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www.oaic.gov.

au
Australian Government GPO Box 5218 Sydney NSW 2001
' Office of the Australian Information Commissioner P +61 2 9284 9800 F +61 2 9284 9666
E enquiries@oaic.gov.au
Enquiries 1300 363 992 TTY 1800 620 241
ABN 85 249 230 937

Our reference: CP16/02006


Your references: FA16/10/01727; ADF2017/47618

Mr Michael Pezzullo
Secretary
Department of Immigration and Border Protection

By email: michael.pezzullo@Border.gov.au
Cc: VidoshiJana@Border.gov.au

Dear Mr Pezzullo

Freedom of Information complaint investigation Notice on completion

I refer to Mr Paul Farrell's FOI complaint about the Department of Immigration and Border
Protection (the Department), made under the Freedom of Information Act 1982 (the FOI Act).
I am writing in accordance with s86(2) of the FOI Act to inform you that I have completed my
investigation into this FOI complaint, and to advise you of the outcome.

I note that previous correspondence in relation to this matter has been addressed to the
Assistant Secretary of the FOI, Privacy and Records Management Branch, Ms Vidoshi Jana,
however, given the nature of my recommendations I believe it necessary to address this
Notice of Completion to you as Secretary of the Department. I have sent a copy to Ms Jana.

Summary

Pursuant to s 87 of the FOI Act, the investigation results will set out the matters I have
investigated, followed by my opinions, conclusions and suggestions about how the processes
of the Department might be improved.

In summary, I have found that:

The Department is not making decisions within the statutory timeframe in relation to
a high percentage of non-personal FOI requests it receives as a result of numerous
reasons for delay, predominantly caused by internal factors.

The Department treats requests received from journalists and requests relating to
Australia's immigration detention systems as 'significant / sensitive' requests' and has

1 The Department considers significant and sensitive requests to be those made by journalists, Members of Parliament or
requests which are sensitive by virtue of the subject matter.

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a different procedure for processing such requests. The Department often experiences
lengthy delays in finalising 'significant / sensitive' requests.

At least four Nauru-related FOI requests were put on hold due delays in the internal
consultation process in 2016.

Under s 88 of the FOI Act, I have set out the following seven recommendations, being formal
recommendations to the Department that I believe the Department ought to implement:

1. The Department should consider the reasons for delay discussed in this Notice relating
to the Department's processing of non-personal FOI requests, including 'significant /
sensitive' requests.

In particular, with a view to reviewing and improving its processes, the Department
should monitor how many non-personal FOI requests it receives, how many it
considers to be significant or sensitive, how many requests are processed within the
statutory timeframes, and the reasons for delay where the statutory timeframe is
exceeded.

2. The Department should allocate sufficient resourcing to meet its obligations under the
FOI Act, including in relation to resourcing the FOI Section and for training across the
Department more broadly.

3. The Department should actively engage in developing a culture of adherence to the


Department's obligations under the FOI Act, agency-wide and at all levels.

The requirement to process requests within statutory timeframes should be clearly


stated in all training and guidance material.

4. The Department should put processes in place for managing and escalating delays in
processing FOI requests, including non-personal FOI requests and 'significant /
sensitive' requests.

5. The Department should review whether it is appropriate for all requests from
journalists to be considered 'significant / sensitive', regardless of the documents
sought.

6. The Department should review its internal and external consultation processes to
create a culture of accountability for ensuring that consultation is finalised in a timely
manner, so that the Department can make decisions within the statutory timeframe.

7. The Department should proactively provide information to the public relating to its
operations outside of the FOI Act.

Further details about this investigation including the background and my findings are outlined
in Attachment A.

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Next steps

Under s 86(3) of the FOI Act, the Department may give me any comments about the notice on
completion that the Department wishes to make.

I seek your confirmation that the Department will take adequate and appropriate action to
implement my recommendations. I require the Department to provide a status update to the
OAIC on the steps the Department has taken to implement the above recommendations by
30 March 2018.

I am authorised under s 89 of the FOI Act to send an implementation notice if I am not


satisfied that the Department has taken action that is adequate and appropriate in the
circumstances to implement my recommendations.

Many of the reasons for delay relevant to this complaint are similar to those identified by the
former Information Commissioner, Professor John McMillan, when he undertook an
investigation into the Department's processing of non-routine FOI requests in 2012.2
Therefore it appears that the issues in FOI processing by the Department identified in 2012 by
the former Information Commissioner have not yet been fully resolved and I believe that
significant resources and commitment will be required to do so.

Further information about FOI complaint investigations can be found in Part 11 of the
Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act.

I do not consider that this Notice contains matters of the kind mentioned in s 89C(2) of the
FOI Act and I will therefore provide Mr Farrell with a copy of this Notice pursuant to s 86(4) of
the FOI Act.

The 0A1C's case officer for this matter, if your staff require further information, is Ms Gillian
Cameron who can be contacted at Gillian.Cameron@oaic.gov.au or (02) 9284 9883.

Yours sincerely

Tim Pilgrim
Australian Information Commissioner

8 December 2017

2 Processing of non-routine FOI requests by the Department of Immigration and Citizenship: Report of an own motion
investigation, 26 September 2012, available here: https://www.oaic.gov.augreedom-of-informationgoi-decisionsgoi-
omi-reports/processing-of-non-routine-foi-requests-by-the-department-of-immigration-and-
citizenship# Toc336329927.

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ATTACHMENT A

Freedom of Information complaint investigation Paul Farrell and Department of


Immigration and Border Protection Notice on completion

Background

On 31 October 2016, Mr Ian Campbell, Assistant Director in the Department's Freedom of


Information Section (FOI Section) inadvertently copied Mr Farrell into an email suggesting
that there was a 'freeze' on the processing of FOI requests relating to Nauru (Mr Campbell's
email).

On 2 November 2016, Mr Farrell and another journalist, Ben Doherty, wrote an article for The
Guardian, Immigration official says department is 'freezing' release of documents about
Nauru.' That article says:

Australia's immigration department has been "freezing" the release of documents about
asylum seekers at in its offshore detention centre on Nauru, according to a internal email,
suggesting it has been deliberately breaching freedom of information laws.

In an email sent by accident to Guardian Australia, an official at the Department of


Immigration and Border Protection, says there are "risks" to the apparent policy and asks for it
to be reconsidered....

Under Australia's freedom of information laws, strict timeframes are set out for processing
requests for information, and there is evidence that the department has exceeded the
timeframe for processing a number of requests made by Guardian Australia.

On 3 November 2016, Mr Farrell made a complaint to the Office of the Australian Information
Commissioner (0AIC) under s 70 of the FOI Act about the Department's actions in the
performance of functions, or the exercise of powers, under the FOI Act.

Mr Farrell's complaint raised two issues:

significant and increasing delays in the processing of FOI requests, and

concern that 'there may be a deliberate attempt to frustrate the processing of FOI
requests relating to politically sensitive matters about Australia's immigration
detention system.'

In addition to the complaint, Mr Farrell has lodged 18 applications for Information


Commissioner review (IC review) of decisions made by the Department under the FOI Act in
relation to FOI requests made by him.' Mr Farrell submits that the processing of these FOI
requests are evidence that there are significant delays in the Department's processing of FOI
requests.

See, https://www.theguardian.com/australia-news/2016/nov/02/immigration-official-says-department-is-freezing-
release-of-documents-about-nauru.
2 Part VII of the FOI Act sets up a system for review of decisions made by ministers or agencies under the FOI Act. A
separate process for the investigation of complaints is set out in Part VIIB of the FOI Act.

www.oaic.gov.au I 1
On 9 May 2017, the OAIC notified the Department under s 75 of the FOI Act that the
Information Commissioner had decided to investigate the complaint and requested that the
Department provide the OAIC with submissions in response to the complaint allegations.

The Department made written submissions in response to the complaint allegations on 7 June
2017 and 17 November 2017. The Department has provided both confidential and non-
confidential submissions.

The Department has provided reasons for delay in relation to each of Mr Farrell's FOI requests
relevant to this complaint, including difficulties locating the documents within the scope of
the requests, consultation processes, the volume or complexity of the documents requested,
difficulties in identifying an appropriate decision-maker and the general volume of FOI
requests being processed by the Department.

The Department submits that it is committed to processing FOI requests within statutory
timeframes under the FOI Act and has advised that it has enhanced its capability and process
by introducing a number of initiatives such as:

updating and developing training and guidance material relevant to all departmental
staff.

providing training to officers at various levels who are involved in the FOI process.

reviewing, monitoring and developing processes to improve efficiency.

investigating alternative ways to manage the volume of requests received by the


Department.

recruitment of additional staff to support the FOI function.

The Department submits that there was no 'freeze' or deliberate attempt to frustrate the
processing of FOI requests about or related to Nauru or the processing of any FOI requests in
general.

The Department submits that at the time Mr Campbell's email was sent, the FOI Section was
in the process of consulting with the Department's International Division regarding the
sensitivities associated with four FOI requests three relating to summaries of onshore and
Regional Processing Centres (RPCs) on Manus Island and Nauru incident reports, and one
relating to quarterly health datasets for Australian Detention Immigration Facilities including
the RPCs on Manus Island and Nauru (the four Nauru-related FOI requests).

The Department submits the four Nauru-related FOI requests were considered to be
particularly sensitive at the time because:

Given a number of factors, including the publicity around the 2,000 Nauru incident reports
which received wide media coverage, it was necessary that the Department conduct
appropriate strategic, high level consultations so as to manage the Nauru related FOI requests,
and to ensure all factors were given due consideration, including factoring in the objects of the
FOI Act. This was of the utmost importance, given the amount of information already in the
public domain and potential impact to the ongoing bilateral relationship with Nauru.

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Investigation results

Pursuant to s 87 of the FOI Act, the investigation results will set out my opinions, conclusions
and suggestions about how the processes of the Department might be improved.

I have considered all of the material put forward by the Department and Mr Farrell.

Issue 1: Allegation of delays in the processing of requests

The FOI Act provides a statutory timeframe of 30 days to process an FOI request (s 15(5)).
That period can be extended by up to 30 days with the applicant's agreement (s 15AA), by
30 days if consultation with a third party is undertaken (s 15(6)), by 30 days if consultation
with a foreign entity is undertaken (s 15(8)), or for a period approved by the Information
Commissioner for complex or voluminous requests (s 15AB) or following a deemed decision
(s 15AC).3

Mr Farrell's FOI requests relevant to the complaint

From my examination of Mr Farrell's 18 FOI requests relevant to this complaint, it is apparent


that all of the requests relate to non-personal information apart from one that relates to Mr
Farrell accessing his own personal information. However, it is apparent from the
Department's submissions that all requests from journalists as treated as 'significant /
sensitive' requests and are therefore processed by its FOI team in Canberra.4

Based on the information before me, I find that the statutory timeframe for processing each
of the relevant FOI requests was exceeded by the Department. The processing time from
receipt to finalisation of the requests ranges from 44 days to 234 days. In relation to 14 of the
FOI requests, the Department did not issue its statement of reasons until after Mr Farrell had
sought IC review of the Department's deemed access refusal decision.5

Based on the evidence before me, the reasons for the delay in processing Mr Farrell's
requests include:

no or little use of the provisions of the FOI Act to seek extensions of time for processing
requests, including the cases where the Department did not make a decision within the
statutory timeframe where extensions of time were sought and granted.

delays in undertaking consultation with the applicant.

delays in undertaking informal consultation with other government agencies or


Commonwealth contractors.

delays in allocating the request to an FOI case officer.

delays in identifying and/or allocating the request to an appropriate decision-maker.

little or no communication with the FOI applicant about delays in processing the requests.

See also, FOI Guidelines [3.125].


4 According to the Department, significant and sensitive requests are those made by journalists, Members of Parliament
or requests which are sensitive by virtue of the subject matter.
Sections 15AC(3), 53A and 54L of the FOI Act.

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delays in decisions being made following the outcome of internal/external consultations.

delays in decision-makers approving draft decisions.

delays between the date an FOI decision was made and the date the decision was issued
to the FOI applicant.

lack of timely management of complex and sensitive FOI requests.

misapplication of the provisions of the FOI Act.

uncertainty about the application of the FOI Act to contractors.

lack of timely engagement with the OAIC in resolving IC reviews concerning deemed
refusals.

delays in responses being provided from parties outside of the FOI Section, including
Commonwealth contractors and business areas within the Department.

delays caused by the involvement of the Department's media section.

Many of these reasons were also identified as causes for delay when the former Australian
Information Commissioner, Professor John McMillan, undertook a Commissioner-initiated
investigation into the Department's processing of non-routine FOI requests in 2012.6 It is
therefore apparent that the Department has been aware of these reasons for delay for a
number of years.

The Department should consider reviewing the recommendations made in 2012 alongside the
recommendations made in this Notice to develop an action plan to review the steps taken to
resolve the issues causing delays, whether such steps have been effective and what further
steps could be taken.

The Department should also take steps to ensure that all Commonwealth contractors are
aware of their obligations under the FOI Act,' for example by making information available
during the tender process or providing training. This may include issuing a Department-wide
information sheet about the application of the FOI Act to contractors to improve agency-wide
understanding.

Departmental data about the deemed refusals

The Department submits that from 1 April 2016 to 31 March 2017, it received 446 non-
personal FOI requests. As at 25 May 2017, 392 of those requests were finalised, with 234
(around 60%) of those being finalised within statutory timeframes. The times for processing
these requests ranged between 1 and 242 days, with the average processing time being
54 days.

6 Processing of non-routine ROI requests by the Department of Immigration and Citizenship: Report of an own motion
investigation, 26 September 2012, available here: https://www.oaic.gov.augreedom-of-information/foi-decisions/foi-
omi-reports/processing-of-non-routine-foi-requests-by-the-department-of-immigration-and-
citizenship# Toc336329927.
7 Section 6C requires agencies to take contractual measures to ensure that Commonwealth contracts entered into enable
the agency to obtain documents relating to the performance of the contract where a request is received under the FOI
Act.

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Based on the information before me, I find that the Department's failure to meet the
statutory processing time for processing 'significant / sensitive' and non-personal FOI
requests is systemic, and is not limited to Mr Farrell's FOI requests. It is also apparent that in
the majority of cases, the delay has been caused by internal factors, particularly the internal
consultation process.8

Further, it is apparent that the Department made very minimal use of the ability to seek an
extension of time from the OAIC under ss 15AB and 15AC, which may have assisted the
Department in managing its statutory deadlines. This was also noted as an issue during the
former Australian Information Commissioner's investigation in 2012. 9

The Department should review its processes to ensure that internal consultation processes
are concluded in a timely manner and the extension of time provisions in the FOI Act are
appropriately used.

Although the above statistics relating to deemed decisions are concerning, I note that they
reflect an improvement in the percentage of non-personal FOI requests finalised outside of
the statutory timeframe in comparison to the statistics provided during the former Australian
Information Commissioner's own motion investigation into the Department's processing of
non-routine FOI requests in 2012.10 Further, although the Department is often failing to
finalise requests within the statutory timeframe, there has been some improvement in the
average processing timeframes since 2012 and the Department submits that it is committed
to further improving these statistics."

Processing significant / sensitive FOI requests

The Department has advised that it treats all FOI requests received from journalists and
relating to the Department's onshore and offshore detention system as 'significant / sensitive'
requests and that it has a separate procedure for processing such requests.

Based on the information before me, it is apparent that the 'significant / sensitive' FOI
request procedure includes additional steps, such as allocation to an officer with the
Executive Level 2 (EL2) classification with subject matter expertise from the lead business area
as an accredited decision-maker and informing the Minister's Office and Senior Executive staff
about the request, and that these additional steps have caused delays in some requests being
finalised.

The Department submits that it undertook process mapping exercises of 30 sensitive FOI
requests to identify any systemic or processing issues and further efficiencies and
implementing improvements. However, the Department has not provided any particulars of
the outcome of that exercise.

Delay in conducting internal consultations was also identified by Professor McMillan as an issue in his 2012 report.
9 Recommendation 2.8.
10 See, Issue 1.a here: https://www.oaic.gov.au/freedom-of-information/foi-decisions/foi-omi-reports/processing-of-non-
routine-foi-requests-by-the-department-of-immigration-and-citizenship# Toc336329927.
In relation to the 27 FOI requests analysed in Professor McMillan's report, the average processing time was 296 days
from the date of receipt.

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Based on the information relating to Mr Farrell's FOI requests, I find that the Department is
not meeting its statutory obligations in relation to processing 'significant / sensitive' requests.
There appears to be no process for escalating delays relating to such requests, either within
or outside of the FOI Section, and as a result there is a lack of agency-wide accountability for
processing these requests within statutory timeframes.

The lack of a whole of agency commitment to the Department's obligations under the FOI Act
was previously identified as an issue in Robert Cornall AO's Report to the Chief Lawyer of the
Department in 2012.

The Department should consider developing a procedure for officers involved in the
processing of 'significant / sensitive' FOI requests to follow when it becomes clear that the 30-
day statutory processing period cannot be met. This procedure may include guidance on the
extension of time provisions in the FOI Act, an escalation process to manage internal or
external delays and advice on how to keep the applicant up to date. This procedure could be
shared with all staff involved in the FOI process, as well as Senior Executives, to create a
culture of accountability in managing processing times and delays.

Staff training about statutory timeframes

A Secretary's Instruction including instructions to all staff about the importance of adhering to
the statutory timeframes set out in the FOI Act was issued in June 2013.12 However, the
Department has advised that this Secretary's Instruction is not current and has not been for
some time.

The Department has advised that it is developing FOI training and guidance material for all
staff. The Department should make adherence to the statutory processing times a key
message in the training material to foster an environment of compliance in all areas of the
Department. The Department should prioritise the finalisation of this material and may wish
to include it as part of compulsory induction training for all senior executive staff (SES) and
staff in business areas that are regularly involved the FOI process.

The Secretary should issue a new Instruction outlining the importance of an all of agency
commitment to adherence to the FOI Act, including statutory timeframes.

Findings

The Department is not making decisions within the statutory timeframe in relation to a high
percentage of non-personal FOI requests it receives as a result of numerous reasons for delay,
predominantly caused by internal factors.

The Department treats requests received from journalists and requests relating to Australia's
immigration detention systems as 'significant / sensitive' requests and has a different

12 This Secretary's Instruction was also annexed to Allan Hawke's June 2013 Better Practice Guide: Freedom of Information
Act 1982, at Annex 1, as an example of internal FOI management policies. Available here:
https://www.ag.gov.au/Consultations/Pages/ReviewofF011aws.aspx.

www.oaic.gov.au I 6
procedure for processing such requests. The Department often experiences lengthy delays in
finalising 'significant / sensitive' requests.

Issue 2: Allegation that the Department has deliberately attempted to frustrate the
processing of FOI requests relating to politically sensitive matters about Australia's
immigration detention system

The Department submits that Mr Campbell's email related to the four Nauru-related requests
only and that there was no 'freeze' on the processing of those requests, or FOI requests more
generally.

The Department has provided the OAIC copies of all correspondence relating to the four
Nauru-related requests and based on the information before me, it is apparent that the FOI
Section was asked to put the processing of the four Nauru-related requests on hold pending
advice from other business areas within the Department when the statutory timeframes for
processing the requests had already expired.

In my view, such conduct shows a disregard for the statutory processing timeframes set out in
the FOI Act and frustrated the FOI Section's attempts to process the relevant requests in a
timely manner.

Although the Department submits it has endeavoured to establish a set of agreed processes
with the relevant business areas to ensure future requests are processed with a clear
understanding of appropriate time expectations, the Department has not provided particulars
of what these processes are, when they were agreed upon or to what extent they have
improved the internal consultation process.

The OAIC asked the Department to provide data relating to the timeframes for processing
requests relating to Australia's immigration detention system. The Department has advised
that of the 36 non-personal FOI requests deemed to be refused as at 31 March 2017, 15
related to Australia's immigration detention system. The OAIC asked the Department about
the timeframes for processing requests relating to Australia's immigration detention system,
however the Department submits it has not been able to provide this information in the
timeframe provided due to the information not readily captured in the Department's FOI
registration system.

Based on the limited information before me, there does not appear to have been a pattern of
delays in processing requests relating to Australia's immigration detention system specifically,
in isolation of non-personal FOI requests more broadly. However, the Department should
consider monitoring the types of documents sought in 'significant / sensitive' requests so that
it can review whether there are any patterns of delays relating to certain types of requests.
The Department should also consider whether access can be provided to certain types of
documents administratively or through the Information Publication Scheme (IPS).

The Department is legally required to process all FOI requests within the statutory timeframes
set out in the FOI Act, regardless of the identity of the applicant or the subject matter of the
request. The Department should develop clear processes for how internal and external
consultation will be undertaken, including who will be responsible for the consultation and

www.oaic.gov.au I 7
within what timeframes. External consultation should be undertaken in accordance with the
statutory timeframes by using formal consultation and extensions of time provisions under
the FOI where available.

As I discussed above at page 7, the Department should also consider developing a procedure
for officers involved in the processing of 'significant / sensitive' FOI requests to follow when it
becomes clear that the 30-day statutory processing period cannot be met, including an
escalation process.

Findings

At least four Nauru-related FOI requests were put on hold due delays in the internal
consultation process in 2016.

Investigation recommendations

I make the following investigation recommendations:

Recommendation 1

The Department should consider the reasons for delay discussed in this Notice relating to the
Department's processing of non-personal FOI requests, including 'significant / sensitive'
requests.

In particular, with a view to reviewing and improving its processes, the Department should
monitor how many non-personal FOI requests it receives, how many it considers to be
significant or sensitive, how many requests are processed within the statutory timeframes,
and the reasons for delay where the statutory timeframe is exceeded.

Recommendation 2

The Department should allocate sufficient resourcing to meet its obligations under the FOI
Act, including in relation to resourcing the FOI Section and for training across the Department
more broadly.

Recommendation 3

The Department should be actively engaged in developing a culture of adherence to the


Department's obligations under the FOI Act agency-wide and at all levels.

The requirement to process requests within statutory timeframes should be clearly stated in
all training and guidance material.

Recommendation 4

The Department should put processes in place for managing and escalating delays in
processing FOI requests, including non-personal FOI requests and 'significant / sensitive'
requests.

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Recommendation 5

The Department should review whether it is appropriate for all requests from journalists to be
considered 'significant / sensitive', regardless of the documents sought.

Recommendation 6

The Department should review its internal and external consultation processes to create a
culture of accountability for ensuring that consultation is finalised in a timely manner, so that
the Department can make decisions within the statutory timeframe.

Recommendation 7

The Department should proactively provide information to the public relating to its
operations outside of the FOI Act.

[Ends]

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