UNCLASSIFIED
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Please use this email address for all replies to this request:
s. 47F(1)
This request has been made by an individual using Right to Know. This message and any reply that you make will be
published on the internet. More information on how Right to Know works can be found at:
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s. 22(1)(a)(ii)
Is xxx@xxxxxxxxxxx.xxx.xx the wrong address for Freedom of Information requests to Department of Home Affairs?
If so, please contact us using this form:
https://www.righttoknow.org.au/change_request/new?body=dibp
This request has been made by an individual using Right to Know. This message and any reply that you make will be
published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/officers
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's
FOI page.
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FA 20/09/01326
Document 4
s. 47F(1)
From:
FOI
Sent:
Tuesday, 18 August 2020 6:48 AM
To:
s. 47E(d)
Subject:
FW: Internal review of Freedom of Information request - Dept of Home Affairs -
Non Compliance with FOI legislation Disclosure Log [SEC=OFFICIAL]
s. 22(1)(a)(ii)
-----Original Message-----
From: s. 47F(1)
Sent: Monday, 17 August 2020 6:13 PM
To: FOI <xxx@xxxxxxxxxxx.xxx.xx>
Subject: Internal review of Freedom of Information request - Dept of Home Affairs - Non Compliance with FOI
legislation Disclosure Log
Dear Department of Home Affairs,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Department of Home Affairs's handling of my FOI request 'Dept of
Home Affairs - Non Compliance with FOI legislation Disclosure Log'.
Thank you for providing access to the documents (redacted). I seek an internal review of the decision.
On 3 December 2019 I sought access to a document that sets out the following information for each entry in the
Disclosure log from 1 Jan 2018 to date of the request for access:
(a) Date document(s) provided to FOI Applicant
(b) Reference No
(c)Title
(d) Date information about each release was published in the disclosure log as required by law.
The Department decided not to consider (a), (b), and (c) of my request because the information was located in the
disclosure logs published on the Department’s website. Thus, the Department decided to limit my request to (d):
Date information about each release was published in the disclosure log as required by law.
1
The Department identified 53 documents as falling within the scope of the request at (d). These documents were in
the possession of the Department on 3 December 2019 when my request was received. The decision in relation to
the documents in the possession of the Department which fall within the scope of the request was to release
relevant information in 53 documents in full. (Documents 3 and 4 appear to be duplicate).
On 30 June 2020 the Department provided access to documents comprising of a series of emails from Web Services
to (redacted) about upload requests to the Disclosure Log. The emails contained commentary such as, pages now
live, this has now been published, your updated content now live, request has been actioned.
I seek an internal review of the decision. First, the decision not to progress (a), (b) and (c) of the request because
the information was available elsewhere ignores the reality of the right of access under the FOI Act is to documents,
rather than to information. Moreover, the information that is available on the website is incomplete, not in
accordance with the FOI Act and lacking in certainty.
On its website the Departments states that the information shown in this disclosure log is information to which we
gave access in response to a request under section 11A of the Freedom of Information Act 1982 (FOI Act). The public
have a right to assume a Commonwealth Department is complying with its legal obligations – particularly obligations
passed by Federal Parliament. Regrettably, a misguided belief in so far as this Department is concerned.
The released emails reveal a system to upload documents to the Disclosure Log being implemented at the
administrative convenience of the Department with no apparent effort made to ensure that the Department
complied with the law. It is a challenge to identify instances where the Department complies with the law. No such
challenge to identify instances of the Department failing to comply with the law. Some examples, the released
emails reveal that between late December 2019 and 27 Feb 2020 more than 100 new items were logged in the 2019
Disclosure Log. In that brief period at least 100 entries reflecting failure by the Department to comply with the law.
A few other examples:
On 5 Jan 2016 the Department granted access to documents under FOI. The release was not reflected in the
Disclosure Log until 2 Feb 2018.
On 19 Aug 2016 the Department granted access to documents under FOI. The release was not reflected in the
Disclosure Log until 2 Feb 2018.
On 18 Dec 2017 the Department granted access to documents under FOI. The release was not reflected in the
Disclosure Log until 2 Feb 2018.
On 25 Sept 2018 the Department granted access to documents under FOI. The release was not reflected in the
Disclosure Log until September 2019.
On 3 Apr 2018 the Department granted access to documents under FOI. The release was not reflected in the
disclosure log until 3 Aug 2018 and then only after someone within the Department made a request for an urgent to
the log. Given the nature of the documents released in April one is left to ponder whether the public controversy
involving the Minister Dutton and the grant of visas for au pairs had a bearing on the “urgency” in August.
On 16 August 2018 the Department granted access to documents under FOI. The release was not reflected in the
disclosure log until 23 October 2018 – or so it seems in the disclosed documents. In August 2019 the Minister caused
documents to be produced to the Senate. Included in the documents is the following:
A copy of the Paladin Holdings PTE Ltd PNG Services Contract (which only removed commercial in confidence
information), was made available on 16 August 2018 in the FOI disclosure log on the Department’s website, which is
available to the public.
One is left to ponder the trustworthiness of the emails as to the date information was uploaded to the disclosure log
(i.e 23 Oct ) against the trustworthiness of the information in the documents produced to the Senate (i.e 16 Aug).
2
Second, under the Public Service Act the responsibilities of the Secretary of a Department include implementing
measures directed at ensuring that the Department complies with the law e.g. the Department must publish
information in a disclosure log within ten working days after the FOI applicant was ‘given access’ to a document. The
Code of Conduct for the Australian Public Service requires that an employee must act with care and diligence in
connection with APS employment.
At Senate Estimates on 21 Oct the Secretary, Mike Pezzullo, noted that there are mandatory steps under the
legislation that obviously have to be adhered to. At Senate hearings on 15 November 2019 the fol owing exchange
took place:
Senator URQUHART: Do you make a point of being regularly briefed on the issues around the performance of the
department under freedom of information or is it only in relation to when you have a hearing or Senate estimates?
Mr Pezzullo: Both, and they're somewhat connected because estimates is regular enough that it's a great checkpoint
in which to update yourself on management performance. In any event, separately we have management
dashboards and other reports available.
That being the case it is highly likely that the Department records the publication date so as to ensure compliance
with the FOI legislation. There is no indication the Department considered it could produce a document containing
all of the information by using a ‘computer or other equipment that is ordinarily available’ to the agency for
retrieving or collating stored information.
Third, on 25 October 2019 the Office of the Australian Information Commissioner (OAIC) opened an investigation
into the Department of Home Affairs’ compliance with the Freedom of Information Act 1982 in processing requests
for non-personal information. The Disclosure Log relates to non-personal information and any investigation would
encompass compliance by the Department with the law on disclosure. One would expect the Department to make
available or the OAIC to request a document containing the information I sought in the FOI application.
A full history of my FOI request and all correspondence is available on the Internet at this address:
s. 47F(1)
Yours faithfully,
s. 47
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Please use this email address for all replies to this request:
s. 47F(1)
This request has been made by an individual using Right to Know. This message and any reply that you make will be
published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/officers
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's
FOI page.
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