Refugee Council of Australia
Refugee advocates with backs to camera and in front of Parliament House, in artistic style

The use of non-judicial accountability mechanisms by the refugee sector in Australia

Part II: Mechanisms

Freedom of Information legislation

Header of Freedom of Information access decision from DHAThe Freedom of Information Act 1982 (Cth) (FOI Act) is a tool which is used by the sector to request, on behalf of clients, personal information about them held by government departments. To a lesser extent, the FOI Act is also used by the sector to request governmental information which may be of use in broader service provision, policy and advocacy work.

At least one informant made FOI applications via the Right to Know website. The website enables tracking of all communication related to the application and makes the communications and any documents released publicly available. It should not be used, therefore, for requesting personal information.

Once government information is released to any person pursuant to an FOI application, it must, with some exceptions (e.g. personal information), also be made available within ten working days to the members of the public generally via an FOI disclosure log on the agency’s website (FOI Act s11C). (DHA routinely fails to meet the ten working day time limit but does eventually post released documents to its log.) Informants who knew of the existence of disclosure logs used them as an additional source of information for policy and advocacy work. It is also worth searching the Right to Know website since documents which are requested through the website are available on it immediately upon release.

Twenty-two of our key informants had experience of making FOI applications, mostly to DHA. Some informants noted that, in practice, the government of the day’s general attitude to transparency and also the culture of the particular government agency had a significant impact on the ease with which information could be accessed whether through making an FOI application or otherwise. The current Coalition government is regarded by the sector as having a more negative attitude to transparency than Labor had. Similarly, DHA is regarded as having a more negative attitude than most other agencies. Informants observed that over time more and more information that DHA used to release publicly as a matter of course on its website or LEGENDcom is now only accessible, if at all, through the use of FOI legislation.

DHA has a Status Resolution Support Services (SRSS) Program under which it funds contractors to provide services to people seeking asylum who meet certain eligibility requirements. DHA issues a SRSS Operational Procedures Manual for the guidance of contracted service providers. This is the kind of document which should be made publicly available as a matter of course (FOI Act s8A). In fact, SRSS providers are required to keep the contents of the Manual confidential. The rest of the sector wished, of course, to know the detail of the procedures for the purposes of their service provision, policy and/or advocacy work. On 30 April 2018, an FOI request was made for the SRSS Operational Procedures Manual (Version 7). On 8 June 2018, the DHA FOI officer decided to make a partial release of the document (i.e. to release a redacted version). Version 7 of the SRSS Operational Procedures Manual was replaced by version 8 in 2019. Since it had previously decided that version 7 could be partially released, DHA could simply have made a partial administrative release of version 8. It chose not to do so. At the time of writing, there were multiple undecided FOI applications for version 8.

Informants also observed that agencies with a negative attitude to transparency can undermine the effectiveness of FOI legislation through a variety of devices such as not committing internal communications to writing, recording information they do not wish to release on post-it notes to be (unlawfully) removed if an FOI application is lodged, taking an obstructionist approach to FOI applications (including by overestimating processing charges) and making dubious use of exemption provisions. They suspected DHA of doing all of the above. According to one informant from an advocacy organisation: [If] the Department wants to make life difficult, they can do it. And they can put up ridiculous excuses to the point where we know a document exists or video footage exists because we’ve heard off-the-record that it does [but] we’ll get some sort of excuse to say ‘No there are too many documents on what happened that day, we would never be able to find that’.

The same informant said they had discovered that, where an organisation perceived by DHA as being neutral made a request for the same kind of information, it would have success. As a result,

What we tend to do more now that you have groups like [name] and others is to hand the case over to them and then they will do the FOI. Historically we would have done it. Now there are these other groups who are willing to do that and seem to have more success than we do…. Clearly with [our organisation] they are worried where it will end up.

The main challenges informants identified in using FOI legislation were i) framing FOI applications, ii) delays in decision-making, iii) refusals to release some or all information requested on the basis of exemptions contained in the FOI Act and iv) the practical futility of seeking review of negative FOI decisions.

Framing FOI applications

Framing an FOI request for specific documents which are known to exist is fairly straightforward. Often, however, an applicant is endeavouring to obtain any information which a government agency may hold about them (or their client) or about a topic.

It takes experience to frame an FOI request so that the information is obtained, and to avoid the government refusing to process the request because it would involve a substantial and unreasonable diversion of agency resources (FOI Act s24AA). In the latter case, the agency is required to first give the applicant both an opportunity and assistance to revise their request so that the reason for refusal no longer exists (FOI Act 24AB). Nevertheless, one informant from a legal service provider expressed frustration about DHA’s approach after the Coalition took office in 2013, saying: The Department took a particularly strict approach where if you asked for ‘all of my documents’ then that would be a blanket refusal. Because their interpretation was that if you are asking for all of your documents then that captures all documents in the possession of the Department so they’d have to go searching every mail server around the world in every embassy. So it went from asking for documents which you don’t know exist which is what FOI is about to specifying exactly what documents you were asking for.

The problem with framing a request too narrowly is that it may fail to elicit important documents or may elicit the response that no relevant document exists or can be identified.

Delays in FOI decision-making

In the usual case, FOI applications are meant to be acknowledged within 14 days of receipt and decisions on them are meant to be made within 30 days of receipt (FOI Act s15(5)). However, DHA often fails to comply with these statutory requirements. In many instances, delay can be attributed to under-resourcing of DHA’s FOI section. Other causes of delay include: a slow response to the FOI section by the areas of DHA which have relevant information and/or other stakeholders who must be consulted; and the time taken by the liaison between the FOI section and stakeholders about possible reasons for refusing release of some or all of the information. (See, for example, Documents and correspondence from FOI request FA 17/08/00642-R1)

In September 2012, OAIC investigated the Department’s ability to handle non-routine requests. It found that only 20 per cent of applications handled in its Central Office were meeting the timeframes under law. The Department itself in 2011 commissioned a review by Ernst & Young to consider how it could improve its performance and commissioned another independent review in 2012.

Statistics obtained through Senate estimates indicate that DHA continues to struggle with meeting timelines. In 2017-18, it finalised 11,937 out of 14,215 applications within the statutory timeframe, received an extension of time by agreement 1,396 times and had a further 27 extensions granted by the OAIC. Its average processing times in 2015-16 was 43 days, in 2016-17 was 98 days, in 2017-18 was 58 days, and in the period 2018 to 8 April 2019 was 38 days. In 2018-19, it failed to meet statutory timeframes in dealing with 26 per cent of requests overall (and 56 percent of requests for non-personal information).

On 25 October 2019, the OAIC announced that it had opened an own motion investigation into DHA’s compliance with the FOI Act in its processing of requests for non-personal information. Where information is being requested for the purposes of a visa application, delay can have the consequence that advisers are forced to put forward their client’s case before obtaining the necessary information. Although one informant reported that they were mostly able to negotiate with DHA for clients’ interviews to be postponed until their FOI applications had been processed, another informant reported that DHA would rarely agree to adjourn interviews on this basis and that tribunals would not adjourn hearings for long enough.

On 21 May 2017, the government announced an inflexible deadline of 1 October 2017 for the lodgement of protection visa applications by all unauthorised maritime arrivals who were subject to fast track processing. At the time there were 7,500 individuals who were yet to lodge an application. DHA found itself unable to deal in a timely fashion with the enormous surge in FOI applications for personal information made on behalf of prospective visa applicants. It, therefore, sought to persuade prospective visa applicants to forego making FOI applications and to accept instead the administrative release of documents selected by it. Migration agents realised that, if visa applications were drafted without knowledge of all personal information held by DHA, clients might well face serious problems at later stages of the process. However, they were forced to accept the offer of administrative release because the alternative would have been missing the visa application deadline.

Reliance on exemptions

The FOI Act exempts documents from release if they affect national security, defence or international relations, or disclose commercially valuable information or the like (FOI Act ss33 – 47A). It also makes some other categories of documents conditionally exempt – that is, exempt if release in the particular case would be contrary to the public interest (FOI Act ss47B-47J). If exemptions are claimed for some parts of a document and not others, the exempt parts will be redacted before the document is released.

According to informants, where politically sensitive information is concerned, DHA has a tendency to use the exemptions in the FOI Act on tenuous, if not spurious, grounds. There is evidence of this tendency in the FOI decision records available on DHA’s disclosure log. For example, in FA 18/01/00206 the applicant asked for ‘all inappropriate detention release decision reports completed by DIBP in 2016 and 2017’ and in FA 17/10/00923 the applicant asked for ‘all Ombudsman’s reports dealing with mail for both Nauru and Manus RPCs [Regional Processing Centres]’. In both cases, the FOI officer decided that parts of some documents, which were within the scope of the request, were conditionally exempt and that giving access would, on balance, be contrary to the public interest.

FOI Act s11B specifies that factors favouring access to a document in the public interest include informing debate on a matter of public importance. In both cases, the FOI officer assessment in relation to this factor was as follows: I consider that the subject matter of the document does not, in itself, seem to have the character of public importance. The matter has a very limited scope and, in my view, would be of interest to a very narrow section of the public.

This is despite the fact that public interest does not mean ‘of interest to the public, but in the interest of the public’and despite the OAIC’s clear guidance that It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. A matter of particular interest or benefit to an individual or small group of people may also be a matter of general public interest.

The futility of seeking review

With some exceptions, the FOI Act provides for free internal review of a negative decision by a different officer of the agency concerned (FOI Act ss52 – 54E). An internal review must be completed within 30 days of receipt of the review application unless the Information Commissioner (IC) grants an extension of time.

It is possible to skip internal review, which, of course, lacks true independence, and go directly to seeking free review by the IC (FOI Act Part VII). Although the OAIC is independent, it is also chronically under-resourced for the volume of work it has. The average time taken to finalise an IC review was 6.2 months in 2016-17, 6.7 months in 2017-18 and 7.8 months in 2018-19 (Office of the Australian Information Commissioner). In February 2019 there were 18 cases that had not been allocated to a case officer after 11 months. The IC has the power to refer an application for review of an agency FOI decision directly to the Administrative Appeals Tribunal (AAT). Otherwise, it is not possible to seek AAT review of agency FOI decisions, though it is possible to seek AAT review of IC decisions. There is a fee charged for AAT review, although this may be waived in certain circumstances. In 2018-19, the median time taken by the AAT to finalise an FOI case was 33 weeks with only 66 per cent of FOI cases finalised within 12 months.

It is also possible to seek judicial review of AAT decisions and certain IC decisions, though again fees are involved.

In practice, informants agreed that it was pointless to seek IC, AAT and/or judicial review of DHA decisions in relation to the release of information needed by a client for use in the visa application process. This is because the delays involved in obtaining review decisions will almost certainly exceed the timeframes of the visa application process. It was only where information was being sought for longer-term policy or advocacy work that informants bothered seeking IC review of agency FOI decisions.

Recommendations

Sector

R6. Before making an FOI application for non-personal information, refugee sector members should search the FOI disclosure log of the relevant government department and the Right to Know website to see whether there has been a prior application for the same information.

R7. Refugee sector members should consider making FOI applications for non-personal information through the Right to Know website.

R8. Those who are not experienced in making FOI applications should make use of the advice and guidance available on the OAIC website.

R9. Those who are not experienced in making FOI applications should also consider obtaining feedback on draft applications from those who are experienced.

R10. RCOA should investigate a way to share information about FOI with its members, including what information has already been FOI’ed.

OAIC

R11. The OAIC should consider making training on the use of the FOI process available to the public at regular intervals.

Government

R12. The FOI sections of federal government agencies and the OAIC should be funded to a level that enables them to meet their statutory obligations in a timely manner.

Sources and more information

Sean Parnell, ‘More Open Government? We’re Still Waiting’, The Australian (online, 18 October 2015)

Stephen Easton, ‘FOI Laws; Fixing the Chilling Effect on Frank Advice’, The Mandarin (online, 18 June 2015) </o=o>

OAIC, Processing of Non-Routine FOI Requests by the Department of Immigration and Citizenship: Report of an Own Motion Investigation (Report no. OM12/0001, 26 September 2012)

Ernst & Young, Management Initiated Review of Freedom of Information: Department of Immigration and Citizenship (Report, 26 September 2011)

Robert Cornall, Independent Comparative Review of the Department of Immigration and Citizenship’s Freedom of Information Procedures (Report, August 2012)

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