FOI officers named in parliament over disagreement

By Stephen Easton

June 23, 2016

Victorian shadow attorney-general John Pesutto has been trying to hold the government to its election promise to make freedom of information requests “quicker and easier” since last August. The public sector union wants him to leave individual FOI decision makers out of it.

Hansard records three occasions this year when Pesutto has named four specific public servants in parliament as winners of fake “FOI awards” after they made decisions he didn’t like.

It’s not unusual for politicians of the major parties to be much stronger advocates for freedom of information and government transparency through their words in opposition than their actions in government, for obvious reasons.

Nor is it uncommon to see examples of the exemptions and black-letter legal excuses to reject requests that regularly frustrate and disappoint those who request information from governments. Regardless of which party is in government, FOI officers sniff out the slightest whiff of reputational risk and err on the side of caution.

As of April, Pesutto said the Coalition had over 200 FOI requests yet to be resolved, holding up its efforts to criticise the government over its failure to pursue FOI reform.

“We want to expose to the Victorian people just what is going on inside ministerial offices and departments,” he said on the occasion of his first symbolic anti-award.

Leaving aside the argument itself — and any consideration of the likelihood that Pesutto, given the office of Attorney-General, would usher in a new dawn of transparency — calling out FOI officers for doing their jobs in the public service is bullying, according to the Community and Public Sector Union’s Victorian branch.

State secretary Karen Batt told Australian Associated Press the tactic was “reprehensible” as the individual FOI officers had no right of reply in parliament. Batt suggests the name-and-shame campaign is misdirected, going beyond the opposition’s legitimate role to critique the government and undermining a Westminster convention. Certainly, other aggrieved FOI applicants don’t have the option of putting pressure on individual public servants in state parliament when they don’t like their decisions.

In his brief statements, however, the shadow attorney-general has mainly attacked the decisions rather than goign after the decision makers on a personal level. He presented his complaints as examples of a wider problem with the handling of FOI requests that affects all applications, which the government recognised before it was elected but has so far failed to pursue.

Their naming seems unlikely to cause much significant or lasting harm — at federal level, FOI officers’ names routinely appear at the bottom of their decisions on public FOI disclosure logs — although the shadow attorney-general’s complaints could be taken to imply they are politically biased. But in any case, there seems little political value for Pesutto in calling them out.

‘Flimsy excuses’ threaten impartiality

Pesutto began sharply criticising Premier Daniel Andrews for not living up to the 2014 election promise since last August, around the time former freedom of information commissioner Lynne Bertolini chose to resign amid allegations of questionable expenditure.

Bertolini’s departure followed shortly after the resignation of assistant commissioner Rachel Westaway. Another deputy, Michael Ison, is still acting in the role and no legislation to speed up and simplify the FOI system from the applicant’s point of view has been introduced.

In March, the alternate attorney accused the Department of Education and Training of giving him “flimsy excuses” when it decided that responding to certain requests would take up an unreasonable amount of its resources.

In April, he gave his “award” jointly to two officers of the Department of Premier and Cabinet, one of which took three months to give an initial reply, to ask for clarification — which Pesutto said was a ploy “to start the clock ticking again” — and then another three months to get back to the applicant again.

But perhaps the first DPC staffer should have been the runner-up as the opposition front-bencher reserved most of his outrage for the second FOI officer, who bundled nine FOI requests from one applicant into a single one, then rejected it on the basis that it would, again, unreasonably divert resources:

“The nine requests … should not have been characterised as a singlerequest, as they relate to diverse, separate and discrete issues. Even if they could be characterised as a single request, they do not constitute an unreasonable diversion of resources for the department.

“Even if they did constitute an unreasonable diversion, the role of the opposition is to hold the government of the day to account. Such a transparently specious application of our FOI regime by ministers’ offices and FOI decision-makers is debasing the integrity of our disclosure framework.”

Last month, Pesutto targeted the Department of Health and Human Services, naming its freedom of information manager who said that searching through all email accounts within the office of the secretary would take too much time. From where he currently sits in parliament, the shadow attorney-general doesn’t accept that. “That is their job to do,” he fumed.

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