By Damien Carroll, Special Counsel and Philippa Joseph, Senior Associate

Names and contact details of public servants are regularly caught up in requests for access to documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). For Commonwealth agencies, this prompts important questions about whether these details can be redacted and, if so, which exemption(s) should be relied on.

These questions have been the subject of various recent publications and decisions from the Information Commissioner and the Administrative Appeals Tribunal. However, these have, at times, raised more questions than they have provided answers.

This paper will track through relevant recent developments and highlight key takeaways for FOI decision makers considering these questions.

Policy Guidance from the Information Commissioner

When examining recent developments in relation to public servants’ details and the FOI Act, it makes sense to start with a policy paper published by the Information Commissioner in 2020. It stated that, although staff details are personal information, it will generally not be unreasonable to disclose them, and the personal privacy conditional exemption in s 47F of the FOI Act will, therefore, not apply.

Instead, the policy paper stated that if concerns about the safety and wellbeing of public servants arose in the context of disclosure of this information, this should be addressed under s 47E(c) of the FOI Act (disclosure would have a substantial adverse effect on the management of personnel).

Trends in Tribunal Decisions

Section 47F(1)

Shortly after the publication of the Information Commissioner’s policy paper, the questions of whether the disclosure of staff names and contact details would be unreasonable and contrary to the public interest for the purposes of the personal privacy conditional exemption in s 47F of the FOI Act arose in Warren; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 4557.

Deputy President Forgie considered a range of factors, much of which was the subject of evidence led by Services Australia, including:

• the staff members’ roles and lack of public profiles;
• attacks on staff members;
• media interest in the matter and likely further dissemination of the names;
• the right of the individuals to not have their personal information disclosed;
• the Agency’s obligations under the Work Health and Safety Act 2011 (WHS Act);
• the APS’s role in the system of responsible government; and
• the public interest in transparency and accountability.

Ultimately, the Deputy President determined disclosure of staff names would be unreasonable and contrary to the public interest and this material was therefore exempt under s 47F of the FOI Act.

In March 2023, Deputy President Britten-Jones made an ostensibly consistent decision in Cox; Secretary, Department of Agriculture, Water and the Environment and (Freedom of information) [2023] AATA 375, finding the disclosure of non-SES staff names would comprise an unreasonable disclosure of personal information and be contrary to the public interest. In reaching this decision, the Deputy President gave weight to evidence that the non-SES staff’s names were not publicly available, were not associated with the matters or events, and did not otherwise have a public profile.

Rejection of 47E(c) by the Tribunal?

In December 2022, Senior Member Puplick and Member Evans considered the application of management of staff conditional exemption in s 47E(c) of the FOI Act to names and contact details of public servants and government contractors in VKJY and Secretary, Department of Home Affairs (Freedom of information) [2022] AATA 4306. Consistent with the approach suggested by the Information Commissioner’s policy paper, the Department argued disclosure would have a substantial adverse effect on the management of personnel and be contrary to the public interest.

The Tribunal ruled the information was not exempt under s 47E(c) and ordered its release. Notably, this decision differed from Warren and Cox as the Applicant already knew the names of the affected staff members, and there was no evidence that negative consequences had arisen in relation to their health and safety.

Recent Information Commissioner Decisions

Use of s 47E(c) by the Information Commissioner

On 16 May 2023, in Paul Farrell and Department of Home Affairs (Freedom of information) [2023] AICmr 37, the FOI Commissioner Leo Hardiman found names of public servants were conditionally exempt under s 47E(c) of the Act, and access would be contrary to the public interest. In this matter, the Department argued it had a duty to manage risks to the health and safety of their employees. Commissioner Hardiman considered that, given the nature of the committee in which they were engaged, if their identity could be ascertained, they would be subjected to behaviour by the public that would be damaging to their health and safety. In turn, Commissioner Hardiman was satisfied release of the staff names would, or could reasonably be expected to, have a substantial effect on the management or assessment of the Department’s personnel, by adversely affecting the Departments’ ability to manage their health and safety.

In forming this view, Commissioner Hardiman also considered:

• the potential for reduction or introduction of complexities to the Department’s capacity to engage contractors (albeit this factor was given limited weight by the Commissioner); and
• the fact non-SES staff were not decisions makers, and disclosure would not meaningfully advance transparency in government decision making, as SES names had been disclosed.

Commissioner Hardiman highlighted this decision was limited to its facts, distinguishing previous IC decisions where it was determined disclosure of staff names and contact details would not have a substantial adverse effect on the management of personnel where this information was included in documents because of their usual duties or responsibilities, or where there was a class claim contention. Commissioner Hardiman explicitly noted he would not accept the same argument, based on the same evidence, for all staff working in the Department.

Use of s 47F by the Information Commissioner

On 19 May 2023, Commissioner Hardiman handed down six decisions involving the same parties, being ‘ADM’ and Services Australia, which included commentary on s 47F and personnel names. Commissioner Hardiman found the family names of staff were ‘personal information’ for the purposes of s 47F(1) of the Act and disclosure would be unreasonable and contrary to the public interest.

Commissioner Hardiman gave weight to the following factors:

• the names of the staff members were not well known, other than to a limited number of other Agency staff, or publicly available;
• there was potential for public dissemination of the documents, which could cause detriment to the staff; and
• disclosure would not, in any real sense, increase transparency or otherwise advance the public interest.

However, interestingly, Commissioner Hardiman did not consider the first names of staff were ‘personal information’, as without the inclusion of family names these staff could not be identified in the context of the IC reviews.

Key Takeaways

Although the Information Commissioner’s policy paper supported using s 47E(c) over staff details, this argument has not yet been accepted by the Tribunal.

The recent caselaw trends suggests “unreasonable disclosure” (as per s 47F) may be lower bar for decision makers to meet when deciding to exempt staff details than “substantial adverse effect” (as per s 47E(d)).

Considerations for decision makers

On receipt of an FOI request that will include staff details, the agency should have a meaningful conversation the FOI applicant to understand whether staff details are actually required or if they can be excluded from the scope of the request.

If staff details cannot be excluded from the scope of the request, application of the exemption in s 47F of the FOI Act to staff names should be considered on a case-by-case basis, looking at particular risks of harm to individuals. This may include considering:

• the extent to which the names are well known publicly (including on public entity directories);
• whether the staff are known to be associated with the matters in the documents;
• the nature of the staff’s role, or lack thereof, in the agency’s decision making functions;
• whether disclosure of the particular staff names will further advance the public interest or transparency of government;
• the method of employment of the staff member (whether under an enterprise agreement or through individual contract);
• real risk of harm to the particular staff / the detriment to them (including the harm that can arise should their details be released online); and
• steps taken by the organisation to minimise risk of harm to staff.