Is alleged misconduct by a public official deserving of privacy protection?

9 October 2014

By Peter Timmins

The author writes the Australian website Open and Shut, where this article was published Oct. 6. A companion article Oct. 7 says that when it comes to the the performance of normal governmental functions, sensitivity about disclosing names of officials “should usually take a back seat  to transparency, responsibility and accountability.

I’d suggest the intuitive response from most of us is no, and some might firm this up with a ‘never’, or ‘rarely’.

But of course it all depends on a whole range of circumstances: who is involved and the nature of the alleged conduct; in those jurisdictions that have an anti corruption body whether the misconduct is of a kind requiring notification, otherwise the stage reached in any investigation; the impact disclosure may have on further investigation, etc, etc. If an investigation has concluded, is there a difference if it found misconduct occurred or didn’t occur? Was the investigation thorough and appropriate, did it reveal systemic issues, etc, etc….

(This current UK case is slightly off subject but rather special: a disgraced Royal Navy captain is suing the Ministry of Defence because he says his human rights were breached when a military press officer leaked the story of how his verbal abuse of junior officers led him to be relieved of the command of the warship HMS Somerset. The press officer was also charged with misconduct in public office for selling stories to the press!)

Federal public servants

So put to one side what might be said about the issue and elected officials – our federal parliamentarians don’t have a code of conduct by the way.

The Australian Public Service Commission is seeking comment on a discussion paper about the extent to which information about the outcome of a misconduct complaint should be disclosed to the complainant and to others. Public servants are bound by the APS Code of Conduct, set out in section 13 of the Public Service Act 1999 (the PS Act), which codifies required standards of behaviour.

(You’ll need to be quick with a submission – the paper seeks  comment by 7 October 2014 to the Ethics Advisory Service: ethics@apsc.gov.au or by post to: Ms Karin Fisher Australian Public Service Commission 16 Furzer Street Phillip, ACT 2606.)

Agencies tend towards non disclosure

Apparently a 2008 APSC guideline that outlines in broad terms the issues relevant to disclosure of information to the complainant and disclosure more generally isn’t doing the job. The discussion paper notes

“recent cases, as well as enquiries to the Commission’s Ethics Advisory Service, have highlighted a tendency across the APS to err on the side of non-disclosure—a tendency apparently underpinned by agencies’ concern that providing more than the minimum of information could constitute a breach of the Privacy Act 1988. Agencies’ hesitancy to provide information about the outcomes of misconduct complaints has left them vulnerable to criticism by the public and by the Courts, which risks undermining public confidence in the administration of the APS.”

Questions posed in the paper:

  • What information should be provided to people, including members of the public, who allege breaches of the APS Code of Conduct about the outcome of their complaints?
  • Should information about proven misconduct be disclosed to people other than complainants, such as the wider agency workforce?
  • If information should be disclosed to people other than the complainant, under what circumstances?
  • What do agencies need to consider in making decisions about these matters?

Privacy, FOI, PIDS?

The privacy framework that applies to APS agencies and employees “recognises that employees’ personal information can sometimes be disclosed, and may need to be disclosed where doing so would serve the broader public interest.” Provisions of the Freedom of Information Act 1982  and the Public Interest Disclosure Act 2013 may be relevant in particular instances.

Recent cases

The paper summarises recent cases that indicate “a greater degree of disclosure is acceptable to the community than the Commission’s existing guidance suggests:

In Banerji v Bowles [2013] FCCA 1052 (dealing principally with public comment and the right to freedom of expression rather than the right to privacy) it was noted by the Court that the applicant had previously made a complaint against another employee in the agency, whose conduct was investigated as a result, and had been given a letter advising her that ‘appropriate action’ had been taken by the agency in relation to her complaint but that the Privacy Act prevented disclosure of any relevant details. In commenting on this matter, Neville J said:

the letter is (a) less than informative (or otherwise illuminating), and (b) classic ‘Yes Minister’ speak.

The judge questioned how a complainant might obtain any relevant information or raise any questions about a matter that involved serious misconduct if they were told that no relevant information could be provided, and noted that ‘such an information vacuum might understandably give rise to a certain angst or tension in the workplace, which is not necessarily of the complainant’s making.’

Similarly, in ‘J’ and Department of Health and Ageing [2013] AICmr 21 (8 March 2013), which concerned a complainant’s request for information about the outcome of an investigation, the Australian Information Commissioner stated:

[T]o the extent that … a disclosure demonstrates that an investigation has been properly undertaken, that disclosure will improve general confidence in an agency’s capacity to conduct future investigations.

Importantly, the Information Commissioner also noted that the result of the complainant’s freedom of information request might have been different if the agency had provided more information and more detail—‘not necessarily in written form’—in the first instance about the outcome of the investigation.

This case also referenced Carver and Fair Work Ombudsman [2011] AICmr 5, in which it was noted that wide disclosure of evidence provided to misconduct investigations

could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations which, in turn, would have a substantial adverse effect on the management … of the agency’s personnel.

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