Dear Minister for the Public Service,

As the Minister would know the Department of Home Affairs has consistently and repeatedly failed to comply with the disclosure log requirements of the FOI legislation.

Under FOI 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 the Public Service during the period December 2017 to the date of this request.

Yours faithfully,

JS

Dear FOI,

Thank you for your letter.

You consider that processing my request, in its current terms, would substantially and unreasonably interfere with the performance of the Prime Minister's functions, considering the other responsibilities of the Prime Minister and demands on his time, and that of his Office.

You invite me to consider revising my request by, for example:
(a) limiting the request to a particular topic; or (b) narrowing the timeframe for the documents I am seeking.

Topic:I consider documents concerning or relating to the failure by the Department of Home Affairs to comply with the disclosure log requirements of the FOI legislation relate to a specific topic. All Commonwealth Agencies including your office would be very well acquainted with the disclosure log requirement in the FOI legislation. I narrow the scope to documents received from or sent to:
The Department of Prime Minister and Cabinet; or
Office of the Australian Information Commissioner, or
Minister for Home Affairs, or
Australian Public Service Commissioner.

Timeframe: I narrow the timeframe to the period 1 Jan 2019 to the date of the request.

Yours sincerely,

JS

Dear FOI,

Thank you for your decision. Searches carried out by staff of the office revealed no documents fall within the scope of the FOI application. Documents in the public domain indicate that the searches may not have embraced all documents within scope.

On 11 Sept 2020 I made an FOI application to the Minister for the Public Service. The following text appeared in the relevant e-mail:
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.
On 1 Oct 2020 the Minister transferred the FOI application to the Department of Home Affairs – the agency that was not complying with the law. You can find full details of the FOI application and transfer process here.

https://www.righttoknow.org.au/request/d...
https://www.righttoknow.org.au/request/d...
It is highly likely that those documents were within scope.

The principles of good public administration, embodied in the APS Values and Employment Principles, lie at the heart of the democratic process and the confidence the public has in the way public servants exercise authority when meeting government objectives. Good public administration is a protection against inefficiency and poor performance.

Agencies failing to comply with the law is not good public administration nor a government objective (we hope). In opposing an FOI Bill promoted by Senator Patrick on 31 Aug 2020 Senator Stoker said:
FOI excites and thrills almost nobody, and yet it is really important to transparency and accountability of government. …..
Third, the requirement that agencies publish details about freedom of information requests on their FOI disclosure logs between 10 and 14 days after granting access, as opposed to current arrangements which require publication within 10 days, would actually slow down the publication of information on FOI disclosure logs. See transcript here:
ParlInfo - BILLS : Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 : Second Reading (aph.gov.au)

The is evidence that the Dept of Home Affairs failed to comply with the disclosure law on hundreds of occasions since its formation in 2017. I had hoped to provide a detailed table. The Dept decided that its disclosure log was reference material under the FOI and consequently not a document under FOI. Given that the application of the FOI Act is the responsibility of the Attorney-General’s Department I have assumed that, under the Legal Service Direction, the AG has approved the decision about the Disclosure Log being reference material.

Consequently, I obtained from the Dept of Home documents indicating the date disclosure log entries were apparently published. By matching the access dates in the Disclosure Log with the alleged publication date in the released documents the non-compliance is revealed. You will find full details here:
https://www.righttoknow.org.au/request/d...

I have sought further documents that should clarify the publication date of a number of disclosure log entries. You will find details here :
https://www.righttoknow.org.au/request/f...

Some of the outstanding documents relate to this FOI application:
https://www.righttoknow.org.au/request/f...

It is clearly in the public interest that Departments comply with the law. Where there are numerous instances of a Dept displaying a serious disregard for the law the public interest requires those charged with ensuring the Dept complies are held to account. Under the Public Service Act the responsibilities of the Secretary of a Department (Mr Pezzullo in this case) include:
• managing the affairs of the Dept efficiently, effectively, economically and ethically.
• implementing measures directed at ensuring that the Dept complies with the law;
• providing leadership, strategic direction and a focus on results for the Dept;
• managing the affairs of the Dept in a way that is not inconsistent with the policies of the Commonwealth and the interests of the APS as a whole;

The Code of Conduct for the Australian Public Service requires that an employee must:
• behave honestly and with integrity in connection with APS employment.
• act with care and diligence in connection with APS employment
• when acting in connection with APS employment, comply with all applicable Australian laws
• use Commonwealth resources in a proper manner and for a proper purpose
• at all times behave in a way that upholds the APS Values and Employment Principles, and the integrity and good reputation of the employee’s Agency and the APS.

The recent OAIC report did not canvass any matters relating to the failure by the Dept to comply with the disclosure log requirements. In any event the Information Commissioner does not have a role in considering matters arising under the Code of Conduct in relation to Agency Heads. The APS Commissioner has a function to inquire, in accordance with section 41(and 41A) of the Public Service Act, into alleged breaches of the Code of Conduct by Agency Heads.

The office of the Minister for the Public Service (Prime Minister), the head of the Public Service, Mr Gaetjens and the office of the Minister for Home Affairs (Mr Dutton) and many others are all aware of the serious non-compliance with the law by the Dept of Home Affairs.

The integrity of government administration depends in large part on people not being prepared to turn a blind eye to wrongdoing of any kind. Indeed, the Rule of Law, in its most basic form, is the principle that no one is above the law. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule.

An investigation under the Public Service Act is both warranted and overdue.

Yours sincerely,

JS