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Thursday, April 19, 2012

Official: Victorian FOI fails to deliver

The report by the Victorian Auditor General on the extent to which the 11 Victorian public sector (VPS) departments and Victoria Police meet the requirements of the Freedom of Information Act 1982 won't surprise those who work in or have experience in dealing with the system.

 Media reports today grab on to "scathing" and "damning" to describe the report's findings but the report best speaks for itself:
Since FOI legislation was introduced 30 years ago, Victoria has gone from being at the forefront of FOI law and administration to one of the least progressive jurisdictions in Australia. Over time, apathy and resistance to scrutiny have adversely affected the operation of the Act, restricting the amount of information being released. As a result, agencies are not meeting the object of the Act, which is ‘to extend as far as possible the right of the community to access information’. The public’s right to timely, comprehensive and accurate information is consequently being frustrated. The VPS’s systemic failure to support this right is a failure to deliver Parliament’s intent. The prevailing culture and lack of transparent processes allow principal officer —secretaries and chief executive officers of agencies—to avoid fulfilling their responsibilities. Principal officers are not being held to account for their agency’s underperformance and non-compliance. Agencies are routinely disregarding the 45- day statutory time limit for processing requests and the five-day ministerial noting period, and there are serious flaws in record keeping practices and FOI searches in the Department of Human Services and Victoria Police. The Department of Justice has not satisfactorily fulfilled its role as lead agency for FOI. More effective leadership is required to promote an appropriate culture, improve transparency of government information and adequately inform Parliament and the community about FOI.
The Ombudsman has reached similar conclusions in various reports over the years to no avail, as the Auditor General notes citing this example:
None of the 12 audited agencies implemented all of the recommendations made by the Victorian Ombudsman in 2006. This is indicative of a poor, resistant culture and low level of priority placed on FOI, which DOJ has not managed to address effectively.
The report does not reflect on the role ministers have played in all this- ministerial conduct being  beyond the auditor's reach-but ministers in governments of both persuasions set tone at the top and went along happily with nary a word of concern about a system now described as apathetic and resistant to scrutiny.

Premier Baillieu gilds the lily in claiming (as reported in The Age) that government legislation to establish a freedom of information commissioner is the answer to the problem. That act doesn't encompass the more fundamental reform needed to mandate pro-active disclosure or changes to exemption provisions that would bring Victorian law closer to contemporary standards that properly balance confidentiality in the interests of good government and public rights to gain access to government information.

A 45 day response time for requests which, according to the Auditor General, is routinely disregarded in any event, is a bad joke in this day and age. As is the formal practice of "ministerial noting" before an agency decision is notified to the applicant- a practice open to abuse and the cause of long delays in some cases documented in the report.

The FOI commissioner model adopted in Victoria but yet to commence has significant weaknesses apparent well before it takes effect but which were simply shrugged off by the government during parliamentary debate.

While these holes in the bucket remain as they are, as well as serious systemic flaws in record management practices identified by the Auditor General (documented in detail in this 2008 report  and raised also in this recent Ombudsman report Own motion investigation into the management and storage of ward records by the Department of Human Services (256KB) FOI  in Victoria will continue to fail to deliver fully on its promise

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