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Behind The Wire

And The Prize For Evading The Public’s Right To Know Goes To…

In drawing attention to what seemed like classic gaming the Freedom of Information system by the Department of Immigration and Citizenship (DIAC) recently, I didn’t appreciate that the lumping of 85 individual requests for different documents into a single request was just for starters.

There is a grander strategy unfolding at Right To Know with the department now relying on the cumulative effect of dubious contentions to see off pesky applicants taking part in the “Adopt an Incident” campaign [part of The Global Mail’s Behind the Wire project] by blocking requests for incident reports at detention centres.

The short version of DIAC’s approach to dealing with an an application by Paul Farrell gives the picture. I expect the same thing is happening to other applicants for incident reports:

● requests made within a two-week period in June and July for different reports by different people are taken by DIAC to be a single request, as the documents requested are “documents the subject matter of which is substantially the same”;

● when the 19 requests in this instance are treated this way, an application that would otherwise take three hours to process will take 19 times as long;

● 57 hours devoted to processing what is regarded as a single request would involve substantial and unreasonable diversion of DIAC resources away from other tasks;

● when each of the 19 parties was consulted and given the opportunity to revise what DIAC regards as one request, some responded declining to do so, but as others didn’t respond, DIAC deemed the request withdrawn;

● finally (or the story so far), as a deemed withdrawal decision is not a decision to refuse access, none of the 19 has a right of internal or external review.

Sections of the act are cited to support each DIAC decision along the way, but the whole shebang is a litany of tortured reasoning. I’ll be amazed if it withstands scrutiny.

In resorting to these sort of arguments to brush the applications aside, DIAC may end up making more not less work for itself.

Despite DIAC’s assertion there are no rights of review, a failure to determine each application by granting or refusing access within the statutory time period arguably amounts to a deemed refusal of access, with a right to internal review and/or external review by the Office of Australian information Commissioner (OAIC). Separately there is a right also to complain to the OAIC about DIAC conduct in dealing with the applications.

While we can all sympathise with DIAC staff who have been under the hammer for years, and are on the end of more than 150 applications via Right To Know, the ploys and ‘smart lawyering’ utilised in this exercise render hollow assurances given earlier in the year by top management that DIAC was reforming past performance deficiencies.

Dr Hawke seems to have missed this and other examples of gaming the system.

Here is a more detailed look at the decision points in the Paul Farrell case.

DIAC advised Farrell and 18 other applicants who made requests between June 24 and July 5 for different detention centre incident reports, that the act permits DIAC to treat them as a single request.

(Comment: DIAC’s reliance on Section 24(2) to this end seems wrong for two reasons. One, the 19 requests were made by different people. Arguably, as mentioned in the OAIC Guidelines Section 24 is relevant only where the same applicant makes two or more requests. In which case they may be treated as a single request. But only if they relate to documents the subject matter of which is substantially the same. Two, on this last point, each of the 19 requests is for a different incident report involving different people at a different time, often in a different place, hardly for "documents the subject matter of which is substantially the same".)

DIAC advised Farrell and the others that each of the 19 requests would take approximately three hours to process. But as they assert that the 19 can be treated as one, processing would take 19x3=57 hours, not three. DIAC asserted this would involve substantial and unreasonable diversion of resources and a practical refusal reason under Section 24AA.

(Comment: This can only work one, if the argument for turning the 19 requests into one holds up, and two, if this formula has a legal basis. If things get that far, 57 hours might constitute substantial diversion of resources. But whether this would be unreasonable as well turns on other factors such as the nature of the application(s).)

Because of the existence of a practical refusal reason, DIAC notified the 19, in accordance with Section 24AB, providing each the opportunity to revise the request so that the practical refusal reason no longer exists. That is, inviting each to change the request(s) so as to reduce the 57 hours processing time to something more manageable. The act stipulates that when contacted the applicant must notify the agency that the request is withdrawn, revised or remains as is. If there has been no response, the agency may deem the application has been withdrawn.

(Comment: scales new heights in innovative but highly questionable interpretation.)

DIAC advised Farrell and the others that some had responded to the notice, but as others had not, this constituted a failure to contact as required by 24AB(6) and justified a decision to deem withdrawal of the application(s) in accordance with 24AB(7).

(Comment: achieves even higher heights.)

In addition DIAC advised that such a decision is not a determination to refuse access and that the applicant – all 19 of them – has no right of internal review or external review by the Office of Australian information Commissioner.

(Comment: a deemed refusal in accordance with s 24AB(7) is not a reviewable decision under s 53A or s 54L. However a failure to determine an application within the statutory timetable is reviewable. If I were Farrell or any of the other applicants I would be off to the OAIC as soon as the deadline for decision passes. DIAC will probably argue the OAIC has no jurisdiction but in considering that issue the OAIC would need to review the claims outlined above. The applicants should also be knocking on the OAIC door as well with a complaint in hand.)

Editor’s note from The Global Mail:

Anyone who adopted an incident through Behind the Wire (and thank you if that is you!) should have received an email today directing you to a Google Group where we hope to post discussion and guidance for anyone dissatisfied with the response so far. Let us know if you made a request and did not receive an email from Right To Know.

Let’s share expertise and ideas, rather than throw up our hands at the obstacles being put between citizens and public information. We understand that the approach DIAC is taking can seem confusing enough to make you want to give up your pursuit of the information – but giving up would be more than just missing out on the records of what goes on in Australia’s detention system, it would potentially set back Freedom of Information practices more broadly.

We’ll canvass the options Timmins has suggested above, such as going to the OAIC, and other options.

Of course there are plenty of incidents to adopt still, it’s never too late to make a new FOI request, and it’s easy (watch this quick video).

Peter Timmins is a lawyer and blogger. This post was orginally published on his blog, Open and Shut.

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