Human Services in secret? Full FOI disclosures halve

By David Donaldson

Wednesday December 17, 2014

Full freedom of information disclosures at the Department of Human Services have halved over the past three years, according to research released by the Australian Information Commissioner Professor John McMillan.

The report, released on Wednesday, follows an own-motion investigation. It identifies “negative trends” in DHS processing of FOI requests between 2011-12 and 2013-14.

During that period, the department increased its use of the “practical refusal” mechanism in the FOI Act from 33 to 777 occasions. There was also a decline in the number of FOI requests to which access to documents was given in full, from 58% to 26% of requests.

And the report identified an increase in the number of applications for Information Commissioner review of the department’s access refusal decisions, from 49 IC review applications in 2011–12 to 95 in 2013–14.

Human Services receives more FOI requests than any agency aside from than the Department of Immigration and Border Protection.

The investigation made 13 recommendations around the need to promote a pro-disclosure culture, simplify the FOI experience for customers and improve administration of the practical refusal process. DHS has agreed to implement all 13 recommendations.

McMillan says a key finding of the investigation is that agencies need to focus on developing a pro-disclosure culture.

“I found that the department’s focus on improving its technical compliance with procedural provisions in the FOI Act had unintended consequences which are inconsistent with the pro-disclosure objectives that lie at the heart of the FOI Act,” he said.

“Agencies should have an internal culture and procedures that facilitate and promote prompt public access to information and at the lowest reasonable cost.”

The OAIC said it received complaints about the department’s change of approach to FOI. Among these was the National Welfare Rights Network, which charges that they can no longer obtain Centrelink information about their clients they had routinely accessed in the past, impeding their ability to assist their clients.

The report states that the reason for the change “in part is that changes occurred in how the department handles FOI requests since 2011–12, particularly large requests and requests involving third-party information”.

There were also some positive findings. In the 2014-15 reporting year so far, DHS says it has met statutory processing deadlines for 97% of FOI requests, despite an increase in the number of requests and no significant rise in staffing levels.

The department argues its new decisions and processes are more in line with the terms of the FOI Act. The old approach, it claims, meant a small number of requests took up a significant proportion of its FOI resources. The report continues:

“Nonetheless, based on the information obtained during this investigation, many of the concerns raised by the NWRN and other departmental FOI stakeholders are genuine. The department’s approach to FOI has caused an increasing number of its FOI customers to seek IC review of the department’s decisions or to make a formal complaint to the OAIC.

“The department’s focus on improving its technical compliance with the procedural, exemption, and consultation provisions in the FOI Act has, in the Commissioner’s view, had unintended consequences which are inconsistent with the pro-disclosure objectives that lie at the heart of the FOI Act.

“The department’s high reliance on the practical refusal mechanism in the act is also a concern, particularly when a practical refusal decision may preclude an individual from obtaining access to a high volume of information collected by the department that is relevant to a departmental decision that has a significant adverse impact on that individual.”

The report also warns that the slated closure of the OAIC and movement of the jurisdiction to undertake external merit reviews of FOI decisions to the Administrative Appeals Tribunal could lead to a decrease in access to information for applicants unwilling to pay AAT filing fees.

The commissioner acknowledges the positive approach taken by DHS during the investigation and in committing to implement the recommendations. “I am confident that by implementing the recommendations in the report the department can improve outcomes for its FOI clients, without losing the benefits gained by improving the technical and legal capabilities of its FOI unit,” he said.

“DHS receives the second highest number of FOI requests of any Australian government agency. However, the investigation findings should be heeded by all agencies. The FOI processing environment analysed in this report is not dissimilar to that in many agencies.”

New South Wales Labor Senator Doug Cameron has slammed the secrecy of the department. “The command-and-control structure in DHS, in my view, is just crazy,” Cameron said.

“You ask questions at [Senate] estimates and obviously lots come back trying to avoid the question but that’s not something new to the public service. But I did ask a question on the computer system and a complete cloak of silence was thrown over the issue. I was told I would get a briefing and when the briefing came they told me they couldn’t tell me anything.”

Cameron has urged Human Services Minister Marise Payne to play a more active role in developing a culture of transparency at the department.

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