DIAC takes the booby prize

The Global Mail, with permission and acknowledgement, has published my piece on Immigration and the tortured FOI reasoning exhibited in blocking requests for detention centre incident reports, under the much catchier headline "And the Prize For Evading The Public's Right to Know Goes to..." 

Yep, based on the comparators I have from recent personal experience they're right - in the gaming stakes, it's DIAC way out in front of Foreign Affairs and Trade and Attorney General's. But alas, this race is never over.

Immigration reaches new heights- in tortured reasoning

In drawing attention to what seemed like classic gaming the Freedom of Information system by the Department of Immigration and Citizenship 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 Righttoknow 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 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DIAC regards as one request, some responded declining to do so, but as others didn't respond, DIAC deemed the request withdrawn;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. 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 Rightoknow, 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.