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Investigation that cleared government in transparency case failed to speak to key witness

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

An independent investigation that cleared the federal government of improperly threatening and intimidating a not-for-profit transparency website failed to contact the only key non-government witness before making its findings.

The Australian Public Sector Commission, a leading government agency, last year used its chief legal counsel to warn the small, volunteer-run Right to Know website that documents it was hosting contained defamatory material and should be pulled down.

Right to Know exists as a central repository of freedom of information documents and correspondence, making them widely available with the aim of improving government transparency.

The APSC’s complaint centred on correspondence about an FOI request for documents about former APSC boss John Lloyd and his links to the Institute of Public Affairs. The correspondence identified several APSC employees and made serious allegations against them.

Related: Key federal agency cleared of intimidating FOI website Right to Know

The commonwealth ombudsman was recently asked to investigate the APSC’s letter, which was marked “OFFICIAL: Sensitive legal privilege” and requested the website’s owners “immediately remove the following defamatory posts from your website”.

The complainant argued that it breached rules governing the behaviour of lawyers, but the ombudsman cleared the agency, finding it had not threatened or intimidated Right to Know.

But it has now emerged that the ombudsman did not contact the owners of the Right to Know website to seek evidence. The investigation only interviewed APSC officials.

The Right to Know owners said in a statement: “We feel that it would have been difficult, if not impossible, for the ombudsman to get the full story without contacting us first. We would have appreciated being advised of the complaint and the outcome before learning about it through the media.”

The legal letter sent to Right to Know prompted a series of exchanges, and eventually the APSC and the volunteers worked together amicably to redact the offending parts of the story.

“When the APSC made us aware of potentially defamatory content, we worked with the APSC and took steps to redact as little of the request as possible to keep the request public,” the Right to Know owners said.

The ombudsman found the APSC’s course of action had 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”.

“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 APSC, which has denied any intention to threaten the website, has welcomed the findings. It has also published the correspondence with Right to Know on its own FOI disclosure log.

The APSC letter warned Right to Know that it was publishing “defamatory material” by hosting the correspondence, which made “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 also highlighted a recent court decision that found website owners could be held liable for material published on their sites by third parties.

The ombudsman has been contacted for comment but previously said it could not discuss its investigation, because the complaint was made through public interest disclosure laws, which include secrecy provisions.