Lot's Wife Edition 2 2016

STUDENT
F.O.I. – not for you and I
by James Temple
The Freedom of Information Act 1982 (FOI) was one of
the many legal and administrative reforms brought in
by the Cain state government. Prior to this, the government
was not obliged to disclose information about its internal
operations to the public. The Act represented a step towards
greater transparency, with the objective of extending “as far
as possible the right of the community to access to information
in the possession of the Government of Victoria and
[governmental agencies].” 1
It increased public scrutiny and debate over the operations
of government and other major public institutions.
Recently, FOI legislation has been used to inquire into travel
logs of members of parliament and government officials,
such as Bronwyn Bishop and Tony Burke. The scandals
generated by the revelations of extravagant travel expenses
being charged to the taxpayer, such as Ms. Bishop’s helicopter
ride, reveal how important the Act is in holding politicians
accountable. It helps to protect against corruption
and the abuse of power in government agencies, by allowing
ordinary people quick and reasonably low-cost access to
information. Or rather, it should, were the Act adhered to as
it were intended.
In 2012, the former premier John Cain slammed
consecutive governments for manipulating the legislation to
avoid releasing documents and dealing with public scrutiny. 2
Public servants and bureaucrats are adept at disposing of
problematic requests: such requests are usually for documents
that would reflect poorly on the agency, e.g. lists of
donors to political parties, or the personal journal of George
Brandis. The directive for a bureaucrat to reject a particular
request can come from the highest positions of power, executive
councils and even ministers.
In 2010, the Office of the Australian Information
Commissioner (OAIC), an independent body to report on
how the public sector collects, uses, and discloses information
was established. It is also to serve as the watchdog for
the administration of freedom of information and privacy
requests. Despite hopes of ushering in an era of greater
transparency and disclosure of information, the office has
been much maligned since its inception, and chronic reports
of inefficiency and understaffing culminated with the
Coalition’s decision to scrap it in 2015. John McMillan, the
first information commissioner, commented in an interview
that politicians “hate” freedom of information laws. 3
He went further saying it’s “culturally acceptable, to
thwart FOI requests” 4 and that the tone was set from the
top, by senior levels of government. Political interference in
requests to protect an agency from damaging its reputation
is common, and application of the Act has been eroded in
serving the interests of government, to the point where the
original wording seems almost laughable. The Act stipulates
that it must “be exercised as far as possible, so as to facilitate
and promote, promptly and at the lowest reasonable
cost, the disclosure of information.” 5 Clearly this attitude is
not in keeping with the spirit of the legislation, but how are
requests actually defeated, and is it legal?
The short answer is yes, there are many ways the
legislation can be manipulated or inappropriately applied to
deny the request. In my own recent experience with Monash
University, I have been on the receiving end of what I
believe to be deliberate attempts to sink my request. In July
2015, my request for a file list from the senior executive
database was knocked back for being unclear, unironically
signed off by executive services. This meant that the request
could not proceed, because it had not been deemed valid,
and consequently could not be appealed. To remove any
doubt about the clarity of my request, I conducted some
research and discovered the name of the database used by
several key administration units, TRIM Context. I amended
my request to seek a file list directly from TRIM, which was
then to be refused under section 25A(6) for being an unreasonable
drain upon resources.
Sourcing the documents, from the executive services
database with a print file list function, notifying me of a
decision and actually printing the documents were part of
what was considered too burdensome, despite all being the
most basic requirements of the legislation. More research
on the classification structure of the database allowed me
to progress by narrowing the scope to only two fifths of the
database, which was eventually accepted. In the only consultation
I had with a member of executive services, I was
advised to drop the request because it would never succeed.
No effort was made by the University to provide me the resources
I might need, even though the Act obliges them to.
From my experience, Monash too, it would appear, does not
follow the Freedom of Information Act in good faith.
1
http://www.austlii.edu.au/au/legis/vic/consol_act/foia1982222/s3.htm
2
http://www.theage.com.au/victoria/foi-architect-blasts-political-interference-20121117-29j25.html
3
http://www.theguardian.com/politics/2015/sep/30/
politicians-hypocritical-on-freedom-of-information-says-former-commissioner
4
http://www.theguardian.com/australia-news/2015/oct/01/governments-do-not-like-freedom-of-information-the-war-on-australias-privacy-and-information-watchdog
5
http://www.austlii.edu.au/au/legis/vic/consol_act/foia1982222/s3.html
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