Australian journalists and members of parliament seeking information about the country’s immigration detention regime are experiencing extreme and “systemic” delays, an excoriating review by Australia’s freedom of information watchdog has found.
The information commissioner initiated an investigation after an internal email was accidentally sent to the Guardian that suggested the department was “freezing” freedom of information (FOI) requests about Nauru. It followed renewed attention of Australia’s detention regime after the publication of the Nauru files.
The findings of the year-long investigation by commissioner Timothy Pilgrim, released to BuzzFeed News last week, has revealed serious shortcoming in the department’s handling of information requests, and affirmed that there was a "hold" on requests about Nauru.
The investigation found that all requests from journalists and MPs are treated as “significant/sensitive”, and are routinely subject to lengthy delays in breach of freedom of information laws.
It found that at least four Nauru related FOI requests were put on hold due to delays in internal consultations. The reasons for failing to process other FOI requests include: misapplication of the provisions of the FOI Act; delays in allocating FOI officers; and little or no communication about requests.
It also suggests the department’s media team may have played a role in vetting FOI requests. It states that another issue was “delays caused by the involvement of the department’s media team”.
The review also reveals that the immigration minister Peter Dutton was routinely given a heads up by the department prior to the release of documents to journalists and members of parliament.
“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,” Pilgrim wrote.
“It is also apparent that in the majority of cases, the delay has been caused by internal factors, particularly the internal consultation process.”
Shadow immigration minister Shayne Neumann said: “This investigation has exposed the Department of Immigration and Border Protection’s culture of secrecy and its failure to meet the statutory processing times for Freedom of Information requests.
“I know first-hand the department’s systemic failure to meet statutory timeframes and process FOI requests within 30 days. I submitted a simple FOI request to the department in October 2016 and only received a decision this month — 426 days after my initial request.”
Neumann also said the immigration minister needed to explain “whether he or his staff members have ever asked the department to go slow on FOI decisions or asked for certain information to be withheld.”
Australian Greens senator Nick McKim said there was “no reason at all for journalists’ FOI requests to be handled under a separate process, nor should they be subject to political interference and meddling”.
He said that “the buck of course stops with Peter Dutton”.
“He will do whatever it takes to keep secret the horrors of offshore detention, including repeated breaches of freedom of Information laws,” McKim said.
Dutton has not responded to requests for comment about the review, or his office’s involvement with journalists’ FOI requests.
Senior immigration department officials had previously denied there was any “freeze” on processing requests about Nauru.
In Senate Estimates this year department secretary Michael Pezzullo and assistant secretary Ben Wright were questioned about the internal delays. Wright told parliament: "We process all our FOI requests as per the FOI legislation and definitely there is no freeze on FOI requests."
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He later added: "The use of the terminology 'freeze' was not correctly done. There was no freeze on FOI requests and the officer was doing internal consultation with the area that the FOI related to. And I would say it was a poor use of terminology by the officer involved."
But the review found that: “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.”
When asked about these statements, a spokesman for the department said: “There is no discrepancy between the findings of the information commissioner and the department’s testimony to the Senate.
“The information commissioner’s statement is consistent with the department’s statements to the Senate and clearly shows that the delay in the processing of these FOI requests related to the requirement for further consultation.”
Despite the findings in the review, the department is continuing to breach statutory deadlines for processing requests for information. The department was recently ordered by the information commissioner to release more than 1,200 pages of documents about Nauru to BuzzFeed News by December 15. But it failed to meet this deadline.
The acting director of the freedom of information division Karen Tulloch said the department would aim to process the request by 31 January 2018.
“We are actively processing this request, however due to the size of the request, and the time of year, it will take some time to provide you with a decision on all of the documents within the scope of the request,” she wrote.
The information commissioner made seven recommendations to the department, and has asked it to respond by March 2018 to the review.
Disclosure: the information commissioner’s review was launched following a number of complaints and reviews initiated by the reporter on this story. The reporter also has several other matters with the department under review by the information commissioner.