Circular 2009/4: Disclosure of official information

The purpose of this circular is to remind agencies of the responsibilities and rights of APS employees in relation to the disclosure of official information, particularly when dealing with non-Government members of the Parliament.

Dealing with Ministers and their advisers

2. When dealing with requests from Ministers, APS employees must be responsive to their requests for information and advice with material that is frank, honest, comprehensive, accurate and timely. Ministerial advisers are by convention standing in the place of the Minister, and the same standards of service should be provided to them.

Dealing with non-Government members of Parliament

3. APS employees, by virtue of the APS Values set out in section 10 of the Public Service Act 1999 (the Act), have a duty and responsibility to serve the Government, to be responsive to its requirements and to be accountable for the way in which we help it achieve its goals.

4. The APS Values include being apolitical and impartial, but this does not mean that the APS gives equal treatment to all sides of politics. It is not the role of the APS to serve the Opposition, which by convention means that APS employees should have little contact with Opposition or other non-Government parties as part of their duties.

5. If a public servant receives a request from a non-Government MP for a briefing on a policy or programme, by convention (and subject to relevant agency policies) that request is forwarded to the Minister’s office for advice on handling.

6. For any other information, MPs are treated the same as any individual or community group seeking information, that is:

the request should be handled respectfully and courteously
information may be disclosed providing it meets the requirements of Public Service Regulation 2.1 and other relevant Commonwealth legislation
if there is any doubt about what can or cannot be released, then further guidance should be sought from someone in authority in the agency.

7. There are also specific conventions for briefing opposition parties before an election (see Guidance on caretaker conventions, published by the Department of the Prime Minister and Cabinet http://www.pmc.gov.au/guidelines/docs/caretaker_conventions.pdf)

Parliamentary inquiries

8. A public servant’s obligations to Parliament flow from section 57(2) of the Act. A Secretary must assist the Minister in providing factual information to Parliament in relation to the operation and administration of the agency. This duty is consistent with the APS Values and Code of Conduct, under which APS employees have an obligation to behave honestly and with integrity, to be apolitical, impartial and professional and to be accountable for their actions, within the framework of Ministerial responsibility to the Parliament.

9. The Department of the Prime Minister and Cabinet publishes guidelines for official witnesses appearing before Parliamentary committees which can be found at http://www.pmc.gov.au/guidelines/docs/official_witnesses.pdf.

Participation in political activities

10. It is quite acceptable for public servants to participate in political activities, or be a member of a political party, as part of normal community affairs. However, engagement with parliamentary members, their staff or publicly promoting party or other views on certain issues may raise public perceptions of conflict of interest or partiality and needs to be considered carefully having regard to an employee’s role and duties.

Whistleblowing compared with leaking

11. A leaker is not a whistleblower.

12. A whistleblower is an APS employee who reports a suspected breach of the Code of Conduct to an authorised person within the APS, which can include the Public Service Commissioner or the Merit Protection Commissioner (see section 16 of the Act). Whistleblowers maintain the integrity of the system by seeking to correct perceived wrongs through reporting to the proper authority.

13. Leaking, on the other hand, involves the unlawful release of official information and is a breach of the Code of Conduct. Leaking, whatever the motive, destroys the trust between Government and the public service and makes it harder to carry out our responsibilities. At its most serious, leaking information can damage Australia’s national security or reputation and in extreme circumstances put the lives of Australian officials and others at risk.

Restrictions on the release of information

14. Detailed advice and guidance on the management of official information is contained in Chapter 3 of APS Values and Code of Conduct in Practice: Guide to official conduct for APS employees and agency heads, which is available at: http://www.apsc.gov.au/values/conductguidelines5.htm. This sets out the legislative and policy framework governing the disclosure of official information:

The APS Values and Code of Conduct set out the standards of behaviour expected of employees generally.
Public Service Regulation 2.1, which is part of the APS Code of Conduct, imposes a duty on APS employees not to disclose certain information without authority (i.e. information communicated in confidence or where disclosure could be prejudicial to the effective working of government). A detailed discussion of this regulation is available at: http://www.apsc.gov.au/circulars/circular063.htm.
Section 70 of the Crimes Act 1914 makes it an offence for an APS employee to publish or communicate any fact or document which comes to the employee’s knowledge, or into the employee’s possession, by virtue of being a Commonwealth officer, and which it is the employee’s duty not to disclose.
The release of official information is also covered in various ways by other Commonwealth legislation, including the Privacy Act 1998, the Freedom of Information Act 1992 and the Archives Act 1983.
Many agencies also have internal policies and directions governing the disclosure of official information that reflects their particular organisational and operational requirements relating to security and the protection of personal, client and commercial information.
Finally, an employee has a duty of loyalty and fidelity under the common law.

Further information and advice

15. APS employees who have questions about the disclosure of official information in different circumstances and situations should in the first instance consult their agency’s instructions and guidelines and, if necessary, take up the matter with their supervisors.

16. The Australian Public Service’s Ethics Advisory Service can also provide advice to any APS employee on the legislative and policy framework governing the disclosure of official information and the issues that may need to be taken into account in deciding when it can or cannot be released. The Service can be contacted by phone on [02] 6202 3737 or by email at ethics@apsc.gov.au.

17. Other relevant information is at Attachment A.

Karin Fisher
Group Manager, Ethics
Australian Public Service Commission
July 2009

Attachment A

Other relevant information

APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads: Australian Public Service Commission, 2009 http://www.apsc.gov.au/values/conductguidelines.htm

Australian Public Service Commission Circular 2006/3: Amendment to the Public Service Regulations 1999, Regulation 2.1 Disclosure of Information http://www.apsc.gov.au/circulars/circular063.htm

Government Guidelines for Official Witnesses before Parliamentary Committee and Related Matters, Department of the Prime Minister and Cabinet, 1989 http://www.pmc.gov.au/guidelines/docs/official_witnesses.pdf

Guidance on caretaker conventions, Department of the Prime Minister and Cabinet, 2007 http://www.pmc.gov.au/guidelines/docs/caretaker_conventions.pdf

Supporting Ministers, Upholding the Values: a good practice guide, Australian Public Service Commission, 2006 http://www.apsc.gov.au/publications06/supportingministers.htm

Australian Public Service Commission Circular 2008/7: Code of Conduct for Ministerial Staff http://www.apsc.gov.au/circulars/circular087.htm

Standards of Ministerial Ethics, Department of the Prime Minister and Cabinet http://www.pmc.gov.au/guidelines/docs/ministerial_ethics.pdf

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