Privacy and Transparency: Disclosing outcomes of
misconduct complaints—a discussion paper
This paper seeks the views of the public, Australian Public Service (APS) agencies and
employees about the extent to which information about the outcome of a misconduct complaint
should be disclosed to the complainant and to others.
All APS agencies are encouraged to respond. In addition, the Australian Public Service
Commission (the Commission) would like to hear from other interested stakeholders, including
individuals who have reported suspected breaches of the APS Code of Conduct.
This paper has been developed in consultation with the Office of the Australian Information
Commissioner (OAIC). Submissions will be shared with the OAIC and may be published on the
Commission’s website unless respondents request otherwise.
Terms of reference
Public confidence in public administration is crucial to the effective working of government, and
often depends on the proper balance of competing interests. Public confidence in the APS relies
on a transparent, accountable public service—but also on due regard being had to the privacy of
individuals and to the effective management of the APS.
In this context, the Commission is reviewing Service-wide practice for disclosure of information
about the outcome of misconduct complaints.
Providing information about the outcome of complaints of misconduct should help to give
confidence to complainants, employees, and the public that suspected misconduct is taken
seriously and addressed appropriately by agencies. At the same time, however, an employee
whose conduct has been called into question has the right to privacy and to expect that their
personal information will not be unreasonably disclosed, nor their reputation unjustifiably
damaged.
The Commission is therefore considering the following questions:
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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?
How to provide comment
Questions about the consultation may be directed to the Ethics Advisory Service on (02) 6202
3737. Please send your comments 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
Introduction
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:
1. the private interests of APS employees; in particular, their right to privacy and the
protection of their reputation,
2. 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,
3. the public interest, including the interest of employees, in knowing that an agency
handles suspected misconduct appropriately, and
4. 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.
Disclosing outcomes of misconduct complaints
1. Existing guidance on disclosing information to complainants
Agency heads, APS employees, and certain statutory office holders 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. Taking action in cases of suspected misconduct is primarily
aimed at protecting the integrity of the APS and thereby maintaining public confidence in public
administration, rather than aiming to ‘punish’ the employee as such. Sanctions are intended to be
proportionate to the nature of the breach, to be a deterrent to others and to demonstrate that
misconduct is not tolerated in the agency.
Circular 2008/3: Providing information on Code of Conduct investigation outcomes to
complainants contains the Commission’s current advice on this matter. It describes the
considerations for APS agencies in deciding the extent of the information to be given to
complainants about the outcome of their complaints, in the context of the restrictions in the
Privacy Act on the use and disclosure of personal information. A sample letter to complainants
advising the outcome of a Code of Conduct investigation is provided in the circular.
Nevertheless, agencies appear to be uncertain about the extent of their capacity to disclose
information about the outcomes of complaints. This may be due in part to some inconsistency in
the guidance; or it may be that the guidance does not provide enough information or illustrate
clearly enough the issues for consideration.
The Commission is seeking feedback on, among other things, how the guidance could be
improved.
2. Right to privacy and reputation
Like other citizens, APS employees have a right to the protection of their ‘privacy and
reputation’. This right stems, in principle, from article 17 of the International Covenant on Civil
and Political Rights, and is given practical, enforceable effect in Australia by the Privacy Act
1988. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on
his or her honour and reputation, and that everyone has the right to the protection of the law
against such interference or attacks.
The statutory protection of privacy and reputation recognises the fact that our reputations are
important; a person’s reputation is a public matter informed by what is known about that person,
and may be enhanced or diminished by the nature of that information. As such, an individual’s
right to the protection of their reputation arguably imposes an obligation on others to consider
the impact on reputation of the information they put into the public domain.
These rights to privacy and the protection of reputation are not absolute. Rather, they need to be
balanced against competing public interest considerations, such as the need to maintain national
security, confidence in the integrity of Government administration, the protection of public
health, or the protection of the rights and freedoms of other people.
This balance of competing public interests is reflected in the Privacy Act.
The Privacy Act recognises and protects individuals’ right to privacy. It establishes rules that
regulate the handling of ‘personal information’1 about individuals: namely, the Australian
Privacy Principles (APPs).
The APPs are legally binding principles which are the cornerstone of the privacy protection
framework in the Privacy Act. The APPs set out the standards, rights and obligations in relation
to handling, holding, accessing and correcting personal information. Common examples of
personal information are an individual’s name, signature, address, telephone number, date of
birth, medical records, bank account details, employment details and commentary or opinion
about a person.
The Privacy Act also recognises that the right to privacy is not absolute and needs to be balanced
against other matters. While the APPs impose limits on the use and disclosure of personal
information about individuals, they also provide that personal information may be used or
disclosed in some circumstances.
Australian Privacy Principle 6 sets out the requirements in relation to the use or disclosure of
personal information. Personal information should generally only be used or disclosed for the
purpose for which it was collected (known as the ‘primary purpose’), or for a secondary purpose
if an exception applies. There are a number of exceptions to APP 6 that may permit the
disclosure of personal information for a secondary purpose, including:
1 The Privacy Act defines ‘personal information’ as information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the
information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not.
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where the individual reasonably expects the disclosure and the purpose of the disclosure
relates to the primary purpose of collection (or for sensitive information, these purposes
are directly related) (APP 6.2(a)); or
where the disclosure is required or authorised by an Australian law or a court/tribunal
order (APP 6.2(b)).2
For the purposes of use or disclosure of personal information relating to reports of alleged Code
of Conduct breaches, an authorisation of this kind may be provided by Regulation 9.2 of the
Public Service Regulations 1999, which authorises disclosure and use of personal information
where it is necessary or relevant to an agency head’s employer powers.
Overall, the legal 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.
3. Other relevant APS-wide legislation concerning privacy
In 2010 and 2013 respectively, the then Government led the passage through Parliament of
amendments to the Freedom of Information Act 1982, and of the Public Interest Disclosure Act
2013.
3.1 Freedom of Information Act
The Freedom of Information Act 1982 (FOI Act) operates on the premise that information should
be disclosed unless there is good reason not to do so. Notably, personal information may be
exempt from disclosure if its disclosure would be unreasonable and, in the circumstances, access
to the information at that time would be contrary to the public interest (section 47F and
subsection 11A(5)). ‘Public interest’ is not defined in the Act, nor in the Australian Information
Commissioner’s FOI Guidelines, which note that decision-makers are instead encouraged to
analyse what constitutes public interest in a given set of circumstances (paragraph 6.8). 3
3.2 Public Interest Disclosure Act
The Public Interest Disclosure Act 2013 (PID Act), which came into effect on 15 January 2014,
provides for employees, former employees and others to report wrongdoing by public officials in
the Commonwealth public sector.
2
The Office of the Australian Information Commissioner advises that even if a disclosure is authorised by law,
good privacy practice involves:
wherever possible, only disclosing de-identified information
if needing to disclose personal information for a particular purpose, disclose the minimum amount of personal
information necessary or relevant for that purpose; and
giving the individual notice about the handling of their personal information so there will be a reasonable
expectation of that disclosure.
3
The FOI Guidelines provide an indicative list of factors in favour of disclosure, which includes circumstances
where the disclosure would contribute to the administration of justice (paragraphs 6.23–25). At the same time, the
Guidelines acknowledge that harm may result from the disclosure of some types of documents in certain
circumstances; for example, where disclosure could prejudice an investigation, or unreasonably affect a person’s
privacy. The Guidelines provide an indicative list of factors against disclosure, including where disclosure could
reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated
allegations of misconduct or unlawful, negligent or improper conduct, or where it could reasonably be expected to
prejudice an agency’s ability to obtain confidential information, or to obtain similar information in the future
(paragraphs 6.26–29).
The PID Act requires certain information to be provided to a person who has made a public
interest disclosure (a ‘discloser’) about the progress and the outcome of their disclosure. The
discloser must be given a copy of the investigation report (s.51), which must set out, among
other things, the matters considered in the course of the investigation, the findings of the
investigation, and any action taken as a result. The PID Act acknowledges, however, that the
discloser’s right to this information is not absolute, and provides that information may be
deleted from the report given to the discloser if, among other things, it identifies a person or
would be exempt under the FOI Act.
While the PID Act supports the disclosure of information to complainants, agency heads are
required nonetheless to exercise judgement and to balance competing considerations for and
against disclosure in relation to matters reported under that Act.
4. Recent Cases
Recent cases have indicated that 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.
5. Further considerations
Inherent in the Privacy Act is the recognition that others will, in certain circumstances, have a
legitimate interest in knowing information about a person. An employee’s right to privacy and
protection of reputation can be in tension with another person’s interest in knowing the outcome
of matters that affect their interests; with an agency’s obligation to foster workplace harmony
and productivity; and with the broader public interest in the APS dealing properly with
allegations of misconduct.
5.1 The private interests of the subject of the complaint
APS employees who are the subject of conduct complaints have a right to privacy.
An employee’s reputation and standing with their employer (and potentially with colleagues) can
be damaged by the mere fact of an allegation being made against them. The outcome of
disclosing personal information may also include damage to working and private relationships;
stress; embarrassment; and an unwillingness to respond frankly and openly in the investigation.
The extent of the damage increases where a breach of the Code of Conduct is found.
At the same time, if an employee has breached the Code of Conduct, it might be argued that they
caused, or contributed to, their own loss of reputation.
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Where an employee has done the wrong thing, should their agency protect their
reputation where damage to it would be caused simply by others knowing of the
wrongdoing?
Where an employee hasn’t done the wrong thing, or the issue is a small one that doesn’t
raise matters of genuine public interest, then what expectation of privacy would it be
reasonable for an employee to hold?
5.2 The complainant’s right to request access to information
Recent matters considered by the Courts and by the Australian Information Commissioner
support the view that complainants have a legitimate interest in knowing that an agency has
taken their complaint seriously, has considered it in good faith, and has taken appropriate action.
Other considerations may also apply.
5.2.1 If the complainant is an APS employee
A complainant who is also an APS employee can expect a safe, harmonious working
environment where they are supported by their employer; where complaints are resolved
properly and promptly; and where review can be sought for actions that affect them adversely.
When employees are given too little information about the outcome of a complaint they have
made, their trust in their employer and their engagement with their workplace may be
undermined. It may also be important to consider the likelihood of the employee escalating the
matter or making further complaints if they are not satisfied that it has been dealt with
adequately4.
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Where the complainant is an employee, to what extent should the agency consider the
effects on their workplace engagement of the employee (and others in the workplace)
being given, or not given, personal information about other employees concerning the
outcome of their complaint?
5.2.2 If the complainant is a member of the public
4
If the matter was treated as a public interest disclosure in accordance with the Public Interest Disclosure Act 2013, the person
who has made the disclosure may make their disclosure to a third party, such as the media, in circumstances including where the
discloser believes on reasonable grounds that the investigation of the matter, or the agency’s response to the investigation, was
inadequate (s.26).
If the complainant is a member of the public there is, similarly, a risk that the matter will be
escalated (e.g. to the Minister) or made public if the complainant believes that an agency has not
handled their complaint appropriately. A complainant may perceive lack of information from an
agency as evidence of inappropriate handling.
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When deciding how much information to provide to a complainant who is a member of
the public, and the nature of that information, what is sufficient to limit adverse effects
on public confidence in public administration?
5.2.3 If the complainant has a personal interest in the outcome
Whether a complainant is an employee or a member of the public, if they have a personal
interest in the matter they may seek more detailed information to assess whether the agency has
handled their complaint appropriately. However, this interest does not give employees the right
to access all the information relating to the matter.
Where, for example, an employee is seeking records of statements made by witnesses, it may be
reasonable not to provide these on the grounds that doing so could reasonably be expected to
compromise employees’ willingness to provide information to future inquiries5, or otherwise
compromise the privacy or reputation of third parties.
Sometimes complainants may seek evidence that an agency has ‘punished’ the employee about
whom they have complained. This is, to a certain extent, an understandable desire which is
perhaps best acknowledged but not encouraged, although the severity of a sanction might
equally be seen as a measure of how seriously an agency deals with behaviour of the kind
complained about. Having said that, the misconduct provisions in the Public Service Act are
primarily aimed at protecting the integrity of the APS and thereby maintaining public confidence
in public administration, rather than aiming to ‘punish’ the employee per se.
In cases where the alleged misconduct may have damaged the complainant’s reputation, the
complainant may have an interest in further disclosure of information about the outcome of their
complaint; for example, where the complainant has been publicly insulted by an employee. If an
agency discloses to its employees at large that an instance of misconduct has been discovered
and addressed properly, the disclosure can also have the effect of restoring the reputation of the
complainant where it has been damaged by the behaviour. On the other hand, there may be cases
in which information about a breach should not be made public in order to protect the privacy or
reputation of a person harmed by the misconduct.
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If a complainant has a personal interest in the matter is it reasonable to provide them with
more information about the outcome than would otherwise be the case, and if so what
information should be provided?
If a complainant has a personal interest in wider disclosure of the outcome of their
complaint, under what circumstances would it be reasonable to disclose the outcome of
the complaint more broadly?
5.2.4 If the complainant is a witness
If a complainant’s interests have not been adversely affected by the unacceptable behaviour of
an employee, it may be argued that they have no interest over and above that of any other
member of the public, or of the agency’s workforce, in knowing the outcome of their complaint.
They might be regarded as a witness, or an ‘informant’, to suspected misconduct (with no
personal interest in the conduct or in the outcome of the investigation); a disinterested bystander
5
This point was made in ‘J’ and Department of Health and Ageing [2013] AICmr 21 (8 March 2013).
who has information of use to an agency in maintaining public confidence in public
administration.
However, even an informant might be said to have an interest in knowing the outcome of
unacceptable behaviour that they have identified and helped to address. In particular, they may
be reassured to know that the matter they reported has been dealt with properly, fairly, and given
due weight6.
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What level of detail about the outcome should be provided to a complainant who is
simply a witness?
5.3 Disclosure in the public interest
5.3.1 Disclosure within an agency
The Organisation for Economic Co-operation and Development (OECD) recognises the
importance of ‘communication about integrity violations’:
When an investigation occurs in an organisational unit, this will usually cause unrest and
an urgent need for information within that unit. […] Well-prepared communication can
help to reduce the damage both within the organisation and to the organisation’s outside
image.7
Commission guidance has for some years made the point that a high performing and ethical
workplace requires employees to know the standards of behaviour expected of them and the
consequences for not adhering to those standards. Employees also need to have confidence that
their agency will address suspected breaches of those standards in a timely, vigorous and
systematic way, that misconduct action will be even-handed and that sanctions imposed will be
fair, have substance and will be applied consistently8.
Agencies arguably have an obligation to inform their workforces of actions taken to enforce
standards of conduct, and doing so could, in turn, contribute to the agency’s productivity and
performance, as well as its integrity and that of the broader APS. In this respect the rights of
management coincide with the public interest in maintaining public confidence not only in the
integrity, but also the quality, of public administration.
Disclosing information within the agency, either to all employees or to local work areas in which
the alleged misconduct occurred, may also give confidence to employees that their agency
manages misconduct appropriately. The arguments in favour of disclosure in these
circumstances are stronger if it is assumed that the identities of employees alleged or found to
have breached the Code of Conduct (or, where relevant, their victims) are not made known. This
may be feasible in large agencies but relatively impracticable in small ones—though in many
cases, regardless of agency size, it may be impossible to provide sufficient information without
disclosing personal information about the person investigated.
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6
How can agencies best demonstrate to their employees that standards of conduct are
being upheld when investigations have occurred?
This interest is acknowledged and protected in the PID Act.
7
Global Forum on Public Governance: Towards a Sound Integrity Framework: Instruments, Processes, Structures and
Conditions for Implementation. 4-5 May 2009. OECD Conference Centre, Paris, France; p.58.
Embedding the APS Values, Commonwealth of Australia, 2003 and Handling Misconduct, a human resource practitioner’s
guide to the reporting and handling of suspected and determined breaches of the APS Code of Conduct
http://www.apsc.gov.au/publications-and-media/current-publications/handling-misconduct
8
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Should employees expect the finding of breach to be made known as a necessary
consequence of their wrongdoing?
5.3.2 Disclosure to the public
There may be circumstances in which it is appropriate to disclose to the broader public the
outcome of a misconduct complaint9; perhaps, for example, where the complaint has already
been made public by the complainant. In these circumstances, providing information about the
outcome may help to repair public confidence in the agency or the APS.
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How can agencies best demonstrate to the public that standards of conduct are being
upheld where allegations of misconduct have been made public?
What are the circumstances where public disclosure may be appropriate?
5.4 Factors impacting on disclosure decisions
5.4.1 Control of information
Where information has been disclosed about the outcome of a complaint, it is possible for that
information to be disseminated more broadly than intended. As the Australian Information
Commissioner noted recently in ‘BA’ and the Merit Protection Commissioner [2014] AICmr (30
January 2014), in relation to a promotion decision and information obtained under the FOI Act:
It is now considerably easier for a person who has obtained information under the FOI
Act to disseminate that information widely, to do so anonymously and to comment upon
or even alter that information. The view taken in earlier cases – that a successful
applicant’s claims should be opened to public scrutiny and their claim to privacy should
be deemed as abandoned – takes on a different hue when the publication and scrutiny can
occur on the web or through email interchange. Material that is published on the web
may remain publicly available for an indefinite period. It may cause anxiety to a public
servant that material about their suitability for a particular appointment can be publicly
available long after the appointment and to an indeterminate audience.
APS employees to whom information is disclosed may be directed by their agency not to
disclose that information further. Where a complainant is a member of the public, the risk is
greater that information may be disclosed more broadly. It may be possible in these
circumstances to come to an agreement not to disclose information further; enforcement,
however, may be difficult.
5.4.2 De-identification
In some cases agencies may be able to resolve the question of balancing privacy and reputational
rights of employees and the demand to disclose information by ‘de-identifying’ that information.
Personal information can become de-identified if the information is no longer about an
identifiable individual or an individual who is reasonably identifiable. De-identification involves
removing or altering information that identifies an individual or is reasonably likely to do so.
De-identified information is not personal information.
Generally, de-identification includes two steps:
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9
removing personal identifiers, such as an individual’s name, address, date of birth or
other identifying information, and
The name of an employee whose employment has been terminated for reasons of misconduct is notified in the APS Gazette.
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removing or altering other information that may allow an individual to be identified, for
example, because of a rare characteristic of the individual, or a combination of unique or
remarkable characteristics that enable identification.
5.4.3 Action to address the complaint
In some cases, no investigation will be started because the complaint was spurious, or the
complaint was a reasonable one but the agency does not consider the matter to be serious, or
even a potential breach of the Code. In these cases, it may be useful for the agency to explain
their reasoning carefully and sensitively to the complainant, and work with the complainant (and
others, where necessary) to help them understand the situation and, where appropriate, restore
relationships in the workplace.
Where the complaint that has been made is spurious, or repeated and without substance, it is
useful to consider the extent to which engaging with the complainant would be of benefit, and it
may be appropriate in these circumstances for the agency simply to advise the complainant that
it has considered the matter and decided not to conduct an investigation, and the reasons why.
This approach is consistent with recommendations for handling persistent complainants; for
example:
It is potentially … productive to clarify the limitations inherent in the … complaints
procedures that cannot provide the types of retribution and vindication sought, however
justified the cause.10 […] The objective is to assist in resolving what can be resolved
[…] When what can be done has been done the case needs to be sympathetically but
firmly closed…11
5.4.4 Action outside the misconduct framework
It may be reasonable for an agency to choose to address poor behaviour through, for example, its
performance management framework, rather than treating it as a suspected breach of the Code of
Conduct. Where this is the case, the complainant might be reassured by the knowledge that the
matter is being addressed by the agency through a process designed to improve the employee’s
behaviour—an outcome not always achievable through the misconduct framework.
5.4.5 Breach determination and sanction
Similar considerations to the handling of complaints of minor poor behaviour apply if an
investigation takes place but no breach is found.
Where a breach of the Code of Conduct has been determined, an agency will need to consider
whether to disclose information about the sanction decision. Information that a sanction has been
imposed can provide an indication of how seriously the agency views the matter.
That said, sanction decisions are made not only on the basis of the objective seriousness of the
breach, but also taking into account the circumstances that apply in the specific case—e.g. prior
behaviour, mitigating factors, length of service.
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If information about a sanction decision is provided, would it also be appropriate in some
cases to provide information, in broad terms, about particular considerations applying to
the imposition of the sanction?
‘Vexatious litigants and unusually persistent complainants and petitioners: From querulous paranoia to querulous behaviour’.
Behavioural Sciences and the Law 24, 333–349 (2006). p.342.
10
11
Ibid., p. 347.
6. Proposed principles and supporting guidance
Given the competing considerations discussed in this paper, the Commission has developed draft
principles and supporting guidance for decision-makers when considering what information
should be provided to complainants and others on the outcomes of reports of suspected
misconduct. Views are sought on these draft principles and guidance. Once settled the
supporting guidance may be supplemented with examples.
Proposed principles governing disclosure
A. Agencies should provide enough information to assure a reasonable complainant that the matter
has been dealt with properly.
B. Agencies should provide enough information to assure employees and the public that complaints
are dealt with fairly and effectively.
C. Generally, the more harm done to the complainant and/or the agency as a consequence of the
misconduct, the more information should be provided.
D. Before any disclosure is made, the views of the employee who is the subject of the complaint
should be sought and taken into consideration.
Supporting guidance
Minimum information
Subject to Principle D, generally the following information should be provided to a complainant as a
minimum:
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Whether the matter was investigated using the agency’s procedures made under s15(3) of the
PS Act;
If the matter was not investigated, why not; and
If the matter was investigated, whether a breach was found.
Approaches to restricting further disclosure
When considering how much information to disclose to a complainant, the following approaches
may be useful in preventing further disclosure of the information:
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Will the complainant agree not to disseminate the information?
Can a direction be made in this respect (i.e. if the complainant is an employee)?
Can the disclosure be made in a way that makes further dissemination more difficult (e.g.
orally)?
Non-disclosure where there is a risk of harm
An agency head may decide not to disclose information where he or she is satisfied that there is a
risk of harm that would outweigh the public interest of disclosure. This might include, for example,
circumstances where disclosure:
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May pose a serious threat to life, health or safety;
Would entail an unreasonable disclosure of the personal information of a third party (other
than the subject of the complaint);
Would prejudice another investigation;
May discourage witnesses from coming forward in the future; or
Would cause unreasonable harm to the reputation of the agency or the employee.
De-identified information
Agencies should consider whether any personal information needs to be disclosed to achieve a
particular purpose and if not, wherever possible, disclose de-identified information.
Record keeping and access
A record should be made of the factors informing any decision not to provide the minimum
information to the complainant. Any oral disclosure of information should also be recorded.
Requests for information about the outcome of a complaint of misconduct made under the Freedom
of Information Act 1982 or the Privacy Act 1988 should be dealt with in accordance with those Acts.
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7. Questions on which views are sought
Questions have been posed throughout this document which are designed to help readers
consider the issues raised. The questions on which views are sought are as follows:
1. Are the proposed principles sound?
a. Do they reflect an appropriate balance between the interests of the
complainant; the person alleged to have breached the Code of Conduct; the
agency; and the public?
b. Are there any unintended consequences that may arise from the application of
these principles?
c. Are there cases of which agencies are aware where the proposed principles
would not apply, or would be impracticable?
2. Is the proposed supporting guidance practical?
a. What other information would be useful for agencies to help them implement
the proposed principles?
b. What other information do complainants need to know about how privacy in
relation to complainants of misconduct are handled generally in the APS?
3. Do the proposed principles and the supporting guidance together provide a sound
framework for deciding what information to disclose following a complaint of a
breach of the Code of Conduct?
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