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

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

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

Dear Isabel,

Thank you

Yours sincerely,

JS

Dear Margaret,

Thank you for your decision on the internal review. You decided to set aside the primary decision on the basis that the Department has undertaken the necessary work to update its disclosure log to include all relevant entries. Therefore, the basis on which the primary decision was made no longer applies. I agree.

However, I do not agree you granted me access to the documents. The Disclosure Log requirements of the FOI Act granted me access not your decision.

You also say that the Department is also taking steps to amend its processes so that it can ensure it complies with disclosure log requirements into the future. On 24 Oct the Department released documents to an FOI applicant that are not reflected in the disclosure log. Is the Department compliant I wonder?

As mentioned previously, the Department is not unique in failing to comply with the 10-day FOI publishing requirements. The Department of Home Affairs updates its disclosure log every few months resulting in many entries being published outside the 10-day limit set out in the FOI legislation. Each of the 37 new entries published in the DHA log on 18 October (i.e. entries with date of access from 23 August 2019 (FA19/05/01692) to 24 Sept 2019 (FA 10/07/01089) were published outside the 10-day requirements of the FOI legislation.

On 21 Oct while giving evidence at Senate Estimates on FOI issues the Secretary of the Department Affairs said: “- noting that there are mandatory steps under the legislation that obviously have to be adhered to.“ Another riddle to ponder?

Kind regards

JS

Dear FOI Contact Officer,

On 5 November 2019 the Department granted access to documents but the disclosure log does not reflect the release of the documents. Under FOI I seek access to documents that detail the reason(s) why the release of documents on 5 November 2019 is not reflected in the disclosure log.

Between December 2018 and November 2019 the Department did not comply with the law. As a consequence, the right of the public to timely information about 120 sets of documents was denied, not disclosed or kept secret. The Department has not expressed any regret for the consequences of its conduct. Given the circumstances and as a gesture of goodwill, and acknowledgement that the right of the public to the information was denied by the Department, the Commonwealth (on behalf of its agencies) should undertake not to impose fees or charges on any of my FOI application up to a maximum of 120 applications.

I expect that figure would need to be revised upwards as failure to comply with the law by other agencies is uncovered. In particular failures to comply with the law by the Department of Home Affairs in relation to its disclosure log.

Yours sincerely,

JS

Dear FOI Contact Officer,

Thank you for your email. As you indicate, the documents were available for download prior to the decision of 5 Nov - the log granted access not the decision.

I withdraw the FOI request for documents.

Kind regards

JS