Some Victorian agencies just do their own FOI thing

Ombudsman George Brouwer

There is a tone of "when will they ever.." in the Victorian Ombudsman's introductory comments in the chapter on Freedom of Information (page  50) in the Annual Report 2009-2010 published last week, and it's 26 years since the FOI act commenced in that state. And a note of warning, if one was needed, about the challenge for those in the Commonwealth, Queensland, NSW and Tasmania facing up to the task of leading - for the first time, or again, or still - on culture change: years of guidelines, recommendations, advice and prodding may not be enough to deliver the goods:

"There is still a culture within some agencies regarding limiting access to documents under freedom of information (FOI) legislation. I regularly identify administrative actions that are contrary to or simply disregard the Attorney-General’s guidelines and the administrative recommendations from my 2006 Review of the Freedom of Information Act, which all 10 departments accepted. Despite the availability of the Attorney-General’s guidelines and the Department of Justice’s practice notes, agencies appear to just ‘do their own thing’. Not only does this lead to delays in the processing of requests, but there are inconsistencies in the way the Freedom of Information Act 1982 (the FOI Act) is applied across government."

The number of complaints received by the Ombudsman about FOI matters was around the 180 mark, the same as the previous year. The case studies cited in the chapter, all about process rather than the act itself and substantive decisions on access, remind that Victoria lags the reform states on information access generally, and FOI in particular:

• a request for information regarding rail passenger patronage on the Hurstbridge line and the number of passengers using connecting bus services had to be dealt with by an officer in accordance with a checklist to first "determine the owner of the information to be released; whether the data is privileged; whether it is a Cabinet document; if it is confidential, contains personal or sensitive information as defined by the Information Privacy Act 2000; or whether the responsible Minister must be notified of the request or proposed release"; ( none applied, but the agency insisted the information could not be released without an FOI application)
• systemic failures to meet the 45 day deadline over the last six years by the Department of Human Services, the agency that received the largest number of requests, with some requests from 2008 still outstanding;
• the approved agency practice of providing the Minister’s office with five days to note an FOI decision before the applicant is notified but which sees some agencies delay notification for 20 and up to 45 days waiting for the brief to be returned from the minister's office;
• a program area placing undue influence on the FOI decision-maker; (this is now a criminal offence in some jurisdictions, for example NSW)
• a rap with a feather for the Department of Justice, the agency with portfolio management of FOI across the Victorian public sector for not leading by example in demonstrating uniform high standards in processing FOI requests.  

The chapter on Whistleblower Protection (page 64) is also somewhat downbeat after nine years experience with the law, concerning prevailing culture in some quarters still not reflecting its spirit and intent:

"Whistleblowers perform an important role by ensuring that allegations of serious wrongdoing by public officials are reported and brought to light. Whistleblowing should be encouraged by all public sector bodies as a means of demonstrating its commitment to accountability, integrity and good public administration and a source of information to prevent opportunities for corruption to occur and system improvements to be made. In my experience some public sector bodies are still yet to recognise the value of whistleblowing and continue to discourage reporting. In some agencies, negative and prejudicial perceptions about whistleblowers prevail. I consider these attitudes to be inappropriate and believe that agencies should accept whistleblowing as a necessary and integral part of a good complaint handling system."