5. Public officials
Updates and background for this project (Digest)
5.1 One of our terms of reference asks us to consider the extent to which public interest, including privacy, considerations against disclosure apply in respect of access applications for personal information of public officials. This chapter considers this issue.
THE CASE LAW
5.2 In the leading decision in NSW, Commissioner of Police v District Court of NSW (Perrin’s case),1 the Court considered the application of sch 1 cl 6 of the Freedom of Information Act 1989 (NSW) (the “FOI Act”) to applications concerning public officials.2 The facts were as follows. The access applicant was the solicitor for a group of companies. The New South Wales police had sent material relating to those companies to the Queensland Criminal Justice Commission, which was inquiring into the gaming industry, with which the companies were involved. A police inquiry was later held into the circumstances surrounding the release of that information. The access applicant sought documents relating to the information supplied and the names of police responsible for supplying that information. The Commissioner provided access to those documents with names and other identifying particulars of individual police officers and public servants deleted.
5.3 The District Court upheld the access applicant’s appeal from the Commissioner’s decision, and the Commissioner then brought proceedings for judicial review in the Court of Appeal, alleging error of law on the face of the record. The issue before the Court was whether the disclosure of the deleted parts of the documents would involve the disclosure of the personal affairs of the police officers and departmental workers. The Court of Appeal upheld the District Court’s decision that the documents should be disclosed, without deletions.
5.4 Justice Kirby drew a distinction between information relating to a public servant’s personal affairs, and information relating to the performance of his or her public duties. He stated that:
The preparation of the reports apparently occurred in the course of their performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be.3
5.5 He held that the name of an officer or employee performing his or her duties could not be classified as information concerning that person’s personal affairs. Thus the name of a police officer preparing a report – that is, performing his police duties – was not information concerning that officer’s personal affairs and was thus not protected from disclosure.
5.6 Justice Kirby observed that “it is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption.”4
5.7 Justice Mahoney came to a similar conclusion. He stated that:
The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, “involve” the disclosure of information concerning his personal affairs ... Whether it will do so will depend upon the circumstances and what is suggested to be “involved”. In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information to Queensland. That, I think, is not part of “the personal affairs” of the persons in question: it is part only of their public duties and the discharge of them. But it was submitted … that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of “private affairs”. Special cases apart, I do not think this would be so …5
5.8 The decision of the Court of Appeal in Perrin’s case has been applied on a number of occasions in relation to the disclosure of the names of public servants.6 So, for example, in A v Director-General, Department of Health7 a doctor in a public hospital argued that his name appearing in an investigation report dealing with his alleged non-attendance at work and related salary payments constituted his “personal affairs” and should not be disclosed. The ADT rejected this argument, holding that neither his name nor other material in the report concerned his personal affairs, but rather his employment in a public agency.
5.9 In Robinson v Director-General, Department of Health,8 the ADT held that the disclosure of an application by a psychologist in the public service was not information concerning the “personal affairs” of that person, as the information related to the person’s professional position.9
5.10 These cases suggest that privacy considerations do apply to access applications for personal information of public servants. Critical to the determination of applications concerning public servants is whether the information sought to be disclosed relates to the performance of their duties as public servants, in which case it is not exempt, or to their personal affairs, in which case it is.
SUBMISSIONS
5.11 The Commission received a number of submissions in response to its query as to whether agencies applied different principles where the application was for personal information about public officials. Some submissions stated that the agency dealt with applications for personal information about public officials in the same way as it dealt with other applications for personal information.10 Others argued that where the information was in relation to a public official in his or her public capacity, there should be a strong presumption in favour of disclosure, but where it concerned a public official in his or her private capacity, the same principles should apply as applied to other applications.11
5.12 The Department of Premier and Cabinet provided a lengthy submission on this issue. It stated that :
the considerations for and against disclosure tend to be more finely balanced where the application relates to documents containing the personal information of a Minister or other public official. In such cases, the public interest in transparency and accountability is a significant factor which must be weighed against the countervailing privacy concerns of individual public officials.12
The Department referred to a number of instances where applications had been made for personal information about public officials. One example was an application for access to documents containing details of government-subsidised air travel for former Ministers. In accordance with s 31 of the FOI Act, the Department consulted the former Ministers, some of whom objected to the release of details relating to the exact dates and destinations of the travel. Ultimately the documents were released, but details as to the date of travel and the destination were deleted.
THE COMMISSION’S VIEW
5.13 The cases we have discussed in this chapter were decided under the exemption from the FOI Act of documents that concern individuals’ “personal affairs”. Both the Privacy and Personal Information Protection Act 1998 (NSW) (“PPIPA”) and the Government Information Public Access Act 2009 (NSW) (the “GIPA Act”) relevantly refer to “personal information” rather than “personal affairs”, and there is no doubt that information that identifies a public official in connection with his public responsibilities is “personal information”,13 a public interest consideration against disclosure under the GIPA Act.14 This does not mean, however, that the information will be protected from disclosure under the GIPA Act: that depends on whether, on balance, the public interest against disclosure outweighs the public interest in favour of disclosure.15 It is here that the trend in the cases cited above becomes relevant. That trend, supported in submissions, establishes that, in striking the balance, information in relation to a public official in his or her public capacity will, generally, be more readily disclosed than information concerning a public official in his or her private capacity. We support this. The reasons go to the heart of the policies underlying the opening up of government information to the public, especially the public interest in the transparency of the workings of government. And the balance struck in the cases will, we feel sure, be replicated under the GIPA Act.
5.14 As currently drafted the GIPA Act seeks to ensure that the balance in one narrow group of cases involving public officials will be struck in favour of disclosure. Clause 4(3)(b) of sch 4 of the GIPA Act excepts from the definition of “personal information” “information about an individual (comprising the individual’s name and non-personal contact details) that reveals nothing more than that the person was engaged in the exercise of public functions”. We have recommended that this provision be repealed.16 Its appearance not only creates an inexplicable difference between the exceptions to the definitions of “personal information” in the GIPA Act and privacy legislation, but also runs the risk of making such information too easily disclosable by removing it from the context of the balancing process where it properly belongs. For example, if the information contains no more than the name of the public official, it may be thought, applying cl 4(3)(b), that the information is outside the protection of the GIPA Act, and so can be disclosed. And this might mean that inadequate consideration is given to the force of other considerations against disclosure that are relevant in the circumstances – for example, that there is a risk of harm to the public official in question.17
5.15 If it is thought necessary to include the narrow exception in cl 4(3)(b) of sch 4 of the GIPA Act in the legislation in order to stress the importance of transparency, we would recommend that it be stated as an exception to “personal information” in item 3(a) of the Table to s 14. This is the context in which the “exception” is naturally relevant. We do, however, stress that including the “exception” in this way is strictly unnecessary: the structure of the GIPA Act itself sufficiently achieves the desired result in the balancing process that it requires.18
Recommendation 17
If Recommendation 8 is implemented, item 3(a) of the Table to Section 14 of GIPA may be amended to include the following words: “other than information about an individual (comprising the individual’s name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions”.
FOOTNOTES
1. Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 (“Perrin’s case”).
2. For FOI Act sch 1 cl 6, see para 4.7, 4.14-4.21.
3. Perrin’s case, 625.
4. Perrin’s case, 625.
5. Perrin’s case, 638-9.
6. See Thomson Reuters, New South Wales Administrative Law vol 1 [32.3575] for a discussion of some of the cases. See also State of Queensland v Albietz [1996] 1 Qd R 215.
7. A v Director-General, Department of Health [2000] NSWADT 59.
8. Robinson v Director-General, Department of Health [2002] NSWADT 222.
9. Robinson v Director-General, Department of Health [2002] NSWADT 222, [94].
10. Office of State Revenue, Submission, 2.
11. Public Interest Advocacy Centre, Submission, 6.
12. NSW Government Department of Premier and Cabinet, Submission, 2.
13. WL v Randwick Council [2007] NSWADTAP 58, [20].
14. GIPA Act s 14 Table item 3(a), on which see para 4.44.
15. GIPA Act s 13.
16. See Recommendation 8.
17. See GIPA Act s 14 Table item 3(f).
18. Consider further Corporate Officer of the House of Commons v The Information Commissioner [2008] EWHC 1084 (see para A.10-A.13).
