Special legislation may be needed to protect the confidential records of Australian service personnel and ensure defence force efficiency is not undermined by privacy concerns, Australian Defence Association executive director Neil James has said.Those complaints about provision by the Archives [NAA] of public access to medical records under the Archives Act 1983 (Cth) or Freedom of Information Act 1982 (Cth) do not appear to have been substantiated.
Mr James has backed calls for a crackdown on what can be issued by National Archives, after complaints that confidential medical records and work performance assessments had been made public.
James is reported as stating that
there was a lot of anger in the military over the publication, under freedom of information laws, of Brisbane Lord Mayor Campbell Newman's military records.The Defence Force Welfare Association, under executive director Les Bienkiewicz, reportedly fears that records - presumably 'sensitive' records - will be publicly accessible under s 31 of the Archives Act 1983 (Cth) or under the Freedom of Information Act 1982 (Cth) while former service personnel are in the workforce, particular because under the 'open government' philosophy highlighted elsewhere in this blog the 'closed access period' for most archival material is being reduced to 20 years. The usual alarms have been sounded and advocates have mounted the sooapboxes.
News Ltd journalists used the former Army major's Duntroon reports to raise questions about his leadership skills.
The archive makes such records public after 30 years.
In many cases they can be downloaded from the official website.
Mr James said if military leaders conducting performance assessments feared what they wrote could be made public down the track they would be less than frank.The CT reports that the NAA has "defended its practices, saying both the Administrative Appeals Tribunal and the Federal Court had ruled performance reports were not considered 'personal affairs' and could be issued", with the Defence Department checking personnel dossiers "for sensitive medical information" prior to transfer to the Archives. The NAA does not have a practice of releasing medical or other sensitive information in an individual's lifetime and there are exemptions under s 33 of the Archives Act 1983 (Cth) that authorise restriction.
Serving soldiers would be reluctant to seek psychological counselling or other forms of medical assistance for fear of having it become public knowledge.
"We already have the situation where some personnel have sought treatment for conditions or injuries outside the Defence medical system because of the effect [disclosing] it could have on their military employment or career", he said.
The reporting is a nice example of sectoral exceptionalism and misunderstanding. Bienkiewicz is reported as indicating that "there was an arrangement in place between NAA and Veterans Affairs to protect clients' privacy". Indeed there is and the NAA has obligations regarding the privacy of all military personnel and Commonwealth employees, rather than merely documents generated by Veterans' Affairs. The CT states that -
"The current practice of NAA has the potential to cause embarrassment and distress to Australian Defence Force and former Australian Defence Force members and to families of deceased former ADF members", he said in a recent letter to Veterans' Affairs and Defence Personnel Minister Warren Snowdon.Regrettably, there was apparently no reference to a complaint to the Office of the Australian Information Commissioner, although we might be wary about what a newspaper is reporting and what someone has told to a journalist, given scope for confusion.
"The rights of ADF and former ADF members to the privacy of their personal and confidential records justify a similar arrangement between the director-general of NAA and the minister."
Mr Snowdon wrote back the current legislation was "sound" and if there had been an "inadvertent release of specific sensitive medical information" it should be taken up with the director-general of NAA or the Commonwealth Ombudsman.
Bienkiewicz said current practice meant the person seeking information had all the rights while the person the information was about had none.Last month The Australian stated that -
The documents released by the Department of Defence under Freedom of Information laws were posted on The Australian’s website on 22 June, in line with the new provisions in the FOI Act whereby the department is compelled to make the same documents publicly available via its disclosure log within 10 business days.At the same time the Newcastle Herald reported that -
After concerns were raised by Campbell Newman’s office about the disclosure of private family information – unrelated to the article published on 22 June – The Australian, as a courtesy, removed the file from its website. Mr Newman, who has raised no concerns about the article, was originally consulted by Defence and allowed the release of the documents in their entirety, but is now reconsidering his position. The file on The Australian’s website will be reviewed once Defence has updated its disclosure log.
special forces soldiers fighting in Afghanistan could shun counselling after the psychological records of two commandos cleared over the deaths of civilians were taken by Defence prosecutors for use as evidence against them.
The Herald believes Defence Force investigators seized records of counselling the two men received before and after the event, in which six Afghan civilians - including five children - were killed during a disastrous night raid on a compound in February 2009.
Manslaughter charges against the two soldiers were thrown out by a military judge last month, and the military prosecutor announced last week that she would not lay further charges.
A number of Defence sources have told the Herald that special forces soldiers have been horrified to hear that the records were handed over, and that some have since said they will not see psychologists, in case their records are also used against them.
Civilian psychologists and medical doctors are obliged to hand over patient records when there is a legal obligation to do so, but they must be subpoenaed by the court. It is unclear what the process is within Defence.
It is understood that the prosecutors had the mens' psychological records for a year before telling the Defence Forces, but there was nothing the prosecution deemed relevant enough to use as evidence.
"If you come back from operations and you're feeling uncomfortable, you will hold that in, rather than go to the psychologists", one source said.
"That could be a problem, because you could be deployed on future operations without being counselled. If you don't report it, you could also have problems later making a claim with the Department of Veterans Affairs."
