To answer the question

If you were pressed to distill your views into no more than a single page how best to give members of the APS the best advice you could that would help them be more confident users of online tools and social media, what would you tell them?

If there is no change to legislation, and it is justme giving my best advice with no leadership from the top, I would keep it really simple:
“Be very careful about taking such a risk”.

In other words, I think those other changes (legislation and leadership) are necessary but not sufficient to underpin the cultural change, and probably need to be agreed first.

Let me issue an invitation at this point – but not as a way to stop the flow but more as an attempt to take stock.

There are two sorts of insights emerging from this thread. One kind is the rich, contextual and detailed exposition of the law and practice around public servants and online (and other forms of) engagement.

The other is a more direct attempt to actually start defining some guidelines for the APS, or at least some propositions that could be incorporated into a set of guidelines.

So the invitation is this. If you were pressed to distill your views into no more than a single page how best to give members of the APS the best advice you could that would help them be more confident users of online tools and social media, what would you tell them?

Many people have sent me recently the (apparently) one-page social medua guidelines which the ABC released last week. There are other similarly pith examples from the public and private sector. So it’s in that spirit that I issue the invitation to see how you feel. If you feel it’s both premature and inappropriate, I’m sure you’ll say so.

I should apologize for my first comment here. I did not mean to be trite. After reading through this thread for the umpteenth time, we seem to have covered all the perspectives which seeming appear so obvious to a practical mind. (again, excuse my arrogance). The main one being;

Several officials in European countries that I have been interacting with are relatively dismissive of any advice that runs contrary to their beliefs.

We must all admit to this one.

Nick does point out the obvious conclusion in which all these kinds of discussions terminate.

….. mostly about the culture within which the guidelines are situated.

So could we focus on using the media tools available which, through their combination, some National cultures might be cultivated. Only an American or Aussie seem to have this belief that making guidelines for a one form of media (Web 2.0) are going to change our silotic state. Europeans, even Poms and especially scots are more interested in how this new one can utilzed, combined with others (mainly broadcast) and be used to improve upon the means by which isolated citizens engage, and cultivate the levels on which they do.

Craig, please don’t don’t this as criticism. But I did have to explain this to James, when you pointed at the data, when he asked a question about engagement. It’s always important, I find, to make the cultural differences explicit.

I would have expected that by now we would have a non tech advisory team composed of people from Digital Engagement teams from around the world. (and another of MP’s like Mr F McAveety )

I had hoped we would be seeing some relationship between this taskforce, a-pac and the PEO to begin the hard work of influencing entrenched beliefs, and outdated guidelines. E.g. When the recommendations from this inquiry (and Kate’s) are handed to a Minister, the session is broadcast into the rooms of participants that the inquiry has used, and then leads back to the source of the recommendations (i.e. this domain), rather than this page.

Recommendations are pretty easy. It’s the implementation of them which is the hard part. Anyway, excuse me for interupting this thread. E-gov is as irrelevant to me as e-research or e-education. But at least we know they must, one day, share the same cultural habits, and be seen to be doing so. It seems, in the anglo speaking world of e-gov, the practical Scots understand this the best.

In relation to the NSW Government information Public Access Act the reference is to section 115… In my view this is sufficient to cover disciplinary action by an agency against the employee.

I’ve had a look at section 115 and I’m not sure I share your conclusion, especially if you look at that provision within the broader ambit of Part 6, Division 1. I’m not certain on this, but I think the provision is likely to be interpreted to prevent claims by civil litigants rather than the employer (I also think this is true for s174 of the Queensland equivalent). Do you know of any case law on point?

It could in principle be strengthened even further by having a provision similar to the NSW Protected Disclosures Act …

This looks to me to be very similar in some respects to section 16 of our own Public Service Act, which creates a similar protection for whistleblowers, although that doesn’t explicitly debar disciplinary proceedings (I think it would be picked up by implication as part of the broader prohibition against victimisation).

While this would be a decision open to the legislature, I think it’s unlikely you’ll see this sort of defence made available much more broadly than that – public interest disclosure regimes are specifically aimed at encouraging disclosure and protecting disclosers. I doubt that the same imperative would be seen to apply to people participating in a conversation on-line. But it’s an option, and should be folded into the mix.

On the public interest…

At least the NSW Government Info Act basically says “release requested information if on balance it is not against the public interest” (because there is a presumption in favour of release). The Act enumerates those things that are either conclusively presumed to be, or that may on balance be, against the public interest (see Schedule 1) It then says that only those enumerated things can be counted in the equation against the public interest. On the other hand anything can count as a public interest consideration in favour of release. So at that other end the category is open-ended. But I don’t think that the fact that something is open-ended means that it is circular. It is quite possible to enumerate considerations for something being in the public interest – for example:
- it favours transparency
- it aids democratic decision making
- it enhance’s the community’s information infrastructure
- it allows better understanding of decision-making
- it allows more participation in decision making.
However, it does not finally close the definition of public interest because there could always be new situations where a reason why something is in the public interest has not been thought of. That doesn’t make it circular.

Point taken, and I should have read the NSW stuff more carefully. Having said that, when I look at Schedule 1 and section 14 together they seem to me to allow extraordinary leeway and I’d reckon just about anything could fall within them. Short and concise they are not. It’s also interesting to me that they’ve attempted to list the reasons why matters should not be disclosed but don’t seem to have balanced out the other side of the ledger beyond the general presumption of disclosure in s5 and the objects clause.

But I think all of the issues come down to whether professionally confidential information is being disclosed (eg “this is what the government is thinking”, “this is what the Minister said in a meeting”, “they didn’t accept my argument that… for political reasons”) versus expressing an opinion. The second should be allowable, the first not.
But the fact that it should be allowable, does not necessarily mean that the public servant should not continue to exercise caution and judgement. There are ethical dimensions. For example, if the motive for the blog post is to have a second run at getting the argument up, or amounts to criticising or dismissing the internal arguments of colleagues – there are interpersonal consequences to consider. Those issues should not however lead to disciplinary responses.

On this we may disagree. I think that the prospect of people expressing personal opinions on matters that are the policy responsibility of their own employer or their Minister will always be problematic. I’m inclined to think that even under current arrangements public servants can express their opinions fairly freely, it’s when they get close to their working role that things get difficult.

Certainly a blanket prohibition on work-related comment would be at least conceptually simple. And now I find to my chagrin that the APS Commission has beaten me to the punch with this publication

APS employees blogging in their own time using their own resources are covered by the same broad principles as other APS employees who comment in a private capacity on public issues, namely that they are entitled as citizens to do so, but they must avoid comment that might be interpreted as an official statement on behalf of their agency or that compromises perceptions of the employee’s ability to do his/her job in an unbiased or professional manner. More information and advice on this matter is contained in Chapter 3: Managing official information.

One issue that needs to be borne in mind with blogs is that they are often unmoderated and so the potential for offensive remarks and opinions is therefore greater than many other forms of public expression. APS employees must comply with s 13(11) of the APS Code of Conduct, An APS employee must at all times behave in a way that upholds the good reputation of the APS. A person who could be identified as an APS employee and who posted offensive, racist or obscene material on a blog could be in breach of this section of the Code in much the same way as, say, a person wearing an agency uniform or badge who shouted offensive, racist or obscene material in public could be in breach. The issue would need to be considered on a case by case basis and clearly the more senior the employee the greater the possible damage to the APS’ reputation.

Incidentally, while tooling around their site I was reminded of your view that:

…why not adopt a scheme similar to either the St James Ethics Centre or the Law Society of NSW that offer free phone counselling services on ethical issues. There could be a panel of ethical advisers from other agencies. If a person is in doubt they could call one of them anonymously for confidential advice. If they Act in accordance with the advice they should be automatically protected with nothing more to prove.

I don’t think they can help you with your last sentence, but otherwise these people might be useful.

I had a quick look at both pieces of legislation and couldn’t find clauses that cover this off. Do you have more specific references? I’d be fascinated to follow up, and I think it would be an interesting and useful precedent.

In relation to the NSW Government information Public Access Act the reference is to section 115 which says

No matter or thing done by an agency or officer of an agency, or by any person acting under the direction of an agency or officer of an agency, if the matter or thing was done in good faith for the purposes of executing this Act, subjects the officer or person so acting, personally to any action, liability, claim or demand.

In my view this is sufficient to cover disciplinary action by an agency against the employee. It could in principle be strengthened even further by having a provision similar to the NSW Protected Disclosures Act which provides

20 (1) A person who takes detrimental action against another person that is substantially in reprisal for the other person making a protected disclosure is guilty of an offence.

And

20 (2)In this Act, detrimental action means action causing, comprising or involving any of the following:
(a) injury, damage or loss,
(b) intimidation or harassment,
(c) discrimination, disadvantage or adverse treatment in relation to employment,
(d) dismissal from, or prejudice in, employment,
(e) disciplinary proceeding.

I concede that the Queensland equivalent is not quite as strong as it does include the qualification “without negligence” – see section 174 of that Act.

Of course any of these would have to be modified to make sure the protections applied to voluntary public utterances as well as information applications.

Interestingly the new NSW Government Information Act has a provision permitting informal release of government information (unless against the public interest) and requiring agencies to proactively release certain information. If information is released in one of these two ways then the general protections apply to the public servants releasing them. Perhaps a combination of these powers would already be sufficient to enable guidelines to give protections to public servants participating in open discussion.
However, I suspect some legislative provisions would be required to give comfrot to the risk averse.

On the public interest
Posterboy says:

As someone who’s been grappling with the concept of the public interest for decades I’m pretty aware that it’s an established notion but, equally, that it’s proven very, very difficult to build a useful definition – at least before the fact. So I was somewhat disappointed – but not surprised – that these two definitions are completely circular. Each of them says that the public interest is those things that are, on balance, in the public interest.

I don’t really agree that that’s what they say. At least the NSW Government Info Act basically says “release requested information if on balance it is not against the public interest” (because there is a presumption in favour of release). The Act enumerates those things that are either conclusively presumed to be, or that may on balance be, against the public interest (see Schedule 1) It then says that only those enumerated things can be counted in the equation against the public interest. On the other hand anything can count as a public interest consideration in favour of release. So at that other end the category is open-ended. But I don’t think that the fact that something is open-ended means that it is circular. It is quite possible to enumerate considerations for something being in the public interest – for example:
- it favours transparency
- it aids democratic decision making
- it enhance’s the community’s information infrastructure
- it allows better understanding of decision-making
- it allows more participation in decision making.
However, it does not finally close the definition of public interest because there could always be new situations where a reason why something is in the public interest has not been thought of. That doesn’t make it circular.

So coming back to my original post, I suggested

Public servants should take care not to disclose …information the release of which is against the public interest.

If the NSW Government Information Act were used as the model, this would be a closed and defined category of reasons.

On Martin’s BBQ scenarios:
I think Posterboy is correct in assuming that it does make a difference whether a view is identifiably made to the world or whether it is made at a BBQ. The reputation consequences are wider on a blog.
But I think all of the issues come down to whether professionally confidential information is being disclosed (eg “this is what the government is thinking”, “this is what the Minister said in a meeting”, “they didn’t accept my argument that… for political reasons”) versus expressing an opinion. The second should be allowable, the first not.

But the fact that it should be allowable, does not necessarily mean that the public servant should not continue to exercise caution and judgement. There are ethical dimensions. For example, if the motive for the blog post is to have a second run at getting the argument up, or amounts to criticising or dismissing the internal arguments of colleagues – there are interpersonal consequences to consider. Those issues should not however lead to disciplinary responses.

There would be worse things to be remembered for than ‘the BBQ exception’.

1 An officer of AGIMO or Special Minister of State, who has no involvement and is working on other areas of policy, says at the BBQ “the Government hasn’t taken a decision about the Task Force report but I reckon the whole thing was a waste of time and isn’t going to amount to a hill of beans”. (Not true, ofcourse, but let’s just pretend…).

Someone asks why they think that and they explain that in a differnet role (another agency or perhaps as part of the MPA) they had considerable exposure to this issue and had to research the international experience with Web 2 and online guidlines and that experience had lead them to the view that the Australian approach was inadequate. Is that ok, or not?

In my experience the answer to this is a definite maybe. I can see a number of additional factors that might be relevant that aren’t in the scenario. For example, how senior is the officer? They seem to be senior enough to know what’s happening in some detail outside their immediate work sphere so it may be that they’re part of the AGIMO executive. This adds to the likelihood of it not being OK.

Who are they talking to? Colleagues or friends or strangers? That counts too because it contributes to the question of reputational damage.

Another factor is that it’s not really a criticism at this stage of the decision or view of the Government or even, apparently, a criticism of the Taskforce report. It’s more a criticism of the status quo with a dollop of cynicism on the side, which might be argued to support the decision to set up the Taskforce.

In deference to your concerns I’ve avoided detailed legal exposition but will add it if necessary.

Perhaps the more interesting question is whether we think it should be OK or, more appositely, whether the Taskforce is prepared to make a recommendation that public servants should be able to express personal opinions inconsistent with those of their employer or the Government without fear of retribution. In preparation for this post I’ve gone back to Tanner’s speech and I think that point is quite unclear, that what he meant by ‘robust professional discussion’ is something of an open question. I do notice, however, that he did talk about public servants presenting ‘the views of the Government’, but only differentiating ‘between their personal views and those of their employer’, and not allowing ‘public servants to simply tell reporters what is on their mind’ (and I’d equate blogging to this given that once a comment is out there, it’s out there).

I wonder what he had in mind.

And would it change if the exchange happened on blog somewhere which had started a thread about how the public sector needed to get much better at Web2 and related stuff?

Probably, but for practical reasons rather than those of principle. If you look at the APSC data for recent years (published in the State of the Service Report) there have been a lot of conduct cases aimed at misuse of the internet and email. Largely this is because it’s so easy to catch and prove. There’s also the fact that when you’re blogging you have to assume that the audience is the world, including every journalist.

And what a fine, upstanding bunch you all are fellas, he hastened to add.

A senior office of AGIMO involved in briefing the Minister about the Task Force report makes exactly the same comment at the BBQ. Presumably not ok?

Almost certainly not OK, but it would probably depend to some degree on who he/she is talking to and the extent to which confidential information was disclosed. It would also depend somewhat on the extent to which that opinion was consistent with or contradicted the briefing he/she/AGIMO had been giving the Minister.

What about if they did it on a blog?

Very, very likely to lead to a short, sharp investigation. Probably followed, in my experience, by termination of employment or demotion.

The point here is the open nature of the audience (everyone) and the degree of reputational damage (and, to return to a point that apparently I didn’t make clear enough earlier, who’s right and who’s wrong doesn’t matter for this purpose). If employment was not terminated then I would expect demotion because the post would be seen to display a level of judgement that would not be expected in a senior officer.

And what about if they did it on a blog after hours from their home computer…

A surprisingly unimportant issue. I suppose it avoids the question of misuse of Commonwealth resources, but most agencies allow for some degree of reasonable personal use of computers. This question will come down to local policies.

…using a psuedonym?

Very interesting question, and one that I’ve been grappling with a bit myself.

At one level it reduces risk because of the relative anonymity it provides (although it’s by no means perfect in that respect), but at another it introduces the potential that the act of using a pseudonym might be seen as lacking in integrity, mostly because there’s an argument that people who have integrity should be prepared to put their name to their statements and accept the accountability that goes with that. There’s an additional level of culpability, I think, if that anonymity is being used to cloak a broader agenda.

And would it make it any different if, on the blog, one of the contributors revealed tht they were responsible for these issues in another jurisdiction and could add some right-up-to-date information about new guidlines being developed in the public domain but which our officers didn’t know about and could use in their own work as a result?

I doubt it.

while we can learn by testing different approaches out in real life situations, we have to adopt a set of guidelines within a larger frame that determines that, by and large and properly done, this kind of behaviour is not only ok but increasingly going to become a feature of what it means to be a ‘proper’ public servant (professional, ethical and sensible).

Sure, except that I’m still some way from convinced that Government is really looking for recommendations that will give public servants the right to make public statements of their own opinion – for reasons I’ve canvassed at length. And as I’ve said already in this post, I think the leaning of the Government is quite unclear. It would be easy to conclude that what Minister Tanner is really looking for is public servants being more willing to engage in on-line discussions to present the Government view in a more robust professional way.

We’ll see.

Yes, the public interest is difficult to define, but there are workable defintions out there now. See for example, the Queensland Right to Information Act 2009 or the NSW Government Information Public Access Act 2009. These may miss out on the simplicity that was called for in the initial post in this stream – but the public interest is a well established notion.

I was very excited to see this. As someone who’s been grappling with the concept of the public interest for decades I’m pretty aware that it’s an established notion but, equally, that it’s proven very, very difficult to build a useful definition – at least before the fact. So I was somewhat disappointed – but not surprised – that these two definitions are completely circular. Each of them says that the public interest is those things that are, on balance, in the public interest.

Posterboy also points to the fact that public servants will be taking a risk if they chance their arm with a judgement that a particular public utterance would meet the public interest test. Again, both of the above new ‘Information Acts’deal with this by saying, in effect, “if you act in good faith, even if you get it wrong there will be no legal repurcussions for you”. That is what I was attempting by point 3 of my earlier post.

I had a quick look at both pieces of legislation and couldn’t find clauses that cover this off. Do you have more specific references? I’d be fascinated to follow up, and I think it would be an interesting and useful precedent.

But let me try out a couple of BBQ scenarios (maybe we should label this provision in any new code of conduct or online engagement guidelines as “the BBQ provision”:)…

1 An officer of AGIMO or Special Minister of State, who has no involvement and is working on other areas of policy, says at the BBQ “the Government hasn’t taken a decision about the Task Force report but I reckon the whole thing was a waste of time and isn’t going to amount to a hill of beans”. (Not true, ofcourse, but let’s just pretend…).

Someone asks why they think that and they explain that in a differnet role (another agency or perhaps as part of the MPA) they had considerable exposure to this issue and had to research the international experience with Web 2 and online guidlines and that experience had lead them to the view that the Australian approach was inadequate. Is that ok, or not? And would it change if the exchange happened on blog somewhere which had started a thread about how the public sector needed to get much better at Web2 and related stuff?

2 A senior office of AGIMO involved in briefing the Minister about the Task Force report makes exactly the same comment at the BBQ. Presumably not ok? What about if they did it on a blog? And what about if they did it on a blog after hours from their home computer using a psuedonym?

3 And would it make it any different if, on the blog, one of the contributors revealed tht they were responsible for these issues in another jurisdiction and could add some right-up-to-date information about new guidlines being developed in the public domain but which our officers didn’t know about and could use in their own work as a result?

I guess scenarios like this help a bit, and you can have lots of fun thinking up all sorts or more or less credible permutations. But in the end, while we can learn by testing different approaches out in real life situations, we have to adopt a set of guidelines within a larger frame that determines that, by and large and properly done, this kind of behaviour is not only ok but increasingly going to become a feature of what it means to be a ‘proper’ public servant (professional, ethical and sensible).