Submission to consultation on disclosure of public servants’ names and contact details
Author: Justin Warren
Consultation question 9
As a person who has requested access to documents from an Australian Government agency, have you been denied access to the names of agency staff? Did you consider this decision was justified? If no, why not?
I have made several FOI requests and, sadly, in several of them I have been denied access to the names of agency staff.
s 24AB required names denied
The Department of Human Services ('DHS') (now Services Australia) has a habit of refusing access to the names of agency staff who are actively engaged in processing FOI requests. Until recently, DHS did not provide the name of the contact person at all, despite the requirement of s 24AB(c) of the FOI Act that it should do so. I have raised this issue in a formal complaint to OAIC, so no, I do not consider this decision was justified, on any occasion.
DHS has now taken to providing a single name, rather than a full name, and the name appears to be a pseudonym rather than a real contact name. It appears that OAIC will need to clarify what the word 'name' means for the purposes of s 24AB(c) of the FOI Act.
I do not consider that the decision to provide an incomplete, and possibly fictitious, name is justified.
The reason a contact name is provided is to ensure that a person is able to contact someone at an agency in order to consult about the FOI request. DHS works hard to ensure this is as difficult as possible, as part of a deliberate strategy to avoid disclosing information. A full name might allow a person to call the main switchboard and inadvertently be forwarded to someone in a position to help them. Helping people is anathema to the ironically named Department of Human Services, which must be why its name has since been changed. Time will tell if this new name is as misleading as its old one, or the ones it gives its FOI contact people.
Partially justified decision
In documents I obtained from the Department of Health, (detailed here: https://www.righttoknow.org.au/request/supply_of_medicare_and_pharmaceu) names of public servants were redacted as being irrelevant.
In processing my request, the Department pre-emptively claimed a s 22(1)(b)(ii) (irrelevant) conditional exemption for:
Commonwealth employee names and contact details below Senior Executive Service level and mobile telephone numbers of all staff
This is an interesting situation. Because I did not object, the Department took this as permission to assert the s 22(1)(b)(ii) conditional exemption. Had I objected, I do not believe a decision to deny access to at least some of this information would have been justified.
Here the Department has chosen to expend effort removing names and contact details from documents where there is no specific requirement to do so, merely the absence of an objection. Its claim of irrelevancy is highly targeted and selectively applied in such a way as to effect a redaction that would be more usually claimed as a conditional exemption, which has a much higher evidentiary burden in order to claim it.
This choice required the documents to be edited in a specific and targeted way. It is difficult to see how this could not have increased the time taken to prepare the documents for release, and therefore also increased the cost by virtue of having to pay a person to make the redactions when they could have been doing something else. This rather goes against the object of the FOI Act to provide access to documents "promptly and at the lowest reasonable cost."
However, the Department did at least ask, and provided an opportunity for me to object. We will never know what its reaction might have been had I insisted that the various public servants' names remain within these documents.
Compliance with the law
As discussed in more detailed below, the written law and the nuanced application of it as interpreted through case law is clear that names should only be withheld in particular and quite specific circumstances. It appears that certain agencies disagree with the settled law and so have taken it upon themselves to abuse the exemptions made available in the FOI Act to avoid complying with the settled legal position.
That they are able to do so is, in my opinion, a rather sad indictment on the ability of OAIC to fulfill its role in overseeing the operation of the FOI Act. It is also my opinion that this has been the brought about in no small part due to the deliberate action of successive government who have attempted, without complete success, at preventing OAIC from being able to fulfill its role.
Consultation question 10
What are your views on deletion of the names of public servants and their contact details before documents are released in response to an FOI request? What are the reasons for your view?
It is my opinion that, in the vast majority of cases, the names and contact details of public servants should not be deleted from documents before their release. This is consistent with the various decisions made in multiple jurisdictions.
The law is clear
While this consultation explicitly remarks that the law is not up for debate, I feel it is important to state that both the legislation and case law are fairly clear on this matter.
As OAIC has detailed in the discussion paper accompanying this consultation, on page 2:
It has long been considered that in general, disclosure of public servants’ names in response to an FOI request would not be unreasonable. Such disclosure forms part of the system of accountability and transparency of government actions and decision making.
There are certain circumstances provided for in FOI law in which it would be unreasonable to release specific public servants' details. OAIC has helpfully provided a summary of key decisions in various jurisdictions in its consultation paper.
It appears to me that agencies concerned about the disclosure of public servants' names and context details in the context of FOI requests have not properly acquainted themselves with the FOI Act, nor with the decisions so helpfully provided by OAIC. I can understand how a person, coming perhaps from private industry, might find the responsibilities placed upon a public servant something of a shock. I can empathise.
My empathy is somewhat muted by the understanding that they are entrusted with looking after the welfare of the country's populace and with millions, sometimes billions, of dollars at their disposal.
If the concern from agencies about the operation of the FOI Act stems from surprise at what it requires of them, this says more about the lack of training provided by the agencies than it does about the requirements. The FOI Act is hardly new. Perhaps these agencies might find investing in systems and training related to how FOI operates a more fruitful use of taxpayer money than having a whinge to OAIC?
If the concern does not stem from surprise, then the agencies should realise that the evidentiary burden placed upon them to justify a change is substantial. They would need to make the explanation they are about to provide to OAIC phenomenally good.
Punching up, not down
In general, my view is informed by power dynamics. Part of the purpose of the FOI Act is to assist in the governed to hold government to account for its actions. This is explicitly mentioned in s 2(b) of the FOI Act:
increasing scrutiny, discussion, comment and review of the Government's activities.
As individual members of the public, we have little individual power over the multi-billion dollar agencies that collect taxes from us, grant or deny us healthcare, grant or deny us social security payments, and generally hold an enormous amount of power over our daily lives.
Our ability to scrutinise, discuss, comment and review the activities of those who are entrusted with this power is vital for us to ensure that this power continues to be used for our benefit, our common wealth, and not in capricious or tyrannical ways.
This ability is severely curtailed when public servants believe they will be able to can hide from the public and exercise their considerable power over us whilst shrouded in secrecy, safe in the knowledge that they will never be found out. Meanwhile, these same public servants demand ever-greater access to the intimate details of our personal lives in order to—drawing an example completely at random—"protect the integrity of the welfare system."
What's good for the goose is good for the gander.