This submission is in response to the Discussion Paper issued on 1 July. 

The paper raises the issue of agency concerns about disclosing public servants’ names and contact details in response to FOI requests or when requests are being processed. 

The purpose of the paper is to provide greater awareness of the relevant guidance and decisions on this issue and explore agency concerns and practices.

What are the concerns? 
The OAIC has asked agencies to respond to eight questions, a number of them leading questions, that no doubt will see some elaboration about the concerns said to exist. 

Until we see what transpires the only specifics provided are the references to "work health and safety issues as a result of a person’s name or contact details being released in response to an FOI request" and the listing of provisions in the act apparently relied upon to refuse access to such information: ss 22 (relevance), 47E(c) (substantial adverse effect on the management or assessment of personnel), 47E(d) (substantial adverse effect on agency operations) and 47F (personal privacy).

Frank and Fearless
A  'work' related issue not mentioned but surely relevant is the advocacy by current and former senior public servants about the impact of freedom of information on 'frank and fearless' advice-the continuation of expressions of concern on this score that date back all the way to 1977.

Dr Shergold in a report on lessons from the Pink Batts Royal Commission argued more protections are essential to ensure frank, candid written advice-not only for the content of advice but presumably for anyone involved in providing advice opinion or recommendation for the purpose
of a deliberative process. 

The Royal Commission report in criticising the quality of advice provided by the public servants involved, makes no mention of FOI as an impediment. Dr Shergold has advocated the need for added protections from disclosure for many years

Dr Shergold was supported publicly by then Public Service Commissioner John Lloyd, then Secretary of Treasury John Fraser and the Secretary of the Prime Minister’s department Dr Martin Parkinson, all sending messages sure to register throughout the public service. 
  
The Hawke review of the act in 2012-13 (p 47) however was not persuaded added protections were justified or needed except for incoming government or incoming minister briefs. 

The Thodey Inquiry Interim Report is still exploring the "extent to which the Freedom of Information regime is helping the APS balance openness with the importance of providing frank and fearless advice to government." (As an interested party I am yet to see or hear how the inquiry is going about this.)

An ANZOG Paper prepared for the inquiry and cited in the Interim Report, "Being a trusted and respected partner: the APS integrity framework" (Kirby and Webbe) proposes
a dual source of policy advice model for the future:

"5.2.1 Any perceived pressure on the APS not to be full and frank, to oblige ministers in avoiding transparency under FOI or other mechanisms, would be irrelevant under this proposal, as the minister is not politically motivated to require its one source to argue or evidence its decision because there would be more than one source if required.  It could be more a case of ‘let the contest of ideas win’. As a former New Zealand Prime Minister commented (on the trailblazing and proactive release of Cabinet papers and their supporting research and evidence once decisions have been made, and his preference for written advice notwithstanding FOI): ‘It really shouldn’t be a big story when ministers and officials disagree -that’s the system working.’ New Zealand’s progressive approach to transparency would assist its ranking as the second least corrupt country in the world.Indeed, the OECD has found that transparency in policy-making correlates positively with trust in politicians and, it might be concluded, in the public service."

In a submission to the inquiry two other former secretaries Podger and Williams comment  (emphasis added)

"An open APS, accountable for sharing information and engaging widely. The Review’s view that there is room to increase transparency around data, analysis, research and evaluations is supported. There is evidence that APS agencies, other than statutory authorities, have become more risk averse about the release of research etc., quite likely in response to actual or perceived pressure from Ministers and their staff. While the APS must not enter into partisan public debates, there is often considerable public interest in the provision of background information.
The Review’s intention to explore the extent to which FOI is helping the APS balance openness with the importance of providing frank and fearless advice is supported. Some claims about the negative impact of FOI seem to be exaggerated. The Review should examine carefully the record including in terms of judicial decisions, and whether the evident risk averse attitude within the APS towards release of information is due more to pressures from Ministers and advisers than to concerns about the FOI Act."

Professor Ken Smith, ANZSOG Dean and CEO has said
(emphasis added)
"Simplistic notions that FOI regimes are leading to a diminution of the public service’s capacity to give the three “F’s”—free, frank and fearless advice—are in my opinion overstated. Public service
advocates of this position (of whom there are many) posit that advice given by the public service could embarrass the minister or government if made public and therefore significantly affect the
productiveness and trust relationship between the public service and the political class.
Putting it perhaps overly simplistically, I would contend that this could happen for 2 broad reasons.
Firstly, the public service advice is not based on evidence, and is wrong or not nuanced to enable consideration of all workable options. Alternatively, the advice embarrasses the minister and the
government because it doesn’t align with its own world view to meet its own sectional interests, irrespective of the evidence presented.
In both cases there is a strong case for transparency. There is an incentive in the former to always provide the highest quality evidentiary advice, and in the latter to fully and explicitly explain a decision or position if an alternative decision is made to ensure it is legitimately and consistently in the public interest."
.....
In the courts Justice Mason in Sankey v Whitlam said the argument that disclosure will result in want of candor in advice given by public servants “is so slight it may be ignored.” And that the possibility of future publicity might “act as a deterrent against advice which is specious or expedient.” 
The 1979 Senate committee report includes an observation that “one must seriously question after Sankey and Whitlam whether candor in internal communications can hereafter be relied upon as a public interest consideration.”
Although the decision is about the now irrelevant conclusive certificates, Deputy President Forgie in the AAT in McKinnon v Prime Minister andCabinet devoted hundreds-thousands of words –pointing to the Public Service Act, Public Service Values, and Guidance from the Public Service Commission and National Archives espousing how public servants should/must undertake their work by providing frank, honest and impartial advice. And that oral advice should be recorded.
The anonymous public servant
For many years the trends have been running against historic notions of anonymity for public servants in carrying out their functions. Those trends seem set to continue.
To cite some examples:
The Australian Government Directory is published on the internet. While not listing all staff and all contact numbers, many names and telephone and email addresses are listed.

Similarly, agencies publish organisation charts online.

The names of public servants are not redacted from documents produced by order of the House or Senate and available for public inspection.

The senate estimates process requiring public servants to answer questions in public session has been in operation since 1970. That process over time has seen closer examination of how decisions are made and by whom.

The Freedom of Information Act has been in operation since 1982. As the cited Freedom of Information Memorandum No. 94 (dated June 1994) notes, 'it was not Parliament's intention to provide anonymity for public officials each time one of them is mentioned in a file. That would be contrary to the stated aims of the FOI Act and would not assist in promoting openness or accountability.'

 Looking ahead, more not less accountability and transparency is on the cards with public servants even more visible.

The State of Service Report 2017-2018 notes "Public trust in governments in many countries, including Australia, is in decline..... Increased transparency and more effective engagement with the community, especially in the co-design and implementation of services and policies, is a priority."

Currently initiatives are underway to encourage the public service out of the back office into the frontline of public engagement in recognition that decision making, policy development and implementation will be aided not hampered by the exchange of information and ideas with the public, stakeholders and experts.

The Thodey Inquiry sees the need for more openness and transparency to ensure the APS is fit for purpose in the decades ahead and to address the decline in trust and confidence in government and the APS in particular. 

The Interim Report notes “the APS is too often perceived by stakeholders to be a closed book, reflecting a risk averse culture, reluctance to provide information and sometimes tokenistic approaches to consultation." Priorities for the future identified in the report include steps to ensure genuine transparency and accountability for delivering outcomes for Australians, and recognition of the value and importance of partnerships that require "genuine commitments to work with others (and willingness to be held to account), regular release of the valuable data and research the APS gathers and produces, and best practice approaches to engaging meaningfully with the public.”      The Interim Report states the inquiry is still exploring "Suitable mechanisms to authorise and empower senior APS officers to lead by example in setting an ‘‘openness by default’ culture."

Adequacy of OAIC guidance

Current guidance is not adequate given the fact that it is routinely ignored by agencies in some respects. 

For example the guidance (6.154) states

"there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose..."

 Yet many-perhaps most-agencies appear to start from that position, presumably satisfied they have had 'regard' to the guidance but decided to take a different approach.

They either redact names on relevance grounds or respond to an application with a statement along the following lines, this from the Attorney General's Department:

"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."

Most applicants would perhaps shrug this off as of no great moment. 

But in correspondence with AGD ironically seeking access to records of meetings of officials about open government I made the following comment after release of documents:

.."while I agreed that I didn't want the names of junior officers who attended these meetings who was to know that the only people at the July meeting from Ausaid,Department of Communications, Broadband and the Digital Economy, Finance, and PM&C would be junior officers? If they were senior enough to represent their agencies, they should be able to cope with their names being disclosed."

Correspondence with agencies available on the Right to Know platform provide an indication of the widespread use of this practice.

There is no justification for redaction or refusal of access to names in these or similar circumstances where public servants of any rank are closely involved in government functions.

I agree with the guidance on this issue.

And with paragraphs 6.155 and 6.156 that in some circumstances names and contact details should be protected where life, physical safety or other special factors are involved.

Contractors and Ministerial staff
The OAIC should go further than query whether contractors are given notice about possible disclosure in response to an FOI application and examine whether names of contractors undertaking government functions are routinely redacted or claimed to be exempt. 

Contractors undertaking public functions should be subject to the same accountability and transparency standards as public servants. 

As should ministerial staff, not mentioned in the paper, given the key and ex panded role they have come to play in governance.

Thank you for the opportunity to comment on these issues.

This submission may be published.

Peter Timmins.
26 July 2019
Open and Shut Blog.
www.foi-privacy.blogspot.com

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