Progress at last: Environment department begins to update non-compliant FOI log after 10 months

By Stephen Easton

Monday October 21, 2019

The Department of the Environment and Energy has added the first new entries to its freedom-of-information disclosure log since December, 2018, shortly after The Mandarin reported on its serious non-compliance with the federal legislation requiring releases to be logged within 10 days.

The first group of FOI releases from 2019 have been added to the DEE disclosure log, so now the newest entry is from March, 2019. The oldest is from January, 2018.

The department said last week its FOI team did not have enough resources to work through a huge backlog of releases that were not uploaded within the 10-day statutory deadline, while also dealing with its other FOI processing tasks amid a surge in applications and requests for review this year.

Acting general counsel Kate Lalor has also now written to the federal FOI regulator, the Office of the Australian Information Commissioner, to provide an update on the situation and what led up to it.

“We have, this week, commenced uploading document sets that will not need significant additional review for disclosure log purposes (i.e., documents that clearly do not contain personal or business information of FOI applicants),” Lalor told the OAIC on Friday.

“We will upload these progressively, and anticipate to have these sets uploaded to the log during the week commencing 21 October. We will then turn to the remaining document sets, with the intent of having all entries finalised by the end of October.”

Lalor says the department “accepts that its performance in relation to the disclosure log is not up to standard” and explains that part of the problem was an attempt to shift to “the best practice approach of publishing downloadable .pdf files” on the log.

“The changed approach was adopted because it gives the public access to the exact documents that have been released under the FOI Act, without the need to make a further application to obtain access,” she explains. “Unfortunately, the execution of the best practice approach requires a significantly more intensive effort to maintain the disclosure log, and our efforts to achieve this coincided with an unprecedented spike in the number of FOI requests received by this department.”

Lalor adds that “IT issues” delayed the upgrade to the log in late 2018 but have since been fixed.

“However, the primary cause of the delay has been the significant upsurge in the number of primary and internal review FOI requests lodged with the department. This has required FOI resources to be focussed on the critical task of responding to applications, and that has disrupted other FOI functions such as disclosure log maintenance.”

She says there were 237 “primary requests” in 2018-19 compared to 127 the previous financial year, and 60 new FOI applications between March and April, whereas “before that time” there were only about 15-20 new requests each month. Lalor also assures the OAIC that DEE is “taking steps to amend its processes” so that once its log is compliant, it will hopefully stay that way in the future.

The two portfolio ministers both ignored an opportunity to comment on the fact their department had, by its own count, failed to log over 10,000 pages of documents released to FOI applicants in 2019.

On Wednesday evening we sent a few questions along with last week’s article to the offices of Environment Minister Sussan Ley and the Minister for Energy and Emissions Reduction, Angus Taylor, but neither got back to us.

We asked the ministers how long they had been aware of the situation and if they considered it an acceptable state of affairs. We also asked Taylor and Ley whether they were monitoring the department’s struggle to return to compliance, whether they were satisfied with the steps being taken, and if they thought the department needed to devote more resources to FOI.

The DEE disclosure log is not the only non-compliant one in the Commonwealth public sector and the OAIC is trying to encourage all federal agencies to keep on top of their legal responsibilities to keep them up to date.

“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,” an OAIC spokesperson told The Mandarin, although the FOI regulator refused to comment on DEE’s ongoing non-compliance beyond confirming it had contacted the department to ask what was going on.

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

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