Ombudsman – South Australia

Thank you for your invitation to make a submission in relation to this discussion paper.  As a State based statutory authority, I am reluctant to advocate for a particular outcome for Federal legislation and practice.  However, I thought it may be helpful if I outline the approach I take on this topic in the South Australian context:

•	the structure of the clause 6(1) exemption under the Freedom of Information Act 1991 (SA) requires SA FOI officers to engage in a two part process. They first have to consider whether a particular document contains information concerning a person’s personal affairs. Once they conclude that it does, they then have to consider whether disclosure would be unreasonable
•	if the FOI officer considers that disclosure would not be unreasonable, they are required to consult with the person in question under section 26 of the FOI Act. If the person in question objects to the disclosure of their personal affairs, the FOI officer then has to reconsider the question of whether disclosure would be unreasonable
•	in my view a person’s name, in and of itself, is not their personal affairs: it is the means by which they identify themselves to the world
•	I am also of the view that a person’s signature, in and of itself, does not constitute that person’s personal affairs
•	there is SA authority (Priebe v SA Police [2007] SADC 119) to the effect that the phrase ‘employment records’ in the definition of personal affairs included in s4(1) of the FOI Act, means information pertaining to a person’s position as an employee, rather than their performance in that role. So, for example, employment records include things like name, age, date of birth, address, next of kin, records of leave taken and accrued, applications for promotion and any disciplinary action taken against the employee.
•	in Priebe Boylan DCJ held however that other documents from which it could perhaps be gleaned that the employee had not performed well did not fall within the category of ‘employment records’ and therefore did not constitute the employee’s personal affairs, or, even if they did, it would not be unreasonable to provide access to them given other factors in play in that particular case
•	in general, disclosing details of a public servant’s name and work-related contact details does not constitute unreasonable disclosure of their personal affairs 
•	however this needs to be decided on a case by case basis. For example, if the particular public servant was a more senior decision-maker it would almost always be reasonable to disclose their name, work related telephone number/s and email address. However, if the particular public servant was in a less senior and purely operational role, it may be unreasonable to disclose their details e.g. a cleaner in a public hospital
•	the applicant’s motive for seeking access to the details is also a factor to take into account. For example, in Treglown v SA Police [2011] SADC 139, Herriman DCJ said: ‘I am satisfied that in many instances, the provision of the materials sought would be unreasonable because of the nature of the appellant’s interest in gaining it. Here, I have found that one of the appellant’s primary purposes is to exact some form of retribution upon those persons whom he considers have by falsehood wronged him …’
•	if disclosure of a public servant’s name and contact details would jeopardise their security, an agency might rely on the exemption under clause 4(1)(a) of the FOI Act where disclosure could reasonably be expected to endanger the life or physical safety of any person
•	the onus is always on the agency to justify the application of an exemption.

Feel free to contact me again if you wish to discuss this topic with me.
Regards

Wayne Lines 
Ombudsman 
Ombudsman SA
Level 5, 91 King William St, Adelaide SA 5000