Disclosure of public servants’ names and contact details – Discussion paper

1 July 2019
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Summary

The Office of the Australian Information Commissioner (OAIC) is aware of agency concerns about the disclosure of public servants’ names and contact details in the context of FOI requests, both in response to FOI requests and when requests are being processed.

The purpose of this discussion paper is twofold; firstly to provide greater awareness of the relevant guidance and decisions regarding the disclosure of public servants’ names and contact details, including the circumstances in which public servants’ names and contact details may be released or published in response to an FOI request and when they may be exempt from disclosure. Secondly, this discussion paper also seeks to explore agency concerns and practices in relation to this issue.

It is not the intention of this discussion paper to explore the legal requirements for the name and designation of a decision maker to be stated in a notice of decision (ss 26(1)(b) and 29(9)) or the name and contact details in a request consultation notice (s 24AB(2)(c) and (d)).

Rather, this paper focusses on the circumstances in which public servants’ names and contact details are included in the documents at issue, and the FOI Act provisions that agencies have relied on to withhold this information from disclosure — namely 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).

In seeking to further explore this issue, we invite you to comment on your experience as an FOI practitioner, or as someone who has sought access to information from an Australian Government agency or minister. To assist you to do this, at the end of this paper we have posed a series of questions to explore the issues and have provided information about how you can submit your comments.

The information gathered as part of this consultation will be used to consider whether the FOI Guidelines provide sufficient and appropriate guidance for agencies and ministers in relation to the disclosure of the names and contact details of public servants in the current information access landscape.

Background

Public servants’ names and contact details may be in a wide range of documents generated and held by Australian government agencies. Usually this is because the public servant was involved, to some degree or extent, with the work which is the subject of the documents.[1]

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.

Freedom of Information Memorandum No. 94 (dated June 1994)[2] states:

12 … 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.

Further, in relation to consultation, Memorandum No. 94 states [emphasis added]:

21. One major example of circumstances which would be relevant [to the need to consult under s 27A] is where the name of an official appears in a document in the normal course of the official's duties. There is no personal privacy interest in that information, and there is no need to consult with officials in such circumstances. The situation would be different, however, where the information related to something in which there may be some real privacy concern, such as work performance information concerning an individual official, or information relating to alleged disciplinary offences or sexual harassment. Other information relating to an official may be entirely private in nature, such as information relating to the official's entitlement to bereavement leave because of the death of a close relative…

The OAIC’s view, as expressed in the FOI Guidelines, is that it would not be unreasonable to disclose public servants’ personal information unless special circumstances exist:

6.153 Where 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. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website.

The FOI Guidelines recognise that in some circumstances disclosure of public servants’ personal information, including their names, may be unreasonable:

6.154 When considering whether it would be unreasonable to disclose the names of public servants, 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. In seeking to claim the exemption an agency needs to identify the special circumstances which exist rather than start from the assumption that such information is exempt. [Emphasis added]

6.155 In Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015] AICmr 85, where the agency raised the concern that disclosure would affect the personal safety of its officers, the Information Commissioner said that there is no apparent logical basis for distinguishing between the disclosure of SES officers and other officers’ names, particularly where the purported concern is that disclosure could affect personal safety.

6.156 A document may, however be exempt for another reason, for example, where disclosure would, or could reasonably be expected to, endanger the life or physical safety of any person (s 37(1)(c)). In addition, where an individual has a propensity to pursue matters obsessively and there is no need for them to contact a particular public servant in the future, disclosure of the public servant’s name may be unreasonable.

Decisions: Commonwealth and other jurisdictions

There have been various decisions made by the Administrative Appeals Tribunal (AAT) and former and current Information, FOI and Privacy Commissioners regarding the disclosure of the names and contact details of public servants. These decisions discuss the relevant legislative tests and the submissions provided by agencies to demonstrate why such information should exempt. In cases where agencies have claimed that names and contact details are conditionally exempt, this requires first, consideration as to whether the relevant exemption has been made out, and second, whether disclosure would be contrary to the public interest.

In the context of Information Commissioner (IC) reviews, s 55D of the FOI Act provides that the agency or Minister bears the onus of establishing that an FOI decision is justified or that the Information Commissioner should give a decision adverse to the IC review applicant. When making an IC review decision, the Information Commissioner relies on agencies making submissions[3] and providing evidence to establish that special circumstances exist (such that it would be unreasonable to disclose public servants’ personal information), or that disclosure would have a substantial adverse effect on the proper and efficient conduct of agency operations or on the management or assessment of personnel by the Commonwealth or by an agency, and that disclosure would be contrary to the public interest.

The table at Attachment A to this paper highlights the approach taken by the AAT and the Information Commissioners when considering whether it would be unreasonable to disclose public servants’ personal information.

The table at Attachment B summarises decisions from other relevant jurisdictions regarding the disclosure of public servants’ names. Although caution is required when considering cases from other jurisdictions, the principles articulated are consistent with the approach adopted by the OAIC despite these legislative differences.

Consultation Questions

The OAIC seeks comment on the issues raised in this paper.

Please provide examples of the situations or circumstances you describe in your submissions. To assist you frame your response, you may wish to consider the following questions.

For agencies:

  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?
  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.
  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?
  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?
  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?
  6. Do you consider the FOI Guidelines provide enough guidance for agencies when considering these issues?
  7. In what circumstances do you consider that a public servant’s personal information (name and contact details) are irrelevant to the FOI request?
  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?

For members of the public:

  1. 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?
  2. 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?

 

Attachment A — Decisions: Commonwealth jurisdiction

Administrative Appeals Tribunal

Decision

Case

Key messages

Unreasonable to disclose any personal information of Departmental staff but not unreasonable to disclose names of staff (but not contact details) of staff engaged by the Commissioner for Complaints

(Section 41(1))[4]

Bartucciotto and Commissioner for Complaints [2006] AATA 36 (17 January 2006)

[19]–[27]

  • The relevant personal information relates exclusively to public servants in the context of their performance of their public duties. As a general rule, disclosure of such personal information will not be unreasonable.
  • There was evidence before the Tribunal that the applicant had engaged in intimidating and aggressive behaviour, both by telephone and in person, against staff of the Department of Health and Ageing and had made threats against officers. In these circumstances disclosure of any personal information would be unreasonable.
  • However in relation to staff employed by the Commissioner of Complaints, while there was evidence that the applicant had communicated aggressively by telephone and in letters on numerous occasions, there was no evidence of any threatening or intimidating behaviour towards particular officers. Further, there was no evidence that any officer specifically objected to their personal information being disclosed to the applicant. As a result, the Tribunal considered it would not be unreasonable to disclose the names of officers contained in the relevant documents, but that it would be unreasonable to disclose contact details — namely, email addresses, direct work telephone and fax number.

Not unreasonable to disclose names of public servants who attended meetings as contained in the Attorney-General’s diary

(Section 47F)

Dreyfus and Attorney-General (Commonwealth of Australia) Freedom of information) [2015] AATA 995 (22 December 2015) (Justice Jagot)

[50]

  • There is no basis upon which the personal privacy exemption can apply insofar as the names of public servants are disclosed as having attended meetings with the Attorney-General.

Not unreasonable to disclose messages to which FOI applicant is a party

Disclosing internal investigation reports would have a substantial adverse impact on the management of personnel

(Sections 47E(c) and 4F)

De Tarle and Australian Securities and Investments Commission (Freedom of information) [2016] AATA 230 (8 April 2016)

[24]–[26], [42]

  • There can be no proper claim under s 47F where the applicant is a party to the communication; even when documents include derogatory comments about others, information about performance reviews and supervision, or personal information unrelated to the individual’s duties as a public servant (personal email addresses, mobile numbers, feelings and health issues).
  • Candour is essential when an agency investigates complaints, especially those of bullying and harassment. Staff may be reluctant to provide information and cooperate with investigators if the subject matter of those discussions is disclosed and made public.

Not unreasonable to disclose names of people interviewed as part of criminal investigation

(Section 47F)

Leigh and Australian Federal Police (Freedom of information) [2016] AATA 330 (20 May 2016)

[40]–[55]

  • Although in the circumstances of this matter it would not be unreasonable to disclose the names of people interviewed as part of a criminal investigation, because this information appears in the documents because of their usual duties and responsibilities, it will not the case that it will never be unreasonable to disclose this information.
  • The relevant report was more than 12 years old and related to events that occurred 17 months before its creation. The level of detriment following disclosure would be low or no-existent. which mitigated against finding that disclosure

Contrary to the public interest to disclose email addresses, surnames, signatures

(Section 47F)

Price and Attorney General’s Department (Freedom of information) [2016] AATA 1044 (20 December 2016)

[37]–[45]

  • Disclosing the surnames, signatures, email addresses and user IDs of officers, other than particular executive officers would be contrary to the public interest.
  • The potential for harm was a real given the nature of agency’s role (harassment from complainants and other inappropriate contact).

Not unreasonable to disclose names

(Section 47F)

Lever and Australian Federal Police (Freedom of information) [2017] AATA 1407 (22 August 2017)

[53]–[56]

  • The exempt material identifies staff on duty at Australia’s Nuclear Science and Technology Organisation on a particular day.
  • The Respondent submits that the zeal with which the applicant pursued his application indicates he may press these staff for more information.
  • The Tribunal was not satisfied the Respondent had established that the applicant has a tendency to pursue matters obsessively, or that there is no need for him to contact the relevant persons in the future. The factual background to the FOI request was not relevant to the issues for determination in this review and although the Tribunal accepted the applicant had pursued his application with unusual vigour, whether this amounted being obsessive depends on underlying facts not within the scope of the review. Similarly, whether there was any need for him to contact relevant staff depends on the same questions, as well as his intentions as to other litigation, which would be speculative to consider on the evidence before the Tribunal.
  • The fact that the applicant sought to call the named individuals to give evidence was not relevant to the decision whether the documents were exempt (see s 11(2) of the FOI Act).

Australian Information Commissioner

Decision

Case

Key messages

Unreasonable to disclose unsubstantiated allegations

(Section 47F)

Besser and Attorney-General’s Department [2013] AICmr 12 (25 February 2013)

[25] and [30]

  • Disclosing the names and personal details of AFP officers against whom unsubstantiated allegations were made would involve a serious and significant invasion of their privacy and cause unnecessary harm and detriment to them and their families.

Not unreasonable to disclose outcome of Code of Conduct investigation

Unreasonable to disclose information not related to officer’s usual functions

(Section 47F)

‘AF’ and Department of Immigration and Citizenship [2013] AICmr 54 (26 April 2013)

[54]–[56]

  • It would not be unreasonable to disclose personal information relating to the sanction imposed following an internal investigation because this demonstrates that allegations are taken seriously, that the agency does not tolerate behaviour that is inconsistent with the APS Code of Conduct and that the appropriate sanction was imposed.
  • Disclosing a statement that the officer changed their name on a specific date would be unreasonable because it is unrelated to their usual duties and responsibilities.

Not unreasonable to disclose names where applicant is aware of them

(Section 47F)

‘AH’ and Australian Federal Police [2013] AICmr 59

(6 June 2013)

[21]

  • When the applicant is aware of the identity of the officers investigated and the nature of the sanction imposed, it will not be unreasonable to disclose information about when and how those officers were notified of the sanction and what further action was considered.
  • In terms of public interest, disclosure demonstrates the agency takes allegations seriously and does not tolerate behaviour inconsistent with the Code of Conduct.

Unreasonable to disclose information which might identify individual under investigation

Personal information can be edited from documents for publication on disclosure log

(Section 47F)

Besser and Department of Families, Housing, Community Services and Indigenous Affairs [2013] AICmr 65 (21 August 2013)

[31] and [33]–[34]

  • If disclosing dates would identify an individual under investigation it would be unreasonable to release this information (for example, commencement date or periods of absence from work would likely be sufficient for one of their co-workers to identify them).
  • A person’s signature can be edited from the document before being published on the agency’s disclosure log

Unreasonable to disclose date and place of birth, mobile telephone number

(Section 47F)

Hunt and Australian Federal Police [2013] AICmr 66 (23 August 2013)

[72]–[74]

  • It is not unreasonable to release personal information such as names, work email addresses, positions or titles, work contact details and decisions or opinions because this information appears in documents because of the person’s usual duties or responsibilities.
  • It would be unreasonable to release personal details such as dates and places of birth and personal mobile telephone numbers.

Unreasonable to disclose names of officers interviewed during investigation

(Section 47F)

‘AO’ and Department of Veterans’ Affairs [2013] AICmr 77 (21 October 2013)

[63]

  • When information is given confidentially by public servants during an internal investigation it would be unreasonable to disclose their identity or any record of their statements.

May be unreasonable to disclose mobile phone numbers

Not unreasonable to disclose mobile phone numbers if included in work signature block

(Section 47)

Thomson and Australian Federal Police [2013] AICmr 83 (22 November 2013)

[13]

  • Work mobile phone numbers can be personal information.
  • It would not be unreasonable to disclose a mobile phone number if included in an email signature and sent outside the organisation, where the phone number has been included in a document because of the employee’s usual duties or responsibilities.
  • Agencies need to carefully consider their policies and practices when including mobile phone numbers in email signatures for external emails.

Not unreasonable to disclose names when applicant aware of them

No substantial adverse effect on agency operations

(Sections 47E(d) and 47F)

Rudd and Civil Aviation Safety Authority [2013] AICmr 87 (11 December 2013)

[24] and [34]

  • It would not be unreasonable to disclose the names of public servants against whom the applicant has complained.
  • Information about other employees only reveals they are performing their public duties.
  • It will not be unreasonable to disclose an investigator’s findings because these provide only a general summary of issues and recommendations for future action and does not disclose any personal information.

Unreasonable to disclose recruitment information

(Section 47F)

BA’ and Merit Protection Commissioner [2014] AICmr 9 (30 January 2014)

[92]–[93] and [95]

  • Even if documents contain positive information about an individual which is unlikely to embarrass them, recruitment information is highly personal because it shows how the individual performed at interview and their rating.
  • It will be unreasonable to disclose a person’s job application and submissions. These documents contain distinctly personal information about the individual’s career and their perceived strengths. The documents were also prepared for a specific purpose, with a particular audience in mind, and with the expectation they would be treated confidentially.

No substantial adverse effect on agency operations established

(Section 47E(d))

‘BB’ and Department of Human Services [2014] AICmr 11 (6 February 2014)

[15]–[27]

  • Clause in Enterprise Agreement which says the Department will ‘work toward ensuring’ that employees have a choice about whether to provide their full name or only a first name in response to public enquiries does not unconditionally assure staff that their identity will be protected.
  • Clause in Enterprise Agreement does not permit staff to deal with members of the public anonymously.
  • No evidence that disclosure of names in response to an FOI request would divert contact on a scale that is substantial and adverse.

Not unreasonable to disclose names, signatures and investigator identification numbers

(Section 47F)

Stephen Waller and Department of Environment [2014] AICmr 133 (25 November 2014)

[50]–[52]

  • The Departmental officers identified in the documents are acting in their professional capacity as public servants. None of the information in the document relates to the individuals in their private capacity.
  • The Departmental officers are known by the occupier, but not by the applicant or the third party, to have been associated with the matters dealt with in the documents

Substantial adverse impact on management of staff to disclose details of complainants

Not unreasonable to disclose staff signatures and initials

Unreasonable to disclose names of individuals subject to internal investigation

(Sections 47E(C) and 47F)

HJ’ and Australian Federal Police [2015] AICmr 71 (6 November 2015)

[20]–[22], [31]–[34] and [38]–[40]

  • Exempting all staff signatures and initials would require the Information Commissioner to find that being employed by an agency is a ‘special circumstance’.
  • Disclosure would be unreasonable where a named individual is associated with the subject matter of the documents (completed investigations).

Not unreasonable to disclose names of staff at all levels

(Section 47F)

Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015] AICmr 85 (18 December 2015)

[3], [14]–[17], [21] and [25]–[27]

  • Agencies should not start from the position that an officer’s classification will determine whether it would be unreasonable to disclose their name.
  • Whether the applicant intends disseminating the names of departmental officers may be a relevant consideration in deciding that disclosure would be unreasonable.
  • Increasing scrutiny, discussion, comment and review of the government’s activities are some of the stated objects of the FOI Act which need to be balanced with disclosure of public servants’ personal information.

Unreasonable to disclose names of departmental officers

(Section 47F)

Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 25 (22 April 2016)

[50]–[53]

  • Where public servants have been appointed to investigate and report on the conduct of other officers, with potentially significant consequences for the personnel concerned, it is unreasonable to release their names.
  • Facts in this case distinguished from Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015] AICmr 85, where disclosure would reveal only that the departmental officers were carrying their usual duties or responsibilities.

Not unreasonable to disclose signature

(Section 47F)

‘JN’ and Commonwealth Ombudsman [2016] AICmr 62 (19 September 2016)

[36]–[38]

  • The Ombudsman did not present any special circumstances justifying the exemption of the signature, beyond the individual acting in their official capacity as an officer of the AFP.

No special circumstances - disclosure of names and titles not unreasonable

No substantial adverse impact on agency operations established

(Sections 47E(d) and 47F)

John Mullen and Australian Aged Care Quality Agency (Freedom of information) [2017] AICmr 11 (1 February 2017)

[27]–[29} and [35]–[37]

  • The Tribunal was not satisfied that the nature and extent of previous contact between the applicant with Agency staff amounted to special circumstances that would make disclosure of officers’ names and titles unreasonable (two telephone conversations, two missed calls on a staff member’s work mobile telephone and one voicemail message requesting a hard copy of the redacted documents).
  • Disclosure of names and titles would not be unreasonable.
  • Merely asserting that disclosure would have a substantial adverse impact on agency operations is not sufficient to discharge an agency’s onus under s 55 of the FOI Act. Evidence is needed to establish that the centralised complaints management process would be affected by the applicant directly contacting staff. This was especially so because the evidence was that many of the relevant staff no longer worked for the Agency.

Substantial adverse impact on operation of media section not established

Not unreasonable to disclose names of staff working in media operations section

Unreasonable to disclose names of former staff members

(Sections 47E(d) and 47F)

The Australian and Department of Immigration and Border Protection (Freedom of information) [2017] AICmr 62 (27 June 2017)

[16] and [24]–[28]

  • The Department did not provide particulars of how the predicted adverse effects could reasonably be expected to occur on a scale that would or could have a substantial adverse effect on the proper and efficient operations of its media operations section.
  • Although Department provided examples relating to the personal safety of staff, the Information Commissioner was not satisfied this established that disclosure would, or could reasonably be expected to, result in staff in the media operations section being exposed to online stalking or harassment, or would affect their personal safety.

Not unreasonable to disclose names and contact details

Section 47F

'MA' and Department of Veterans' Affairs (Freedom of information)[2017] AICmr 72 (26 July 2017)

[105]–[112]

  • Names and contact information of staff included in documents due to their usual duties and responsibilities.
  • The applicant was a party to the correspondence and the details would already be known to them.

Unreasonable to disclose name

(Section 47F)

Julian Knight and Attorney-General's Department (Freedom of information) [2017] AICmr 79 (31 August 2017)

[26]–[31]

  • Disclosing the name of non-Executive officer unreasonable because of reasonable expectation that this could subject officer to harassment from complainants and other inappropriate contact.

Substantial adverse impact on agency operations not established

(Section 47E(d))

Maria Jockel and Department of Immigration and Border Protection (Freedom of information) [2017] AICmr 101 (9 October 2017)

[20]–[21]

  • The Department did not discharge its onus to establish that it would be unreasonable to disclose the names of current staff in an organisational chart.
  • It was not established that disclosure of contact details to one migration agent could reasonably be expected to occur on a scale that would or could have a substantial adverse effect on the proper and efficient operations of the Department.
  • Further, contact details had previously been made available to the applicant as part of the Department’s stakeholder engagement.

Not unreasonable to disclose name and signature

(Section 47F)

'PF' and Department of Human Services (Freedom of information) [2018] AICmr 59 (11 July 2018)

[43]–[47]

  • The Department did not establish special circumstances. In particular, the Department did not explain why disclosure would be unreasonable when the applicant was to be given access to the remainder of the document through a qualified person and the officer had met the applicant during the course of their duties as a departmental officer.
  • The Department had already given the applicant access to the signatures of other public servants in other documents and did not explain why a different approach had been taken to the signature at issue.

No substantial adverse impact on agency operations

Not unreasonable to disclose opinions of public servants

(Sections 47E(d) and 47F)

Reece Walters and Great Barrier Reef Marine Park Authority (Freedom of information) [2019] AICmr 9 (1 March 2019)

[105]–[106], [109] and [124]–[125]

  • Not established that disclosure of names would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of the agency.
  • Where comments are made, or opinions expressed, as a result of public servants discharging their usual duties or responsibilities, it will not be unreasonable to disclose those comments/opinions.

Irrelevance

Section 22

‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31 (24 April 2015)

[14]–[15]

  • There is no logical basis for treating the names of SES officials as being within the scope of a request, but the names of other officials as being irrelevant.

Irrelevance

Section 22

'PO' and Australian Federal Police (Freedom of information) [2018] AICmr 72 (19 December 2018)

[16]–[17]

  • Whether the names and contact details of public servants will be irrelevant to the request and able to be deleted under s 22 requires consideration of the scope of the request. When an applicant specifically seeks documents pertaining to a particular officer it is unlikely that the name of that officer can be irrelevant to the request.

Attachment B — Decisions: Other jurisdictions

Note: Please note that other jurisdictions operate under different legislative schemes and the relevant legislative tests may differ from those in the Commonwealth jurisdiction.

DecisionCaseKey messages

Not reasonable to disclose names when physical safety of individual at risk

Re ‘M’ and WA Country Health Service – South West [2012] WAICmr 8

Decision of Information Commissioner (Western Australia)

  • Where fears for safety are reasonably based and established by evidence disclosure of public servants’ names and other identifying details will be unreasonable.

Unreasonable to disclose signatures, initials and contact telephone numbers

Mond v Department of Justice (General) [2005] VCAT 2817 (22 December 2005)

[45]–[52]

  • It would not be reasonable to disclose the signatures, hand-written initials or contact telephone numbers of CAV [Consumer Affairs Victoria] officers.
  • Disclosure under the FOI Act is disclosure to the world and it is possible that signatures may be misused and telephone numbers used to approach officers who are not usually available to speak to members of the public. The applicant seeks access to substantive information, not personal details of officers.
  • In the circumstances, it would be unreasonable to disclose signatures, initials or telephone numbers.

Unreasonable to disclose name and signature of junior officer

Roy Costa Planning & Development v Mildura CC (Review and Regulation) [2014] VCAT 1360 (25 September 2014)

[41]

  • It would be unreasonable in circumstances where the applicant said they did not seek access to the name and signature of a junior rank officer to disclose this information.

Unreasonable to disclose name and signature

Coulson v Department of Premier and Cabinet (Review and Regulation) [2018] VCAT 229 (20 February 2018)

[110]–[119]

  • Those circumstances involve litigation against two former Premiers by a former Ministerial Adviser.
  • It would be unreasonable to disclose the names, initials, signatures and email addresses of non-executive Victorian Public Service officers’ and subject them potential public criticism in circumstances where they were implementing directions for which they were not the decision-makers and cannot respond publicly to any personal attacks in relation to those directions.
  • If names disclosed, this would have the potential to inhibit the candour and frankness of the advice provided and the willingness of officers to perform directions where they may personally face public criticism.

Not unreasonable to disclose routine personal work information

Australian Broadcasting Corporation and Psychologists Board of Australia (3 January 2012)

Decision of Assistant Information Commissioner (Queensland)

  • Routine personal work information can be distinguished from other personal information.
  • The potential harm from disclosing routine personal work information is in most circumstances minimal or non-existent because public service officers are employed in the business of government to deliver services to the public. The public is generally entitled to know the identity of service deliverers, advice givers and decision makers.
  • A reasonable public service officer would expect that information which is solely their routine personal work information will be made available to the public.

Names of junior public servants

Dun v Information Commissioner and National Audit Office (UK) (18 January 2011) EA/2010/0060

  • There is no blanket level at which all junior public servants’ names will be exempt from disclosure. This needs to be decided on a case by case basis, through consideration of the role and responsibilities of the individual and the information itself.

Names of junior public servants

Freedom of Information Act 2000 Decision Notice – Information Commissioner’s Office (UK) (6 February 2012) FS50401773

  • Evidence was provided that in the past correspondence from Home Office officials had been published on the internet which led to officials being targeted. The Commissioner accepted that the nature of the information could lead to individuals being targeted and the distress this would cause was a factor which made disclosure of the names of junior home office officials unfair.

Public servants’ names

Joe McGonagle v Information Commissioner and Ministry of Defence (UK) (4 November 2011)

  • It will not be unreasonable to disclose the names of officials who speak to the media or who represent the Department at outside functions.

Names of senior staff in relevant authority

Freedom of Information Act 2000 Decision Notice – Information Commissioner’s Office (UK) 16 June 2009 (FS50125350)

  • Decision to disclose the names of senior staff.
  • The Information Commissioner was satisfied there was a legitimate public interest in knowing who was responsible for important decisions involving significant sums of public money.

Not unreasonable to disclose names of public servants

Ombudsman’s opinion under the Official Information Act

Opinion of New Zealand Ombudsman Ref: 320402 (14 December 2012)

[4]–[21]

  • The Ombudsman did not accept an argument that ‘less senior’ staff without decision making responsibility have privacy interests that need protecting.
  • ‘The names of officials should, in principle, be made available when requested. All such information normally discloses is the fact of an individual's employment and what they are doing in that role. Anonymity may be justified if a real likelihood of harm can be identified but it is normally reserved for special circumstances such as where safety concerns arise.’

Footnotes

[1] Part 6.157 of the FOI Guidelines distinguishes between this kind of personal information and personal information that does not relate to the public servant’s usual duties and responsibilities. For example, if a document contains information about an individual’s disposition or private characteristics, such as the reasons a public servant has applied for personal leave, information about their performance management or whether they were unsuccessful in a recruitment process. This kind of personal information is not the subject of this issues paper.

[2] Freedom of Information Memorandums were issued by the Attorney-General’s Department and provided guidance to Australian government agencies in exercising powers and discharging functions under the FOI Act.

[3] See Part 10 of the FOI Guidelines and ‘Direction as to certain procedures to be followed in IC reviews’.

[4] Section 41 of the FOI Act is the equivalent provision to s 47F in the current FOI Act.

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