Express law No. 291

26 November 2020

Significant Tribunal decision protects public servant names and numbers on privacy grounds

Chief Executive Officer, Services Australia and Justin Warren [2020] AATA 4557

The Administrative Appeals Tribunal has found that the names and telephone numbers of APS employees working on certain risk plans are exempt.

Background

The respondent made a request for documents relating to the program to match Centrelink data with data from the Australian Taxation Office to detect potential overpayment to recipients of Centrelink payments and the recovery of any overpayments (‘the program’, colloquially known as ‘Robodebt’). The documents comprised risk analysis and mitigation plans in relation to the program.

At first instance the agency refused access to the documents. On review the Information Commissioner (Commissioner) ordered the documents be disclosed.

The agency sought review of the Commissioner’s decision in the Administrative Appeals Tribunal (Tribunal). On review, Services Australia narrowed the issues to contend that only the names and telephone numbers of certain staff were exempt under section 47F of the Freedom of Information Act 1982 (FOI Act), which protects personal information if its disclosure would be unreasonable and contrary to the public interest.

The Tribunal decided that the names and telephone numbers of the agency’s staff were exempt as the agency contended. In so finding, the Tribunal accepted that the words of s 47F should be the starting point of any consideration rather than any presumption that the inclusion of the full names of staff in documents increases transparency and increases the objects of the FOI Act, or that within absent special circumstances, a public servant’s name should generally be disclosed: see from [83].

The Tribunal accepted the evidence that individual APS employees and SES officers had been targeted on social media in connection with the program, including threats directed at named officers: [117]. Further, the Tribunal accepted there was a likelihood of further threats to staff if their names were disclosed in connection with the program: [117]. The Deputy President found that disclosing the remaining staff names and their direct telephone numbers would be an unreasonable disclosure of personal information within the meaning of s 47F: [119]-[120], [127], [129]-[130].

The Tribunal weighed the public interest in disclosure of the conditionally-exempt documents. The Tribunal found that there was a public interest in the public being able to scrutinise the program as a whole, but that disclosure of the names and telephone numbers did not add anything to that scrutiny: [132]-[133]. The Tribunal accepted that there was a public interest in APS employers fulfilling their obligations under the Work Health and Safety Act 2011: [134]. The Tribunal found it was contrary to the public interest to expose individuals to public criticism and attack of the sort directed against the program, when disclosure of the documents would give no insight into the role or responsibility that they had in the formulation of, or policy behind the program: [135]. The Tribunal accepted that the disclosure of the balance of the documents (with names deleted) met the public interest in disclosure and the names were exempt: [136].

Implications

The decision has significant findings, which will assist agencies to protect public servant names and telephone numbers in appropriate circumstances in the context of future FOI matters.

First, it can be implied from the decision that the Tribunal rejected the Commissioner’s approach that a threshold of ‘special circumstances’ is necessary before a public servant’s name can be redacted on privacy grounds: see [83]-[88]. Second, the Tribunal also accepted that SES and agency executives can be the subject of s 47F protections in the course of their work in particular circumstances: [126]-[127]. Third, the Tribunal held that in FOI matters, considerations of ‘accountability’ and ‘transparency’ are generally most appropriately analysed at the agency or government level, rather than the individual public servant level: [70]-[83].

Finally, this case includes some commentary on a recent position paper issued by the Commissioner, Disclosure of public servants’ names and contact details in response to FOI requests. Those agencies having regard to the Commissioner’s position paper should be conscious of the discussion at [51]-[70] of the decision.

Text of the decision is available at: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/4557.html

Justin Davidson appeared for the applicant, instructed by Laura Butler.

For further information please contact:

Justin Davidson
Senior Executive Lawyer
T 02 6253 7240
justin.davidson@ags.gov.au

Laura Butler
Senior Lawyer
T 03 9242 1320
laura.butler@ags.gov.au