Public Service Commission warned site of possible liability for defamatory content on its public servants

This article is more than 4 months old

This article is more than 4 months old

A leading federal government agency sent a legal letter to a volunteer-run transparency website hosting freedom of information documents, warning that “website operators may be liable” for defamatory content published on their website.

The Australian Public Service Commission denies it intended to threaten the not-for-profit Right to Know website when its chief legal counsel sent a letter in October, demanding the site remove “defamatory material”.

The Right to Know website exists to promote government transparency by making FOI documents and correspondence between agencies and FOI applicants accessible to the broader public.

The APSC’s legal letter related to the website’s publication of correspondence between the agency and an FOI applicant, known only by the pseudonym “Fliccy”.

Hybrid parliament needed to safeguard Australian democracy during Covid-19 crisis Read more

Fliccy was seeking documents from the APSC relating to its former boss, John Lloyd, and his well-known dealings with the rightwing Institute for Public Affairs, of which he is a former director.

Lloyd, while in the role of public service commissioner, gave the IPA a document detailing “generous” public sector workplace agreements, prompting an investigation and eventual finding that he breached the APS code of conduct.

Frustrated at the agency’s repeated delays and refusals to release FOI documents about the affair, Fliccy named a number of APSC public servants and alleged they were not complying with FOI law.

In some cases, Fliccy made mores serious allegations against named public servants, including of “politically-motivated obfuscation”, corruption, and criminal offences.

The APSC warned Right to Know that by hosting the correspondence between Fliccy and the agency, it was hosting “defamatory material” that included “false and unsubstantiated allegations” against its public servants.

“We request that you immediately remove the following defamatory posts from your website,” the letter said.

The APSC’s letter clearly attempts to convey that the Right to Know website administrators could be held liable.

The agency’s letter raised the recent defamation case involving Dylan Voller, whose mistreatment in the Don Dale youth detention centre sparked a 2016 royal commission.

Voller successfully sued the Sydney Morning Herald, the Australian, the Centralian Advocate, Sky News Australia and The Bolt Report for comments made about him on their Facebook pages.

“We note that the recent decision of Voller v Nationwide News [2019] NSWSC 766 found that website operators may be liable for defamatory comments published on their websites by third parties,” the APSC said in its letter.

Australia among 21 nations where perceived corruption has worsened Read more

Subsequent negotiations between the APSC and Right to Know volunteers were softer in tone, and they reached an agreement to redact names of individual public servants, including the first names.

Annotations were included on the Right to Know website to note that the APSC had requested the removal of the names.

In a statement to the Guardian, the APSC said its interactions with Right to Know were “productive” and said it appreciated the website’s cooperation.

“The APSC rejects claims that it threatened to sue the Right to Know website,” it said.

“The APSC had productive discussions in October 2019 with operators of the Right to Know website to remove material that made false and unsubstantiated allegations about public servants in relation to a specific FOI request thread.”

The question of whether to name individual public servants in FOI material has been an issue of some contention. The information watchdog, the Office of the Australian Information Commissioner, consulted widely on the issue last year.

The current FOI guidelines say it is not unreasonable to disclose public servants personal information in documents, unless special circumstances existed.

In practice, government agencies tend to redact public servants’ names from FOI material if they are junior, typically with the agreement of applicants.

The APSC has advocated for greater restrictions on the publication of public servants’ names, saying individuals can be exposed to inappropriate approaches, threats, and unsubstantiated and defamatory statements.

“In the commission’s own experience the ability of FOI applicants to anonymously request access to documents through the Right to Know (RtK) website has significantly changed the nature of FOI,” the APSC said in its submission to the information watchdog.

“A number of requests made to the commission through the RtK website have involved applicants making unsubstantiated allegations about commission employees and specifically requesting the personal information of APS employees. It is common for an anonymous FOI applicant to make repeated and further unsubstantiated comments each time he or she corresponds with the commission as part of the processing of the request.”