For some years the Australian Public Service Commission (the Commission) has provided guidance to Australian Public Service (APS) agencies and employees about disclosing information to a person who has reported an alleged breach of the APS Code of Conduct about the outcome of their report. The Commission's Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, developed in consultation with the then Office of the Privacy Commissioner, sought to help agencies to balance the competing considerations of privacy and transparency that apply in these circumstances: for example, the need to protect the privacy of employees about whom allegations have been made, and to assure employees who make complaints that suspected Code of Conduct breaches are taken seriously and dealt with properly.
Nevertheless, 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. Last year the Commission undertook to consult publicly on these matters.
This paper examines the relationship between public and private interests, namely:
- the private interests of APS employees; in particular, their right to privacy and the protection of their reputation,
- a complainant's right to seek access to government information, and their expectation of being informed of how alleged misconduct (including matters that may have affected them adversely) has been handled,
- the public interest, including the interest of employees, in knowing that an agency handles suspected misconduct appropriately, and
- the public interest in the protection of individuals' privacy.
Views on the right balance in upholding these competing interests will inform new guidance to APS agency heads on good practice in disclosing information to complainants, and others, about the outcome of misconduct complaints. The Commission will consult the Office of the Australian Information Commissioner in developing the new guidance.