This is a blogified version of a tweet thread I did about the finalisation of a complaint I made to the Office of the Australian Information Commissioner about the conduct of the Department of Human Services (now Services Australia).
Here begins a thread on my complaint about how DHS handles #FOI requests that I made way back in March 2017.
“The FOI complaints each raised numerous allegations relating to the Department’s processes for handling requests for access to documents made under the #FOI Act.”
Indeed we did.
“Many of the allegations overlap between the complaints and each of the complainants alleged that their right to access information under the #FOI Act was delayed by the Department’s approach to processing their FOI requests.”
“One of the objects of the FOI Act sets out that Parliament intends that functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”
“The investigation of the complaints concluded that the Department did not, in certain aspects of the FOI process in relation to those matters, exercise its functions in such a manner to support that object.”
“This included the interpretation of the scope of FOI requests, the practical refusal consultation process, the imposition of charges, the transfer of requests, the maintenance of the disclosure log and provision of documents under the disclosure log.”
There is a summary of the findings, but you want to dive into the delicious details with me, right? Of course you do. Let’s go!
“these investigations focused on nine broad issues which related to the actions taken by the Department in the performance of its functions or the exercise of its powers under the FOI Act.”
Issue 1: Approach to the interpretation of the scope of FOI requests
“the Department appeared to take a narrow interpretation of the scope of the complainant’s FOI requests”
and
“it did not appear that the Department took into consideration clarifying statements made by the complainant in his request for internal review”
“I consider that the Department could have taken into consideration the complainant’s clarifying statements at the internal review stage and to do so would not have been unreasonable.”
Me: 1, DHS: 0.
“The Department rejects the serious allegation that it takes an approach to the interpretation of FOI requests that is intended to obstruct access to documents.”
“I draw the Department’s attention to the series of recent Information Commissioner decisions issued in June 2019”
This is lawyerese for “Really? You’re honestly going to try this on?”
“I note that these decisions highlight that the Department’s narrow approach when interpreting FOI requests is inconsistent with the objects of the FOI Act”
“I note that the Department has since advised the OAIC that it has amended the Department’s FOI manual to include further guidance on the importance of adhering to a flexible approach when interpreting the scope of a request”
Me: 2, DHS: 0.
OAIC also noted that DHS had an internal 10 day period “to assist an applicant to make a valid request under the FOI Act” but that “there was no legislative basis for the approach”
DHS seems to like trying to invent its own unlawful rules.
“I reiterate the preliminary observation’s commentary and note that my office will be monitoring this practice.”
OAIC thus made Recommendations 1, 2, 4, and 6 related to this. I’ll cover the Recommendations altogether at the end.
Issue 2: Approach to processing FOI requests relating to the OCI System
“The complainant alleged that the Department delayed the processing of FOI requests related to the OCI system resulting in the inability of the media to report on matters which were significant to the Australian community.”
“the Department submitted that there was no specific process for FOI requests received from journalists. The Department however, acknowledged that there are two teams which process FOI requests in the Department”
Basically, one for #FOI for personal information, and another one for ‘complex’ requests, which is the “FOI Legal Team” I’ve seen on all my requests.
“All FOI requests subject to these investigations were processed by the ‘FOI Legal Team’.”
I note that you’d expect that the ‘complex’ FOI Legal Team should be the best DHS has to offer, and should thus be the people most well-versed in #FOI law and its procedures.
“The preliminary observations provided to the Department during the course of these investigations noted that the Department treats all requests from journalists as ‘significant’ and has a different procedure for processing such requests”
DHS reckoned it was because requests from journos “are typically more complex in nature and ‘require more liaison with stakeholders and other impacted third parties’.”
“While the Department’s actions were not unlawful, the cumulative application of the number of mechanisms which stopped the statutory processing period meant that access to information was not provided promptly.”
This was in relation to a journo’s request for “the most recent cost benefit analysis of the Centrelink Data matching/debt recovery scheme” and docs about staff feedback/complaints/concerns about data matching and debt recovery.
[I’m not naming/tagging the journo because I haven’t asked for their permission to do so.]
“In this situation, I consider a phone call to the complainant to discuss the scope of the request would have been sufficient to confirm […] that the data matching scheme in which she referred to was in fact the OCI system”
Imagine that. DHS don’t seem to know how to work a phone.
For another, similar request, DHS used s 24AB, s 27, and s 29 of the #FOI Act to extend the processing time from the 30 day statutory period “to a period of 105 days.”
“Such an approach runs counter to achieving the objects of the FOI Act” in terms of timeliness and lowest reasonable cost.
Me: 3, DHS: 0.
Recommendations 1, 2, 4, and 6 are relevant for this issue.
Issue 3: Compliance with s 24AB of the FOI Act
Basically we all complained that DHS didn’t comply with s 24AB. Constantly.
This is the “practical refusal reason exists” section 24: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/foia1982222/s24.html
If your request could get rejected, you’re supposed to be consulted so you can try to make the request tractable so it won’t get refused. #tljr
This is called a “request consultation process” and it is legislated in s24AB: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/foia1982222/s24ab.html
Remember that time, in ages past, when I didn’t know anything about s 24AB, or indeed any of the sections of the #FOI Act, because I didn’t need to?
“The FOI Guidelines, which the Department must have regard to, provide that an agency or minister should adopt a flexible approach as to how an applicant may contact them.”
When they’re going to refuse your request they’re supposed to provide, among other things, the “name and contact details with whom the applicant can contact to discuss the request”
DHS stubbornly refused to put even a name on these things, and definitely didn’t provide a phone number to call. They only started putting a single, pseudonym on them a year or so ago after being ordered to.
Oh look, it was one of my IC review cases: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AICmr/2019/22.html at [20].
Me: 4, DHS 0.
“in each case the Department asserts that this did not ‘deprive’ the complainants of the ability to consult with the Department as they were able to email the Department through its generic FOI team email address during the consultation process”
Yeah nah.
DHS “took no steps to follow the procedure set out in its FOI manual to contact the applicant informally by telephone or email to discuss the scope of the request before initiating the formal request consultation process”
DHS acknowledged that s 24 AB “does not prevent an agency from informally consulting with an applicant where appropriate” but “there is no requirement under the FOI Act for this to occur”.
Basically, DHS won’t do stuff unless it’s forced to, and we’ve seen that “it is legally required that you do this” isn’t what they consider being forced.
“In all cases, the Department maintained it had provided reasonable assistance to the complainants during each consultation process.”
That would be because they’re mendacious shitlords.
OAIC responds “the Department should consider including in consultation notices the direct contact details of contact persons”
And then, in a separate paragraph for emphasis:
“It is a legislative requirement to have the name and contact details of the contact officer in the consultation notice.”
This is lawyerese for “put the fucking phone number in you cretins”
We now move to a request I made where DHS played stupid games with the consultation process. It was this one: https://www.righttoknow.org.au/request/risk_governance_and_oversight_of_2
I tried to revise the scope, and DHS left it to the last day of the statutory consultation period to respond, asking for an extension. I said no same day, so they sent a notice asking me to revise the scope at 7pm on that last day.
I responded 2 days later, and DHS said my request was “deemed withdrawn” because I didn’t respond between 7pm and midnight to an #FOI request they did nothing with for weeks on end.
“it is imperative that […] the agency is to respond in a timely fashion and provide as much information as practicable.”
“Provision of information after business hours on the last day of the consultation period undermines the consultation process.”
Me: 5, DHS 0.
Recommendations 1, 4, 6, and 7 related to this issue.
Issue 4: Combining FOI requests under s 24(2) of the FOI Act
[This wasn’t something I complained about, but hey]
“The Department acted inconsistently with the objects of the Act in the matter of LEX 31118 when it combined the complainant’s FOI requests and took the date of the final request as the commencement of the statutory processing period.”
“The complainant’s right to access information was delayed without authority.”
That’s pretty unequivocal.
I won’t score myself a point here because this wasn’t an issue I’ve claimed, but the other complainant gets a point, and DHS is still on zero.
Issue 5: Imposition of a charge
“The complainants allege that the Department did not take into consideration the public interest in the information requested when deciding to impose a charge.”
“In response to the preliminary observations, the Department submitted that when it makes a decision to impose charges it takes into consideration the public interest factors as set out in the FOI Guidelines.”
These requests were about the OCI system which “affected a large proportion of the Australian community and the requests related specifically to non-personal information”
“I consider it reasonable for the Department to have elected not to impose charges in response to the FOI requests on the basis that the documents at issue could inform public debate on the implementation of a government policy.”
Which is what they did not do.
“The Department did not sufficiently take into consideration relevant public interest factors when deciding to apply charges where the documents released could be used to inform public debate.”
Me: 6, DHS: 0.
Recommendations 1, 4, and 5 relate to this issue.
Issue 6: Payment of charges
“The complainant alleges that the Department’s processes for receiving payment of charges via cheque or money order is outdated and acts as a disincentive to FOI applicants.”
This was another of mine.
“Where a charge is justified, it would be in keeping with the objects of the FOI Act to ensure that the method of payment should also facilitate prompt access to the documents.”
‘ND’ and Department of Human Services (Freedom of information) [2017] AICmr 119 (20 November 2017) at [25]
“At the time the complaint was made Department’s methods of payment were inconsistent with the objects of the Act, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”
Me: 7, DHS: 0.
DHS has since started accepting payments via credit card using some weirdly archaic portal from the Reserve Bank of Australia.
Issue 7: Disclosure Log content
“The complainant alleges that the Department does not maintain the disclosure log as required to do so under the FOI Act.”
Indeed I do.
“Subsection 11C(3) of the FOI Act requires an agency to publish information that has been released in response to an FOI request to members of the public on a website, subject to a number of exceptions set out in s 11C(1) of the FOI Act.”
FREEDOM OF INFORMATION ACT 1982 – SECT 11C Publication of information in accessed documents
“Subsection 11C(6) requires an agency to publish information within 10 working days after the FOI applicant is given access to the information.”
Here’s what this means: When info is released under #FOI, within 10 days the same info is supposed to be published “to members of the public generally on a website” so everyone can see the info.
There are some (perfectly reasonable) exceptions for personal information, stuff that’s been determined would be unreasonable, etc. but basically everything should get published on what’s called the FOI disclosure log.
Now, the actual info itself is supposed to be published there, not just the fact that it was published, so anyone can just download it themselves. But some info is very large, and this section was pre-NBN, so we needed an alternate mechanism for getting, e.g. videos.
Which is what s 11(3)(c) is supposed to be for: if it’s not practical to publish the actual doc, tell people how they can get the info. Back then it might have been how to ask for them to mail you a DVD or something.
Now a bunch of mendacious shitlords at various agencies have used s 11(3)(c) as a loophole to avoid disclosing information. They put something like “email us to get this info” and then it takes another 30+ days to get.
The explanatory memorandum for the Bill that added this “publish on a website” made it very clear that s 11(3)(c) was only supposed to be used for material that was impractical to publish under (3)(a) or (3)(b). (Sorry, can’t quickly find the link) [I found it later. It was this: Explanatory Memorandum to the Freedom of Information Amendment (Reform) Bill 2009]
“The preliminary observations noted that the Department’s maintenance of its disclosure log by providing links to documents is inconsistent with the objects of the Act.”
Yep.
Also “They found no legal basis for the Department’s application of a 30 day processing period to provide documents held on the disclosure log.”
DHS helpfully provided a list of other agencies using this mendacious trick:
“the Attorney-General’s Department, the Department of Agriculture and Water Resources, the Department of Veterans’ Affairs, …”
“the Department of Education and Training, the Department of Jobs and Small Business, and the Australian Taxation Office.”
They’re all trying this on.
OAIC responds:
“I consider that it would be consistent with the objects of the FOI Act that, unless it is not reasonably practicable to do so, documents should be made directly available for download from a website”
Ah, the explanatory memorandum I was looking for is “The Explanatory Memorandum to the Freedom of Information Amendment (Reform) Bill 2009” http://www5.austlii.edu.au/au/legis/cth/bill_em/foiab2009381/memo_1.html
Also DHS whinged about having too much work to do.
“The Department responds to disclosure log requests as quickly as practicable, having regard to its resources and FOI processing workload.”
OAIC said
“Given the Department’s submissions about its workload, the Department should consider whether it would be a more efficient process for the Department to make the documents available directly from the disclosure log on its website”
Translation: stop hitting yourselves.
Recommendations 1, 3, and 5 related to this issue.
Issue 8: Transfer of requests to the Minister’s office
[Also not one of mine]
“Section 16 of the FOI Act provides that an agency or minister can transfer a request to another agency or minister where the documents are not in the possession of that agency.”
“The Department did not seek to transfer the FOI request where it appeared to be appropriate to do so and the Department did not have any guidance for FOI officers in its FOI manual on whether it is appropriate to transfer requests”
Recall that these are the best FOI people DHS has.
“The Department did not have sufficient guidance in its FOI manual in relation to transfer of requests under s 16 where a revised scope has been provided by the applicant with the assistance of the Department.”
Recommendation 5 relates to this issue.
Issue 9: Delays in the provision of documents
[Also not something I specifically complained about]
“Once a decision has been made to give an applicant access to a document under the FOI Act, access should be given as soon as practicable, subject to the payment of applicable charges and the expiry of any relevant third party review rights.”
For this specific case “At the time of the decision, the Department advised the complainant that the documents were ‘being prepared’ and would be provided to the complainant ‘shortly’.”
“The Department provided the complainant with the document released under this decision 14 days later on 28 August 2017. The document at issue consisted of a single page.”
DHS said ss 11 and 11A “do not state the timeframe within which documents must be release[sic] to an FOI applicant” and whinged about their workload again.
DHS may have also complained that their dog ate their homework, and also their grandmother died again, but I can’t confirm this.
“The Department’s delay in providing access to the document released in LEX 30854 without reasonable explanation was contrary to the objects of the FOI Act.”
Recommendation 5 is made here.
The Recommendations
Let us now turn to these recommendations to see what OAIC has told DHS to do…
“I acknowledge that the Department’s processes may have been further reviewed and revised since the provision of the Department’s submissions to the OAIC and that the Department’s processes and practices, in relation to these complaints, may therefore be historical.”
That tends to happen when you take two and a half years to process a complaint, OAIC.
“The purpose of my recommendations[…] are to conclude the complaint investigations and ensure the Department meets its obligations under the FOI Act, including that the Department’s current and future processes and practices are consistent with the objects of the FOI Act.”
“This is particularly important, given the volume of FOI requests processed by the Department, on average 6635 FOI requests per year, which places it second behind the Commonwealth’s largest recipient of FOI requests, the Department of Home Affairs.”
I want to add my own emphasis here. DHS has a huge admin budget. Many millions of dollars. It is a massive department.
This FOI team is supposed to be DHS’ best. They see a lot of #FOI requests, so they’ve had *lots* of practice. They also affect a lot of people’s lives.
And yet they’re still this terrible at their job.
Two reasons are possible: the management in charge of FOI at DHS has utterly failed in their task, or they have set out to deliberately violate FOI law.
My opinion, based on available evidence, is that the people in DHS are not stupid or incompetent. I believe the way DHS functions is deliberate.
I am sure there are pockets of incompetence, as there are in all large organisations of humans. But these failures all fulfilled a singular goal: restrict access to information about what’s happening in DHS.
I do not believe this is a coincidence or an accident.
Anyhow, let us return to the specific recommendations.
Recommendation 1
“1. A statement is provided to staff highlighting the Department’s obligations under the FOI Act and the pro disclosure emphasis in the Act.”
“This statement should encourage and support staff in meeting their obligations under the FOI Act, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”
I don’t believe a single, forced statement will reverse years (decades!) of creating a culture of mendacious secrecy. If the daily behaviour of management doesn’t change, a single email will do nothing.
Recommendation 2
“2. The Department take an approach to interpreting the scope of FOI requests in accordance with its obligations under s 15(3) of the FOI Act in a manner that as far as possible, seeks to facilitate and promote public access to information.”
“This approach should be reflected in guidance material and in training for staff on processing of FOI requests.”
Staff have ignored the manual when it suits them before, so unsure of success here either, but sure.
Recommendation 3
“3. The Department develop a policy that provides that where information that is subject to multiple FOI requests, it is uploaded onto the Department’s disclosure log as soon as practicable.”
“The policy should also include reference to these documents in the acknowledgement letter for relevant FOI requests to assist the applicant in obtaining information as quickly and efficiently as possible.”
I think that means that DHS should put docs online and then give you the link to them, but I’d prefer if OAIC was a lot clearer here.
Recommendation 4
“4. The Department update its FOI manual to include references to recent Information Commissioner decisions and FOI Guidelines on:” charges (esp public interest), scope, and s 24AB processes.
Good!
Recommendation 5
5: Update the FOI manual re: s 16 transfers, giving you docs straight away or keeping you informed about delays and providing estimates of delivery.
“c. responding to requests for documents held on the disclosure log which are otherwise not readily accessible via the disclosure log as soon as possible, but within five working days.”
Good, but I want @OAICgov to update the FOI Guidelines to make it *very* clear that agencies need to knock it off with using s 11(3)(c) to avoid disclosure.
Require them to put the docs on their websites!
d. is about re-using work if people are asking for the same info. This is part of why s 11 exists.
e. update the FOI manual to clarify when you can combine requests.
“f. factors to consider whether to impose a charge, including factors set out in the Guidelines issued under s 93A of the Act.”
I dunno why they can’t just, you know, read the FOI Guidelines and follow the law, but hey.
Recommendation 6
6. Within 6 months, DHS to audit themselves and report to OAIC about how well FOI officers are adhering to the manual re: recommendations 4 and 5.
Given DHS spent the past 2.5 years saying it thought how it handled #FOI was totes fine and good, I don’t see how a self-audit helps anyone, but righto.
Recommendation 7
“7. The Department ensure processes are in place to assist applicants through the s 24AB consultation process that include the provision of a contact phone number.”
“This could be either a dedicated monitored FOI Team line or direct phone numbers for case officers, or both.”
That’s a big win. Having DHS put a contact phone number on a letter *shouldn’t* be a big win, and it highlights just how shit DHS is, but we can celebrate the win anyway.
I will now take bets on how long the wait time will be for this phoneline, and how convoluted and awful the IVR experience will be.
If we have learned anything over the past decade or so, it is that DHS will go to extraordinary lengths to make it hard to call them.
But Wait, There’s More!
Now, there is a coda to this. OAIC is not simply issuing some fluffy recommendations that DHS can (ahahaha, will) ignore. OAIC is going to check up on them.
“I am authorised under s 89 of the FOI Act to send an implementation notice if I am not satisfied that the Department has taken action that is adequate and appropriate in the circumstances to implement my recommendations.”
Translation: we are on to you and we are sick of your shit.
“The Department should provide the OAIC with an update in relation to the actions the Department have taken to implement recommendations 1 -5 and 7 above by 5 March 2020.”
“To assist me in determining whether an implementation notice should be made, the Department should provide the OAIC with detailed information demonstrating how each of recommendations 1 – 5 and 7 above have been implemented within 3 months of the date of this notice”
“The Department should provide the OAIC with the outcome of its audits in response to recommendation 6 by 4 June 2020.”
“The Department’s actions in response to the recommendations made in this complaint may be relevant to whether I should exercise my discretion to initiate a more detailed investigation under s 69(2) of the FOI Act”
So yeah, looks like OAIC has (in polite lawyerese) put DHS on notice that they are fed up with their bullshit.
It appears it is the season for regulators generally to actually show up and do things.
It’d be nice if they showed up *before* everything devolved into a completely egregious shitshow, but better late than never, I suppose.
So now we wait until March 2020 to see if DHS/Services Australia can pull their head out of their arse and start following #FOI law.
I am cautiously optimistic.
Thank you @OAICgov for this lovely Christmas present.
Here endeth the #tljr. Thanks for reading!
Final Scores
P.S. Final scores
Me: 8
DHS: 0
