Submission in response to disclosure of public servants’ names and contact details

1.	Does your agency have concerns about releasing the names and contact details of staff in response to FOI requests? If so, what are your concerns? Has your agency experienced any specific work health and safety issues as a result of a person’s name or contact details being released in response to an FOI request?

FSANZ does have concerns about releasing the names and contact details of staff in response to FOI requests in particular cases.

FSANZ is responsible for the development of standards that in effect regulate the manufacturing and sale of food in Australia and New Zealand. Standards development can become contested and involve attempts by some to politicise the process in order to influence outcomes. 

This in turn can result in FSANZ becoming the target of campaigns. There have been campaigns in which FSANZ staff have been described as liars, corrupt, engaging in deliberate evasion and misrepresentation. Letters have been written to Ministers stating that FSANZ staff are criminals and need to be jailed. Such allegations, while untrue, can clearly have a personal impact on individuals. 

•	FSANZ offices and meetings have been the target of protest in the past.

•	Threatening messages have been made and left on FSANZ answering services. 

•	Individual staff members have been the target of abusive and harassing phone calls, both at work and in their homes (see below).

Not unsurprisingly some FSANZ staff have expressed, and continue to express, concern at their personal information appearing in documents released under FOI and the risk that they can be traced and targeted via social media, white pages or via membership of various sporting clubs, particularly for staff with uncommon family names.  

This is not a hypothetical risk. At least one FSANZ staff member with an uncommon name was targeted at home after being located through a listing in the white pages. He received anonymous abusive phone calls at home after hours that related to his work on behalf of the organisation.  
Some of our staff work remotely, from home and have family and children living with them. Phone numbers used in some internal emails may also be their home/personal number. Our remote staff who work from home do screen their calls and ensure their children do not answer the phone. Their phone numbers do not show up when calls are made via caller id, but may be provided internally or to particular stakeholders that staff member work closely with. FSANZ has recently put in place separate work specific phone lines for some staff and their signature block has been amended to reflect this new work number. However, personal home numbers remain in historical documents.  Release of this and other personal information can also indicate the geographical location of where individual staff members may live. That this information would be released in response to an FOI request is a matter of concern to these staff members and their family.  
 
As a responsible employer subject to workplace health safety obligations, FSANZ must respond appropriately to the above. 

FSANZ as a Commonwealth agency also remains subject to federal privacy laws and must meet its obligations under those laws. Public servants as individuals also do have a right to privacy (albeit qualified in some circumstances) and their personal information remains subject to and protected by privacy legislation.  

2.	Have your agency’s views on this issue changed over time? If so, please describe any factors that have affected your agency’s approach, including technological, environmental or legal factors.

No. The same issues and risks remain in terms of disclosure of personal information.
3.	Does your agency advise staff, including contractors undertaking functions on behalf of the agency, that names and contact details may be released in response to an FOI request as part of your agency’s training and induction programs? 

Yes. The agency induction training and the internal FOI Guidance on our intranet include information on processing FOI requests and the requirements of the FOI Act. Staff are advised that their names and contact details may be the subject of a request.
4.	How do you balance work health and safety considerations with the objects of the FOI Act, which include increasing public participation in Government processes with a view to promoting better-informed decision making and increasing scrutiny, discussion, comment and review of the Government’s activities? 

FSANZ acts in accordance with the FOI Act and will have regard to work health and safety considerations when relevant when applying that Act.

Irrelevant

FSANZ will delete the personal information of FSANZ staff if that information is irrelevant, having regard to the terms of the FOI request. 

FSANZ is required by section 22 of the FOI Act to prepare and provide edited copies of documents.  Subsection 22(2) states that edited copies must be prepared and provided when the criteria listed in section 22(1) are met. That is: 

a.	A decision was made to give access to a document that would disclose information that would reasonably be regarded as irrelevant to the request. 

b.	The document contains or would disclose personal information of FSANZ staff and information that could reasonably be regarded as irrelevant to the request, having regard to the terms of the FOI request.

c.	It is possible to provide an edited copy of the document.

d.	It is reasonably practicable to provide an edited copy.

e.	It is not apparent that the Applicant would decline an edited copy, with the irrelevant information removed. Regard is had to the breadth of the irrelevant material and the likely additional cost and delay in terms of assessing and consulting on that additional - but irrelevant – material.
A purpose of section 22 is to relieve agencies of the obligation to follow other FOI Act processes, for example, to have to decide whether an exemption - such as that provided by section 47F of that Act - applies to the irrelevant information and whether third party consultation should be undertaken etc [See OAIC Guidelines para 3.95 and 3.96 and McKinnon and Department of Immigration and Citizenship [2012] AICmr 34 ].   

The names of FSANZ staff are personal information for the purposes of both the Privacy Act and the FOI Act. 

Redaction of this information, where irrelevant, avoids the need for third party consultation under the FOI Act with the staff concerned and then for FSANZ to decide whether that information is exempt. This in turn saves an Applicant time and money and may assist in a speedier response to the request. See OAIC FOI Guideline 3.86 
FSANZ notes that the Guidelines issued by the Commissioner under section 93A of the FOI Act on disclosure of public servants’ personal information (ie, Guidelines 6.152 to 6.157) relate only to the application of section 47F of the FOI Act and the issue of whether such disclosure is unreasonable for the purposes of that provision. 

These Guidelines do not relate to the question of relevance and to the application of section 22 of the FOI Act. 

These Guidelines also apply subject to the express provisions and requirements of the FOI Act, including section 22. In the event of any inconsistency, the requirements as stated in that Act prevail.

Nor are these Guidelines directions that are binding on a decision-maker.  The same is true for any suggestions stated in the Guidelines. 

Subsection 93A(2) of the FOI Act provides that a decision maker ‘must have regard to’ the Guidelines when exercising powers under the Act.  A requirement that ’regard must be had to any guidelines‘ issued by the Commissioner is not a statutory direction to comply with those Guidelines.  Section 93A also makes clear that the Guidelines are not legislative instruments.  Instead, the Guidelines remain matters to which regard must be had and generally be applied unless there are cogent reasons not to.

Exempt information
In the event that the personal information of FSANZ staff is in fact relevant, having regard to the actual terms of the FOI request, FSANZ will then consider the application of the exemptions provided by the FOI Act.

The exemption provided by sections 47F of that Act, among others, can be considered.
Section 47F and 11A(5) provide that the following is exempt from access under the FOI Act:
a.	the document contains ‘personal information’; 
b.	disclosure of that information in response to the Applicant’s FOI request would be ‘unreasonable’ (s 47F(1)); and 
c.	it would be ‘contrary to the public interest’ to release the information at the time of the decision (s 11A(5))
In determining whether the disclosure of this personal information would be unreasonable, the FOI Act provides that the decision-maker must have regard to (s 47F(2)):
a.	the extent to which the information is well known;
b.	whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
c.	the availability of the information from publicly accessible sources;
d.	any other matters that the decision maker considers relevant.

FOI Guideline 6.142 also states that the key factors for determining whether disclosure is unreasonable include:
a.	the author of the document is identifiable;
b.	the documents contain third party personal information;
c.	release of the documents would cause stress on the third party;
d.	no public purpose would be achieved through release.

FOI Guideline 6.143 states the other relevant factors to consider include:
a.	the nature, age and current relevance of the information;
b.	any detriment that disclosure may cause to the person to whom the information relates;
c.	any opposition to disclosure expressed or likely to be held by that person;
d.	the circumstances of an agency’s collection and use of the information;
e.	the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act;
f.	any submission an FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use or dissemination of the information, and
g.	whether disclosure of the information might advance the public interest in government transparency and integrity. 
The FOI Guidelines at 6.138 also explains that the test of ‘unreasonableness’ under s 47F ‘implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals.
However, FOI Guideline 6.153 states that, where a 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.
In this regard, the impact of the release of personal information on the staff members concerned, particularly in the context of FSANZ statutory work health and safety obligations owed to its staff, is relevant,  including in terms of whether special circumstances exist.  

Consultation
As a responsible employer subject to workplace health safety obligations, FSANZ must respond appropriately (including by providing staff with an opportunity to make submissions in accordance with section 27A of the FOI Act).  This is particularly true for FSANZ’s junior, non‑executive staff (see answer below).
FSANZ is fortunate in that, being a small agency, it is reasonably practicable to provide the staff concerned with a reasonable opportunity to make a submission. With less than 120 staff, there are only a small number of potentially affected individuals and all are easily contactable.

FSANZ notes that the FOI Guidelines issued by the Commissioner state that 

Agencies and ministers should generally start from the position that a third party might reasonably wish to make a submission. This is because the third party may bring to the agency or minister’s attention sensitivities that may not have been otherwise apparent.  [However] … the Information Commissioner suggests that before engaging in consultation with staff under s 27A, agencies and ministers should carefully consider whether such special circumstances exist that a public servant might reasonably wish to contend that the document is exempt and giving access would be contrary to the public interest. Consultation is unlikely to be necessary where a request is made for a document of a general administrative character on which a staff member’s name appears simply because of the position they hold [[OAIC Guideline 6.163 and 6164].

 	FSANZ agrees with the Commissioner that the starting point should be the position that the affected person might reasonably wish to make a submission. The Commissioner’s point that consultation with the person can identify sensitivities or personal circumstances not apparent to an employer applies equally to the decisions involving the release of public servants’ personal information and whether any special circumstances may exist (whether work related or personal).

Consultation with affected public servants in such cases is also consistent with the scheme established by the FOI Act that seeks to ensure that: 
•	an individual that is the subject of the personal information that may be released has the opportunity to raise any concerns; 
•	that these concerns may be taken into account by decision‑makers when considering whether to release the document; and 
•	that informed decisions are made.

Failure to consult affected public servants at the outset and when considering the application of section 47F exemption can deny those person certain rights and protections provided to other persons in the same situation.  The FOI Act provides that, if a decision is then made to release the document containing a person’s personal information, a person consulted under section 27A and who argued that their personal information is exempt must be informed of that decision and of his or her right to seek review of that decision by the Administrative Appeals Tribunal (AAT). 

In such circumstances, access to the document must not be provided to the Applicant unless, after all the opportunities of that person for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed.  The Applicant is also required to be informed of the decision to release and that the person has review rights which might be exercised.  Even if the decision-maker decides to refuse access, it is nevertheless open to that person to seek to be a party to any review of the decision initiated by the Applicant.  If the decision is taken not to consult the person at the outset (eg, ostensibly on the basis that they are a public servant), that person has no such rights under the Act.

Consultation with affected public servants in such cases is also consistent with privacy, employment, work health and safety and other legislation that apply to Commonwealth agencies.  It is also consistent with the code of conduct that applies to all Commonwealth public servants.  In the case of employees, good staff management also warrants consultation with affected employees.

5.	If your agency considers that disclosure of a public servant’s name or contact details will negatively impact their health or safety, what evidence do you require before deciding that their name or contact details are exempt from disclosure?

Each FOI request involving the potential release of staff personal information is considered on a case by case basis following discussions with the staff involved.

In addition to the terms and context of the FOI request, FSANZ will have regard to the following considerations, among others:
•	What is the personal information in issue (name, position details, contact information, date of birth, mobile phone numbers etc)?

•	Does the information relate only to the staff concerned undertaking their usual duties and responsibilities? 

•	Do the staff concerned object to the release of their information? If so, on what grounds? Are these grounds reasonable having regard to the particular circumstances of the request and of the staff members concerned?

•	Is the information already known to the applicant?

•	Is the information is available from publicly accessible sources? Are their names positions and contact details are available on publicly available staff lists or on the internet?

•	Are the staff concerned publically associated with the issue that is the focus of the FOI request?

•	Are the staff concerned responsible or accountable for FSANZ decision making on these issues?

•	Do the staff concerned have skills and training necessary to deal with difficult issues or difficult members of the public?

•	Do the staff concerned have an expectation that they would normally have to deal with the public on contested policy issues in a way which identifies them individually?

•	What public purpose or good would be achieved through the release of this information, noting the public interest in the transparency of the workings of government?

•	An applicant’s reasons – if stated -  for seeking the documents. While an applicant is not required to provide reasons for making an FOI request, their reasons are a factor that can be taken into account regarding the disclosure of personal information.

•	Whether the applicant’s purpose for seeking access (if known) will be achieved if the information is disclosed.

•	Is it likely that the applicant or others may have a propensity to pursue matters obsessively?  Is there, for example, any evidence of an applicant’s willingness to harass (including online) perceived critics or opponents?

•	Is there any need for the applicant to contact the particular individual staff concerned now or in the future?

•	The likelihood that the applicant will disseminate or disclose the information, noting that release of information under the FOI Act cannot condition or restrict the subsequent dissemination of that information by the applicant.

•	Is there a risk of harm?  Would release of the information be detrimental (eg, in terms of their physical or mental health, or wellbeing) to the staff concerned, their families or others?

For the following reasons, these factors are particularly relevant in cases involving the possible release of the personal information of non-executive FSANZ staff.

•	FSANZ staff at APS6 level and below are not usually on the public record as representing decisions or policies of FSANZ.  They do not usually have the authority to act on behalf of FSANZ.  They are not in any way responsible or accountable for FSANZ decision making on most issues.

•	It would be unusual for a FSANZ officer at APS6 or below to be publicly identified and junior staff would not normally expect their names to be released to the world at large.  Their names, positions and contact details are not available on publicly available staff lists or on the internet.

•	Release of junior staff’s personal information would not normally provide any greater insight into Government decision making or allow for increased discussion or scrutiny of Government activities.  Junior staff do not have the delegations to make decisions or assessments on behalf of FSANZ.  

•	Release of their name and contact details would not normally of itself serve to advance the public interest in government transparency and integrity.  Nor would its release of itself normally throw any light on the issue that is the substance of the FOI requests usually received by FSANZ, which typically have a policy focus.

•	In these circumstances, it is possible that release of personal information of junior staff may prejudice their right to privacy for no public benefit or outcome.  As mentioned above, public servants as individuals do have a right to privacy (albeit qualified in some circumstances) and their personal information remains subject to and protected by privacy legislation.  

•	Depending on the circumstances and context of a request, it can be inherently stressful and cause anxiety for junior levels of staff to have their identities and direct contact details (eg direct telephone numbers or mobile phone numbers) released to an applicant and the wider public.  

•	The FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act.  Names, telephone numbers and email addresses can be circulated widely once released.

6.	Do you consider the FOI Guidelines provide enough guidance for agencies when considering these issues?

No. 
7.	In what circumstances do you consider that a public servant’s personal information (name and contact details) are irrelevant to the FOI request?

The terms of the FOI request itself will determine whether a public servant’s personal information (name, contact details, place and date of both, mobile number etc) are irrelevant. 

If a request expressly excludes all personal information, then such information would clearly be irrelevant.

If a request seeks the reasons for a specific decision, then the personal information of officials who did not make that decision or who were not involved in making or recommending that decision are prima facie irrelevant.
8.	Where you have withheld the names and contact details of public servants, what impact does deleting this information from documents have on the time it takes to process FOI requests?

The impact will depend on the scope of the request, the number of relevant documents and the extent to which that information appears in the relevant documents.

That said, deletion of the names and contact details of public servants from documents has taken relatively little time to date. 

Owen Walsh
General Counsel
Food Standards Australia New Zealand