Australian Information commissioners: names should be put to faceless public servants

Only Silence-Wikimedia Commons

Decisions by the Australian information commissioners should bring to a halt the widespread agency practice of deleting as irrelevant (s 22) names of public servants below Senior Executive Service rank contained in documents to be released in response to a Freedom of Information application; and deletion of the name regardless of rank on the basis of the personal privacy exemption (S 47F) where it identifies an officer simply carrying out public duties. 

Then again as public servants observe the government's two pronged ongoing attempt to force closure of the office and return the FOI guidance function to the Attorney General's Department, I wouldn't bank on it.

In April in ‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31, an attempt on behalf of David Hicks to obtain documents relating to an aspect of his confinement at Guantanamo, Australian Information Commissioner Professor John McMillan said [14]:

There is no apparent logical basis for treating the names of SES officials as being within the scope of a request but of other officials as being irrelevant to the request. Nor, as I have noted in the Guidelines (6.138-141) will the disclosure of the name of an official performing their public duties usually be regarded as an unreasonable disclosure of personal information under s 47F.

In GF’ and Department of the Treasury [2015] AICmr 47(7 July 2015) Privacy Commissioner Pilgrim recounts that Treasury decided to treat the names, email addresses and other contact details of public service officers as irrelevant to the request,informing the applicant[10]:

"We will provide you with the designations (for example, Analyst, Senior Adviser, Manager) of authors and addressees of documents in the schedule of documents accompanying the decision letter so that their relative seniority is known.

Commissioner Pilgrim said

12. In my view, there is nothing in the request that indicates the applicant considers the names and contact information of public service officers irrelevant to the request. Rather, it appears that the Department simply decided that it will release the designation of officers, but not their names and contact details. 

He went on to cite the FM decision.

Treasury in addition claimed as exempt on personal privacy grounds the name of the Australian Government Solicitor Special Counsel Litigation. Commissioner Pilgrim said

35. ..the Department have not submitted any specific reason why it would be unreasonable to disclose this information. Further, the AGS website provides key information, including photographs and telephone numbers for a number of its Special Counsel and other officers. Consistent with the Australian Information Commissioner’s views expressed in ‘FM’ and which I discussed above at [12], and the absence of any specific submissions from the Department giving reasons why disclosure of the Special Counsel’s name would be unreasonable, I am satisfied that the Department has not met its onus under s 55D of the FOI Act of establishing that document 2 is exempt under s 47F.

As mentioned in this gripe last year the usual practice in many agencies is to advise the applicant before processing the application that the names of non SES officers in documents will be treated as irrelevant, and seek the applicant's agreement. Usually most applicants will shrug at this point and say yes in the often forlorn hope this will reduce bones of contention. I cited personal experience where the government's preferred guidance setters on FOI, the Attorney General's Department, deleted names with absurd results that those who have carriage of important public policy matters are protected from disclosure for no reason at all.

In the usual case the names of public servants carrying out public duties should be disclosed when sought although intimidation, harassment or threat to life and safety understandably change the situation. 

If we need legislative change to get the message through, the Western Australian Freedom of Information Act (Schedule 1 Clause 3) provides a starting point:

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.