Australian Conservation Foundation audit of FOI requests finds environment minister, dept & agencies stifling access

By Chris Woods

Friday January 15, 2021

Australia’s flagship environment program will be subject to a new review into its effectiveness
Australia’s flagship environment program will be subject to a new review into its effectiveness. Environment minister Sussan Ley (AAP Image/Lukas Coch)

New analysis by the Australian Conservation Foundation (ACF) has found that environment minister Sussan Ley refused outright 39 freedom of information requests in the last financial year, while granting just one in full and three in part.

The audit Access denied: How Australia’s freedom of information regime is failing our environment examines government FOI data, as well as more than 100 FOI requests made by ACF, over the past five years.

It is one of the first major pieces of research to look at freedom of environmental information in Australia, and reveals an increase in refused FOI requests, more redactions, higher charges and longer delays for access to government documents. It found:

  • Refusal rates are rising along with the use of exemptions to prevent information from being released: Over five years, the percentage of FOI requests refused outright by agencies with an environment-relevant portfolio increased by nearly 50%, while the percentage of requests released in full nearly halved.
  • Delays have become routine, with more than a third of the decisions on ACF’s requests not being made by statutory deadlines: More than a third of ACF’s requests were fulfilled late, with 60% late by a month or more and 39% overdue by more than two months.
  • Environmental agencies are among those charging the most for FOI requests: Between 2015 and 2020, the average amount charged per request for environmental portfolios ($36.58) was double the average cost for all requests across government ($18.52); ACF further alleges this is despite environmental agencies processing relatively few requests, in proportion to the charges they levy.
  • Government appears to be using lengthy review processes as a tool for denying access to information “when they should be a rarely used check”: Of 18 information commissioner review decisions relating to environmental information since 2015, only 39% were affirmed while 61% were amended.
  • Some agencies and offices take advantage of “grey areas” in legislation and guidelines to avoid releasing information: ACF found six instances of new ministers denying access to documents relating to a former minister, all occurring in the last two years, while some offices have outright refused to process relatively simple requests for emails or messaging service records.

ACF’s democracy campaigner Jolene Elberth emphasises that access to public information is crucial to the group’s work of “protecting the natural world against harmful or corrupt decisions,” and slams what she calls “fundamental flaws in the regime that is supposed to facilitate open and transparent government in Australia.”

“This has serious ramifications for efforts to tackle the climate crisis and protect Australia’s unique wildlife and precious natural ecosystems,” Elberth says. “All parliamentarians and observers who care about the transparency of Australia’s democracy should be concerned by these figures.”

“It’s time for Australian governments to lift the veil of secrecy from information and decisions we all have a stake in.”

Ley’s office did not respond to questions before deadline, but a spokesperson has told The Sydney Morning Herald the minister had “complied with statutory time frames and guidelines for all FOI requests since taking office in 2019”.

Politics, resourcing and resignations: Why environment departments are rebuffing FOI data

The report begins by citing the two major reviews into the federal transparency laws from the past decade — the 2013 Hawke inquiry into FOI laws, which found it was too early to assess 2010 reforms; and a 2017 Australian National Audit Office investigation into the Information Commissioner’s operations in respect to the departments of the Attorney General, Social Services and Veterans’ Affairs, which found an increase in exemptions over five years prior to the report and an increase in review applications (and increased substitution of decisions) — as well as failed amendments from Senator Rex Patrick in the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018.

Broadly, the ACF points to two fundamental, high-level problems with Australia’s FOI system: one, resourcing at the Office of the Australian Information Commissioner, which faced defunding under the Abbott government in 2015 and, despite survival, has not seen funding fully restored; and two, cultural and political issues, with Elberth telling The Mandarin that “the absence of proper training, guidance and resourcing leave the FOI Act vulnerable to inconsistent interpretation [that] makes it possible for a culture to develop in which secrecy can grow and even become the default position”.

“On delays, we appreciate that government agencies have limited resources and often are dealing with multiple requests,” Elberth says, highlighting that while the environmental non-profit agrees to nearly every extension request they receive, delays in the report “have occurred outside the extension process and more often than not come with little explanation”.

“On costs, we usually do not receive explanations for charges, other than a subjective calculation of the time spent on various parts of the process. For example, the Department of Industry, Science, Energy and Resources once advised that it would take five hours ‘search and retrieval time’ to locate four emails.”

To identify long-term trends and failure points, the report examines data from the past five years provided by ministers and federal government agencies to the OAIC, i.e. an increase in exemptions relative to both requests determined and number of documents where no exemptions were claimed.

For greater depth the ACF also examines 109 FOI requests it made over the same time-frame, including requests to state and local governments as well as federal ministers and agencies. Other sources include FOI disclosure logs published by the Department for Agriculture, Water and the Environment; the Department of Industry, Science, Energy and Resources, and the Department of the Prime Minister and Cabinet, as well as Information Commissioner review decisions database and OAIC annual reports.

On top of the major findings highlighted above, the audit unpacks rejections and exemptions of ACF requests by agency, i.e. a massive discrepancy in exemptions as percentage of documents between the Clean Energy Regulator (159%) and the Department of Agriculture, Water and the Environment (49%). 

Both bodies used discretionary “public interest conditional exemptions” at roughly the same rate (79% and 84% respectively), meaning CER more frequently decided that “conditionally exempt” information was not in the public interest, a distinction ACF suggests could be down to differences in guidelines or cultural understandings of “public interest”.

ACF does not dig into the 39 requests rebuffed by minister Ley across the 2019-20 financial year — that statistic is just drawn from government data — but notes the number of requests, 43, was significant in that the office typically receives less than 10 requests per year.

The report also provides five case studies from the ACF’s own experiences:

  1. A 2019 request for information on a proposal to give carbon-reduction credits to coal-fired power plants saw the decision-maker use the s47C (deliberative matter) exemption to refuse access to some documents, and extensively redact others, claiming the information did not inform a debate of “public importance” or help oversee public expenditure.
    • ACF labels that conclusion “farcical for many reasons” — “The records we requested were at the heart of a regulatory plan — not ordinarily subject to direct parliamentary scrutiny — which would put taxpayer money in the pockets of polluters” — and referred it to the OAIC in March 2019 (which accepted the case by, 21 months later, has not allocated it to a case officer).
  2. Following a January 2020 request for reports written by the Department of Industry, Science, Energy and Resources about “National Inventory Reporting by other countries that mention changes to historical data or Japan/Canada”, the department refused access to all 15 documents because parts of the document contained “opinions” and “confidential information” about Australia’s analysis of other countries’ climate change commitments.
  3. Seven of eight requests by the ACF in 2019 for documents “relating to decisions and operations of Australian Renewable Energy Agency, the Clean Energy Regulator, the Emissions Reduction Fund, and companies funded through these schemes” were refused, and all decisions were delayed over a period of several months; notably, three refusals relied on a “problematic loophole in the FOI Guidelines that enables new ministers to refuse access to documents simply because they are new to the job.”
    • The National Archives, which is meant to receive documents from an outgoing minister where they cannot be obtained for 20 years, has confirmed it has not received any documents from Melissa Price relating to her time as environment minister.
  4. After New Hope Coal helped instigate a government backlash against “secondary boycotts” of fossil fuel projects, ACF made a request to the Office of the Minister for Resources and Northern Australia (who was Matthew Canavan at the time) on November 2019 for access to “a record of any meetings or phone calls held between the resources minister or his advisers and representatives of New Hope Coal (including its lobbyists) between 1 September and 1 November 2019.” The office advised ACF a week later that six documents were identified in the request and third-party consultation was required for at least one of these documents; they were then given an extra 30 days to proceed with the request and did not respond until, on 3 February, Canavan resigned from the portfolio; while the documents were allegedly “sitting with Canavan’s chief of staff, who was the decision maker”, ACF was informed the request could no longer be finalised because of Canavan’s resignation.
  5. Zero FOI requests issued September 2019 to the offices of ministers Dutton, Taylor and Canavan and assistant minister Seselja for records of inbound communication between 6–24 August 2018 by telephone, SMS, WhatsApp and Signal services were granted. Minister Dutton’s office responded that none of the applications were installed on his department issued phone, and no documents could be found, while minister Taylor’s response came via the Department of Home Affairs and stated that no documents could be found and that billing records showed no calls or messages were made from either Dutton or Taylor over the 18-day period.

In another example ACF argues showed “a lack of good faith engagement with the FOI Act and its principles”, the organisation lodged a request in April 2019 for a list of meetings (plus the agenda, minutes and any additional documents produced) across five days between the prime minister/his advisors and any persons regarding the Adani-Carmichael mine.

Two months after deadline, the Prime Minister’s Office dubbed the project too onerous to proceed, before concluding after two refined requests — and 118 days after the statutory deadline — that the documents did not exist.

Recommendations and reflections

Reflecting on the report with The Mandarin, Elberth emphasises the group does not blame the public service and appreciates “the vast majority of public servants do their best to interpret and administer the Act fairly and consistently.”

“Public servants have had years of working with constrained resources, the nature of information changing rapidly and a series of governments that have made numerous controversial environmental decisions,” she says. “Our advice is to do the FOI training, be frank and fearless and foster a culture of transparency.”

“Proper training, guidance and resourcing would make it easier for public servants to animate the FOI Act and would lessen the potential for political interference.”

Finally, ACF has proposed ten recommendations, 1-7 of which it calls on to be enacted immediately while 8-10 are long-term:

  1. The Morrison government should ensure the OAIC is staffed with three separate officers to perform the three separate functions: an information commissioner, a ‘freedom of information’ (or ‘transparency’) commissioner, and a privacy commissioner. Having one person undertake all three roles is unrealistic and arguably unconstitutional, and reduces the effectiveness of all three functions. The separation of roles must be made clear and unambiguous.
  2. The OAIC should investigate negative trends in the outcome of requests for environmental information, or at least into particular agencies like ministerial offices or the Prime Minister’s Office. The Information Commissioner is already empowered to launch commissioner-initiated investigations (CIIs) to investigate agencies for their handling of FOI requests. However, between 2018–2020 the OAIC has only opened two investigations related to FOI, in comparison with 34 privacy-related CIIs (OAIC annual reports 2018–2019 and 2019–2020). They should exercise their power under the FOI Act more consistently to enforce adherence to the statute’s function. Their responsibilities do not begin and end with the Privacy Act alone.
  3. The Attorney General should amend the FOI regulations to increase the amount of ‘complementary hours’ for the purposes of determining charges, so as to compensate for staffing difficulties and prevent unreasonable financial deterrent effect against applicants.
  4. The Attorney General should also amend the FOI regulations to mandate that decision makers must specify what search terms they entered into their digital systems (including Boolean operators) and which systems were searched to retrieve documents. This is a relatively straightforward obligation that has already been recommended at a state-level and is currently practiced by the Western Australian government. It can ensure that, if an office has not released any documents because they claim no relevant documents exist, the applicant can check the search terms to ensure an appropriate and reasonable search was actually conducted.
  5. The Information Commissioner, in consultation with departments and other stakeholders, should develop stronger guidance on the recording of official information held in non-official systems, email accounts and devices. This is particularly important amid increasing use of WhatsApp and other mobile devices by ministers to conduct the business of state.
  6. Resourcing and budget decisions across all sectors of government must be designed to ensure current FOI KPIs are actually being met. Federal government should use its executive authority to boost resourcing (funding and staff) for the transparency wings of its offices and agencies as required.
  7. All agency heads should make AGS training compulsory in order to receive delegate status to process FOI requests. Without mandatory training, there is no cohesive culture of transparency and no standardised approach to implementing transparency laws.
  8. Long-term recommendations: Parliament should conduct, in consultation with interested organisations or parties, an inquiry into transparency law. The terms of reference should include, but not be limited to:
    • Changing nature of information (need a legislative review process and a flexible regime)
    • WhatsApp/phone use
    • Examining compliance options, for example, by looking at provisions in other foundational legislation for public service decision making to strengthen provisions and accountability in the FOI Act
    • Content of the AGS training on FOI delegation should be reviewed and updated
    • Giving OAIC standing to engage parties above its own jurisdiction
  9. The inquiry’s final recommendations should be legislated as efficiently as possible.
  10. The states and territories should adopt a uniform transparency regime, similar to the Uniform Evidence Acts, which standardises FOI procedures and obligations. This should also take into account the inquiry findings and any other expert reviews into transparency law.

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