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FOI refusal should be investigated, says Labor senator FOI refusal should be investigated, says Labor senator
(4 months later)
Labor senator Joe Ludwig has urged Australia’s freedom of information watchdog to investigate the Immigration Department’s handling of an information request, and warned of an “increasingly obstructionist” culture of secrecy in federal government departments.Labor senator Joe Ludwig has urged Australia’s freedom of information watchdog to investigate the Immigration Department’s handling of an information request, and warned of an “increasingly obstructionist” culture of secrecy in federal government departments.
In a letter to Professor John McMillan, the Australian information commissioner, Ludwig expressed serious concerns about a recent freedom of information (FOI) decision made by the Department of Immigration, where information about Sri Lankan asylum seeker arrivals from 2013 was refused.In a letter to Professor John McMillan, the Australian information commissioner, Ludwig expressed serious concerns about a recent freedom of information (FOI) decision made by the Department of Immigration, where information about Sri Lankan asylum seeker arrivals from 2013 was refused.
The department refused access to the information on the unusual grounds that it was protected by parliamentary privilege, and relied on a controversial public interest immunity claim by the immigration minister, Scott Morrison, to support the claim.The department refused access to the information on the unusual grounds that it was protected by parliamentary privilege, and relied on a controversial public interest immunity claim by the immigration minister, Scott Morrison, to support the claim.
But Ludwig, who authored the Labor party’s FOI policy in the 2007 election, said the exemption had been wrongly asserted, and was being used “in order to withhold information for political purposes”.But Ludwig, who authored the Labor party’s FOI policy in the 2007 election, said the exemption had been wrongly asserted, and was being used “in order to withhold information for political purposes”.
“I ask you to consider an own motion investigation into the department’s conduct and report your findings to the parliament as soon as possible,” he wrote. “It is imperative that a culture of contempt for the objectives of the FOI Act is not allowed to flourish within the government.”“I ask you to consider an own motion investigation into the department’s conduct and report your findings to the parliament as soon as possible,” he wrote. “It is imperative that a culture of contempt for the objectives of the FOI Act is not allowed to flourish within the government.”
Earlier this year Scott Morrison made a public interest immunity claim and refused to supply parliament with details surrounding asylum seeker operations that occurred at sea, on the grounds they were “operational matters”.Earlier this year Scott Morrison made a public interest immunity claim and refused to supply parliament with details surrounding asylum seeker operations that occurred at sea, on the grounds they were “operational matters”.
The claim itself has already been subject to heavy criticism by a parliamentary committee tasked to evaluate its merits, which recommended possible censure motions.The claim itself has already been subject to heavy criticism by a parliamentary committee tasked to evaluate its merits, which recommended possible censure motions.
“The executive arm of government has withheld an undefined volume and scope of documents, without any means of recourse, appeal or parliamentary oversight. In turn they have used this unverified claim of executive privilege to block an undefined amount of documents from release to the public in contravention to the FOI Act,” Ludwig wrote.“The executive arm of government has withheld an undefined volume and scope of documents, without any means of recourse, appeal or parliamentary oversight. In turn they have used this unverified claim of executive privilege to block an undefined amount of documents from release to the public in contravention to the FOI Act,” Ludwig wrote.
Ludwig also warns that the use of a public interest claim in this way is “dangerously close” to use of the now abolished conclusive certificates. Prior to the amendment of the FOI Act in 2009, initiated by the then Labor government, ministers could declare information to be secret in certain circumstances, and there were limited appeal rights available when this mechanism was used. Ludwig also warns that the use of a public interest claim in this way is “dangerously close” to use of the now abolished conclusive certificates. Prior to the amendment of the FOI Act in 2009, initiated by the then Labor government, ministers could declare information to be secret in certain circumstances, and there were limited appeal rights available when this mechanism was used.
“Reliance on the minister’s politically motivated PII [public interest immunity] claim to justify withholding documents from release under the FOI Act comes dangerously close to the de facto application of a conclusive certificate, which has been removed from the statute books,” he said.“Reliance on the minister’s politically motivated PII [public interest immunity] claim to justify withholding documents from release under the FOI Act comes dangerously close to the de facto application of a conclusive certificate, which has been removed from the statute books,” he said.
The FOI decision is the latest in a series of refusals to release information pertaining to asylum seekers. Guardian Australia has lodged a number of requests with the Defence Department and Australian Customs and Border Protection relating to asylum seeker towbacks and turnbacks at sea. The requests have all so far been refused, relying on a range of exemptions under the act.The FOI decision is the latest in a series of refusals to release information pertaining to asylum seekers. Guardian Australia has lodged a number of requests with the Defence Department and Australian Customs and Border Protection relating to asylum seeker towbacks and turnbacks at sea. The requests have all so far been refused, relying on a range of exemptions under the act.
The Immigration Department was subject to the first own motion investigation by the information commissioner in 2011. The report found a number of problems with the handling of requests, but since that time the department has markedly improved its processes.The Immigration Department was subject to the first own motion investigation by the information commissioner in 2011. The report found a number of problems with the handling of requests, but since that time the department has markedly improved its processes.
It is not known who lodged the freedom of information request referred to by Ludwig, but the applicant would also have review rights under the act to challenge the claims made by the department. However, the information commissioner is facing a growing caseload of review applications and complaints that are delaying the processing of reviews.It is not known who lodged the freedom of information request referred to by Ludwig, but the applicant would also have review rights under the act to challenge the claims made by the department. However, the information commissioner is facing a growing caseload of review applications and complaints that are delaying the processing of reviews.
McMillan acknowledged, in an interview with Guardian Australia this year, that agencies might be gaming the system because the commissioner’s office was facing difficulties due to the size of its caseload and resources strain.McMillan acknowledged, in an interview with Guardian Australia this year, that agencies might be gaming the system because the commissioner’s office was facing difficulties due to the size of its caseload and resources strain.
Questions have been sent to the immigration minister’s office and the Department of Immigration and Border Protection about the freedom of information request.Questions have been sent to the immigration minister’s office and the Department of Immigration and Border Protection about the freedom of information request.