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Tuesday, October 07, 2014

On the other hand public servants carrying out routine work functions should be publicly accountable

Public servants, like the rest of us have a right to privacy and protection of personal information. But when it comes performance of functions in the normal course of duties of office, privacy should rarely enter into it. Sensitivity about names should usually take a back seat  to transparency, responsibility and accountability.

The issue arises in the context of freedom of information applications. In some agencies, notably the Attorney General's Department the practice is that names and contact details of senior officers mentioned in requested documents will generally be released but not the names of 'junior' officers of the department and other government agencies. 'Junior' appears to be anyone below SES level.

This is the paragraph that appears in the AGD standard acknowledgement of receipt of an FOI application:
It is the usual practice of the Department to not release the names and contact details of junior officers of the Department and other government agencies, where that personal information is contained in documents within scope of a request.We will take it that you agree to the removal of junior officers’ personal information unless you advise that you would like us to consider releasing that information as part of the documents you have requested.
As the applicant doesn't know at this stage what a requested document contains or whose name might be mentioned, most probably simply shrug 'OK.' AGD then redact the details under s 22 as not relevant to the application. 

Now no great public purpose usually will be served by disclosing names of public servants who simply perform administrative support functions or are peripheral to the main game.

However the assumption of non disclosure in all instances is a bit precious when the 'junior' officer concerned is the officer responsible for carriage of a particular matter.

Given AGD (through the Attorney General) is set to become the source of government wide guidance on the FOI act once the government persuades the Parliament to abolish the OAIC, you have to wonder whether 'privacy creep' might see the non disclosure of names become routine across the service possibly broadening out beyond 'junior officers.'

Take the following two AGD examples from personal experience. 

AGD deleted the name of whoever drafted this briefing note for the Secretary in August 2012 about the government response to the Australian Law Reform Commission report Secrecy Laws and Open Government. The briefing note was signed by then Assistant Secretary Glenn (the decision maker took the trouble to delete his phone number as well) and went through two named first assistant secretaries Matt Minogue and Geoff McDonald on the way to the then secretary. 'No name' obviously knew all about the ins and outs of the topic - that the agency best sit on the report rather than respond to its recommendations publicly - but is not mentioned.

And in response to this request for documents about meetings of agency officials regarding Australia and the Open Government Partnership, AGD deleted the names of 'junior officers' who attended a meeting but that happened to be everyone from four agencies represented, Ausaid, DBCDE, Finance, and PM&C. None of those attending from those agencies were  named in the document released. 

It is a Queensland case but this post three years ago canvassed the issue following a decision by Assistant Information Commissioner Henry (The Amanda Flynn Charity Ltd and the Crime and Misconduct Commission) who said:

22. The routine personal work information of public service officers is personal information within the meaning of the RTI Act, however, the potential harm that could be caused by its disclosure is, in most circumstances, minimal or nonexistent. This is due to a number of factors including:

  • the requirement that government departments be open and accountable in their operations
  • that public service officers are employed in the business of government which delivers services to the public and the public is generally entitled to know the identity of the service deliverers, advice givers and decision makers
  • the publication of public service officers' appointments in the Government Gazette; and
  • that a reasonable public service officer would expect that information that is solely their routine personal work information would be made available to the public.
In an earlier post (which needs a little updating to reflect Commonwealth reforms enacted since) I commented confidently:'s clear that generally names will not be exempt. (In the usual situation) 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.
And referred to this example of one jurisdiction that leaves no doubt about the issue:
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.
Intimidation, harassment or threat to life and safety understandably change the equation. 

But public servants who are key players in the policy process regardless of seniority should be made of sterner stuff than the FOI decision makers at AGD think is warranted.

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