Dept of Home Affairs - Non Compliance with FOI legislation Disclosure Log
Dear 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. The public expect that Commonwealth Agencies will respect and comply with Commonwealth Law.
The Department of Home Affairs updates its disclosure log every few months resulting in many entries being outside the 10-working day limit set out in the FOI legislation. Non-compliance appears to be built into the system. For example, each of the 37 new entries published in the log on or about 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.
That is the Department did not comply with the law on 37 occasions. Once documents are uploaded to the disclosure log one cannot discern that the Department 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 might be regarded as a sneaky and cute practice inconsistent with the requirement to behave honestly and with integrity.
Under FOI I seek access to a document that sets out the following information for each entry in the Disclosure log from 1 Jan 2018 to date of this 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 requested information should be readily available in the Department’s computerised records. 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. That being the case it is highly likely that the Department records the publication date so as to ensure compliance with the FOI legislation. At Senate hearings on 15 November 2019 the following 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.
Yours faithfully,
JS
UNCLASSIFIED
In reply please quote:
FOI Request: FA 19/12/00430
File Number: OBJ2019/61396
Dear J S,
Acknowledgement of Freedom of Information Access request
I refer to your correspondence received on 03 December 2019 seeking access to documents held by the Department of Home Affairs (the Department) under the Freedom of Information Act 1982 (the FOI Act).
You have requested access to the following:
a document that sets out the following information for each entry in the Disclosure log from 1 Jan 2018 to date of this 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.
Your request was received by the Department on 03 December 2019 and has been allocated FOI request number FA 19/12/00430. Please include your FOI request number in all correspondence with the Freedom of Information Section.
Timeframe for receiving your decision
The statutory timeframe for processing a request is 30 days from the date upon which your application was received by the Department.
Information regarding your review rights in relation to your request, including processing timeframes are available at the website of the Office of the Australian Information Commissioner.
https://www.oaic.gov.au/freedom-of-infor...
Exclusion of staff details
The Department’s policy is to exclude the personal details of staff not in the Senior Executive Service (SES), as well as the direct contact details of SES staff, contained in documents that fall within scope of an FOI request. If you require personal details of non-SES officers, or direct contact details of SES staff, please inform us so the decision maker may consider your request. Otherwise we will take it that you agree to that information being excluded from the scope of your request.
Duplicate documents
If the FOI decision-maker deems a document to be a duplicate, they will not assess those pages as part of your FOI request. This means that if a there is a decision to release the document to you, you will receive only one copy, even if multiple copies of that document exists.
Publication of document
Where documents are released to you in response to your request, the Department may be required to publish these documents on its website within 10 working days in accordance with section 11C of the FOI Act. Publication will not be required where the documents contain personal or business affairs information.
Contacting the FOI Section
Should you wish to discuss your request you may contact the FOI Section at [DIBP request email].
Yours sincerely,
FOI Officer
Freedom of Information National Office
Freedom of Information, Privacy and Records Management Branch
Data Division | Corporate and Enabling Group
Department of Home Affairs
Email: [DIBP request email]
UNCLASSIFIED
-----Original Message-----
From: JS <[FOI #5971 email]>
Sent: Tuesday, 3 December 2019 4:30 PM
To: FOI <[DIBP request email]>
Subject: Freedom of Information request - Dept of Home Affairs - Non Compliance with FOI legislation Disclosure Log
Dear 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. The public expect that Commonwealth Agencies will respect and comply with Commonwealth Law.
The Department of Home Affairs updates its disclosure log every few months resulting in many entries being outside the 10-working day limit set out in the FOI legislation. Non-compliance appears to be built into the system. For example, each of the 37 new entries published in the log on or about 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.
That is the Department did not comply with the law on 37 occasions. Once documents are uploaded to the disclosure log one cannot discern that the Department 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 might be regarded as a sneaky and cute practice inconsistent with the requirement to behave honestly and with integrity.
Under FOI I seek access to a document that sets out the following information for each entry in the Disclosure log from 1 Jan 2018 to date of this 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 requested information should be readily available in the Department’s computerised records. 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. That being the case it is highly likely that the Department records the publication date so as to ensure compliance with the FOI legislation. At Senate hearings on 15 November 2019 the following 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.
Yours faithfully,
JS
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Unsolicited commercial emails MUST NOT be sent to the originator of this email.
Dear FOI,
Has an extension of time been sought or granted in respect of this FOI application?
Yours sincerely,
JS
UNCLASSIFIED
Dear JS
FOI request FA 19/12/00430
I refer to your FOI request received on 3 December 2019, seeking access to
the following:
Under FOI I seek access to a document that sets out the following
information for each entry in the Disclosure log from 1 Jan 2018 to date
of this 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 has made a decision on this request. Please find attached
the decision record and documents released under the FOI Act.
This request has now been closed.
Regards
FOI Case Officer | Freedom of Information Section
FOI and Records Management Branch | Data Division
Corporate and Enabling Group
Department of Home Affairs
E: [1][DIBP request email]
[2]Acknowledgement of Country
UNCLASSIFIED
Important Notice: The content of this email is intended only for use by
the individual or entity to whom it is addressed. If you have received
this email by mistake, please advise the sender and delete the message and
attachments immediately. This email, including attachments, may contain
confidential, sensitive, legally privileged and/or copyright information.
Any review, retransmission, dissemination or other use of this information
by persons or entities other than the intended recipient is prohibited.
The Department of Home Affairs and ABF respect your privacy and have
obligations under the Privacy Act 1988.
Unsolicited commercial emails MUST NOT be sent to the originator of this
email.
References
Visible links
1. mailto:[DIBP request email]
Dear FOI,
Your decision letter contains this paragraph:
Parts of the documents contain information which consists of footers which have automatically been added to those documents when they were printed from the Department’s system. That information provides an online address for the Department’s computer systems and does not form part of your file and records held by the Department about you. I consider this information to be irrelevant to your FOI request.
Is the Dept of Home Affairs data matching and collating details of FOI Applicants with files and records held by the Department on individuals? If so, why?
Yours sincerely,
JS
UNCLASSIFIED
Good evening JS,
The footer information referred to in the decision record for FA
19/12/00430 refers to system information which is often produced when
extracting data from electronic systems where used.
This data does not have any relation or link to the requestor of an FOI
request nor is it used for data matching purposes but is rather system log
data such as the time and dates, user details, and/or system names for the
extracted report(s).
There is no such data included in the footer of the documents released to
you. The only relevant data is the name of the FOI officer at the top of
the respective emails which indicates the officer that extracted and
printed the emails to facilitate your request.
The paragraph included in the decision record statement inadvertently made
reference to a footer.
Kind regards,
FOI Section
FOI and Records Management Branch
Data Division
Strategy & Law Enforcement Group
Department of Home Affairs | [1]www.homeaffairs.gov.au
[2]Acknowledgement of Country
UNCLASSIFIED
-----Original Message-----
From: JS <[3][FOI #5971 email]>
Sent: Thursday, 2 July 2020 4:59 PM
To: FOI <[4][DIBP request email]>
Subject: Re: FOI request FA 19/12/00430 [SEC=UNCLASSIFIED]
Dear FOI,
Your decision letter contains this paragraph:
Parts of the documents contain information which consists of footers which
have automatically been added to those documents when they were printed
from the Department’s system. That information provides an online address
for the Department’s computer systems and does not form part of your file
and records held by the Department about you. I consider this information
to be irrelevant to your FOI request.
Is the Dept of Home Affairs data matching and collating details of FOI
Applicants with files and records held by the Department on individuals?
If so, why?
Yours sincerely,
JS
-----Original Message-----
UNCLASSIFIED
Dear JS
FOI request FA 19/12/00430
I refer to your FOI request received on 3 December 2019, seeking access
to the following:
Under FOI I seek access to a document that sets out the following
information for each entry in the Disclosure log from 1 Jan 2018 to date
of this 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 has made a decision on this request. Please find attached
the decision record and documents released under the FOI Act.
This request has now been closed.
Regards
FOI Case Officer | Freedom of Information Section
FOI and Records Management Branch | Data Division
Corporate and Enabling Group
Department of Home Affairs
E: [1][DIBP request email]
[2]Acknowledgement of Country
UNCLASSIFIED
Important Notice: The content of this email is intended only for use by
the individual or entity to whom it is addressed. If you have received
this email by mistake, please advise the sender and delete the message
and attachments immediately. This email, including attachments, may
contain confidential, sensitive, legally privileged and/or copyright
information.
Any review, retransmission, dissemination or other use of this
information by persons or entities other than the intended recipient is
prohibited. The Department of Home Affairs and ABF respect your privacy
and have obligations under the Privacy Act 1988.
Unsolicited commercial emails MUST NOT be sent to the originator of this
email.
References
Visible links
1. [5]mailto:[DIBP request email]
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[6][FOI #5971 email]
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:
[7]https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web
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attachments immediately. This email, including attachments, may contain
confidential, sensitive, legally privileged and/or copyright information.
Any review, retransmission, dissemination or other use of this information
by persons or entities other than the intended recipient is prohibited.
The Department of Home Affairs and ABF respect your privacy and have
obligations under the Privacy Act 1988.
Unsolicited commercial emails MUST NOT be sent to the originator of this
email.
References
Visible links
1. http://www.homeaffairs.gov.au/
3. mailto:[FOI #5971 email]
4. mailto:[DIBP request email]
5. mailto:[dibp
6. mailto:[FOI #5971 email]
7. https://www.righttoknow.org.au/help/offi...
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.
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).
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 following 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: https://www.righttoknow.org.au/request/d...
Yours faithfully,
JS
UNOFFICIAL
In reply please quote:
FOI request: FA 19/12/00430-R1
File number: OBJ2019/61396
Dear J S,
This email is to acknowledge that the Department of Home Affairs (the
Department) has received your request for an internal review of an access
refusal decision under section 54 of the Freedom of Information Act 1982
(the FOI Act).
The decision under review is the Department’s decision of 30 June 2020.
Timeframe for receiving your decision
The statutory timeframe for processing an internal review request is 30
days from the date on which the request was received by the Department.
The Department received the internal review request on 17 August 2020.
Review rights
Your review rights in relation to your internal review request are
available on the website of the Office of the Australian Information
Commissioner [1]here.
Contacting the FOI Section
Should you wish to discuss your request you may contact the FOI Section at
[2][email address].
Kind Regards,
Karen
FOI and Records Management Branch
Data Division
Strategy & Law Enforcement Group
Department of Home Affairs
Email: [3][email address]
UNOFFICIAL
Important Notice: The content of this email is intended only for use by
the individual or entity to whom it is addressed. If you have received
this email by mistake, please advise the sender and delete the message and
attachments immediately. This email, including attachments, may contain
confidential, sensitive, legally privileged and/or copyright information.
Any review, retransmission, dissemination or other use of this information
by persons or entities other than the intended recipient is prohibited.
The Department of Home Affairs and ABF respect your privacy and have
obligations under the Privacy Act 1988.
Unsolicited commercial emails MUST NOT be sent to the originator of this
email.
References
Visible links
1. https://www.oaic.gov.au/freedom-of-infor...
2. mailto:[email address]
3. mailto:[email address]
OFFICIAL
In reply please quote:
FOI Request: FA 19/12/00430-R1
File Number: OBJ2019/61396
Dear JS
I refer to your correspondence dated 19 August 2020 in which you request
that the Department of Home Affairs (the Department) review its decision
on access to documents dated 30 June 2020 under the Freedom of Information
Act 1982 (the FOI Act).
Please find attached the decision letter in relation to this request.
Kind regards
FOI Reviews Officer
FOI Section
FOI and Records Management Branch
Data Division
Strategy & Law Enforcement Group
Department of Home Affairs | www.homeaffairs.gov.au
OFFICIAL
Important Notice: The content of this email is intended only for use by
the individual or entity to whom it is addressed. If you have received
this email by mistake, please advise the sender and delete the message and
attachments immediately. This email, including attachments, may contain
confidential, sensitive, legally privileged and/or copyright information.
Any review, retransmission, dissemination or other use of this information
by persons or entities other than the intended recipient is prohibited.
The Department of Home Affairs and ABF respect your privacy and have
obligations under the Privacy Act 1988.
Unsolicited commercial emails MUST NOT be sent to the originator of this
email.
Dear FOI Reviews mailbox,
Thank you for the decision.
The Department has considered the Australian Information Commissioner’s guidelines relating to the interpretation, operation and administration of the FOI Act. The Department has concluded that its Disclosure Log is not a document for the purposes of the FOI Act. The Department relies on section 4 which provides that ‘material maintained for reference purposes that is otherwise publicly available’ is not a document under the Act. The Department notes that the information I seek is published on the Department’s website, thereby attracting Section 4 of the Act.
I understand the Disclosure Log is a requirement imposed by the FOI Act. Given that circumstance to categorize the Disclosure Log as reference material is, on any view, untenable. Moreover, the Information Commissioner has found that the exclusion of material held for reference purposes by agencies and ministers’ is not intended to exclude from the operation of the FOI Act material published on departmental websites, and apart from the limited circumstances provided for in s 12(1), there is no provision in the FOI Act to refuse access to a document solely on the ground that it is publicly available.
The 53 documents (redacted) released to me reflect a manual process undertaken within the Department to arrange for publication of the Disclosure Log. The content of those documents combined with the information in the disclosure log raises the strong suspicion the Department has failed to comply with the FOI Act.
I also requested access to a document that sets out the ‘date information about each release was published in the disclosure log as required by law’. Such information would establish beyond doubt the instances where the Department failed to comply with the law (and there are many, many instances). The Department is satisfied that the information to which I seek access is held by the Department in its computer systems, but that it is not able to be accessed by the ordinary use of those computer systems. The Department is therefore satisfied that the document which I seek to access does not exist.
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
Despite these accountability measures the Department is unable to produce from its computer systems a document that establishes the Department complies with the FOI requirement to publish within ten days. A reflection on the significant and systematic nature of the Department's compliance failures?
Thank you for the information about the review rights.
Yours sincerely,
JS