Department of Home Affairs and the FOI Act - Disclosure Log

This request has been withdrawn by the person who made it. There may be an explanation in the correspondence below.

Dear Minister for the Public Service,

Under the Public Governance, Performance and Accountability Act 2013 the accountable authority of each entity has a Duty to establish and maintain systems relating to risk and control. 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. The Code of Conduct for the Australian Public Service requires that an employee must act with care and diligence in connection with APS employment.

{Published in The Mandarin November 22, 2019}
Complying with the Freedom of Information Act is a second-order priority for the Minister and the Department of Home Affairs, according to secretary Michael Pezzullo, who thinks his FOI team’s performance is “commendable” considering the limited resources it has to work with. The secretary will not allocate more resources to FOI processing or ask for more from the government for that purpose, despite the Office of the Information Commissioner moving to investigate his department’s persistent non-compliance with aspects of the FOI Act.

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. Parliament, Ministers and the public expect that Commonwealth Agencies will respect and comply with Commonwealth Law. The Department of Home Affairs has failed to comply with the law on numerous occasions since December 2017.

Under FOI I seek access to documents concerning or relating to the FOI disclosure log maintained by the Department of Home Affairs. The period of the request is December 2017 to the date of this request.

Yours faithfully,

JS

I understand Integrity has been dropped from the name of the office.

FOI, Minister for the Public Service and Integrity

OFFICIAL

 

Dear JS

 

I refer to your email (below) made to the Minister for the Public Service
for access under the Freedom of Information Act 1982 (Cth).

 

The Department of the Prime Minister and Cabinet provides the Minister for
the Public Service with administrative support in the processing of FOI
requests made to the Minister.

 

We will advise you of future developments in this matter (reference:
FOI/MPS/2020/001).

 

Regards

 

FOI and Privacy Section | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [1][Minister for the Public Service and Integrity request email] | w. [2]www.pmc.gov.au

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

 

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FOI, Minister for the Public Service and Integrity

6 Attachments

OFFICIAL

 

Dear JS

 

I refer to your email of 11 September 2020 (attached) in which you made a
request under the Freedom of Information Act 1982 (the FOI Act) to the
Minister for the Public Service in the following terms:

 

Under the Public Governance, Performance and Accountability Act 2013 the
accountable authority of each entity has a Duty to establish and maintain
systems relating to risk and control. 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.
The Code of Conduct for the Australian Public Service requires that an
employee must act with care and diligence in connection with APS
employment.

 

{Published in The Mandarin November 22, 2019} Complying with the Freedom
of Information Act is a second-order priority for the Minister and the
Department of Home Affairs, according to secretary Michael Pezzullo, who
thinks his FOI team’s performance is “commendable” considering the limited
resources it has to work with. The secretary will not allocate more
resources to FOI processing or ask for more from the government for that
purpose, despite the Office of the Information Commissioner moving to
investigate his department’s persistent non-compliance with aspects of the
FOI Act.

 

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. Parliament, Ministers and the public
expect that Commonwealth Agencies will respect and comply with
Commonwealth Law.  The Department of Home Affairs has failed to comply
with the law on numerous occasions since December 2017.

 

Under FOI I seek access to documents concerning or relating to the FOI
disclosure log maintained by the Department of Home Affairs. The period of
the request is December 2017 to the date of this request.

 

Notification of transfer of FOI request

 

The FOI Act provides a mechanism to transfer requests to another agency
where the subject-matter of the request is more closely connected with the
functions of that agency (section 16(1)(b) of the FOI Act).

 

This ensures that a decision on the request is made by the most
appropriate agency.

 

As the subject-matter of the documents you have requested are more closely
connected with the functions of the Department of Home Affairs, your
request has been transferred in full to the Department of Home Affairs
under section 16(1)(b) of the FOI Act.

 

The Department of Home Affairs will contact you in relation to your FOI
request. The Department of Home Affairs can be contacted by email at
[1][email address].

 

Yours sincerely

 

FOI and Privacy Section | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [2][Minister for the Public Service and Integrity request email] | w. [3]www.pmc.gov.au

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[4]cid:image001.jpg@01D30607.6CF4DA00[5]cid:image002.jpg@01D30607.6CF4DA00[6]cid:image003.jpg@01D30607.6CF4DA00[7]cid:image004.jpg@01D30607.6CF4DA00

[8]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.

 

 

 

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References

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Dear FOI,

An agency or minister who receives a request may transfer the request, or part of the request, to another agency or minister with their agreement if:
• the document is not in the first agency or minister’s possession but is to their knowledge in the possession of another agency or minister, or
• the subject matter of the document is more closely connected with the functions of another agency or minister (s 16(1)).

It is implicit in those requirements that a request cannot be transferred solely as a matter of administrative convenience, or because another agency or minister produced the document requested or also has a copy of it. Equally, before a decision is made to transfer a request an agency or minister should take whatever reasonable steps are necessary to ascertain whether they have the documents that may meet the description in the FOI request.

Agencies should analyse the terms of the request broadly, avoiding a technical, narrow or legalistic approach. The request seeks seek access to documents concerning or relating to the FOI disclosure log maintained by the Department of Home Affairs.

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. Parliament, Ministers and the public expect that Commonwealth Agencies will respect and comply with Commonwealth Law.

Dept of Home Affairs Disclosure Log 30 June 2020 FA 20/05/00004
https://www.homeaffairs.gov.au/foi/files...
Documents Released E-mails providing confirmation of disclosure log publication.

The released emails(68 pages) 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.

The Department of Home Affairs has failed to comply with the law on numerous occasions since December 2017. Documents concerning or relating to the failure by the Department of Home Affairs to maintain a disclosure log in accordance with the FOI Act would fall within scope. It is unreasonable to conclude that the Minister for the Public Service has no function or responsibility in relation to Commonwealth Agencies complying (or not complying) with the law or that the subject matter of documents within scope of the FOI request is more closely connected with the functions of the Department of Home Affairs.

Yours sincerely,

JS

Dear FOI,

The FOI request transferred to the Department of Home Affairs has been withdrawn.

https://www.righttoknow.org.au/request/d...

Yours sincerely,

JS