The Department of the Environment and Energy has been breaching the FOI Act for 10 months now

By Stephen Easton

Wednesday October 16, 2019

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The Department of the Environment and Energy has been in breach of the Freedom of Information Act for almost 10 months.

That’s how long it’s been since it updated its disclosure log, where it is required to list FOI releases within 10 days of the applicant receiving them. Federal departments routinely fail to meet this requirement but, by volume, DEE is by far the most serious example of non-compliance.

As of August 22, 75 releases containing over 10,000 pages had been released under FOI since the log went dark, according to a letter from acting general counsel Kate Lalor, published on the Right to Know website.

For example, those documents would include information received by The Guardian, which has been looking into whether the Minister for Energy and Emissions Reduction Angus Taylor and Treasurer Josh Frydenberg intervened in a departmental investigation of alleged illegal land clearing by Jam Land, a company in which Taylor and some of his relatives hold financial interests.

Lalor refused an applicant’s request for all of the unlogged FOI releases on the basis that processing would “substantially and unreasonably divert” departmental resources, and because they would soon become publicly available. The log would be updated shortly, she said.

Lalor said the department had a backlog of FOI releases to upload but had “taken steps” to work through it and would continue to do so. “It is anticipated that documents will continue to be uploaded on to the disclosure log in tranches over approximately the next month.”

That was two months ago. The log still only covers January to December, 2018.

The applicant, JS, declined the opportunity to revise their FOI request. They also noted the department had tried to improve its FOI log in October 2018, by including direct-download links to the documents, and there wouldn’t be a problem if this update had been successful.

“It is hardly reasonable for the department to conclude that a ‘practical refusal reason’ exists when in fact that reason exists because of a failure by the department to comply with the FOI legislation,” JS argued. Lalor was not moved by this argument and again asked for patience, assuring JS on September 17 that the department was, as she said the previous month, “taking steps” to get through the backlog. JS asked for an internal review of the refusal and the decision is due on November 7.

Several months ago, The Mandarin understands an FOI officer from DEE told another person who asked about the log that it would be back up to date in June. Earlier in October, we found out an extra staff member had been assigned to help work through the backlog.

Multiple people who have queried the vacant disclosure log, including JS, got the impression that technical problems were to blame through their enquiries but the department has not put a clear excuse in writing anywhere. It told The Mandarin today it just “has not been in a position to update its disclosure log for decisions made after December 2018” because it had insufficient resources.

“This is as a result of a significant upsurge in the number of primary and internal review FOI requests lodged with the department, which has required the department to prioritise its FOI processing resources towards the critical task of responding to primary FOI requests,” a spokesperson said.

“Although FOI request numbers remain at historical highs, the department is taking steps to reduce the backlog in uploading documents, such as hiring additional staff specifically to support our FOI functions, including the disclosure log. The department intends to bring its disclosure log up to date as soon as possible.”

Failure follows attempt to improve FOI practice

Coincidentally the log went dark right after the attempt to make FOI releases available for download in October 2018. A lot of federal agencies only list basic information on their disclosure logs and expect anyone else who wants the documents to request them a second time, and it appears DEE was aiming for better practice, a move commended by JS in their request.

The Right to Know site has plenty of examples of applications that are not targeted at specific documents but are more about taking a stand. JS wants highlight DEE’s longstanding non-compliance with the FOI act and argues this, and its refusal to provide all the missing documents at once, “has stymied the objective of the FOI Act to promote a pro-disclosure culture across government and to increase recognition that information held by government is a national resource”.

The correspondence with JS also refers to another keen applicant, Posty, who contacted the department on New Year’s Day this year asking for copies of every FOI release that could not be downloaded directly. Posty argues the common practice of only making them available on request “displays complete disregard of the spirit” of the FOI act.

Posty was delighted to get a reply the very next day saying the site had been upgraded “to enable documents released in 2018 to be downloaded directly” and that, although there were technical problems, it would all be sorted out within 30 days.

Documents released in 2018 did become available for download, to be fair, but none from before or since that year.

Posty’s January 2019 request was refused, due to the time it would take to collate all the documents in scope and because they would soon be downloadable. The applicant hasn’t updated their Right to Know post since February, when they judged they had received only “some of the information” they asked for.

FOI regulator plans ‘desktop review’ of disclosure logs

The Mandarin asked federal information commissioner Angelene Falk, the FOI regulator, a few questions about the matter and received a guarded response. Falk’s spokesperson said she had “recently become aware of the issue” with the DEE log but would not be drawn on when the commissioner found out.

The Office of the Australian Information Commissioner has contacted the department “to ascertain the reasons behind the absence of entries for 2019 on the department’s disclosure log” but would not discuss any detail of those reasons.

We asked if the commissioner accepted the department had a reasonable explanation, and if she was monitoring its efforts to return to compliance. We also asked what regulatory action Falk could take to encourage compliance in a case like this, whether she had taken any already, or if there would come a time when she would. It seems she isn’t sure at this point.

“We are planning to conduct a desktop review of agency disclosure logs this year, and the report from that activity will inform any future regulatory action on the matter,” the OAIC spokesperson said.

The commissioner also declined to express an opinion on whether the situation with DEE’s log was acceptable, or comment on how long an FOI log could reasonably sit idle.

The OAIC aspires to take a closer look at federal FOI disclosure logs this year and whether agencies are meeting their obligations under the legislation, while it struggles with its own backlogs of privacy complaints and FOI appeals. This was flagged in the commissioner’s corporate plan, and a recent speech she gave to FOI officers for Right to Know Day.

“Disclosure logs are an important element of the FOI system, complementing the Information Publications Scheme, and consistent with taking a pro-disclosure approach,” the spokesperson added.

“Agencies must have regard to the FOI Guidelines which provide information and guidance on the interpretation, operation and administration of the FOI Act including in relation to the disclosure log. This detailed information is available on the OAIC’s website.”

Meanwhile, the Department of Defence’s FOI team was forced to retreat from a storm of criticism last week that demonstrated the growing disquiet about the decline of federal government transparency in recent years, after it quoted SBS $2,515 to process a request for the cost of the minister’s recent overseas travel. It later reduced the fee to zero, after first informing the journalist it would take 45 hours of searching and 97 hours of deliberation.

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