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August 12, 2014  |  

Freedom of Information

FREEDOM OF INFORMATION AND VICTORIAN INSPECTORATE ACTS AMENDMENT BILL 2014

I am pleased to make a contribution to the debate on the Freedom of Information and Victorian Inspectorate Acts Amendment Bill 2014.

In particular I refer to the father of FOI, and my constituent in the Ivanhoe electorate, the Honourable John Cain, a former Premier of Victoria. In an article of 11 February 2012 John Cain said:

FOI was, and remains, about the big picture of public administration and open government. It seeks to tell people what information government holds about them, and what information and advice governments hold on public policy issues, subject to exemptions.
Further on in that article Mr Cain said:

Almost exactly 30 years ago we in Victoria led the way in asserting and ensuring a more open society. Decision-making processes were enhanced by it. Now, the trend is to step back and restrict the free access to information by imposing a political oversight.

I declare a long-held interest on this issue. Thirty years ago I and many others saw the introduction of FOI in this state as an aid to openness about personal information government held, and to good long-term strategic public policy development. It is not too late to return to the pursuit of those values — and to give away the cheap shots about minutiae and the past that we saw in state Parliament this week.
John Cain’s comments in that article refer to the actions of the current government in relation to FOI.

I note that the shadow Attorney-General, the member for Lyndhurst, has outlined several amendments that Labor seeks to change in relation to this bill. He has pointed out that, particularly around several of the clauses, we have now seen the number of days taken for FOI requests to be dealt with blow out to between 200 and 250 days.

The Labor Party is seeking to reduce by some 50 days the process for the assessment of FOI applications. I note that there are several problems with the FOI bill that the government has brought before the house today. We seek to amend those aspects that we always said would be problems.

On 18 April 2012 the member for Lyndhurst said:

The government has deliberately designed the commissioner to be a toothless tiger who can’t review decisions made by ministerial offices, can’t review cabinet-in-confidence claims, can’t set enforceable standards, and who will be horribly under-resourced .

It is interesting that here we are, well over two years later, and what has come before this house is a bill which seeks to include the operation and employment of FOI assistant commissioners, because, as the shadow Attorney-General pointed out back in April 2012 — quite clearly, with no crystal ball gazing but just a very clear assessment of where the government was taking FOI in Victoria — that the commissioner would be:

… a toothless tiger who can’t review decisions made by ministerial offices, can’t review cabinet-in-confidence claims, can’t set enforceable standards, and who will be horribly under-resourced …

Here we are, some two and a half years later with the government seeking to add extra FOI assistant commissioners to go about the task of further delaying the assessment of FOI applications.

Let us look at how long it takes to get FOI applications dealt with in the state of Victoria under the coalition government. Departments have 45 days to respond to a request. Applicants may then request a review from the Freedom of Information Commissioner. The FOI commissioner then has 30 days in which to conduct the review and may refer the matter back to a department to make a fresh decision. The department has 45 days to make the fresh decision. That is 45 days and 45 days — there are 90 days — and 30 days; we are up to 120 days. After that 45-day period concludes, the department has 3 business days to advise the commissioner whether a fresh decision has been made or not. Following that, the FOI commissioner has another 30 days in which to review the fresh decision if the applicant does not agree with it.

When the FOI commissioner is finally able to make a judgement, the department has 60 days in which to lodge an appeal on the decision to VCAT. Under the coalition government we are up to about 200 days for the assessment of FOI applications in this state.

We have gone backwards in relation to FOI. This government thinks the appointment of the FOI commissioner has somehow placed it above the work of Labor administrations that introduced FOI laws in the state of Victoria. All it has done is add some 200 days to the process of assessing FOI matters. The shadow Attorney-General has talked about the lack of resources for the FOI commissioner. This bill talks about appointing FOI assistant commissioners because there is lack of resources.

The Sydney Morning Herald of 1 June 2014, under the headline ‘FOI watchdog Lynne Bertolini to meet targets with more staff, less money’, states:

The Napthine government will give Victoria’s freedom of information watchdog more staff to deal with complaints, while also diluting her performance targets so she can meet agreed time lines, at the same time as it is reducing her budget.

Weeks after the Sunday Age revealed that FOI commissioner … was unable to meet her deadlines for reviews against government departments — resulting in 121 requests for extensions …
But of course the budget papers point out that in this financial year $2.7 million is provided to run the FOI commissioner’s office compared with $3.5 million in the previous financial year and that performance targets have been reduced. I am sure that you would be very familiar with these matters, Acting Speaker.

Instead of being expected to meet agreed time lines in 100 per cent of cases, the target has been lowered to some 85 per cent, according to that article.

We have now had further instances pointed out; this government has form in relation to its management of FOI. Let us not forget that the Napthine government also got rid of a long-time FOI official in the Premier’s office. We all remember Don Coulson, whose job was to obfuscate and ensure that FOI matters were not dealt with. These are taxpayer funds going to appoint people to administer the politically driven FOI obfuscation in the previous Premier’s office. An article in the Age of 14 March 2013 said:

Last year, in a review of the government’s FOI record, Mr Pearson —
the Auditor-General —

found that requests for information were constantly held up in the Premier’s private office. The Department of Premier and Cabinet took about 92 days to respond to FOI requests — more than double the 45-day statutory limit.
If we go further back to the period of the previous Premier, we find that an article in the Age of 11 October 2011 headed ‘Baillieu office a –black hole– for FOI requests’, about the track record of this government on FOI matters, states:

Premier Ted Baillieu’s office has been accused of undermining Victoria’s freedom-of-information laws by vetting requests for sensitive documents made to government departments.

The revelations come as the government refused to release records of meetings attended by Mr Baillieu — despite identical requests being granted by the former Brumby government.
A Herald Sun article of 1 July 2012 is headlined ‘FOI system fails to allow real scrutiny’. This is a very clear track record, and I do not see any evidence of the government being noted for its transparency in relation to FOI.

The Labor Party pointed out then that the government was not resourcing the commissioner’s office sufficiently for it to do its job properly, and we are back here some two years and four months later to provide extra commissioners to assist in performing that task. This should have been dealt with appropriately in the first instance. We predicted this, and it is no surprise that we are back here. How can the office of the FOI commissioner do its job when its budget is being cut?

We have also seen an absolute disgrace in terms of FOI requests for ambulance response times. According to the Herald Sun of 23 May, ‘Ambulance response times remain a mystery because Ambulance Victoria refuses to release the basic information despite a Freedom of Information Commissioner order to do so’. We have an FOI commissioner who under this government cannot compel organisations — government agencies funded by taxpayers and public organisations — to provide information.

Under the Bracks, Brumby and Kennett governments response times for ambulance performance were provided to the public on a monthly basis, in annual reports and through FOI. Under this government ambulance response times are not provided despite the fact that the FOI commissioner has said that those details should be released. It was a disgraceful decision by VCAT not to uphold the FOI commissioner’s decision.

We have commissioners for just about everything in this state, well paid by the taxpayer, but this government makes sure that their hands are tied so they cannot provide any of the information people in our community seek on a regular basis. Despite the fact that the FOI commissioner has agreed that ambulance response time data should be provided to the community, because of the coalition government’s legislation the commissioner is unable to enforce her decision and compel Ambulance Victoria — a public body — to meet its obligations. It is time that FOI laws in this state were changed.