another they deny us our citizenship. They do this in concert at the same time.

    It may be that we all needed civics lessons in school?

    We'll not see young Australians aware enough of their real rights and responsibilities. I'm convinced, ever again to properly hold their own in a court of law - or in parliament.

    It strikes me that we have a massive problem here!