Information watchdog demands change after two government departments break FoI laws within a month | Freedom of information

Two of the government’s biggest departments were found to have broken freedom of information law within a month of each other, prompting the watchdog to demand urgent explanations and reforms from both, documents show.

The Office of the Australian Information Commissioner (OAIC) last month found the Department of Foreign Affairs and Trade breached the law by dragging out and eventually refusing a request by lawyer and FoI specialist Peter Timmins, documents seen by Guardian Australia show.

Timmins had asked for a single, clearly-identified document – an audit of Australia’s engagement with multilateral bodies such as the World Health Organisation – but the department repeatedly missed legally-imposed deadlines, complaining that the request was complex and asking for more time.

Eventually, the department decided the document was, in fact, a cabinet document, causing it to refuse Timmins’ request.

Timmins complained to the OAIC about what he alleged were a litany of basic errors in the department’s handling of the request.

The watchdog told the department that, as well as breaching the law in the Timmins case, its general compliance with FoI rules had “diminished” in recent years. It met legally-imposed deadlines in just 68.4% of requests in 2020-21, a significant drop from 86% the year before.

The OAIC demanded “an explanation and assessment of the reasons for noncompliance … and proposals to improve compliance”.

It also told the department to appoint an information champion to “provide leadership, oversight and accountability necessary to promote and operationalise the department’s compliance with the FoI Act”.

The scathing assessment came within a month of a similar finding against another major department, the prime minister’s department, which was found to have broken the law in its response to an FoI request about its handling of the alleged rape of Brittany Higgins in Parliament House, Canberra.

That case also prompted the OAIC to recommend the department audit itself and report back on its “compliance with statutory timeframes”. It was also told to appoint an information champion to help it meet FoI law.

Timmins said it was “telling” that nearly 40 years after Australia embraced the right-to-know principle, departments like the foreign affairs and trade department were being told by the regulator to appoint senior figures to improve FoI compliance.

“We’ve never invested in or fully embraced the concept of open government,” he said. “The tone at the top set by the Morrison government is antithetical to the object of the FoI Act to promote Australia’s representative democracy by increasing public participation in government processes and promoting the scrutiny, discussion, comment and review of the government’s activities.”

The Guardian approached the department but did not receive a response by deadline.

In its response to the OAIC, the department accepted it “fell short in its compliance with statutory FoI timeframes in relation to Mr Timmins’ FoI requests”.

“This is largely a result of substantial increases in recent years in the number and complexity of FoI requests received by the department,” it said.

“The department takes seriously its FoI obligations and has taken steps to improve its FoI compliance.”

It also told the OAIC it accepted its recommendations.

The department earlier said the request was difficult because it was “connected to complex foreign policy issues concerning Australia’s engagement in international organisations”.

“The department, therefore, in processing the requests, adopted a careful approach to consultation and deliberation to mitigate the risk to Australia’s international relations and national interest.”

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