Today’s question flows on from the disputes about the response to the Tathra bushfires. My correspondent:
… noticed an article in the Daily Telegraph on 19th or 20th March 2018, where it was claimed that the NSW RFS refused assistance from FRNSW, they had a picture of the FR Call Centre log with the operator’s generic response highlighted when assistance is not required after they have asked.
My question is, would this not have to be obtained through a Freedom of Information request by the reporter or if it wasn’t and it was illegally leaked by a FR staff member, what would the consequence be for both the Telegraph or FRNSW, who I assume would have the responsibility for the procedures for private and confidential information security or using illegal information in their publication?
Since then they have also released voice recording of the calls made between RFS Duty officers and FR Call Centre operators which I again assume breaches other legislation as I don’t believe a staff member or agency would have given their permission to use the recordings. Who would be responsible for a matter such as this given the amount or media it has caused while using illegally obtained information?
The Daily Telegraph articles are generally behind a paywall so I can’t find the exact article. In another article (Eryk Bagshaw ‘Rural Fire Service slams Tathra bushfire leak as ‘disgusting and disgraceful’’ Illawarra Mercury (Online) March 20 2018) says the call logs were ‘leaked’ rather than released under any application under the Government Information (Public Access) Act 2009 (NSW) (which replaces Freedom of Information legislation). Let us assume, for the sake of the argument, that the material was leaked by a member of FRNSW staff.
Under the Fire Brigades Regulation 2014 (NSW) cl 22:
A firefighter must not disclose any information obtained in the firefighter’s capacity as a firefighter unless the disclosure is made:
(a) in the exercise of the firefighter’s functions, or
(b) about factual matters that are generally available to the public, or
(c) by an approved firefighter to media representatives concerning operations at a fire or other incident, or
(d) at the direction or with the permission of the Commissioner, or
(e) with other lawful excuse.
Let us also assume, for the sake of the argument, that the release of the information is a breach of r 22. A breach of s 22 is not a criminal offence, but may subject the firefighter to disciplinary action (r 13). A firefighter, as a government employee, may also be subject to obligations of confidentiality under the Government Sector Employment Act 2013 (NSW) and The Code of Ethics and Conduct for NSW government sector employees. Let us further assume that the release of the information is a criminal offence.
What follows from those assumptions is that the journalist has received information about a government agency (but not private information about an individual) that has been provided to him or her illegally. What are the consequences of the Telegraph in publishing that material? The answers are ‘none’.
The argument of journalists, and institutions like Wikileaks is that there is no offence in publishing this material even if the person who provides it commits an offence in leaking it. The freedom of the press to publish material is essential for open government. Consider the actions recently of the ABC that published details of cabinet documents that were found in a filing cabinet that was sold by a second hand furniture store in Canberra. The ABC program, ‘Behind the News’, reported
Mr X took the files to the ABC, who read through them and broke some big stories, including the Australian Federal Police losing national security files, laws that were being debated behind closed doors, and important documents at Parliament House ending up in the wrong hands.
But the ABC decided some of the other files were too sensitive to tell us about. In fact, they were so top secret that ASIO, Australia’s National Security Agency delivered a safe to the ABC offices so the files could be protected. The release of these Cabinet Files has come at an interesting time, because there are new laws currently being proposed that could make this kind of reporting illegal. The proposal, by PM Malcolm Turnbull, is aimed at cracking down on foreign spies, but some journalists and lawyers say that could extend to the media too. They argue the journalists who published the Cabinet Files could’ve faced jail time if those laws were in force now.
After some serious negotiating, the files were eventually given back to their original owner, the Department of the Prime Minister and Cabinet.
There was no offence committed by the ABC in publishing the material. Even if the changes discussed in that article, contained in the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (Cth) are passed, it will be a defence (cl 122.5(6)):
… to a prosecution for an offence by a person … relating to the dealing with or holding of information that the person dealt with or held the information:
- in the public interest (see subsection (7)); and
- in the person’s capacity as a journalist engaged in fair and accurate reporting
The point of that discussion is not to say that these laws apply to this leak but to demonstrate that journalists are not prohibited from publishing confidential information that is leaked to them. That is considered a legitimate journalistic exercise and that is recognised by the Commonwealth that intends to retain that principle even in the attempt to tighten up information security laws. There can be civil remedies for publication of confidential information ranging from an order for an injunction to stop the publication, actions for defamation and the like. The critical determination requires a balance between the public interest in knowing the information and a private interest in retaining the confidence (see Kathryn Ries, ‘Confidential Information and the Media’ (1999) 15 Queensland University of Technology Law Journal 126). We don’t need to update that article and its references because we can see there is public interest in the discussion on the response to the Tathra fires, and the call log and audio recordings are not private and confidential information about a person. This sort of material would be released under the Government Information (Public Access) Act 2009 (NSW). So even if it has been released improperly, it would be public information in the event of the correct application, so we can infer, or perhaps assume, that the public interest in not disclosing it is low which creates an equally low threshold for a public interest in publishing it.
As for FRNSW there can’t be any implications either. As the holder of personal or private information FRNSW, as with any government agency, will have obligations to secure that information and there may be implications if that information is not properly secured.
However, the information of a call log and the audio recording of the conversations would not be private information within the meaning of the Privacy and Personal Information Protection Act 1998 (NSW). The information is information owned and about FRNSW. Issues of the staff member’s consent to the use of the recording is irrelevant. If FRNSW wants to release recordings of its radio or telephone transmissions it doesn’t need the approval of each staff member. It also means that if the information is illegally leaked FRNSW may have rights against the staff member who leaked it (Fire Brigades Regulation 2014 (NSW) cll 13 and 22) and could in some circumstances (but I suggest not these circumstances) have a remedy against the journalist or the paper (see again Kathryn Ries, ‘Confidential Information and the Media’ (1999) 15 Queensland University of Technology Law Journal 126).
The question implied a belief, not uncommon, that the law protects much more than it does. Journalists regularly publish material that governments, corporations and individuals would prefer was not made public. They do that in part to sell papers but also because it’s a fundamental role of a free press to hold governments, corporations and individuals to account. There may be remedies where the publication is simply for titillation or gossip but where there is a public interest in the publication that is not only permitted it is endorsed, even by government.
In the circumstances of the Tathra fire and the release of information from FRNSW there may be implications for the staff member that leaked the material, but there would be no legal implications for the journalist or the Daily Telegraph for publishing it or for FRNSW.
So how do whistleblower laws apply here? Do they give the leaker any protection?
I would infer that what is meant by the ‘whistleblower’ laws are the Public Interest Disclosures Act 1994 (NSW). This Act deals with disclosures that show corrupt conduct, maladministration, serious and substantial waste, government information contravention or local government pecuniary interest contravention. It would be debatable whether any disclosure of the FRNSW call logs related to any of those matters but even if it did, the Act won’t help.
Section 8(1) says ‘To be protected by this Act, a disclosure must be made by a public official… (d) … to a journalist.’ To enjoy protection under the Act the person making the disclosure to a journalist (s 19):
Clearly clauses (2) and (3) will not apply here. What follows is that even if these disclosures were related to corrupt conduct, maladministration, serious and substantial waste, government information contravention or local government pecuniary interest contravention they would not be protected disclosures within the meaning of the Public Interest Disclosures Act 1994 (NSW).
Thanks Michael. Very Interesting.
I guess it comes down to “it will be decided in a court of law”. It looks like the leaks are from someone with pretty good access. I suppose the fact that previous coroner reports have made recommendations that haven’t been acted on could possibly be used as a defence.
I very much doubt that the matter will ever end up in a court