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OPINION
<p>Kerrie Leishman</p>

Kerrie Leishman

Why So Secretive?

The internet allows for greater public participation in government. But ours continues to show it is not ready to talk.


Making Freedom of Information requests has never been simpler. New tools make it easy to ask, and by law government agencies must respond. Delay and obstruction by agencies is commonplace. However when the crowd gets together and asks a lot of questions, it becomes increasingly hard to know how an agency might respond to this. At least in the case of the Department of Immigration and Citizenship (DIAC), they are doing anything they can to try to shut it down.

Australia’s immigration department is unlawfully obstructing over 100 Freedom of Information (FOI) requests from the general public in an attempt to maintain secrecy.

People who work within the immigration department are collectively and knowingly gaming and abusing FOI law and procedures, avoiding public scrutiny and actively preventing the public from finding out what really goes on “behind the wire” in detention centres.

Instead of forcing members of the public to use heavy-handed and expensive FOI processes, the department’s officers could spend the 20 minutes it takes to remove personal details in each requested incident report and put it up on its website.

Last week, the department’s director of FOI and privacy policy, Linda Rossiter, argued that 85 FOI requests for reports on incidents in detention centres are “substantially the same”, despite the fact that they have been made by different people, and are about different incidents that happened in different places, at different times. In a fanciful sleight of hand the immigration department has lumped the requests together as a single request, thereby delaying the bulk of the requests and most likely leading to their refusal en masse.

In fact, the only connection between these genuine requests, made by interested members of the public is that they are all about incidents that occurred in detention centres.

Lawyer and FOI consultant Peter Timmins considers the DIAC’s arguments weak at best.

There is circumstantial evidence that government agencies knowingly delay and obstruct FOI requests, to force them to be referred for external review by the under-resourced and over-burdened FOI ‘complaints department’, the Office of the Australian Information Commissioner. It may take months or even years for the commissioner’s office to review a decision, and even an overturned decision may still represent a success for an agency. That is, a long delay can, in many cases, render the information less valuable.

We at the OpenAustralia Foundation believe this is part of a strategy to deter journalists, whose requests are dealt with in a separate office by senior staff. But the crux of the matter is that it’s largely journalists, and specialist FOI journalists at that, who bother to make such requests, because the process has been made so difficult for ordinary people.

This is nothing new. In recent years the DIAC specifically has been criticised in several reports. In August 2012, an independent review of the Department of Immigration’s FOI procedures, conducted by former Secretary of the Attorney-General’s Department, Robert Cornall AO, concluded:

The Department’s current level of performance in regard to freedom of information is unacceptable. DIAC is not complying with its legal obligations. It is in bad standing with the FOI regulator. Its FOI shortcomings damage the Department’s relationship with the Minister and his Office and reflect adversely on the Department’s reputation within the Australian Government.

What is new is that the full paper trails of correspondence between the requestors and the agency are now made publicly available through the Right To Know website. The Detention Logs project – a collaboration between independent journalists, The Global Mail, New Matilda, Guardian Australia, and the OpenAustralia Foundation – has created a platform that encourages ordinary people to take an interest in the workings of detention centres, and to “adopt” incidents. They can do so by requesting further information via an FOI request made on the Right To Know website. See this link for a request for one of these incident reports.

Back in 2010, Freedom of Information law was reformed, and Lindsay Tanner, then the finance minister, announced a “Declaration of Open Government”, in which he said the government was “establishing a pro-disclosure culture across Australian Government agencies”.

<p>Mark Dadswell/Getty Images</p>

Mark Dadswell/Getty Images

Former finance minister Lindsay Tanner

He added that, “The establishment of the Office of the Australian Information Commissioner and the Government’s broader freedom of information reforms aim to restore trust and integrity in government and drive agencies to proactively release information to the public.”

These measures have yet to show any significant effect in moving towards a pro-disclosure culture across government.

We’d like the immigration department to turn this around and show that it is mature enough to act in a pro-disclosure environment. How? It’s embarrassingly simple. Instead of blocking citizens’ access to detailed incident reports, the immigration department can proactively release them. Instead of forcing members of the public to use heavy-handed and expensive FOI processes, the department’s officers could spend the 20 minutes it takes to remove personal details in each requested incident report and put it up on its website.

Doing anything else is a waste of resources, time and money and actively working against the public interest.

It is time for the deep culture of fear and secrecy in the public service to change. That’s right, DIAC officers are employed in the public service. They work for the public and should be acting in the public interest.

It’s really that simple.

3 comments on this story
by Craig

Kat & Matthew, well written, but you've overlooked a fundamental fact.

The public service is employed to serve the government of the day, and through them (elected officials), the public.

That's why when a Department used to make a major mistake, their Minister resigned. The Minister is accountable to the public - the Department is accountable to the Minister.

The problem today is that often the goals of Australian elected governments do not represent the goals or interests of a substantial proportion of the Australian public.

This is due to the party system which, while not embodied in our Constitution, has become the principal organising factor for Australia and similar Westminster-style democracies.

When Australians vote for a party member they are picking one party's entire agenda over another party's agenda. Some of that agenda will align with community interests, some of it won't.

In this case the elected Australian Government believes it is appropriate to act harshly towards asylum seekers who enter the country by sea - regardless of the illogic and breach of international treaties in using a means of transportation to differentiate between claimants.

As a result of this stance, the Government doesn't want information about asylum seekers to be widely known, so it has ensured that the Department acts according to its mandate - in the interests of the elected government, not the public that elected them.

July 4, 2013 @ 10:49pm
by Eve

Good article that reflects a growing political and bureaucratic unwillingness for disclosure (which is being experienced world-wide). It is one thing for governments to talk about greater transparency, quite another to walk-the-talk right from the political process down to the internal machinations of the APS.

While it is true that the public service is accountable to the government of the day (via the electorate), ministerial offices/Ministers are not always involved with, or aware of, routine FOI requests. Some never reach the ear of the office and in those cases decisions made by the department can be potentially self-serving. Accountability to the government of the day does not always involve the sharing of information with that office, especially some of the minutiae of departmental processes. It is impossible to generalise about a whole-of-government culture or intent because much depends on the management of the day. In a highly mobile workforce the status quo around disclosure can change.

Major stuff-ups by the APS would not necessarily reach the ear of a Minister, and thus any relevant FOI requests may be handled in-house.

However, in the case outlined in this article, one would think it would be safe to assume the Minister's office is most likely aware of the requests because a) it was done via the public Right To Know site and (b) the political implications would no doubt involve discussion with the Minister. What influence the minister's office might have on the decision-maker will not likely be known.

The FOI Act is so broad and subjective as to assist in supporting a culture of non-disclosure. One should add that some departments are better than others. For example if one were to FOI the Immigration Minister or Department for any internal correspondence related to the decision to suppress on grounds of 'unreasonable diversion of resources' (if such a decision is made) those documents may likely also be refused under 'deliberative processes' or similar operational exemptions.

July 5, 2013 @ 2:54pm
by Clytie Siddall

I made one of those FOI requests via Right To Know, and only yesterday received the obfuscatory refusal. I spend a lot of time trying to convince young people that our system actually works. What do I say when it so palpably doesn't?

July 8, 2013 @ 4:11pm
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