Public servants’ names and contact details – Freedom of Information case note on a recent AAT decision
The release of public servants’ names in response to a request for documents under the Freedom of Information Act 1982 (Cth) (FOI Act) has long been a contentious issue. The Administrative Appeals Tribunal (Tribunal) has considered this issue in the recent decision of Warren; Chief Executive Officer, Services Australia [2020] AATA 4557.
This case note will address some of the key issues raised in that decision and provide guidance to agencies moving forward.
Before the decision – status of public servant name redaction under the FOI Act
On 20 August 2020, the Office of the Australian Information Commissioner (OAIC) issued guidance (Guidance) about the disclosure of public servants’ names and contact details in response to FOI requests.
In the Guidance, the OAIC highlighted that agencies commonly employed sections 47E(c), 47E(d) and 47F of the FOI Act to withhold staff details from release to FOI applicants. In doing this, agencies argued that releasing staff details would have a ‘substantial adverse effect’ on the agencies’ ‘management of … personnel by … [the] agency’ (section 47E(c)) or ‘the proper and efficient conduct of the operations of [the] agency’ (section 47E(d)), or that release would unreasonably disclose staff members’ personal information (section 47F).
The OAIC largely rejected the application of sections 47E(d) and 47F to staff details in the Guidance and strongly cautioned against routinely applying section 47E(c), outlining that:
Agencies and ministers should start from the position that including the full names of staff in documents released in response to FOI requests increases transparency and accountability of government and is consistent with the objects of the FOI Act. [emphasis added]
The Tribunal in Chief Executive Officer, Services Australia and Justin Warren AAT 2019/4000 was tasked with determining whether Services Australia’s redaction of staff names and telephone numbers under section 47F (personal privacy) was appropriate in the circumstances, and consistent with the spirit and objects of the FOI Act.
The special circumstances test was rejected by the Tribunal
Deputy President Forgie considered the ‘special circumstances’ test set out at paragraph 6.153 of the Guidelines issued by the Information Commissioner under section 93A of the FOI Act (Guidelines). Paragraph 6.153 relevantly provides:
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. [emphasis added]
While decision-makers must continue to have regard to the Guidelines generally, the Tribunal rejected the ‘special circumstances’ test and found that the judgement cited by the Information Commissioner (Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606) ‘did not support the breadth of the position put forward in [6.153]’.
Moving forward, we consider that decision-makers could rely on the Tribunal decision as a cogent reason for deciding not to follow the ‘special circumstances’ test set out in paragraph 6.153 of the Guidelines.
Unpublished telephone numbers not required to be released
Deputy President Forgie found that releasing staff telephone numbers:
would provide an avenue for those individuals to be subjected to negative attention; and
did not make any positive contribution to increasing public participation in Government processes or in increasing scrutiny, discussion, comment and review of Government activities.
The Tribunal found that unless telephone numbers were published on an agency’s website or made public in some other way, such as in a publicly available pamphlet or report, releasing staff telephone numbers would be unreasonable in the circumstances.
We consider that this should provide agencies with comfort if they wish to adopt a position which exempts individuals' direct telephone numbers in response to an FOI request.
Accountability for decision making better placed at the agency/government level
When considering whether disclosing staff names would be reasonable in the circumstances, the Tribunal considered the hierarchical structure of the Australian Public Service at great length. In doing so, the Tribunal found that public interest considerations of accountability are better served at the agency/Government level, rather than at an individual staff member level.
Public interest considerations
Although the Tribunal accepted that there was a general public interest in releasing information that would allow scrutiny of Services Australia’s data matching program, it ultimately found that releasing public servants’ names, which were found to be exempt by Services Australia, would do nothing to further that public interest.
In doing so, the Tribunal gave significant weight to the following:
it would be in the public interest to ensure that agencies are able to comply with work health and safety obligations, including protecting staff from public criticism and attack (especially noting the ease of dissemination of information using modern means of communication); and
releasing staff names would prejudice Services Australia’s ability to attract and retain future staff, which is likely to have an impact on the provision of an efficient and effective public service.
Noting the Tribunal’s findings in relation to WHS obligations and the ability to attract and retain staff, this decision is likely to have a wide application for other Commonwealth agencies.
Next steps
We have extensive experience advising or appearing on behalf of Commonwealth clients in FOI matters. If you would like advice on how this decision might affect your agency, please contact Senior Associate James Pratt via james.pratt@adaptbl.com.au.