Complying with the Freedom of Information Act is a second-order priority for the Minister and the Department of Home Affairs, according to secretary Michael Pezzullo, who thinks his FOI team’s performance is “commendable” considering the limited resources it has to work with.
The secretary will not allocate more resources to FOI processing or ask for more from the government for that purpose, despite the Office of the Information Commissioner moving to investigate his department’s persistent non-compliance with aspects of the FOI Act.
It seems the minister sees no problem with the department’s repeated breaches of the legislation, in line with the Coalition government’s general disdain for the FOI system it is legally bound to follow, which has been plain to see since it came to power in 2013.
Pezzullo previously indicated he was happy with his department’s FOI performance in Senate estimates, only a few days before the OAIC announced its inquiry. He confirmed his view had not changed last week, during the Senate inquiry into press freedom and government whistleblowers.
“Do you expect the Information Commissioner to conclude that she is very impressed with the department’s performance in this area?” asked opposition senator Anne Urquhart.
“I have no idea. You’ll have to ask her,” replied the Home Affairs boss, who later said he would cooperate “fully” with the OAIC.
If the secretary does ask for more funding, it will be for the department’s core functions. He will neither request more resources for FOI processing nor allocate more from the existing budget.
“If I were to shift any resources anywhere, they would go into the protection of children, including in relation to abhorrent activities on the dark web; countering foreign interference; cyberprotection of our critical infrastructure; and so on and so forth,” Pezzullo said.
“In those areas, I would seek additional resources from the government, and I think the business case would stack up substantively and substantially.
“Were I to ask for resources in relation to the processing of FOIs, given budget operating rules, I expect the government would say, not unreasonably, ‘You need to re-prioritise and afford those resources to that function as you see fit, but you will be not be getting additional resources.'”
Urquhart noted Home Affairs Minister Peter Dutton had repeatedly said “nobody is above the law” in reference to journalists being charged after receiving and handling classified information, and hoped to make the point that the department seemed unconcerned about its own repeated breaches of the law with respect to transparency.
“Given the context around that, have you or other senior officials of the department been reprimanded, spoken to or whatever by the minister for your department’s failure to comply with the freedom-of-information laws?” she asked Pezzullo.
It seems Dutton is not worried about that particular law either. Perhaps it is only the criminal law which nobody is above, in the minister’s view, but compliance with administrative legislation for the public service is more optional, and dependent on other priorities.
Examples of non-compliance with the FOI Act are very common at federal level and the signal from government is that this is no problem, even in the most serious cases. After The Mandarin reported the Environment Department had been breaching the act for 10 months, both portfolio ministers considered the issue so unimportant they ignored the opportunity to make even a cursory statement.
Since 2013, the federal government has made it clear that it sees its obligations to transparency through the FOI system as excessive, a view which many senior public servants are happy to agree with. Having failed to abolish the OAIC early on, then put the agency on a starvation diet and failed to appoint the full complement of three commissioners it is designed to have, it appears the Coalition sees the FOI act as a waste of time and money.