Names, signatures and initials of public servants-what's the FOI story?

Names of public servants carrying out usual functions- in the usual case not exempt.

Signatures of public servants-in the usual case exempt: unreasonable disclosure of personal information and on balance contrary to the public interest.

Initials of public servants and police officers?

Although it wasn't a major issue in the matter Acting Australian Information Commissioner Timothy Pilgrim in ‘HJ’ and Australian Federal Police [2015] AICmr 71 (6 November 2015) rejected argument that disclosure of the initials of officers appearing in a document would be unreasonable. The AFP argued the potential for identity fraud or forgery, and the fact that the author of the initials did not expect the material to be released under the FOI Act.

30. The question of whether signatures of public servants are exempt under s 47F is an increasingly common theme in IC reviews. The Guidelines note at [6.140]:

Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website.

31. The AFP submitted that the release of staff signatures would increase the risk of identity theft or the falsification of instruments, given the powers held by AFP officers. It was also submitted that the relevant document was for internal use and because it was a professional standards form, the person would not have an expectation that their initials could be publicly released.
32. Accepting these general submissions as to possible fraudulent use of the information would equate to me being satisfied that special circumstances exist only because the author of the initials is or was a member of the AFP.
33. I have found that virtually all of the content of the relevant document is exempt and find no reason that would support the disclosure of the initials as unreasonable. I am not persuaded of the potential for identity fraud or forgery from the release of the initials.
34. In my view, to accept the submission that the author of the initials did not expect the material to be released under the FOI Act and therefore release of the personal information would be unreasonable would be contrary to the objects of the FOI Act.
35. Consistent with the decision in Stephen Waller and Department of Environment [2014] AICmr 133, and absent evidence of any special circumstances, I find that it would not be unreasonable to disclose the initials and the material is not exempt under s 47F. 

(Update: a reader has reminded me of this widespread practice across the public service in acknowledging 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.  The names and contact details of senior officers will generally be released.  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."

While it is somewhat cute, in the usual case I doubt this is of concern to the applicant. 

But it is more than cute when the 'junior officer' is senior enough to have carriage of a particular matter. In an FOI application eons ago about the snail like progress on Australian membership of the Open Government Partnership the Attorney General's Department deleted the names of 12 of 15 officials attending an interdepartmental meeting on the subject.

As I said at the time if they are senior enough to represent the department some accountabilty goes with the territory. 

Previous posts on this issue are here and here 

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.

Names of "no gong, thanks" crowd unlikely to surface in Australia

Dahl-Charlie and the Chocolate..

Lewis-Narnia and all that..

Thanks to reader Andrew for drawing attention to the release in the UK, in response to a Freedom of Information application by the BBC, of the names of those who  declined a Queen's honour between 1951 and 1999, and who have since died-Roald Dahl and CS Lewis for two. "Until now, the information was so secret it was not included in official papers released under the 30-year rule," according to the BBC.

None of the 277 people on the list (pdf courtesy of BBC) are identifiable Australians-Imperial honours were the go until the Whitlam government abolished them and created the Order of Australia in 1975-although the request may have been limited to British names.

What's the likely story here?

Documents concerning consideration of names for submission for Imperial awards, up to 1974, and the later records held by the Office of the Governor General concerning the Council of the Order of Australia, the first of which are now 37 years old, in theory, should be well into open access (now after 20 not 30 years) and available from National Archives Australia. However unlike the UK, where personal information protections in the FOI act relate only to information concerning "a living individual," there is a hurdle: our archives act (s 33(1)(g)) qualifies the right to access through a provision that protects "information or matter the disclosure of which .. would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person.)"

I don't know whether anyone has had a crack at this. Or sought records still held by the Office of the Governor General under the Freedom of Information Act. On the latter, probably not, given that the current battle over whether guidelines for awards are documents of "an administrative nature" subject to the act seems to be a first. A second hurdle once over the first would be whether the FOI act personal privacy conditional exemption s 47F applies. 

Two significant differences to the Archives Act: the FOI definition of personal information makes no reference to a person as living or deceased. And section 47F includes an additional public interest test, not found in archives legislation (don't ask me!). I'd expect disclosure under FOI of names of those who declined an award would be unreasonable in the absence of consent (where practicable, from next of kin in the case of a deceased person) and in any event that public interest considerations in favour of release would not be strong.

But otherwise idle researchers out there, your time starts now!

Information access and piecing together the School for Killlers story

The information access issue is a minor but important part of the shocking Tamworth Institution for Boys story reported before Christmas by Geoff Thompson of the ABC Investigative Unit. The most important aspect, is what went on there and how it was allowed to happen. The Institution for Boys, for absconders from other boy's homes aged 15-18 during the period 1948-1976, sounds like Port Arthur for hardened criminals a hundred years earlier.

The good order of society and the well being of its members-the public interest-is advanced by such a disclosure about the harsh and inhumane treatment of boys by a government institution under the mantle of "child welfare." You have to wonder what steps were taken in the past to hush it up,or if any steps are being taken now to get to the bottom of it. And dare I say, apologise or attempt to compensate for those still with us.

But what of Thompson's success in obtaining from the NSW Department of Family and Community Services a comprehensive list of boys sent there, then matching the data with other available information to link names to 35 violent deaths, and to ascertain the "school" was attended by some of Australia's most infamous killers and criminals, including Arthur Stanley 'Neddy' Smith, George Freeman, Kevin Crump, James Finch, Archibald McCafferty and Billy Munday?

Thompson in his report said the information resulted from a "Freedom of Information" request. If so, the application would have been made before 1 July 2010 when the NSW act was repealed. Alternatively Thompson may have used FOI as shorthand for the replacement act-and bigger mouthful-the NSW Government Information (Public Access) Act, perhaps not referred to in his stories because it is unknown to about 99% of the audience. 

Thompson reported that the department, citing privacy concerns, withheld surnames but released a full list of given names and date of birth for boys sent there. He was able to match this with other (unspecified) information to establish Tamworth was a "school for killers."

The other information used to make the connection with known and notorious criminals may have been publicly available court records-there must be plenty of them for this crowd.

Whether the information released also helped Thompson identify and track down others is unclear. For the story Thompson interviewed six former inmates who did not go on to commit serious offences. 

A given name and DOB of a person detained as a boy many years ago wouldn't usually get you far in tracking someone down in Australia. DOB information is not in the public domain. Boys in an institution wouldn't be in the phone book or, if under 18, on the electoral roll in those days.

The FOI/ RTI-GIPA decision maker in Family and Community Services probably concluded that release of  information in this form avoided the need for third party consultation (probably impractical in any event because of lack of current contact information and the numbers involved), sufficiently de-identified the information so that it was no longer "personal information," and that disclosure was not contrary to the public interest (to use the GIPA test).

On the face of things, all reasonable judgments and within the bounds of the law.

Unfortunately my attempt to contact Thompson through the ABC Investigative Unit to ask about aspects of his big FOI find came to nothing. We'd still love to hear, Geoff.