Dear Minister for Home Affairs,

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

Dear FOI,

Thank you.

The documents referred to in the Disclosure Log you highlight do not meet the scope of this request.

Yours sincerely,

JS

Dear FOI,

I made an FOI application to the Minister for Home Affairs. I was not aware the application was transferred to the Department of Home Affairs.

As to the FOI applications to the Minister for the Public Service and the Department of Prime Minister and Cabinet :
(a) The Department of Home Affairs should not have agreed to the transfers;
(b) The Minister should not have transferred the application;
(c) The Department should not have transferred the application.

In both instances it was unreasonable to conclude that the Minister or the Department of Prime Minister and Cabinet 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,

Thank you. I am sorry about the mix up, my mistake.

Two responses :
A The Minister for Home Affairs
B The Department of Home Affairs
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A To the Minister for Home Affairs

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.

All in all not a system that engenders confidence and trust. Rather, a reflection on the significant and systematic nature of the Department's compliance failures.

The Canberra Times published an article on 2 Sept 2017 with the heading:.
Immigration boss Mike Pezzullo slams public service 'aversion to accountability'
In an interview with the Lowy Institute released this week, Mr Pezzullo said he'd seen professional cowardice from public servants during a career advising ministers from both sides of politics.
"It's more of an aversion to accountability," he said.
"I say this about both sides of the aisle, ministers are not there to observe a problem.
"They need to know what the problem is, they need to know the drivers that have got us to that position.... and they want to know options that are consistent with their priorities, their strategies, their value system and their ideology, and then they want to know that you can deliver. "Ministers get quite frustrated at the timidity and the risk aversion that occasionally they might be confronted with."

It was reported in the media that the Department of Home Affairs had budget issues and that a report was made to the Minister in Dec 2018. Disclosure log entry of 28 June 2019 may be relevant:

28 June 2019 FA19/04/00217 Ministerial Submission - 2018-29 Departmental Budget Update Decision Record (3MB PDF) Documents Released (2MB PDF)

From the reported comments of Mr Pezzullo, it would be reasonable to assume that, in the redacted report, Mr Pezzullo informed the Minister about the on-going failure of the Department of Home Affairs to comply with the FOI legislation.

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 Home Affairs has no function or responsibility in relation to the Department of Home Affairs 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.

Failing to comply with FOI legislation relating to its disclosure log is not a function of the Department of Home Affairs. You should seek the return of the FOI application,

B The Department of Home Affairs

It seems the Department agreed to accept the transfer on the basis the subject matter of the document is more closely connected with the functions of the Department.

Failing to comply with FOI legislation relating to its disclosure log is not a function of the Department of Home Affairs, The FOI application should be returned to the Minister for Home Affairs.

Yours sincerely,

JS

Dear FOI,

Thank you for the Notice dated 4 November 2020,

On 11 September 2020 I made an FOI application to the Minister for Home Affairs for access to documents. OAIC Guidelines provide:

2.24 The right of access to documents extends to the ‘official documents of a minister’ (ss 11(1)(b), 11A). …… A minister includes an assistant minister.

2.25 A minister is independent of the portfolio department for the purposes of the FOI Act, and is therefore responsible for processing FOI requests received by the minister. It is nevertheless open to a minister’s office to arrange with a portfolio department to provide assistance in processing FOI requests, on matters such as the following:
• Searching shared resources: upon receiving an FOI request, a minister’s office is responsible for conducting a search of the documents it holds, but can arrange with a portfolio department to undertake a search of shared resources such as a ministerial correspondence register.
• Transfer of requests: a minister may transfer a request to a portfolio department, with the department’s agreement, when s 16 applies (document held by the department but not the minister (s 16(1)(a)); or the subject matter of the document is more closely connected with the department’s functions (s 16(1)(b))). It may assist the efficient processing of requests, including complying with the 30-day time limit under the FOI Act, for transfer arrangements to be spelt out. A minister’s office must be satisfied that it does not hold the requested documents, or if it does, that the documents are more closely connected with another agency’s or minister’s functions before deciding to transfer the request.
• Reporting: a minister is required by s 93 of the FOI Act to provide information to the Information Commissioner for the purposes of the Commissioner’s reporting functions. A minister’s office may obtain assistance from a portfolio department in meeting this requirement.

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.

I was not informed that my request to the Minister was being transferred. The Department took it upon itself to categorise the request for access as the application to the Department and not to the Minister for Home Affairs. In fact it now appears the Minister for Home Affairs, Mr Dutton, is defined as the department ( see Notice 4/11 - held by the Minister for Home Affairs (the Department)). Clearly OAIC Guidelines may not been followed by the Minister who appears to be unaware of the FOI application to him.

I consider that the FOI application dated 11 September is with the Minister for Home Affairs. I will revise the request to the Minister as follows:

I seek access to documents concerning or relating to the failure by the Department of Home Affairs to comply with the disclosure log requirement in the FOI legislation
(a) sent from or
(b) received by
the Minister for Home Affairs at any time during the period December 2017 to the date of this request.

Should the Department decide that the application dated 11 September is with the Department then I revise the request as follows:

I seek access to documents, concerning or relating to the failure by the Department of Home Affairs to comply with the disclosure log requirement in the FOI legislation,
(a) sent from or
(b) received by
the Department of Home Affairs at any time during the period December 2017 to the date of this request.

I withdraw the FOI requests that were transferred by the Minister for the Public Service and the Department of Prime Minister and Cabinet.

Yours sincerely,

JS

Dear FOI,

Thank you for your decision and the four documents.

The FOI application was addressed to the Minister for Home Affairs and sought official documents of the Minister for Home Affairs, Mr Peter Dutton. The Department has decided that the FOI application was directed to the Department and has released four documents.

Documents 1 and 2 relate to an application made in 2018. See information at https://www.righttoknow.org.au/request/f...

Documents 3 and 4 relate to an application made on 3 Dec 2019. See information at https://www.righttoknow.org.au/request/d...

An application for access to documents to the Department of Prime Minister and Cabinet resulted in no documents within scope being located. See https://www.righttoknow.org.au/request/f...

An application for access to the Minister for the Public Service (Prime Minister) is ongoing. See https://www.righttoknow.org.au/request/f...

The latter two applications illustrate that a Minister and a Department can and do respond to FOI applications unlike the practice at the Department of Home Affairs where the Department responds to applications made to the Minister.

The OAIC recently released a report following an investigation under section 69(2) of the FOI Act to consider the Department’s compliance with the statutory processing timeframes set out in the FOI Act. That investigation was limited to FOI requests for non-personal information. The OAIC investigation did not encompass in any way the failure by the Department to comply with the Disclosure Log requirements of the FOI legislation on numerous occasions – many hundreds – since 2018. See https://www.oaic.gov.au/updates/news-and...

Yours sincerely,

JS