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Monday, January 18, 2016

Agencies (and the AG's office) overplay the consulation card; all part of the FOI game?

 The second of three related posts.

Justice Jagot's ruling in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 on the interpretation and application of the Freedom of information Act provisions regarding third party consultation and the method of assessing the time involved is of significance generally as a somewhat rare Tribunal decision on the subject.

However the Office of Australian Information Commissioner has dealt with a swag of cases over the last year often rejecting agency arguments about these issues. And rejecting what some agencies without foundation seem to regard as a golden rule-that a request that is likely to take more than 40 hours will substantially and unreasonably divert resources.
My guess is the reported decisions are the tip of a rather large pile of questionable decisions regarding consultation.Allof which must cost the taxpayer a packet-probably more than the cost of getting on and processing the application in some cases.

Consultation is often required under the FOI act but where it is unnecessary consultation works to slow things down, adds to charges, and as in this case provides the false basis for a refusal to process the application because of a "practical refusal reason"- the work involved "would substantially and unreasonably interfere with the performance of the Minister's functions."(In the case of an agency the test is "would substantially and unreasonably divert the resources of the agency from its other operations." Section 24A.

OAIC decisions 2015
The Department of Immigration and Border Control unsuccessfully argued to the Acting Australian Information Commissioner that it would need to consult with 600 employees before releasing documents relating to the structure of the Department and various contact lists for particular sections within the Department, including the ‘top structure’ of senior management-in other words details of the organisation chart. 

Commissioner Pilgrim concluded it was not reasonably practicable for the Department to undertake consultation with 600 employees. Consultation was not required.[36]

(Battling it out in the OAIC in this case followed earlier attempts by the department to slow things down: a previous request was refused because it did not specify it was a request under the FOI act. The amended request was then refused "on the basis that my reference to the Freedom of Information Act 1982 (Cth) was made in the subject heading and not in the body of the email. And secondly, on the basis that my request was made directly to the Authorised decision-maker... and not to one of the addresses nominated by the DIBP to receive such requests." [18]. 
When in the course of the resulting slow journey through the review process at OAIC the commissioner sought submissions from the department on points raised by the applicant, the Department didn't bother [43]).

In an earlier decision involving the same department and similar documents Ray Brown and Department of Immigration and Border Protection, Commissioner Pilgrim had reached the same conclusion: that the Department could decide to give access without engaging 527 staff members in consultation. The Department estimated consultation would have taken 1,052 hours.

The Department of Prime Minister and Cabinet unsuccessfully argued that spending what the Acting Australian Information Commissioner decided was an over estimate of time processing an application for records relating to the US Central Intelligence Agency extraordinary rendition program was a substantial and unreasonable diversion of resources.

On that widely accepted golden rule referred to above, the commissioner said
30.. "40 hours does not indicate a threshold in which a request can no longer be processed, and requests where processing time is in excess of 40 hours do not automatically amount to a practical refusal reason. This is illustrated in ‘FX’ and Department of the Prime Minister and Cabinet [2015] AICmr 39, where I found that a processing time of 53 hours was not an unreasonable diversion of resources and therefore a practical refusal reason did not exist and in ‘GD’ and Department of the Prime Minister and Cabinet [2015] AICmr 46, I found that a processing time of 39 hours was not an unreasonable diversion of resources and that a practical refusal reason did not exist."

The commissioner in a previous decision ordered PM&C to process an application for documents relating to David Hicks, rejecting arguments that an additional 20 hours would be needed for consultation with the United States: the consultation provisions "do not include consulting with foreign governments."[31] Processing the application would take between approximately 4.3 and 7 days of an officer's time and would not in any event substantially and unreasonably divert PM&C’s resources from its other operations.

In another case the commissioner decided the PM&C estimate was excessive and placed emphasis on the finding that the claimed diversion of resources was not unreasonable in any event. 

The Department of Education and Training estimated processing an application would take 95 hours. Based on a sample of relevant documents, the commissioner said retrieval and review would consume approximately 49 hours [22] and consultation around six. This would not substantially and unreasonably divert the Department’s resources from its other operations.

Personal experience
I've had quite a few personal experiences of really questionable 'need to consult' calls.The Attorney General's Department consulted me recently because they said a document sought in an FOI application contained information about me. As best I could tell-they just sent me part of the document- the information consisted of my name and a summary of a couple of points made in a submission on the 2010 draft FOI reform bill published on the AGD website!  

Consulting people about their comments on the public record on public policy, in this case, ironically, about open government, is way beyond what the act requires.

While the watchdog's on death row...
The dire circumstances of the Office of Australian Information Commissioner since May 2014 as a result of the Attorney General's attempt to abolish the office, and the squeeze on resources for the FOI function means the watchdog has no capacity to look into agency practices such as this. 

The last OAIC own motion FOI investigation of any kind into agency FOI practices was undertaken in 2014- the second I think since 2010. 

The OAIC 2015-16 Corporate Plan (Goal 2) notes the only funding for the FOI function is for the conduct of review decisions-nothing for investigations and much else. 

In review decisions that chew up funds available the commissioner keeps saying the same things but agencies go on their merry ways.

Maybe a rare AAT decision on the subject might command a bit more attention and acknowledgement in practice.

Two posts on related matters here and here.


  1. Anonymous3:20 pm

    Hi Peter, Under the subheading Personal Experience, the link to the document available from box dot com requires a username/password. You are perhaps logged in, and so will show the document right away. Won't work if you try the link in incognito mode. Thanks for spending the time to write these articles...I come visit from time to time. AK

  2. Tx I'll have a look and see if I can fix.Cheers.