Ben Fairless is a volunteer administrator of our Freedom of Information (FOI) request site, Right To Know. When the ATO started to refuse valid FOI requests from people on Right To Know he made a personal complaint to the OAIC about his refused request. He has some good news to share!
You may have been aware from previous blog posts that the ATO has been refusing to process valid Freedom of Information Requests requests made via Right to Know since August last year.
In response to their failure to respond to my FOI requests, I made a complaint to the Office of the Australian Information Commissioner (OAIC) in my capacity as an FOI applicant. Both I and the OpenAustralia Foundation believe that all Commonwealth authorities have no right to refuse to process valid requests just because they come from Right to Know.
I’m pleased to pleased that I received a letter in response to my complaint from the Information Commissioner, Timothy Pilgrim yesterday. Mr. Pilgrim’s letter supports both my understanding and the Foundation’s position; It is lawful to use Right to Know to make FOI requests. He further recommended that the ATO begin processing stalled requests. You can read the entire letter on archive.org.
Some key points of the Commissioner’s decision are:
“Part 3.48 of the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (the FOI Guidelines), to which regard must be had in performing a function or exercising a power under the FOI Act, provide that a request can be posted on a public website and forwarded to a specified electronic address of the agency or the Minister. The FOI Guidelines reference the RTK website in the footnote, as an example of such a website.” [emphasis mine]
In addition, the Commissioner had something to say about the way the ATO requested Right to Know remove an Internal Review:
The ATO did not ask the RTK website administrators to remove the name of the affected ATO staff, instead, it asked the RTK website administrators to remove a request for internal review of the ATO’s FOI decision.
He also went on to say that:
The powers of the Information Commissioner do not extend to the administration of the RTK website.
The Commissioner then issued a formal recommendation:
Under s 88 of the FOI Act, I recommend that the ATO process valid FOI requests made through the RTK website.
I believe this recommendation is appropriate to complete this investigation.
As citizens, we are really lucky to have an authority like the OAIC who are responsible for looking after our Right to Know. This application and process cost me nothing but time, and was simple and straightforward. The OAIC played a vital role in resolving this problem. Without the OAIC I would need to appeal to a more formal body, costing time, money (several hundred dollars to just appeal) and legal fees that would run into the thousands.
I feel that the only thing that could have been improved in this process was the time it took for the OAIC to review the complaint, however I hope that could be addressed with more funding for this important resource.
As volunteers at Right To Know we all work hard to ensure that it is a safe environment, where people can work productively with government on furthering the government’s own goals of being open and transparent, and will continue to do so with the support of this decision. We look forward to seeing the ATO uphold their responsibilities and processing people’s requests via the Right to Know website.
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3 Comments
Great news!
We are truly fortunate to have a body such as the OAIC – never knew it existed until reading this article.Unfortunately many people are in this same state of ignorance that I was in. -The ordinary citizen ,I feel is kept in a state of disempowerment by
the keeping away from public knowledge about such bodies perhaps by the powers that be.
Your trust in the OAIC is inconsistent with the way they behave more generally.
In my reasonably-extensive dealings with their (grossly underfunded and under staffed) department, I’ve found their workers to be unreasonably on the “side” of public servants. If anything you’re seeking might embarrass the government, the OAIC goes above-and-beyond to assist the government denying your request.
In my most recent OAIC review, I requested they seek ACSC advice on a cyber-security-related lie that they were told by an FoI officer, which (bless their hearts) they did. The OAIC then phoned me (and the call began with a message saying it was being recorded) to tell me that the advice they got sided with the FoI officer. I asked them to send me a copy of that advice (because the ACSC is not stupid, so I knew someone must be lying), but the OAIC refused, telling me it was confidential.
I complained in writing about that, and 2 days later they sent me the advice they received. Not only was it on *MY* side (and not the FoI officer as they claimed), but it was clearly marked by the ACSC as being for release to me. The OAIC lied about what it said. The OAIC lied about it being confidential. The OAIC relied on their lies to support the refusal to release information that would have seriously embarrassed many public servants.
I got a direct email address for the Boss of the lying FoI officer, and reported her, citing the recording and supplied the evidence. I asked that the lying officer NOT be told, fearing she would erase the recording if she knew. Her boss told her about my report, and told me that “she could find no evidence of wrongdoing”, so took no further action. I filed another FoI, against the OAIC, seeking the recording of the phone call evidence of the lies, but it “could not be found”.
In later phone calls from the OAIC, I told one of their staff that OAIC are corrupt. He said no, OAIC are not corrupt. I said I can prove it, and I have plenty of evidence, and I asked for his email address so I could send him the evidence. He refused to give me an address, directly told me he does not want to see any evidence, and kept telling me more times on the same call that the OAIC are not corrupt.
Let the irony of the above sink in. The OAIC openly state they are not corrupt, then refuse to accept evidence to the contrary, yet continue to state they’re not corrupt. Refusing to even look at evince of corruption IS corruption!!
The above is just a couple of many different situations I’ve personally observed the OAIC misbehaving in.
Long story short: if you get a phone call from anyone, especially the OAIC, the REASON it’s a phone call is because they’re knowingly doing something wrong and do not want evidence to exist. Either ask them to put it in writing instead of taking the call, or, make sure you tell them you’re going to put it all down in writing and send it back to them to confirm what was discussed right at the start.
And never let them “get rid of you” – every OAIC request includes about half a dozen times before it’s finalised (if ever – I’ve got one that’s still ongoing after 5 years so far) where they try to get you to drop it.
Australian public service is completely dysfunctional: There are no penalties for any public servants for any kind of administrative wrongdoings whatsoever. There’s no working way to report it. There’s no mechanisms at all to get any recalcitrant public servant to follow any rules. The entire government is immune (by law!) to all safeguards that the private sector must abide by (breach reporting, penalties, price-fixing, cartel behaviour, etc) and everyone you think should be able to help actually has no powers at all (ombudsmen, your local member, OAIC, etc).