Submission to Office of the Australian Information Commissioner
“Inquiry into disclosure of public servants’ names and contact details”
by
Ian Penna
July 2019
My position
I support the general release of the names of senior and junior Commonwealth and State public servants where:
•	The names are contained in documents released in response to Freedom of Information requests
•	The names appear as a consequence of the work the people are employed to do and
•	There is no real danger to the personal safety of those people coming from that release.

I also believe that it can serve the public interest for staff names to be released in some situations related to Commonwealth public service misconduct-type inquiries; in particular, where they are being supplied to a person whose complaint stimulated that inquiry.

I rely on my experiences with the Commonwealth Department of the Environment and Energy to justify this position.

Explanation
Part 1 Background
During the second half of 2012, I began using the Commonwealth Freedom of Information Act to obtain information from the Commonwealth Department of the Environment and Energy about:
•	The introduction and application of the now defunct “Melbourne Urban Development Policy” (MUD Policy ) (SEWPaC 2012)
•	Actions related to a failed conservation offset on our farm
•	The Western Grassland Reserves proposed through the Melbourne Strategic Assessment process (DSE 2009)
•	Two formal complaints that I made to the Department about staff behaviour related to some of these topics.

The information gained through these FOI requests gave me (amongst other things) some understanding of:
•	How the MUD Policy was introduced and applied;
•	The process that operated for obtaining a Commonwealth conservation offset under the MUD Policy
•	The communications that occurred between the Commonwealth and the company in relation to the proposed farm offset;
•	The activities within and between the Victorian and Commonwealth governments and public service in relation to the creation of, and implementation of policy related to, the Western Grassland Reserves.

Gaining this information assisted me in writing:
•	A submission (Penna 2018) and article (Penna 2019) about the failed Western Grassland Reserves proposal and the processes that produced this failure;
•	A complaint to the Department of the Environment and Energy about the introduction of the MUD Policy and a critique of the Report produced by the Department’s consequent Preliminary Code of Conduct Inquiry, which I provided to the Department; and
•	A complaint about the behaviour of a particular Department staff member and a draft unfinished critique of the Report produced by the Department’s consequent Preliminary Code of Conduct Inquiry.

The ability to know “senior” and “junior” staff names was important in all these matters. It also contributed to showing me that the decisions by government departments to restrict access to some information related to internal misconduct inquiries may be, what I consider to be, unfair to the complainant, and help hide perverse inquiry outcomes.

Part 2 Examples
1.	In the three years between 2012 and 2014, the Department published the names (and contact details) of all staff in documents released to me in response to FOI requests.  During 2015, it started redacting names and contact details of “junior staff” from documents released to me through FOI requests.  This included redacting names that had previously been published in the same documents covered by the different wording of earlier FOI requests. 

2.	The Department deleted the names of “junior staff” from documents provided in response to several FOI requests.  It primarily justified redacting the names and contact details of junior staff using Section 22 (relevance) or Section 47F (personal privacy) of the FOI Act.  Without checking through all FOI communications, I found one example where the Department redacted names of “junior staff” even after I had objected to such redactions in response to the Department asking whether I agreed to processing the request in that way.

3.	Whether I responded to such redactions - by seeking an internal review and/or and IC review - to obtain the names depended on:
•	Whether I could reasonably guess the name or if knowing the name mattered to me
•	The nature of statements in the documents, such as whether the documents were communications illustrating particular activities, responsibilities or roles conducted by those staff, and 
•	The effort and time involved in either seeking an internal review or an OAIC review.

4.	In one case, after I requested an OAIC review of the Department’s decision to redact a name, the Department through the Government Solicitor, eventually provided the documents with the name before the IC made a formal decision on my request.  Although I don’t know the content of the communications that occurred between the Department, the Government Solicitor and the OAIC, I assume that this was because the OAIC or the Solicitor told the Department that its reason for the redaction was not justified.

The Department justified its original decision to redact the name using Section 22 of the FOI Act and because, after telling me that it intended to not release the names of junior staff, I did not make any representation to the Department to release those names.  As illustrated above, even if I had objected, the Department may have still redacted the name.

5.	In the Department’s most recent response to an FOI request, names and contact details of staff were redacted based on section 47(F) of the FOI Act.  There was no distinction shown between junior or senior staff in this decision.  The decision maker stated that he was “satisfied that this information is ‘personal information’ for the purposes of the FOI Act” and its release would be contrary to the public interest.  This was despite the fact that the officers were sufficiently senior to be responsible for providing the then Minister for the Environment with documents related to, and recommendations for, endorsing the Melbourne Strategic Assessment conducted under the Environment Protection and Biodiversity Conservation Act through 2009. My application for review of this decision is now with the OAIC.

6.	Access to the names of Department staff was important in illustrating serious mistakes in the report of a preliminary code of conduct inquiry stimulated by my 2014 complaint to the Department about the introduction of the MUD Policy.  Access to the names of junior staff in documents sourced through FOI requests prior to 2015 was important in challenging, and contradicting, one of the ‘findings’ of that report.

That report was prepared by a consultant from one of the major firms providing professional reviewers of workplace behaviour, administrative actions and employment decisions for the public and private sectors.  The Department’s decision maker for the inquiry relied on this report, which concluded that no misconduct had taken place, for his decision to take no action.

The consultant stated in her report that “No advice, either incorrect or ambiguous, was given to Mr Penna”.  However, because names of junior staff were provided in documents released through FOI prior to 2015, I was able to identify the notes of a telephone conversation between myself and a junior staff member made by that staffer as well as communications between that staffer, other named staff members and the lawyer for a private company with whom we had previously been negotiating over an offset. I concluded that statements in those documents with all names published illustrated that the report’s decision that I had not received ambiguous advice was incorrect.  This contributed to my overall conclusion that the inquiry process and report were deeply flawed.  

7.	Also, access to names of staff in general was important in helping me decide that: 
•	the report of that preliminary code of conduct inquiry was seriously flawed, 
•	the underlying assumption that such inquiries are always conducted competently and/or impartially and meet the highest possible standards may not be correct
•	the decision-maker in such inquiries may not understand the issues involved in the inquiry and/or may not realise that the inquiry was poorly conducted.  

My complaint to the Department was not against specific individuals, but rather those responsible for the release of a policy. Documents gained through FOI showed that the Department decided who would be covered by my complaint and interviewed by the investigator.  I was eventually given a copy of the consultant’s report. This was provided to me outside the official FOI process, but because of personal privacy concerns the names of staff chosen by the Department to be subject to the inquiry and interviewed were redacted from the report.  I decided that I could not use the FOI Act to challenge the redaction of names in the report. 

However, by chance I learnt the names of staff subject to the preliminary inquiry process and contained in the report.  This knowledge of names allowed me to understand a variety of things, and contributed to being able to make several important deductions/conclusions, about the conduct of this inquiry.  They included:
•	Staff whom I did not consider to be responsible for the policy’s development were made subject to, and interviewed for, the inquiry.
•	The investigator apparently knew one of the subjects/interviewees, presumably from previous work for the department, and made complimentary remarks in a written communication to that person prior to the interview.  This raised the issue of potential confirmatory bias by the investigator in relation to interviewees/subjects.
•	The investigator asked one of the interviewees for specific information held in the department about me; she did not ask a ‘non-subject/interviewee’ staffer.  Most of the content of the main communication from the staffer to the investigator was published in the preliminary inquiry report and provided to me separately through an FOI request. The staffer’s name was redacted in both cases, but presumably redacted in the FOI response because she held a “junior” position.  This behaviour by the investigator also raised issues about her attitude to inquiry interviewees and her assumptions about the meaning of the material she obtained through this method.  She consequently made seriously incorrect statements using the information gained in this way.
•	The investigator stated that none of the staff subject to the inquiry and responsible for developing the MUD Policy during the development process knew about my involvement in a proposed offset for the development company when Department documents – potentially available to the inquiry - showed this was incorrect.  The investigator used a statement by one of the subjects who did know of my involvement during this period as ‘evidence’ when the quote statement in the report included: 
o	A comment that the staffer did not know of my involvement in the proposed offset until after the MUD Policy was published
o	The staffer’s supposition about offset negotiation events and relationships of which the staffer and investigator had no direct experience.
•	The inquiry was poorly run, the report was incompetently prepared and the decision-maker’s decision open to serious challenge.

Conclusions
My experiences, based primarily on those described above, lead me to make the following conclusions:
•	The release of the names of all levels of staff (“junior” and “senior”) in Commonwealth documents as part of FOI responses can be important in determining the facts of situations, illustrating the flow of communications and responsibilities within the public service and between government departments and outside individuals and organisations.
•	The failure to release names of junior and senior staff using Sections 22 and 47 of the FOI Act, when the appearance of the staffers’ names is directly related to their work, can serve to hide the above information, and in turn contribute to perverse outcomes.
•	I expect that staff in Commonwealth departments understand the basic position repeatedly expressed by the OAIC over the release of names of junior staff.  I consider that the continuing unjustified redaction of names of junior staff using s22 and s47 illegitimately prioritises some undefined interests of public servants over the right of members of the public using FOI to legitimately gain access to information.  As well as being unfair to the general public, this can lead to a waste of the time and resources of public servants, members of the public and the OAIC through the process of name redaction and any follow up internal reviews and/or OAIC reviews.
•	There is a reasonable argument for the OAIC to examine the reasons used to support both the redaction of the names of senior staff in some circumstances and the exemption of certain documents from release - such as where the redaction or exemptions serve to hide responsibilities or prevents close scrutiny that might illustrate poor conduct.  This includes some documents related to code of conduct inquiries.

References
DSE (2009)  "Delivering Melbourne's Newest Sustainable Communities: Strategic Impact Assessment Report for the Environment Protection and Biodiversity Conservation Act 1999", Victoria: Department of Sustainability and Environment, Melbourne, October, pp. 316.

Penna, I. (2018)  "Submission to Senate Standing Committee on Environment and Communications "Australia's Faunal Extinction Crisis"", September, pp. 56, Submission 402 and supplementary submissions, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/Faunalextinction/Submissions.

Penna, I. (2019)  "Victoria's Western Grassland Reserves failure" Parkwatch, No 277, June: 14-16.

SEWPaC (2012)  Melbourne Urban Development - Policy Statement for EPBC Act referrals. Department of Sustainability, Environment, Water, Population and Communities, Australian Government, Canberra, July: 4.

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