By Bernard LaganApril 12, 2012
When the Department of Immigration clamped down on the media filming asylum-seekers, its motives were questioned. But when The Global Mail tried to find the truth, the department provided an excuse so novel for not handing over information, it triggered an investigation by the government’s own Freedom of Information watchdog.
The Department of Immigration's claim that it didn't have enough staff to decide a single Freedom of Information (FOI) request made by The Global Mail has helped prompt the federal government's FOI watchdog to launch its first formal investigation into FOI compliance by a government department.
The Office of the Australian Information Commissioner — responsible for ensuring that all federal government agencies properly comply with FOI laws — will use its 'own motion' investigatory powers for the first time. And according to Paula Gonzalez, the director of compliance in the information commissioner's office, the action will allow the commissioner "to investigate the actions taken by a government department in the performance of its functions or the exercise of powers under the FOI Act".
The target is the Department of Immigration, according to the Information Commissioner, because of the way it handled The Global Mail's request for information. There also had been string of complaints from others about the Department of Immigration's responses to FOI requests — which also prompted the inquiry.
The investigation will be keenly followed by all federal government departments as it marks a ramping up of the Information Commissioner's efforts to force them to properly comply with requests for information under FOI. It is also expected to canvass what some view as deliberate efforts by government departments to avoid handing over sensitive information by citing staff shortages so severe that the requests cannot be dealt with inside statutory time frames and therefore lapse into a "deemed refused" state.
That was the excuse that the Department of Immigration gave to The Global Mail in late February.
We had requested that the Department of Immigration hand over notes of the internal deliberations that led to it lobbying the Australian Communications and Media Authority to stop television networks airing footage identifying asylum-seekers arriving by boat or of those being held within detention centres. The department said publicly that it had "wanted to protect the privacy of these vulnerable clients". It said that the identification of asylum-seekers - even when they arrived by boat - was gratuitous.
The department's intensified lobbying effort to curtail footage of asylum-seekers came a year after graphic and distressing broadcast showing the mass drowning of asylum-seekers off Christmas Island in December 2010, when a violent storm dashed their boat against rocks, flinging scores of people into the sea.
It also followed intense public pressure on the Minister for Immigration, Chris Bowen, and his department last year, after The Australian newspaper published a picture of the Iranian child, known in his immigration detention compound as the boy with the blank stare. Seena Akhlaqi Sheikhdost, then age eight, lost both his parents to the sea in the Christmas Island tragedy; after the newspaper published his photo , a public outcry led to his release from detention into the care of his extended family in Sydney.
The Department of Immigration also launched an internal investigation to try to discover who had photographed the child in detention and who had leaked the image.
The department's later attempt to curtail media footage identifying asylum-seekers was widely condemned as self-serving censorship by, among others, Channel Seven's head of news and current affairs, Peter Meakin.
Professor Linda Briskman of Curtin University, a regular visitor to detention centres, also said: "By not portraying the human face of the asylum-seekers, they become dehumanised, criminalized and it's easier for people to ignore their suffering. Photos allow us to empathise, especially when we look into the eyes of children."
The immigration department's submission arguing for the footage and photographs that identified asylum seekers to be suppressed said that identification showed a lack of respect and regard for asylum-seekers.
As the department put it: "Generally speaking, they do not willingly or knowingly put themselves in the public domain, or place themselves to be the subject of public comment. The sequences where they are shown disembarking from vessels… are often extensive and include clear identification, with no attempt made to shoot or cut vision in way which protects or conceals their identities."
In an effort to resolve the various supposed motivations for the department's efforts to ban images identifying asylum-seekers, The Global Mail lodged a Freedom of Information request with the department in late December. We asked for the records of the department's internal deliberations in the lead-up to its submission that footage be banned.
In late January, four days before its response was due, the department asked The Global Mail for an extra month to deal with the request. An email from the department said: "We are currently awaiting documents from the line area. Once received, the case will be allocated to a decision maker." The department confirmed that the new due date for its response to the request was February 26.
When that date came and went with no further information, we telephoned the department. We were told that because the due date had passed, The Global Mail's FOI request had automatically been deemed refused — in accordance with FOI laws. In a follow-up email sent on February 28, the department said it had been unable to find "a decision maker" within the department able to decide whether the documents should be passed to us.
The email from the immigration department's assistant director, Erin Welsh, said: "As discussed, the due date for your request has passed. The status of your request currently is that we have the documents within the scope of your request but have not yet been able to allocate it to a decision maker."
What the email did not say is that under the FOI Act, a request for information is "deemed refused" if a government department fails to respond to the applicant by the due date.
The Department of Immigration had gathered the documents but it had never resolved whether they could be released to The Global Mail.
We immediately sent a letter to the Information Commissioner to complain about the Department of Immigration's handling of the request. We pointed out that it seemed a ridiculous proposition that our request had been "deemed refused" despite the fact the information we wanted had been gathered by the immigration department but had never been shown to a departmental "decision maker" authorised to rule on its release.
We also said the department's position may suggest an attempt by it to delay or obstruct our FOI request using the guise of inadequate staff numbers. We added that we considered ourselves seriously misled by the department's email of January 23, which had assured us that, once the documents had been gathered together, the case would be allocated to "a decision maker". Finally, we argued that it was improper for the Department of Immigration to seek refuge in the excuse of staff shortages for its failure to have put our request in the hands of a decision maker.
In her response to our complaint Paula Gonzalez said the office would open its first 'own motion' investigation of a government department's FOI decision-making.
She said the investigation would focus on the immigration department's handling of non-routine FOI requests that were sensitive in nature and complex. It would examine compliance with time frames for responses to FOI requests and communications about delays to people requesting information. The inquiry also will look at the department's communication with the Office of the Information Commissioner.
The results of the investigations will be released to The Global Mail.
The immigration department's national communications manager, Sandi Logan, said the department met its objective of replying to 80 per cent of FOI requests on time last financial year.
"For an organization that gets as many FOI requests and FOI request amendments as we do, we're certainly not tardy in our responses," Mr Logan said.
And, he said the department would be co-operating with the Information Commissioner's inquiry.