International Law

-- Justice Mahoney (pp.638-9): "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. Thus, it may involve that he was not at home at a particular time. 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, at least at one stage, 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 that this would be so. I do not think that it is this which the exemption was intended to protect."

-- President of the Court (later Australian High Court Justice) Kirby  (p.625): "[I]t cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the 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. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the 'personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency."
 
Justice de Jersey in the Queensland Supreme Court in The State of Queensland v. F N Albietz, Information Commissioner [1995] QSC  254 saw no reason to depart from this decision in finding the names of departmental officers involved in land tax investigations was information "which merely concerns the performance by a government employee of his or her employment duties" and therefore was not exempt under personal affairs exemption in the Queensland Freedom of Information Act.  Justice de Jersey referred to the Perrin case as a  ?highly persuasive, unanimous decision of the New South Wales Court of Appeal on legislation in relevantly identical terms. In fact it accords with my own interpretation of the provision."
 
A  more conservative approach to disclosure of this type of information has been apparent in some Victorian tribunal decisions (and where the act was amended to specify that names are included in the definition of personal affairs information) but the general situation accepted by Senior Member Davis in this decision involving the Department of Human Services where particular concerns can arise because of the nature of departmental functions, provides a summary of he situation:


(a) It is generally not unreasonable for decision makers (eg VPS 6 and above) to be identified as such within the public sphere. They have the skills and authority to act on behalf of the Department. They are of an appropriate level to be accountable for decision making of the Department.

(b) It would be unusual for an officer below VPS6 to be publicly identified and they would not expect their names to be released to the world at large. Many do not have skills necessary to deal with difficult issues or difficult members of the public. They have an expectation that they would not normally have to deal with the public in a way which identifies them individually.

(c) It would be inherently stressful and cause anxiety for such junior levels of staff to have their identifies and direct contact details (eg direct telephone numbers or mobile telephone numbers) released to the public ? it would be unreasonable to do so.

(d) Names of those more junior officers are not available on publicly available staff lists or on the internet. Senior staff details are available reflecting public accountability of their roles. Even where names might be known, direct telephone lines or other means of direct contact may now be publicly available ? a central number is nominated as any contact point.

(e) Direct contact with particular individuals is not appropriate given the many inherently sensitive areas handled within the Department. Where there are instances of not being able to always meet requirements, clients try to contact staff directly but there are program specific contact points to facilitate contact, not direct contact with individual officers.

Applications for lists of names per se will often be refused, but the prevailing view is that absent special circumstances the names of public officials carrying out duties is not exempt from disclosure under freedom of information laws. A distinction is  often made between an officer acting in an official capacity and one acting as an individual and not as required or in the performance of official duties, where names may concern personal affairs or personal information.

Examples of special circumstances might include where there is a reasonable expectation of harm to an individual because of the particular facts of the case, or the context that gives rise to a request, such as names of some staff working in the correctional system. As mentioned in the Victorian decision, work related information about junior employees could attract  protection from disclosure, at least in some circumstances, where the same  information about senior and middle ranking officials wouldn't.

In my view the yet to commence Government Information (Public Access) Act shouldn't change things in NSW although it includes  public interest considerations against disclosure to be weighed against others, where release of information could reasonably be expected to reveal an individual?s personal information, or contravene an information protection principle under the Privacy and Personal Information Protection Act or a Health Privacy Principle under the Health Records and Information Privacy Act,. One new element is that it also includes a relevant consideration against disclosure where this could be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.

Comments or corrections on my read and updates on the situation elsewhere are welcome.