Legal Insights

What is in a name? The disclosure of public servants’ names and contact details under FOI

By Melanie Olynyk, Indi Prickett

• 08 September 2020 • 5 min read

We provide an overview of the position paper published by the Office of the Australian Information Commissioner (OAIC) in respect of the disclosure of public servants’ names and contact details in documents sought under the Freedom of Information Act 1982 (Cth) (FOI Act).

What's happened?

The Office of the Australian Information Commissioner (OAIC) has issued a position paper on the disclosure of public servants’ names and contact details in documents sought under the FOI Act.

Whilst acknowledging that transparency and accountability are fundamental to Australian democracy and that public servants should be accountable for their actions, OAIC also recognises that public servants have a right to be safe at work and safe from harm as a result of their work.

The position paper accepts that advances in digital communications have changed the environment in which public servants work and that, in some cases, disclosure of their names and contact details has the potential to expose them to work health and safety risks. Those risks include the traceability of personal lives and the risk of physical and online harassment, particularly where contact details are published online to a wider audience for a longer period of time.

As a result, agencies are advised to start from the position that staff names and contact details be released unless work health and safety risks associated with the disclosure of such information have been identified.

In those circumstances, agencies may consider whether the only way to mitigate these risks is by removing this information from documents before release, either because it is outside the scope of the request (and can therefore be deleted under section 22 of the FOI Act), or because it is exempt from disclosure under the FOI Act.

The information would be out of scope where a request expressly states that names and contact details are not sought. If not, agencies can ask the FOI applicant whether they seek access to this information. It is important to note that agencies cannot assume that a non-response to this question is sufficient to revise the scope of the request – it will generally only be appropriate for agencies to rely on an express confirmation from the FOI applicant that they do not require this information.

If an FOI applicant indicates that they do seek access to names and contact details, then a decision must be made as to whether that information is exempt.

Key takeaways

  • Check your FOI application form to see if it already asks FOI applicants to confirm whether they seek the names and contact details of staff members or any other form of personal affairs information. If it doesn’t, you could amend it so that it does, but take care with the wording used. An FOI applicant needs to understand what they are being asked to exclude from their request. For example, is it staff names and contact details, other than third party’s names and contact details, or other specific types of personal affairs information that would be excluded?
  • Ascertain whether your agency has identified work health and safety risks associated with the disclosure of staff names and contact details. For example, these may include:
    • staff being approached and harassed, abused, physically assaulted or stalked;
    • staff being subject to online abuse and harassment; or
    • social media being used to identify and pursue staff and their families outside their workplace.
  • If an FOI request seeks access to staff members’ names and contact details, consider whether this information is exempt under section 47E(c) of the FOI Act, on the basis that the disclosure of the information would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by your agency. To rely on the exemption under section 47E(c) of the FOI Act, your agency will need to be able to demonstrate that:
    • disclosure of the relevant information would pose a risk to the health and safety of your agency’s staff, noting that this will need to be determined objectively on a case-by-case basis; and
    • if satisfied that the information is conditionally exempt under section 47E(c) of the FOI Act, the disclosure of the information would, on balance, be contrary to the public interest.
  • For completeness, in most circumstances your agency will not be able to exempt staff names and contact details:
    • under section 47E(d), on the basis that the OAIC does not support a position that the disclosure of such information is likely to have both a substantial and an adverse effect on an agency’s operations; or
    • under section 47F, on the basis that this exemption is more appropriately used where documents are sought that relate to an individual’s disposition or private character, rather than simply their name and contact details.

The OAIC will update Parts 3 and 6 of the FOI Guidelines for consistency with the views set out in the position paper. Agencies and members of the public will have the opportunity to comment on draft versions of these parts before the FOI Guidelines are finalised and issued under section 93A of the FOI Act.

If you have any questions about the position paper, framing your agency’s submissions to any future request for comments in respect of the FOI Guidelines, or about how to approach the potential disclosure of public servants’ names and contact details, we would be happy to assist.

Looking for more information on the FOI Guidelines?

Get in touch with the Privacy team.

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