Post by Banjo on Feb 14, 2015 8:08:30 GMT 7
Information Commissioner criticises FOI culture and practices at the Department of Human Services
Posted on December 18, 2014
The Australian Information Commissioner, Professor John McMillan, has released a report into freedom of information (FOI) culture and practices at the Department of Human Services, including Centrelink (DHS), making a number of recommendations aimed at remedying the department’s failure to adopt practices consistent with the pro-disclosure objectives of FOI law.
The report, as well as the department’s commitment to implementing its recommendations, is very welcome. This Centre, which made a submission to the Information Commissioner to help its investigation, has repeatedly raised its concerns about a major change in the department’s approach to FOI over the last 1-2 years.
Overall, the Commissioner found that the department had developed a set of practices and procedures, and a culture, focussed on technical compliance with the FOI legislation, rather than the pro-disclosure objectives which underlie it.
The major concern for this Centre and its clients was the sudden increase in decisions to withhold access to the results of investigations carried out by the department to justify raising substantial debts against them (often $150,000 or more) and, in some cases, decide to refer their cases for prosecution by the Commonwealth Director of Public Prosecutions.
We argued that it was unfair for Centrelink to, on the one hand, carry out major investigations resulting in the collection of large files of evidence used to justify the adverse decisions to raise large debts and refer people for prosecution, and then, on the other hand, when the person and their legal representative seek access to these documents say that it was an unreasonable burden on their resources to have to go through and release these documents (this is known as a practical refusal decision in FOI law).
We also pointed out that, if the department’s use of the practical refusal mechanism went unchecked, there was no independent check on whether the information and documents Centrelink supplies to the Social Security Appeals Tribunal and Administrative Appeals Tribunal when a person appeals included all relevant information, including all the information which supports their appeal. This Centre sees cases over and over again, where Centrelink fails to include critically important evidence which supports a person’s appeal on the papers, something that we only become aware of and can rectify through the FOI process.
The Commonwealth Ombudsman, who also made a submission to the review, had the same concerns (p 21).
The Information Commissioner essentially accepted these concerns, finding that:
“It is an undesirable outcome if individuals cannot obtain access to documents on a departmental file recording a departmental investigation into the individual’s affairs, simply because the department has itself gathered a large volume of material about the individual” (p 38).
The Commissioner’s view was that DHS should consider the individual’s circumstances when considering requests for large files, including the fact that the documents relate to a prosecution or significant debt decision (see recommendation 10). It also found that DHS should plan to be able to handle a small number of large FOI requests, commenting:
“If the department gathers a large amount of information about clients, a consequence may be that it will need to expend additional resources to provide that information to clients upon request, or find ways to process requests more efficiently” (p 38-9, and see recommendations 11 and 12).
The department has introduced unnecessary technical complexity and formality, as well as creating unnecessary disputes by withholding people’s own personal information from them. Put simply, this is a waste of public money and unfair. Hopefully, the Information Commissioner’s report will lead to a turnaround in the department’s FOI culture and practices and ensure fairness to people seeking to understand and challenge an adverse decision by Centrelink.
welfarewrites.org/2014/12/18/information-commissioner-criticises-foi-culture-and-practices-at-the-department-of-human-services/
Matthew Butt, Principal solicitor, Welfare Rights Centre
Posted on December 18, 2014
The Australian Information Commissioner, Professor John McMillan, has released a report into freedom of information (FOI) culture and practices at the Department of Human Services, including Centrelink (DHS), making a number of recommendations aimed at remedying the department’s failure to adopt practices consistent with the pro-disclosure objectives of FOI law.
The report, as well as the department’s commitment to implementing its recommendations, is very welcome. This Centre, which made a submission to the Information Commissioner to help its investigation, has repeatedly raised its concerns about a major change in the department’s approach to FOI over the last 1-2 years.
Overall, the Commissioner found that the department had developed a set of practices and procedures, and a culture, focussed on technical compliance with the FOI legislation, rather than the pro-disclosure objectives which underlie it.
The major concern for this Centre and its clients was the sudden increase in decisions to withhold access to the results of investigations carried out by the department to justify raising substantial debts against them (often $150,000 or more) and, in some cases, decide to refer their cases for prosecution by the Commonwealth Director of Public Prosecutions.
We argued that it was unfair for Centrelink to, on the one hand, carry out major investigations resulting in the collection of large files of evidence used to justify the adverse decisions to raise large debts and refer people for prosecution, and then, on the other hand, when the person and their legal representative seek access to these documents say that it was an unreasonable burden on their resources to have to go through and release these documents (this is known as a practical refusal decision in FOI law).
We also pointed out that, if the department’s use of the practical refusal mechanism went unchecked, there was no independent check on whether the information and documents Centrelink supplies to the Social Security Appeals Tribunal and Administrative Appeals Tribunal when a person appeals included all relevant information, including all the information which supports their appeal. This Centre sees cases over and over again, where Centrelink fails to include critically important evidence which supports a person’s appeal on the papers, something that we only become aware of and can rectify through the FOI process.
The Commonwealth Ombudsman, who also made a submission to the review, had the same concerns (p 21).
The Information Commissioner essentially accepted these concerns, finding that:
“It is an undesirable outcome if individuals cannot obtain access to documents on a departmental file recording a departmental investigation into the individual’s affairs, simply because the department has itself gathered a large volume of material about the individual” (p 38).
The Commissioner’s view was that DHS should consider the individual’s circumstances when considering requests for large files, including the fact that the documents relate to a prosecution or significant debt decision (see recommendation 10). It also found that DHS should plan to be able to handle a small number of large FOI requests, commenting:
“If the department gathers a large amount of information about clients, a consequence may be that it will need to expend additional resources to provide that information to clients upon request, or find ways to process requests more efficiently” (p 38-9, and see recommendations 11 and 12).
The department has introduced unnecessary technical complexity and formality, as well as creating unnecessary disputes by withholding people’s own personal information from them. Put simply, this is a waste of public money and unfair. Hopefully, the Information Commissioner’s report will lead to a turnaround in the department’s FOI culture and practices and ensure fairness to people seeking to understand and challenge an adverse decision by Centrelink.
welfarewrites.org/2014/12/18/information-commissioner-criticises-foi-culture-and-practices-at-the-department-of-human-services/
Matthew Butt, Principal solicitor, Welfare Rights Centre
