Broader issues arising from report on FOI processing at Immigration

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The Office of Australian Information Commissioner report on its own motion investigation into delays in processing "non-routine" freedom of information requests in the Department of Immigration and Citizenship (DIAC) provides an insight into what happened in this agency when the act was used to seek information on matters of public interest and political sensitivity. 

 

Coming on top of the revelations about the industry department last week, it didn't make for a "Right to Know Day" to remember- well remember for the right reasons at least.

 

In the 27 cases the subject of the OAIC report, information had been sought on "the development and operation of immigration detention centres, conditions of detention, the health and reported deaths of detainees in immigration detention centres and the Government's policies on multiculturalism and offshore processing of asylum claims."

 

Outcomes-what was released or withheld and the application of the law to particular documents-aren't part of this. None of the matters have been the subject of published OAIC review decisions to date. Here is one, probably part of the mix concerning access to the Serco contract as written up in New Matilda last November-certainly an abundance of caution there. 

 

On processing, it was a story of delay, delay, delay in getting to a decision. While DIAC officers have had and continue to have a lot on their plate, you have to wonder about management oversight and compliance reporting if FOI applications of this kind took an average of 296 days to finalise, those not finalised had been with the department for an average of 471 days, and the oldest outstanding request for 556 days. Or whether senior officers were aware that the OAIC was getting the runaround after it started making inquiries.

 

Contributing factors to delay, apart from a large workload and a lot of dithering, include poor record keeping practices, the practice of providing a hard copy of any documents to be released to the Minister's office, and a heavily controlled legal framework used for processing this type of application. Some extracts from the report appear below.

 

The Opposition's Jamie Briggs has picked up on minister's office involvement, raising a broader question about general practice:

..the information commissioner in the report goes to the lengths of actually reminding the Minister's office in the report that they don't have a role (in departmental decision making), they shouldn't have a role, they don't have a role at law. So you have to ask the question, why is it that Chris Bowen is requiring the department to send this material to his office before this information is released. And is this a practice which occurs across the government?

Of interest in the OAIC report are recommendations about the management of FOI in DIAC set out in a report of another review. The department in addition to engaging Ernst and Young to look into FOI management last year, commissioned a review in response to the "announcement" of the OAIC investigation earlier in the year. Robert Cornall is a former secretary of the attorney general's department and conducted the review between May and July 2012.

The Terms of Reference included the requirement to identify comparative best FOI practices in other agencies which could be adopted in DIAC. Cornall's recommendations (below) were endorsed by DIAC's Executive Committee on 17 September 2012. The report itself isn't in the OAIC material, or on DIAC's website. (Update: it is now on the DIAC site and on Sean Parnell's FOI page at The Australian as DOCUMENT OF THE MONTH (pdf)). The Departments of Human Services and Defence are exemplars put forward by Cornall apparently, but little detail about the best practice comparators for practice and performance appears in the published material. The OAIC report draws attention to the Cornall recommendations as relevant to FOI processing in other Australian Government agencies, suggesting four principles:

• Effective FOI processing requires cooperation and support between the business line areas of an agency and the section responsible for FOI processing.
• The culture of an agency must be attuned to effective FOI administration. Two ways of instilling that culture are for the chief executive officer of the agency to issue an instruction to all staff directing that FOI compliance is a responsibility of the entire agency, and to include FOI compliance as a key performance indicator in the performance agreements of senior officers.
• Agency processes and practices that support effective FOI processing are internal training and learning strategies, escalation of unresolved matters to senior officers, regular monitoring and review of FOI performance, and high quality records management.
• Agencies should benchmark their FOI performance against the practice and performance of other agencies that have a demonstrated record in effective FOI implementation and compliance.

Extracts from OAIC report (emphasis added)

Finding a decision maker

"In nine of the requests it took on average 250 days after receipt to allocate the request to a decision maker. Some other requests took far longer: one was allocated 512 days after receipt, while another remained unallocated after 433 days..."

Consultation within the department

"Internal consultation on FOI requests is a regular feature of FOI processing in many agencies. It has, however, given rise to significant delay in some of the DIAC cases studied in this investigation. In one case, for example, the internal consultation had been underway for over 12 months without resolution of the request: see Case study 2 in Appendix A. In another case the internal consultation was continuing after 133 days."

Minister's office "heads up"

"Another requirement that applies before a final decision is implemented is that a hard copy of any documents to be released is provided to the Minister's office. DIAC advise that this is a 'heads up' process so that the Minister's office can understand the nature of the documents intended to be released and comment can be given. Again, there is nothing untoward in principle in a department advising a minister's office of documents that it will be releasing publicly under the FOI Act. However, all involved must clearly understand that the decision to release documents is being made by the decision maker authorised under s 23 of the FOI Act, that the Minister's office cannot override that decision, and accordingly that release will not necessarily be deferred until there is a response from the Minister's office. It is not apparent to the OAIC that the DIAC procedures are sufficiently explanatory on this point. Moreover, it appears that this 'heads up' process has the potential to cause delay."

(No indication of the nature of any given comments, or suggestions of a wink, nod or shake of the head.)

Legalism-"a heavily controlled legal framework

"The Ernst and Young report noted 'the majority of FOI requests result in the disclosure of fairly routine issues and material that has been processed through a heavily controlled legal framework'. The OAIC questions whether these clearance layers are necessary and whether DIAC has considered a more efficient and streamlined clearance process with greater active involvement or personal handling by a Senior Executive officer with discrete and clear responsibility for FOI. A senior officer would bring to the role the authority to assess risk, manage the relevant stakeholders and address delays by making use of the extension of time provisions and practical refusal grounds in the FOI Act."

Meeting time frame  

"DIAC failed to make a decision within the statutory timeframe in each of the 27 FOI requests examined in this investigation. The quickest decision was made by DIAC within 83 days of receiving the request. The slowest decisions for finalised cases were made after 507 days in one case, and after 521 days for one request that merged with another. As at 21 September 2012, 21 of the 27 requests had been finalised by DIAC and six were outstanding. The requests that were finalised took an average of 296 days to finalise from receipt. The requests that were outstanding had been with DIAC for an average of 471 days. The oldest outstanding request has been with DIAC for 556 days."

External consultation

"In two of the FOI requests where DIAC undertook s 27 consultations with a third party, the average time taken to finalise both these FOI requests was 214 days. In the case of another FOI request by a member of Parliament in relation to the Inverbrackie detention centre, DIAC advised that ss 27 and 27A consultations were required, however 15 months after the request was received by DIAC, no steps had been taken to commence external consultation with the third parties. This FOI request was finalised on 14 September 2012, 498 days after receipt, without any consultations occurring. 

Records

"..poor record keeping practices and an increasing trend in requests for electronic information were impacting on the efficient handling of requests and compliance with timeframes.The OAIC notes the recent findings of the Australian National Audit Office (ANAO) in a report, Records Management in the Australian Public Service, which assessed the records management practices of DIAC and two other departments. The ANAO found that across the three departments:

... information and records access was impeded by existing information and records management arrangements. For example, information and records for a business activity were often held in a variety of locations and electronic business systems. Staff did not have access to all locations and systems, and generally had limited understanding of information holdings that fell outside of their day‐to‐day responsibilities. Staff often stored information in a variety of places, but did not have consistent rules about the records that needed to be created and where they would be captured. This means information is captured, managed and accessible on a silo basis. The agencies did not have a widespread culture of consistently using approved records management systems, including the EDRMS and electronic business systems, to support efficient and comprehensive searches for information.

This issue requires ongoing attention within DIAC. If left unaddressed it will continue to undermine efforts to improve the timely management of non-routine FOI requests that are complex or sensitive. However, no specific recommendation is made in this report, as DIAC has advised that it is responding to the ANAO report and using the audit's findings, observations and recommendations to ensure improved records management."

The Cornall report recommendations as listed in DIAC's response are: 

 Recommendation 1

That the department acknowledge that successful management of its FOI function requires DIAC's business areas to accept their share of the responsibility for meeting the department's obligations under the Freedom of Information Act.

Recommendation 2

That the Secretary issue a Secretary's Instruction directing that compliance with the requirements of the Freedom of Information Act is a whole of department responsibility and every area is required to play its part in responding to FOI requests in a timely and cooperative manner.

Recommendation 3

That the Secretary include freedom of information compliance as a key performance indicator in senior officers' performance agreements.

Recommendation 4

That DIAC develop a chart comparable to the Department of Defence's Freedom of Information Standard 30-day Timeline chart and display it on all of the department's notice boards.

Recommendation 5

That the Freedom of Information and Privacy Policy Section establish a constructive and mutually supportive working relationship with the department's business areas and nominate one of its staff as Business Area Liaison Officer.

Recommendation 6

That each business area nominate one of its officers as an FOI Liaison Officer as a point of first contact for the Business Area Liaison Officer and the Freedom of Information and Privacy Policy Section.

Recommendation 7

That the escalation of an FOI request to higher levels of authority should be initiated quite quickly if there is a delay in a business area's response to the request and that delay is not promptly rectified.

Recommendation 8

That the Freedom of Information and Privacy Policy Section, in conjunction with the department's Human Resources section, prepare and implement an annual training plan for all FOI officers and the business area FOI Liaison Officers.

Recommendation 9

That the department develop a mandatory FOI e-learning package specifically for business area officers whose files could be subject to an FOI request.

Recommendation 10

That the department improve its file and records management to better support its freedom of information function, including in particular in understanding national security and non-national security classifications and the more effective and consistent use of the Client of Interest field in the Department's Integrated Client Service Environment.

Recommendation 11

That the department's Chief Lawyer, Assistant Secretary responsible for FOI and Director of the Freedom of Information and Privacy Policy Section establish a direct relationship with their counterparts in the freedom of information areas in the Departments of Human Services and Defence to discuss and share ideas about the development and improvement of DIAC's FOI function on a continuing basis.

Recommendation 12

That the department:

1. closely monitor the implementation of the recommendations made in this report
   
2. review its progress in implementing the recommendations in March 2013, and
3. as part of that review (if not earlier), consider doing away with DIAC's additional sign off processes involving a Deputy Secretary and the Minister's office and, instead, moving to the briefing procedure adopted by the Department of Defence.