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Whistleblower hits out at PM's department over 'pervasive and toxic' disregard for law Whistleblower hits out at PM's department over 'pervasive and toxic' disregard for law
(5 months later)
A whistleblower has accused the government of flagrantly breaching laws to thwart the release of politically-sensitive documents, including records of the former prime minister Tony Abbott’s taxpayer-funded entitlements.A whistleblower has accused the government of flagrantly breaching laws to thwart the release of politically-sensitive documents, including records of the former prime minister Tony Abbott’s taxpayer-funded entitlements.
A freedom of information officer who has worked across federal government blew the whistle internally in late 2017 on what he described as a “culture of disdain for the rule of law” within the prime minister’s department.A freedom of information officer who has worked across federal government blew the whistle internally in late 2017 on what he described as a “culture of disdain for the rule of law” within the prime minister’s department.
The whistleblower alleged the department breached FOI law in one of every two requests it received, particularly when the documents were embarrassing or sensitive.The whistleblower alleged the department breached FOI law in one of every two requests it received, particularly when the documents were embarrassing or sensitive.
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The whistleblower collated 25 examples of FOI requests that had been handled unlawfully, saying they showed a “politically-motivated, pervasive, and toxic” disregard for FOI law. The examples included a request by Guardian Australia for the expense entitlements afforded to Abbott as a former PM, which was inexplicably delayed for six months, before being partially released with heavy redactions to key sections.The whistleblower collated 25 examples of FOI requests that had been handled unlawfully, saying they showed a “politically-motivated, pervasive, and toxic” disregard for FOI law. The examples included a request by Guardian Australia for the expense entitlements afforded to Abbott as a former PM, which was inexplicably delayed for six months, before being partially released with heavy redactions to key sections.
The chief complaint of the whistleblower was that FOIs were being delayed past the lawful time limit, without explanation or reason. The complaint aligns with the concerns of experts and former insiders at the information watchdog, who fear that, in some cases, documents are being deliberately withheld until the “heat” has gone out of political controversies.The chief complaint of the whistleblower was that FOIs were being delayed past the lawful time limit, without explanation or reason. The complaint aligns with the concerns of experts and former insiders at the information watchdog, who fear that, in some cases, documents are being deliberately withheld until the “heat” has gone out of political controversies.
“I note that the department tends to contravene the requirements of the FOI Act when documents sought by way of FOI applications are of wide public interest but may be politically sensitive,” the whistleblower wrote in his 2017 disclosure.“I note that the department tends to contravene the requirements of the FOI Act when documents sought by way of FOI applications are of wide public interest but may be politically sensitive,” the whistleblower wrote in his 2017 disclosure.
“In effect, it would seem that the department engages in illegal activity in respect of every second FOI request it receives. It is not unreasonable, therefore, to suggest that the department’s FOI request processing function is characterised by a culture of disdain for the rule of law.”“In effect, it would seem that the department engages in illegal activity in respect of every second FOI request it receives. It is not unreasonable, therefore, to suggest that the department’s FOI request processing function is characterised by a culture of disdain for the rule of law.”
At least 2,000 FOIs were delayed for more than three months longer than statutory time limit in 2017/18 alone, according to the most recent data. That was a significant improvement on 2016/17, one of the worst years on record.At least 2,000 FOIs were delayed for more than three months longer than statutory time limit in 2017/18 alone, according to the most recent data. That was a significant improvement on 2016/17, one of the worst years on record.
The whistleblower, fearing retribution from his superiors, remained anonymous but described himself as an accomplished and experienced public servant.The whistleblower, fearing retribution from his superiors, remained anonymous but described himself as an accomplished and experienced public servant.
His complaint was treated seriously by the department. It appointed an officer to lead an internal investigation, which included face-to-face interviews, reviews of its FOI files, and submissions from decision-makers. Investigators also recruited two solicitors from the Australian Government Solicitor (AGS) to review the whistleblower’s allegations.His complaint was treated seriously by the department. It appointed an officer to lead an internal investigation, which included face-to-face interviews, reviews of its FOI files, and submissions from decision-makers. Investigators also recruited two solicitors from the Australian Government Solicitor (AGS) to review the whistleblower’s allegations.
The investigation took almost a year, and was finalised in October 2018.The investigation took almost a year, and was finalised in October 2018.
The final confidential report upheld the complaint in five of the 25 FOI cases “because of the unreasonable and in some cases unexplained delay in providing a decision in the particular circumstances of each FOI request”. That included the complaint about the handling of the Abbott expenses FOI.The final confidential report upheld the complaint in five of the 25 FOI cases “because of the unreasonable and in some cases unexplained delay in providing a decision in the particular circumstances of each FOI request”. That included the complaint about the handling of the Abbott expenses FOI.
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It found no issue with the other 20.It found no issue with the other 20.
The investigation found the actions of some individual FOI officers could be improved, but did not make adverse findings against them.The investigation found the actions of some individual FOI officers could be improved, but did not make adverse findings against them.
“In some circumstances I found that their conduct in handling FOI requests could be improved,” the report said. “To reflect this, I have recommended that the Deputy Secretary of the Department write to the organisation head and/or to the individual specifically, to inform them of the deficiencies identified in the individuals’ conduct in managing particular FOI requests.”“In some circumstances I found that their conduct in handling FOI requests could be improved,” the report said. “To reflect this, I have recommended that the Deputy Secretary of the Department write to the organisation head and/or to the individual specifically, to inform them of the deficiencies identified in the individuals’ conduct in managing particular FOI requests.”
The department’s investigation also rejected allegations that politically-sensitive documents were being deliberately withheld, or that there was a culture of disregard for the rule of law.The department’s investigation also rejected allegations that politically-sensitive documents were being deliberately withheld, or that there was a culture of disregard for the rule of law.
“I am not satisfied that on the balance of probabilities any of the Discloser’s suggested conclusions could be drawn from the examples of FOI requests provided by the Discloser.”“I am not satisfied that on the balance of probabilities any of the Discloser’s suggested conclusions could be drawn from the examples of FOI requests provided by the Discloser.”
The report made five recommendations to improve the department’s handling of FOI requests. That included giving FOI officers better information about their responsibilities and amending business rules to clarify the decision-making process, including on how to give extensions of time and meet deadlines. It also recommended the department consider ways to improve the efficiency of FOI handling and better train departmental staff in handling FOIs.The report made five recommendations to improve the department’s handling of FOI requests. That included giving FOI officers better information about their responsibilities and amending business rules to clarify the decision-making process, including on how to give extensions of time and meet deadlines. It also recommended the department consider ways to improve the efficiency of FOI handling and better train departmental staff in handling FOIs.
The report also recommended a review be conducted of the way “the department currently considers FOI requests”.The report also recommended a review be conducted of the way “the department currently considers FOI requests”.
The whistleblower believes the investigation did not go far enough.The whistleblower believes the investigation did not go far enough.
“It’s an absolute whitewashed joke that deliberately turns a blind eye to clear illegal conduct,” he told Guardian Australia.“It’s an absolute whitewashed joke that deliberately turns a blind eye to clear illegal conduct,” he told Guardian Australia.
The department said it could not comment on the specifics of the case when approached by Guardian Australia. But a spokesman said the department took its legal obligations under FOI and whistleblower laws seriously, and said in the most recent quarter in 2018-19, it met statutory timeframes in 93% of FOI cases.The department said it could not comment on the specifics of the case when approached by Guardian Australia. But a spokesman said the department took its legal obligations under FOI and whistleblower laws seriously, and said in the most recent quarter in 2018-19, it met statutory timeframes in 93% of FOI cases.
“The Department processes FOI requests in accordance with its obligations under the FOI Act, the Guidelines issued under section 93A of the FOI Act, and internal Department resources such as the FOI Business Rules,” a spokesman said.“The Department processes FOI requests in accordance with its obligations under the FOI Act, the Guidelines issued under section 93A of the FOI Act, and internal Department resources such as the FOI Business Rules,” a spokesman said.
“As at the end of the third quarter of 2018-19 (year to date), approximately 93% of PM&C decisions were finalised within applicable statutory timeframes.”“As at the end of the third quarter of 2018-19 (year to date), approximately 93% of PM&C decisions were finalised within applicable statutory timeframes.”
In April and May last year, the whistleblower also took the case to the information watchdog, the Office of the Australian Information Commissioner. He complained about an FOI he had lodged, and a series of others, that he said showed a “systemic disregard for the law”.In April and May last year, the whistleblower also took the case to the information watchdog, the Office of the Australian Information Commissioner. He complained about an FOI he had lodged, and a series of others, that he said showed a “systemic disregard for the law”.
In March, almost a year later, that complaint was yet to be assigned to an investigator.In March, almost a year later, that complaint was yet to be assigned to an investigator.
The OAIC said it could not comment on individual complaints.The OAIC said it could not comment on individual complaints.
Freedom of informationFreedom of information
The Transparency Project The transparency project
Australian politicsAustralian politics
Tony AbbottTony Abbott
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