Freedom of Information failures shine light on governments’ records management projects

By David Bicknell

The struggles that a number of governments and agencies are having in coping with Freedom of Information (FOI) requests has raised questions over the need for – or the status of – their IT projects for records management.

The UK government is itself in a tizzy about the number of requests it receives.   And it appears from this ZDNet article Down Under that state governments and public services in Australia are struggling to keep up too.

The article cites a recent report from the Victorian auditor-general that the Victorian Department of Human Services (DHS) needs a new electronic records-management system. It argues that not only is the department completely failing to fulfil FOI requests, which was the topic of the audit, but it is also probably losing hours of staff time as employees comb through its records for the information they need to do their jobs.

Apparently, the DHS received 1047 FOI requests in 2010-2011. However, instead of meeting the 45-day deadline for fulfilling these requests, the average fulfilment time was 75 days.

Admittedly, Australia has had 30 years of dealing with FOI, where here we have had twelve. But the report’s background and conclusions on FOI make for informative reading.   I wonder how many government departments and councils it might apply to over in the UK; what IT projects (if any) they have underway in terms of electronic records management; and just how long it might be before a similar critical report is written here.

Background

Freedom of information (FOI) is a cornerstone of a thriving democracy. FOI upholds the public’s fundamental right to access information held by the government. The community’s ability to scrutinise public sector activities and hold the government of the day accountable for its decisions is affected by the transparency and accessibility of government information.

Since the Freedom of Information Act 1982 (the Act) was introduced, both the number and the complexity of requests for information have increased considerably. In 2010–11 there were 34 052 FOI requests, compared to 4 702 requests in 1984–85, the first full year the Act was in operation.

The Victorian Ombudsman identified systemic problems in his 2006 review of FOI. These included a lack of timely responses, inconsistent application of the Act and lost or non‑existent documents. In his 2011 Annual Report the Ombudsman concluded that these problems still remained five years later.

The audit examined the extent to which all 11 Victorian public sector departments and Victoria Police meet the requirements of the Act and associated guidelines. A detailed assessment of the effectiveness and efficiency of FOI processes in Victoria Police and the Department of Human Services (DHS) was also performed. These two agencies were selected because they process 68 per cent of the FOI requests received by the 12 agencies audited.

Conclusions

Since FOI legislation was introduced 30 years ago, Victoria has gone from being at the forefront of FOI law and administration to one of the least progressive jurisdictions in Australia. Over time, apathy and resistance to scrutiny have adversely affected the operation of the Act, restricting the amount of information being released. As a result, agencies are not meeting the object of the Act, which is ‘to extend as far as possible the right of the community to access information’.

The public’s right to timely, comprehensive and accurate information is consequently being frustrated. The Victorian public sector’s systemic failure to support this right is a failure to deliver Parliament’s intent.

The prevailing culture and lack of transparent processes allow principal officers—secretaries and chief executive officers of agencies—to avoid fulfilling their responsibilities. Principal officers are not being held to account for their agency’s underperformance and non-compliance:

  • In 2010–11, the average response time for eight of the 12 audited agencies exceeded the statutory deadline for responding to applicants’ requests.
  • Of these agencies, four exceeded the 45-day time limit for over half of their requests.
  • None of the agencies adequately complied with the mandatory reporting requirements of the Act.
  • The principal officers of the Department of Premier and Cabinet (DPC), the Department of Health (DOH) and DHS have not managed adherence with ministerial noting periods consistent with the Attorney-General’s 2009 Guidelines on the Responsibilities and Obligations of Principal Officers and Agencies(the FOI Guidelines). This has led to delays in the release of documents.
  • Agencies have not managed to reach agreement on a consistent, whole‑of‑government approach to the proactive release of information, which would reduce the reliance on FOI processes for the release of non-personal information.
  • The more detailed review of DHS and Victoria Police revealed serious flaws in record keeping practices and FOI searches.

The cumulative effect of the multiple cultural and process issues is that the community does not receive the information it is entitled to receive, when it should receive it. Agency senior management is aware of these longstanding issues and their consequences, but has not taken sufficient action to address these systemic weaknesses.

This points to an absence of leadership and responsiveness, and a willingness of agencies to compromise the fundamental public service principles of integrity, accountability and respect. These are values that all public sector officials are expected to demonstrate under the Code of Conduct for Victorian Public Sector Employees. Principal officers who do not observe these values are failing the community and Parliament.

Embedding the appropriate pro-disclosure culture and processes, which underpin the intent of the Act, requires effective leadership. The Department of Justice (DOJ) has not adequately championed FOI across the public sector and, as such, has not satisfactorily fulfilled its role as the lead agency for FOI.

The introduction of the FOI Commissioner presents an opportunity for more proactive FOI leadership—in particular driving the cultural shift that is necessary to provide better quality services to the community. Significant change will only be possible if the commissioner is granted sufficient powers and resources. Since these amendments have not yet commenced, recommendations relating to the lead agency for FOI are addressed to DOJ, but will subsequently need to be reviewed once the FOI Commissioner has been appointed.

Findings

Department of Justice leadership

As the lead agency for FOI, DOJ is accountable for providing agencies with guidance and advising the minister responsible for the administration of the Act through the production of annual reports to Parliament on FOI performance. There have been significant shortcomings in the department’s approach in both of these areas.

Freedom of information culture and practices

DOJ has not adequately promoted and modelled the intent of the Act and accepted better practice, either in its own department or across the public sector. Specifically, DOJ has not:

  • developed a proactive release framework for agencies
  • addressed its own or other agencies’ processing delays
  • complied with the reporting or timeliness requirements of the Act, nor encouraged other agencies to do so
  • complied with the five-day ministerial noting time frame before documents are released.

The tolerance of these longstanding substandard practices, particularly with regard to proactive release, reflects an apathetic and obstructive culture. DOJ has acknowledged that it could have taken a stronger approach with agencies, but stated that its ability to address substandard practices is limited because it does not have adequate powers to mandate good practices. This lack of powers is not sufficient justification for DOJ to not exercise leadership. Further, there is no evidence that DOJ sought to extend its powers to address its inability to achieve an acceptable level of practice, consistent with the object of the legislation.

Proactively releasing information is an effective means of disseminating the maximum possible amount of information. It is recognised as better practice and, accordingly, is the approach adopted in other jurisdictions. Although Victorian agencies are publishing information, this does not necessarily constitute proactive release unless they have properly assessed the information to determine whether it is of significant public interest, appropriate, accurate, accessible and easy to use. This, combined with the continued reliance on formal FOI applications, means Victoria is less progressive than other jurisdictions.

Performance reporting

The apathy with regard to FOI is also evident in the reporting regime. The minister responsible for the Act relies on DOJ to collect, check and prepare data for inclusion in the FOI Annual Report to Parliament. However, DOJ is not reporting to the minister aspects of agencies’ performance as the letter and spirit of the Act requires.

DOJ does not report on measures that are explicitly specified in the Act, including disciplinary action taken against officers in respect to the administration of the Act, such as a breach of duty or misconduct.

DOJ collects information on the timeliness of agencies’ responses to FOI requests but does not include this information in the minister’s report to Parliament. Although DOJ is not specifically required to disclose this information to the minister, it is not precluded from doing so. Releasing agencies’ timeliness statistics would be in the spirit of the Act and encourage better performance.

Parliament and the public have the right to know if agencies’ performance is unsatisfactory. DOJ’s lack of comprehensive and transparent reporting in relation to the minister’s annual report does not satisfy the community’s expectations of a public sector agency.

Training

Training is an effective way to instil a positive FOI culture in agencies and to emphasise the importance of openness and transparency. DOJ’s FOI training program places too much emphasis on basic administrative process, rather than the intent of the Act. An important opportunity to promote a positive pro-release FOI culture has been missed.

Agency management

Timeliness of response is a good indicator of senior management’s attitude towards the importance of FOI. The number and complexity of requests can influence performance against the statutory time limit, however, the onus is on principal officers to provide adequate resources and support to meet the timeliness requirements. Only two of the audited agencies meet both the 45-day time limit and the five-day ministerial noting period.

Of the 12 agencies audited, only four had average request processing times that met the 45-day statutory limit in 2010­–11. These were the Department of Education and Early Childhood Development, Department of Transport, Department of Primary Industries and Department of Treasury and Finance. The worst performing agencies were Victoria Police, DPC and DHS, which averaged 98, 92 and 75 days respectively.

Victoria’s underperformance against its legislative target is even more concerning when compared with other states. Other states have better processing completion rates against shorter or similar standard time limits. Extensions to these time limits may be granted, in certain circumstances.

The five-day ministerial noting period recommended in the FOI Guidelines was exceeded by eight of the 12 agencies. The worst performing department was DPC, with an average noting period of 41 days. One FOI request was with the Office of the Premier for 88 days. DHS and DOH also recorded noting periods in excess of 20 days. Long noting periods delay the release of information and impede the effective operation of the Act.

When agencies do not respect the FOI Guidelines, this not only compounds the delays in processing FOI requests but also contributes to the public perception that there is political interference in the FOI process, particularly when there is repeated consultation between an agency and a minister’s office on requests.

Victoria Police and DHS have both attempted to improve the timeliness of their responses. At Victoria Police, timeliness improved when additional resources were temporarily assigned to the FOI unit, while DHS improved its response time by prioritising requests.

Department of Human Services and Victoria Police

An effective FOI system relies on strong agency leadership and support, a robust understanding and application of the Act, good records management, appropriately defined searches and open communication with applicants.

DHS and Victoria Police, the two agencies reviewed in more detail, have significant deficiencies in these areas. As a consequence, the public is being denied access to information.

Processing fees and waiver of time frame

DHS is offering applicants the opportunity to waive processing charges if they forgo the requirement for DHS to meet the 45-day processing time limit. DHS is not advising applicants who have little or no money and are seeking information that relates to their personal affairs that they have a right to request a waiver of charges under the Act without waiving the 45-day time limit.

This unacceptable practice was not observed in any of the other audited agencies. It allows DHS to extend its time frame for responding to requests without recording those requests as overdue, giving the mistaken impression that the department’s timeliness performance is better than it actually is.

Records management

DHS and Victoria Police need to address deficiencies in their record keeping practices as a priority. Records are being lost, disposed of incorrectly or rendered inaccessible.

DHS’s record management facility has inappropriate physical storage conditions—causing records to deteriorate—and inefficient indexing systems. As a result, information cannot be found when needed.

Although Victoria Police has a policy outlining the appropriate storage of records, it has not addressed the informal practice of police officers storing records, such as note books, at their homes. This practice increases the likelihood that these records may be lost or difficult for Victoria Police to locate.

Search techniques

DHS and Victoria Police both need to remedy weaknesses in their FOI searches to provide appropriately scoped responses.

DHS does not include records held by its contracted community service organisations (CSO) in the FOI requests the department processes. Instead, DHS refers applicants to the relevant CSOs. The quality of record keeping practices of CSOs varies widely and, consequently, so does the amount of information available to DHS’s clients.

DHS is failing to discharge its obligations to its clients. The Act refers to ‘possession’ when defining a document, not ownership. DHS has a right to possess CSO records under its service agreements, therefore CSO documents are subject to the Act. Furthermore, the department is contravening the specifications set out by the Public Records Office Victoria and the FOI Guidelines.

Victoria Police’s FOI unit does not conduct sufficiently thorough and diligent searches. The unit does not inspect proof of disposal documents to confirm whether documents cannot be provided because they no longer exist.

Related Links

FOI debate: the genie of freedom will never be put back

One in three public bodies failing on freedom of information requests

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