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Key federal agency cleared of intimidating FOI website Right to Know

Christopher Knaus
·3 min read
<span>Photograph: Kacper Pempel/Reuters</span>
Photograph: Kacper Pempel/Reuters

An investigation has cleared one of Australia’s leading federal government agencies of threatening and intimidating a volunteer-run transparency website that hosted freedom of information documents about its former boss.

The Guardian revealed earlier this year that the Australian Public Service Commission’s chief legal counsel had written to the not-for-profit Right to Know website last October, demanding it remove “defamatory material”.

Right to Know hosts FOI documents and associated correspondence in an effort to improve government transparency.

The warning concerned FOI correspondence about the former APSC commissioner John Lloyd and his well-known dealings with the rightwing Institute for Public Affairs, of which he is a former director.

The applicant, an anonymous user named Fliccy, had become frustrated by the agency’s repeated delays and refusals to release documents. They named individual public servants, accused them of failing to comply with FOI law and alleged more serious corruption and misconduct.

Related: National cabinet deliberations may not be exempt from FoI, legal advice says

The APSC warned Right to Know that by hosting the correspondence between Fliccy and the agency, it was publishing “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 letter was marked “OFFICIAL: Sensitive legal privilege” and highlighted a recent court decision that found website owners could be held liable for material published on their sites by third parties.

The APSC has strenuously denied it intended to convey a threat to the Right to Know volunteers.

Following the Guardian’s story, an unidentified public servant complained to the commonwealth ombudsman, alleging the APSC’s conduct in writing the letter had amounted to legal misconduct.

The commonwealth cannot sue for defamation, either on behalf of itself or individual public servants, and the complaint argued that the APSC’s letter breached rules against improperly invoking the coercive powers of a court and threatening proceedings without proper basis.

The complaint argued the use of the marking “legal privilege” showed the APSC intended to “convey a legal threat of litigation”.

The ombudsman investigated the complaint but earlier this month found that the APSC had not intended to threaten or intimidate the website.

“The investigator does not accept that [the author of the letter] was making a threat – actual or implied – that the agency could, or would, itself instigate legal proceedings on the behalf of the three named employees,” the ombudsman’s report said.

The ombudsman found it was not unreasonable for the APSC to alert the website to “the potential risk of legal liability”.

The ombudsman found that the APSC’s course of action had actually avoided the need for the individual employees to take court action, and that the letter did “not seem unreasonable or indicative of an intention to intimidate”.

“That is, by seeking [the website’s] agreement to remove certain material without the need for the three individuals to resort to (possible) personal legal remedies,” the report said.

The ombudsman did find that the use of the “legal privilege” marker may have been “misguided” but found the author’s explanation for using that marker was plausible.

“In any case, the investigator considers that a marker without the words ‘legal privilege’ should have been used.”

The ombudsman’s office said it was unable to comment on the complaint, which was made under the Public Interest Disclosure Act. It noted that “public interest disclosures are subject to the secrecy provisions of the Public Interest Disclosure Act”.

The APSC said it welcomed the ombudsman’s report and its findings.

The complainant said the decision effectively told all public servants that, should they find a publication they disagreed with or believed to be defamatory, they could use the resources of the commonwealth to contact the author and warn them they would be held liable for defamation if it was not removed.