Exclusive: Department one of at least three federal agencies found to have breached freedom of information law since November

This article is more than 6 months old

This article is more than 6 months old

The prime minister’s department broke the law by inexplicably delaying a freedom of information request about allegations the former public service commissioner improperly aided the rightwing Institute of Public Affairs.

Findings delivered by the Office of the Australian Information Commissioner (OAIC) in November found the department had failed to process the FOI in legal timeframes, according to documents obtained by the Guardian.

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It was a recurring problem at the department in 2017/18. The OAIC found the department met the legally-imposed deadlines in just 35% of FOIs that year.

The information watchdog told the department to audit and improve its handling of requests within three months, and send out an all-staff missive reminding employees of their legal obligations.

The finding, though, is in stark contrast to a separate $110,000 internal investigation the department conducted into its handling of the same FOI request, in which it cleared itself of wrongdoing.

At least three federal agencies have now been found to have breached FOI law since November.

The department of human services and Australian federal police were also found to have breached FOI law late last year. In all three cases, the information watchdog found government agencies were inexplicably delaying FOI decisions.

FOI experts say delays can be used as a deliberate tactic to render information useless or less explosive by the time it is released.

The FOI lodged with the Department of the Prime Minister and Cabinet requested documents about the former public service chief, John Lloyd, after reports that he acted improperly in his contact with the IPA.

Lloyd was later found by the merit protection commissioner to have breached the public service code of conduct by “failing to uphold the good reputation” of his agency when he passed research about “generous” public service employment provisions to the IPA.

The FOI was lodged in January 2018 and a decision was due to be made by 26 February 2018. But no such decision was made and the OAIC said “no steps were taken to process the complainant’s request” by the time the 26 February deadline arrived.

Action was only taken when the information watchdog was asked to review the case, and the department eventually released some documents in late April.

It was a common occurrence within the department that year. In 2017-18, the OAIC found statutory timeframes were not met in the “majority” of FOIs the department received.

A subsequent complaint to the OAIC prompted an investigation, which culminated in five recommendations, including that the department audit itself and report back to the watchdog on its “compliance with statutory timeframes” and the training of senior executives.

The department was also told to improve its FOI guidance to staff within three months to improve “search and retrieval timeliness”, among other things.

In a statement to the Guardian, the department said it had fully cooperated with the OAIC investigation and “welcomed, accepted and implemented” the recommendations.

“Importantly, the Australian Information Commissioner acknowledged the steps taken by the department to implement a variety of strategies to support Departmental officers to comply with the statutory timeframes in the FOI Act, and that those strategies are already having a demonstrable positive impact on the Department’s ability to meet its statutory timeframes,” the department said.

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The department’s handling of FOIs has improved dramatically since 2017-18, a year that was also complicated by its receipt of 87 FOI requests on the second last day before the Christmas shutdown period.

It now has no overdue FOI requests and has a 100% compliance rate with statutory timeframes for requests received since January.

“Of all requests finalised by active decision of the Department between 1 July 2019–23 February 2020, 90.2% were finalised on time,” the department said.

There is no real punishment for breaching the FOI act, aside from negative findings and recommendations by the OAIC.

The OAIC’s investigation was complicated by the department’s repeated delays in providing submissions.

Documents seen by the Guardian show the department repeatedly failed to meet deadlines to provide the OAIC with submissions between December 2018 and February 2019, and had to be prompted time and again to do so.

The department told the Guardian the OAIC had raised no concern about the delay.