A shot across the bow: Home Affairs under investigation for persistent breaches of FOI Act

By Stephen Easton

Friday October 25, 2019

Information commissioner Angelene Falk has fired a warning shot at the Australian Public Service over transparency with the announcement that she is investigating the Department of Home Affairs over its persistent tardiness in dealing with FOI requests.

Home Affairs received 734 FOI requests last financial year, excluding requests for personal information, and failed to process 56% of those within the 30-day period required by the Freedom of Information Act, according to the Office of the Australian Information Commissioner.

The OAIC reports it has kicked off the investigation following a series of “FOI complaints and review applications” related to the department’s non-compliance with the 30-day timeframe in the legislation.

“There are provisions which allow for extra time in certain circumstances,” its statement adds.

The commissioner also spends more time reviewing FOI decisions made by Home Affairs than for any other department; there were 198 such applications last financial year. Next came the Department of Human Services, which was challenged over 104 of its FOI decisions. The next three in line, the Department of Veterans’ Affairs, Australian Federal Police and Department of Defence, all generated fewer than 50 requests for OAIC review.

Falk has also begun looking into compliance with another statutory timeframe in the act: FOI disclosure logs are to be updated with information about FOI releases within 10 days of the applicant receiving the documents. Non-compliance with that timeframe is also common. Home Affairs is also a serial offender in that regard, and last week The Mandarin revealed the Department of the Environment and Energy had failed to log anything from 2019.

A few days later new entries began to appear, and the department wrote to the OAIC to explain what had gone wrong; ironically the problems began with an attempt to upgrade the disclosure log to a best-practice model where anyone can directly download the documents. The department is still in the process of logging old releases from 2019; at the time of writing it had caught up to August.

“One of the objects of the FOI Act is to facilitate and promote public access to information, promptly and at the lowest reasonable cost,” the OAIC says in a statement.

“Under the FOI Act, the Information Commissioner may initiate an investigation into an agency’s performance of FOI functions or exercise of powers. Once the investigation is completed the OAIC will publish the outcomes.”

In recent years the OAIC has endured outright hostility from the government, faced criticism for not taking enough regulatory action in response to non-compliance with the federal FOI Act, and struggled to keep up with its own large and growing caseload as the independent adjudicator of FOI disputes and privacy complaints.

Coalition governments first tried to abolish the agency in 2013, then left it with minimal funding, and have steadfastly refused to appoint a full complement of three commissioners — the information commissioner plus one each for FOI and privacy — as set out in its enabling legislation.

Requests for Falk to review FOI decisions made in the public service have been on the rise for years; they have increased 82% since 2015-16.

The OAIC finalised 659 requests for reviews of FOI decisions made in the public service in 2018-19, compared to 610 in the previous financial year, but the average time it takes is also going up. The latest figures show the average FOI review by the OAIC now takes 7.8 months to complete.

Falk met a lot of KPIs in 2018-19 but did not hit the target of finalising 80% of FOI reviews within 12 months of receipt. The 2018-19 outcome was 73%, which the OAIC attributes to the growth of requests for review and a decision to focus on finishing up those that have already gone past the 12-month benchmark.

In cases where requests for FOI reviews can’t be resolved informally, the commissioner regularly overturns or varies the decisions made by agencies. In 2018-19 she made 60 formal rulings, and fully agreed with the agency’s decision in only 31.7% of those.

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