The Office of the Australian Information Commissioner has a low profile these days, more out of necessity than choice. The Rudd government founded it during its major restructure of information policy, then the Abbott government targeted it for abolition in its first expenditure-slashing budget. Though the Senate blocked the formal repeal, the office was starved of funds and the role of its commissioner, along with that of the freedom of information commissioner, was combined with that of privacy commissioner.
This unsatisfactory compromise has been allowed to persist. The previous privacy commissioner, Timothy Pilgrim, was replaced in the threefold role by his deputy, Angelene Falk, last year. Throughout that time, the office was forced to prioritise, in its FOI work, the continuing backlog of appeals. As Falk made clear in Senate estimates recently, any increased funds received were earmarked for the office's growing privacy functions, not the FOI backlog. Unsurprisingly, the office hasn't given much attention to its broader function of encouraging more open government - hence its general absence from public debate.
Not that the current political climate is conducive to serious discussion of open government. The Coalition's attack on the office was accompanied by strong push-back on FOI from senior public servants, including Abbott appointees John Fraser and John Lloyd, as well as Peter Shergold, in his criticism of public servants' timid reporting in the home-insulation fiasco. They expressed what appears to be a firm anti-FOI consensus among the Australia Public Service's upper ranks.
The Turnbull government signed up to the international Open Government Partnership in 2016. But this project has had minimal impact as it trundles along under the radar on the Department of the Prime Minister and Cabinet's website, replete with action plans, reports and fancy graphics. Even the Labor Party, the earlier champion of FOI and the information commissioner, appears to have lost enthusiasm. The policy it took to the last election promised merely to "respect and comply with" FOI law and "provide adequate resources". There was no firm commitment, for example, to restoring the separate identity of the three commissioners and their independence.
In this context of general apathy, any office initiative on FOI would need to be modest and unlikely to frighten too many horses. For this reason, perhaps, the office chose recently to open up the interesting issue of the redaction of public servants' individual names from documents released under FOI. It released a discussion paper (Disclosure of public servants' names and contact details), and invited agencies and members of the public to make submissions in response to specific questions. (The time frame for submissions, however, was very tight, only four weeks from the original publication.)
Coincidentally, the discussion paper was published in the same month that controversy broke over a similar question relating to the possible disclosure of the names of scientists working on a government report. The mining company Adani made a request to the Queensland Department of the Environment and Energy for the names of scientists from the CSIRO and Geoscience Australia who were inquiring into the groundwater management plan for the company's proposed mine. The department refused to disclose the names. Most public commentary supported the refusal on the ground that Adani would use the names to make unjust accusations of anti-mining bias against the scientists and thus try to undermine their report's credibility.
The request to Adani was made before the report was completed and was therefore not made under FOI legislation. But it raises essentially the same issue as FOI: should the names of public officials working on documented policies and decisions become public knowledge?
The key difference is the onus of justification. In the Adani case, it was incumbent on Adani, if the matter ever went to litigation, to show that it had reasonable grounds for knowing the individual scientists' names, thus overruling the department's normal silence. With FOI, however, the presumption is in favour of publication. It's the government that must show good cause, in terms of certain exemptions, for suppressing information that would otherwise be in the public realm when a document is released.
The information commissioner's paper sets out the current principles for disclosing and redacting names, and seeks feedback from affected agencies. It quotes from its FOI guidelines, which state the general principle that a public servant's name should be disclosed only if it arises in relation to that individual's performance of official duties. With that proviso, it isn't unreasonable to disclose "unless special circumstances exist".
It would have been useful if the paper had cited an authoritative summary of what these special circumstances are. Unfortunately, it appears no such statement exists, which may be why current practice is so inconsistent and, presumably, helps to explain the office's motives in taking up the issue. The bulk of the paper consists of summaries of several individual decisions taken by the Administrative Appeals Tribunal and the information commissioner, annotated with "key messages". There are also summaries of relevant decisions from sister jurisdictions, including several Australian states, Britain and New Zealand.
In the absence of any overarching analysis, which the title "discussion paper" (my emphasis) entitles one to expect, readers are left to extract a few general principles. One is that redaction is justifiable if there is a serious risk that public servants might suffer harm if publicly identified. There are several cases where decisions have been made against disclosure when vexatious applicants have been known to threaten or harass particular public servants.
However, the risks need to be substantial. A Department of Home Affairs plea not to release the names of staff in its media section on the grounds of threats to their safety was rejected as unreasonable. Similar arguments, one suspects, would also apply to the CSIRO and Geoscience scientists if they ever became the subject of an FOI determination. Avoiding accusations of political bias is hardly a reason for anonymity, particularly for expert professionals.
More generally, anonymity is justified if disclosure would impinge on an agency's effective operation, such as an agency involved in investigating complaints. Rights of individual privacy also carry some weight. For example, non-disclosure of names is allowed to protect individuals who may be subject to disciplinary proceedings or other personal difficulties. More generally, while the names and therefore identities of individual public servants should normally be disclosed, there's usually no reason to also disclose contact details such as personal email addresses and direct work phone numbers.
One widespread practice that the office opposes is that of leaving in the names of senior public servants while redacting those of more junior staff. The office's own FOI guidelines say there is no legal basis for presuming that an officer's classification level should directly affect whether it would be unreasonable to disclose his or her name. Any such differentiation would need to be justified on a case-by-case basis, on grounds such as risk to safety or privacy.
The same issue has arisen elsewhere, including New Zealand, where the ombudsman forcefully rejected the argument that less-senior staff without decision-making authority had particular privacy interests that need protection. However, Britain's information commissioner accepted that, where angry clients had sometimes targeted staff, it was fair to shield more junior staff from such possible distress.
The view that junior staff's anonymity should be protected while their superiors' names can be disclosed appears to have widespread support in official circles. It may reflect a belief that senior public servants are more accustomed to exposure, especially through appearing before parliamentary committees, and are generally more battle-hardened. They are also likely to have more responsibility within their agencies and therefore more obligation to be accountable. However, this line of argument assumes that the default position for public servants is to remain anonymous unless there are good reasons otherwise. This more traditional view, which is still central to APS culture, runs counter to the opposite presumption underlying FOI and the government's official information policy: all government information, including all public servants' names, ought to be available publicly, unless there are good grounds to the contrary.
In this way, the issue of revealing public servants' names, though relatively circumscribed and of minor importance, opens up a wider clash over FOI philosophies which is still unresolved within the APS. The office has chosen its target well, given the current climate of indifference on information policy. If it clarifies its stance and offers clear and workable guidelines, it could register a small victory in its campaign for more open government.
- Richard Mulgan is an emeritus professor at the ANU's Crawford school of public policy. firstname.lastname@example.org