Access to Disclosure Log documents since Dec 2018

JS made this Freedom of Information request to Department of the Environment and Energy

Waiting for an internal review by Department of the Environment and Energy of their handling of this request.

From: JS

Delivered

Dear Department of the Environment and Energy,

Under FOI I seek access to documents to which FOI applicants have been given access to since 18 December 2018. I limit the scope of the request to documents the release of which should have been subject to an entry in the disclosure log.

Yours faithfully,

JS

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From: FOI Contact Officer
Department of the Environment and Energy

Dear JS

 

Freedom of Information Request no. 190717

 

The Department of the Environment and Energy (the Department) acknowledges
receipt of your request under the Freedom of Information Act 1982 (FOI
Act) which seeks:

 

I seek access to documents to which FOI applicants have been given access
to since 18 December 2018.  I limit the scope of the request to documents
the release of which should have been subject to an entry in the
disclosure log.

 

The Department is required to process valid requests within 30 days after
the day a request was received. This 30 day processing period may be
extended under certain circumstances, for example, where the Department
decides it reasonable to consult with third parties. If the processing
period is extended, you will be informed of the extension and the reasons
for it.

 

The statutory deadline for providing a decision on this request is
currently 23 August 2019.

 

The Department makes two assumptions that affect the scope of the request.
These are set out below.

 

It is the usual practice of the Department:

•        not to disclose the personal information of junior officers or
the personal contact details of senior officers of the State or Federal
governments (including those of the Department). The names of senior
officers will generally be released. Your request will be processed on the
assumption that you do not intend to capture these details within its
scope.

•        not to release duplicates of any document captured within the
scope of the request. Further, where two documents fall within the scope
one differs from the other only with respect to minor editorial changes
(such as spelling or grammar corrections), only the later version of the
document will be treated as within scope.  Your request will be processed
on the assumption that you do not intend to capture duplicates or
documents that the Department considers duplicates (as per the above
explanation) within the scope of your request.

 

Please inform us if you do not agree to the request being processed by the
Department on the above assumptions.

 

Please note that information released under the FOI Act may later be
published online on our disclosure log.

 

We will contact you using the email you provided. Please advise if you
would prefer us to use an alternative means of contact.

 

If you have any questions, please contact the FOI Contact Officer on (02)
6274 2098.

 

Regards

 

Felicity Slater

FOI Contact Officer  | General Counsel Branch

Department of the Environment and Energy

a:  GPO Box 787 CANBERRA  ACT  2600

t:   02 6274 2098

e:  [Department of the Environment and Energy request email]

 

 

 

show quoted sections

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From: FOI Contact Officer
Department of the Environment and Energy


Attachment FOI 190717 Notice of intention to refuse request.pdf
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Dear JS

 

Please find attached correspondence in relation to FOI 190717.

 

Kind regards

 

Felicity

 

Felicity Slater

FOI Contact Officer  | General Counsel Branch

Department of the Environment and Energy

a:  GPO Box 787 CANBERRA  ACT  2600

t:   02 6274 2098

e:  [1][Department of the Environment and Energy request email]

 

References

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1. mailto:[Department of the Environment and Energy request email]

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From: JS

Delivered

Dear FOI Contact Officer,

Thank you for your letter dated 22 August 2019.

The Department considers the work involved in processing the request would substantially and unreasonably divert the resources of the Department from its other operations. Department records show that 75 document sets have been identified that fall within the scope of the request, capturing over 10,000 pages. The Department asserts that
1 these documents will shortly become publicly available;
2 it is currently experiencing a back log in uploading documents on to the Department's disclosure log;
3 it has taken steps to reduce the back log and will continue to do so; and
4 it anticipates that documents will continue to be uploaded on to the disclosure log in tranches over approximately the next month.

The Right to Know website is a trove of information. Amongst other things an FOI applicant (Posty) was advised in January 2019 by the Department that:
1 it only recently (circa October 2018) decided to upload documents to the disclosure log, and are currently implementing this feature upon the website;
2 it recently updated the disclosure log to enable documents released in 2018 to be downloaded directly from the website;
3 Unfortunately due to some technical problems this function is not working hence why the "documents released" column is appearing as blank;
4 We anticipate this will be fixed within 30 days and the documents will be accessible.

The disclosure log on the website applies to FOI requests made upon the Department of the Environment and Energy, the Director of National Parks, the Australian Renewable Energy Agency and their Ministers’ Offices from 2018 to present, and the documents released in response to those requests. The last entry in the disclosure log applies to documents released on 18 December 2018. The disclosure log does not contain any entries for the 75 sets of documents provided to FOI applicants since December 2018. The FOI Act requires agencies to publish information in a disclosure log within 10 working days after the freedom of information (FOI) applicant was 'given access' to a document. It seems that on 75 occasions the Department has not complied with FOI legislation.

Had the Department achieved the outcome it anticipated in January 2019 then this FOI application may not have been necessary. It is hardly reasonable for the Department to conclude that a 'practical refusal reason' exists when in fact that reason exists because of a failure by the Department to comply with the FOI legislation.

You say I must take one of the following actions by written notice to the Department:
a) withdraw my request;
b) make a revised request; or
c) indicate that you do not wish to revise the request.

Given the matters outlined I do not wish to revise the request.

Kind regards

JS

Link to this

From: FOI Contact Officer
Department of the Environment and Energy


Attachment FOI 190717 Decision on access.pdf
208K Download View as HTML


Dear JS

 

Please the attached decision on access letter in relation to your FOI
request 190717.

 

Kind regards

 

 

FOI Contact Officer  | General Counsel Branch

Department of the Environment and Energy

a:  GPO Box 787 CANBERRA  ACT  2600

t:   02 6274 2098

e:  [1][Department of the Environment and Energy request email]

 

 

 

 

 

References

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1. mailto:[Department of the Environment and Energy request email]

Link to this

From: JS

Delivered

Dear Department of the Environment and Energy,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department of the Environment and Energy's handling of my FOI request 'Access to Disclosure Log documents since Dec 2018'.

Agencies and ministers must publish information that has been released in response to each FOI access request, subject to certain exceptions. This publication is known as a ‘disclosure log’. The disclosure log facilitates publication to the world at large of information released under FOI to individual applicants. Agencies and ministers must publish this information within ten working days of giving the FOI applicant access to the information. This reinforces the objective of the FOI Act to promote a pro-disclosure culture across government and to increase recognition that information held by government is a national resource. Three options for publishing information are specified in the FOI Act:

A. making the information available for downloading from the agency’s or minister’s website
B. linking to another website where the information can be downloaded, or
C. giving details of how the information may be obtained.

In October 2018 the Department made the commendable decision to upload documents to its disclosure log thereby making the released information available for downloading by the public. The disclosure log on the website applies to FOI requests made upon the Department, the Director of National Parks, the Australian Renewable Energy Agency and their Ministers’ Offices from 2018 to present, and the documents released in response to those requests. Due to technical problems the uploading of document to the disclosure log ceased about December 2018 – the last entry in the disclosure log applies to documents released on 18 December 2018. Consequently, details of 75 sets of documents provided to FOI applicants since December 2018 are not included in the disclosure log as required by the FOI legislation.

Not alone is the Department failing to comply with the law, its conduct has stymied the objective of the FOI Act to promote a pro-disclosure culture across government and to increase recognition that information held by government is a national resource. And further, an authorised officer of the Department refused access to the documents under section 24 of the FOI Act because the officer was satisfied that a practical refusal reason exists. Namely, due to the number of documents, excessive page count and the current efforts of the Agency working through the backlog, processing the request would substantially and unreasonably divert resources of the agency from its other operations.

The reasons why processing the request would substantially and unreasonably divert resources of the Department from its other operations are novel in the circumstances. The documents have been processed under FOI and released to FOI applicants (the majority of whom were journalists or environmental protection groups), and decisions made within the Department to upload the various documents to the disclosure log. The work required to process the current FOI application involves little more than sending the documents to the Right to Know address of this email. Perhaps the real reason is contained in a recent media report that indicated staff of the Department were concerned budget cuts had left them with insufficient funding to do their jobs.

Until the technical difficulties/backlog are resolved the Department has chosen not to adopt either option B or C or both. For example, the Public Service Commissioner implemented option C and recently added option B in respect of some documents released in response to requests made through the Right to Know website.

By releasing the documents the Department could adopt option B in respect of documents released in response to requests made through the Right to Know website until such time as the difficulties with its own website are resolved.

The documents should be released now to promote Australia’s representative democracy by increasing scrutiny, discussion, comment and review of government activities. Many of the documents relate to high profile issues such as environmental approvals for coal mines, the Great Barrier Reef, wind farm development and energy security. As the Department has acknowledged the documents are regularly referenced in headline news articles, and the environment or energy issues to which the requests relate tend to elicit strong sentiment and divide views in the general public.

Sadly, the Department is not unique in failing to comply with the 10-day FOI publishing requirements. The Department of Homeland Security updates its disclosure log every few months resulting in many entries being published outside the 10-day limit set out in the FOI legislation. Non-compliance with the FOI requirements appears to have been built into the DHA process. Media reports that DHA had budget issues that caused a pause or slow-down in projects seem to be supported by the redacted document DHA disclosure log FA19/04/00217 June 2019.

Once documents are uploaded to the DHA disclosure log one cannot discern that DHA has failed to comply with the 10- day publishing requirement. The publication of required information in the disclosure log without acknowledgment by an agency that is has not complied with the FOI law in the first instance might be regarded as a sneaky and cute practice inconsistent with the requirement to behave honestly and with integrity.

While matters could be raised with the Office of the Australian Information Commissioner information in the public domain indicates that it could take the Agency up to 12 months to commence an assessment or investigation. The OAIC does not appear to collect any information on the number of instances Agencies fail to comply with the 10-day FOI publishing rule.

The FOI legislation imposes the disclosure log requirements on the Department. Clearly the Department has to rely on the actions of its managers to ensure it complies with the law. Under the Public Service Act, the Secretary of a Department has responsibilities including:
• managing the affairs of the Department efficiently, effectively, economically and ethically;
• implementing measures directed at ensuring that the Department complies with the law;
• providing leadership, strategic direction and a focus on results for the Department;
• managing the affairs of the Department in a way that is not inconsistent with the policies of the Commonwealth and the interests of the APS as a whole.

There are strong indications that measures put in place by Secretaries have not been efficient or effective or sufficient to ensure the agency complies with the FOI legislation. Non-compliance with the FOI legislation by the Department is inconsistent with the policies of the Commonwealth, and the interest of the APS as a whole. While the Department is not, the Secretary and others are subject to the provisions of the Code of Conduct. Yet there is more concern expressed about anonymous tweets by public servants than there is about the conduct of those who fail to ensure that Commonwealth Departments comply with Commonwealth Law.

The obligations of Commonwealth Legislation imposed on Commonwealth Departments is not dependant on the administrative convenience of the Secretary, nor the Ministers given the disclosure log encompasses their Offices. The Department should release the documents and not rely on the proposition that the process would substantially and unreasonably divert resources of the Department from its other operations – a proposition that does not pass the pub test given the FOI legislation on disclosure logs.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...

Kind regards,

JS

Link to this

From: FOI Contact Officer
Department of the Environment and Energy

Dear FS

Freedom of Information Request no. 190717

 

The Department of the Environment and Energy (the Department) acknowledges
receipt of your application for internal review under the Freedom of
Information Act 1982 (FOI Act) dated 8 November 2019.

 

The Department is required to make a decision within 30 days after the day
a valid application is received. This 30 day processing period may only be
extended by the Information Commissioner. If the processing period is
extended, you will be informed of the extension and the reasons for it.

 

The statutory deadline for providing a decision on this request is
currently 7 November 2019.

 

We will contact you at this email address. Please advise if you would
prefer us to use an alternative means of contact.

 

If you have any questions, please contact the FOI Contact Officer on (02)
6274 2098.

 

Regards

 

Isabel Carmody

FOI Paralegal  | General Counsel Branch

Department of the Environment and Energy

a:  GPO Box 787 CANBERRA  ACT  2600

t:   02 6274 2098

e:  [1][Department of the Environment and Energy request email]

 

 

References

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1. mailto:[Department of the Environment and Energy request email]

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From: JS

Delivered

Dear Isabel,

Thank you

Yours sincerely,

JS

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Things to do with this request

Anyone:
Department of the Environment and Energy only: