Official Information Request: 'Let's cross out our names.' Maybe not!

COMMENT

Retiring Ombudsman David McGee QC has issued a robust opinion restating the position regarding redacting names of individuals from responses to official information requests.

Agencies routinely do this, especially for the names of their staff, when dealing with official information requests. Often requesters may be indifferent, but if they press the point the Ombudsman is likely to find against the agency and for the requester.

Central agencies and local government should take note, and many need to review their practice in this area.

What happened?

Pharmac ran a public consultation process for the funding of a blood-thinning drug to replace Warfarin.

There was some controversy about the new drug, and a journalist sought information, including:

• The names of Pharmac staff involved.
• The names of individuals who made submissions on behalf of organisations.
• The names of individuals who made submissions (mostly clinicians).

Pharmac undoubtedly erred in not making it clear to potential submitters that submissions are inherently not confidential. But that error could not be used to justify suppression where suppression would otherwise not be appropriate.

Pharmac staff

The names of board members, the chief executive and management team were all released willingly because they were responsible for the advice given and decisions made. That was not enough.

The Ombudsman accepted that anonymity can be justified if release would likely cause improper pressure or harassment. But here the risk was no more than criticism and negative reporting.

Pharnac staff were expressing their expert views in their official capacities; and while they were not decision makers, they provided technical advice that would be relied upon by decision makers.

The Privacy Commissioner was also involved and was not sympathetic to the notion that an expectation of anonymity existed due to the risk of public criticism.

More junior staff who did not significantly contribute to the decision-making process might have a more reasonable expectation of anonymity.

There is a strong public interest in openness and transparency in Pharmac decision making. Even if there was some infringement of privacy, that was outweighed by the public interest in accountability.

Individuals representing organisations

Pharmac named the organisations, but suppressed the names of the individuals who signed the submissions. But they signed as representatives of their organisations, not in any personal capacity.

Again, the Privacy Commissioner confirmed there was a low privacy interest in this situation.

Because Pharmac had not followed the usual practice of warning submitters about the application of official information legislation, it consulted the submitters now. They were split about 50/50 on whether details of their representatives should be released.

Interestingly, five of the eight who wanted their names suppressed were government health officials. This illustrates the widely held, but wrong, belief that identifying individuals in the bureaucracy is, by definition, a breach of their privacy and should not occur.

The "threat" of an approach from a journalist could not be taken seriously as a ground for suppression of the name of a public servant. Concern about direct media approaches to public servants should be addressed by appropriate instructions and training.

The other individuals represented trade or industry groups. They were participating in public policy in their professional capacities and should have expected publicity (except for personal contact details not readily available elsewhere).

Submissions from individuals

These were health professionals and one patient. Pharmac consulted them and agreed to release the names of only those who consented (interestingly, the patient agreed to the release of his or her identity).

Six clinicians refused to consent to their identities being released. One said he submitted with an expectation of confidentiality and would not make further submissions if his name was made public.

This time, the Privacy Commissioner and the Ombudsman differed. The Privacy Commissioner thought that because Pharmac had failed to warn submitters that their identities might be released they should therefore be withheld.

The Ombudsman was not going to let Pharmac's shortcomings compromise official information principles, and found the public interest in transparency more compelling than the lack of consent to disclosure.

He also noted the clinicians were rather different from lay members of the public. They had the weight of their professions behind them and should have known publicity was possible or at least have asked for clarification about that. In any case, their opinions were professional, not personal.

Sometimes submitters may be discouraged by publicity, but they get the benefit of involvement in the pre-decision making process. They have to balance the advantages and disadvantages.

The Ombudsman concluded that even if some people are put off participation by the prospect of publicity, there is an overriding public interest in the transparency of public policy decision making.

He must surely be correct there. The prospect that submitters can rely on their professional standing or positions held to make persuasive submissions, then claim anonymity, is unacceptable in a credible freedom of information regime.

Conclusion

The widespread practice of redacting personal identify information solely on the basis that names are somehow private and therefore can be kept secret is wrong.

Freedom of information trumps privacy, both for the bureaucrats and those involved from outside in making decisions or influencing decision makers.

The only obvious exceptions are personal health information and cases where there is an appreciable threat of improper pressure or harassment. But inquiries from the Fourth Estate are not assumed to be in that category.

David Cochrane is a special counsel at Simpson Grierson, focusing on public and commercial law