In Parliament

Motion - Amendment to FOI Committee Inquiry



Tuesday, 20 June 2023.

Mr NEWBURY (Brighton) (13:44):

The Coalition will not be opposing the Motion. However, I will move an amendment, and that is:

That after subparagraph (8) the following words be inserted: ‘(9) the long times taken to process FOI requests, including the deterioration of performance exposed by the Office of the Victorian Information Commissioner in its recent examination, the period of time taken by ministers for noting of requests, and the recent significant increases in challenges by agencies to the determinations of the information commissioner’s office.’.

It is important to sometimes start on a positive note, and it is time for Victoria to consider its freedom-of-information regime. There is no doubt that when you look around this country you see regimes that are different than ours, and the outcomes of those regimes are also different. The openness and transparency that those regimes allow or in fact promote are there for you to see, effectively because of the way that there is an onus on the regime to provide information. I think what we have seen over time is a growth in the number of applications, as should be the case with a growing population. I mean, it is only fair and reasonable that our governments, who are there to serve people, are open to the community and their workings are open to the community. That should be the case. But we have not just seen a growth in the number of applications, we have also seen a growth in the number of instances where the items are declined and declined for particular reasons, which I will get to later.

The Coalition – the Opposition – will not be opposing the motion, but we are proposing an Amendment which speaks to some of those issues. In that Amendment I refer to the Office of the Victorian Information Commissioner, who has done a power of work. I can refer to the five-year review of 2014–19, which is a significant document and a significant review. There has been more recent work, but I can refer to this particular review, which is a very strong document and which goes to a whole-of-government review of FOI in Victoria. One of the findings of the agency was that:

The number of FOI decision makers in Victorian government agencies decreased …

So, as we have seen a significant increase in the number of applications, we have seen the Government choose to reduce the number of decision-makers. The agency also found that:

Agencies processed most requests the within the statutory timeframe. However, timeliness in decision making decreased over time …

So, the timeliness in the decisions that should be made to ensure we have an open and accountable government decreased over time, and that is very important to note. We have seen a decrease in the number of staff to process FOIs, and we have seen a decrease in the timeliness of decision-making. We have seen also:

… the percentage of full access decisions decreased over time …

What we have actually seen is less people taking longer to make decisions and less full details provided to the public. Far less full transparency is the simplest way to put it. To talk in simple terms, in 2014–15 full release was at 70.25 per cent and by 2018–19 at 64.8 per cent, effectively – so over a 5 per cent decrease in the full transparency of Government workings.

In terms of partial release of information, the denied number of FOIs between 2014–15 and 2018–19 increased from 2.3 to 4 per cent – so almost a doubling of the number of items that have been declined. These are important findings, and I would certainly refer the community to this report by the Office of the Victorian Information Commissioner, because it is a power of work.

Unsurprisingly, given the number of denials of full transparency, it is also worth noting that the number of complaints and reviews went up, both in terms of the information commissioner and VCAT. Both went up significantly. OVIC’s reviews increased from roughly 400 to 600 – so a 50 per cent increase – over that period of time. We have seen Government choose to have less staff, the timeliness go down and the release of full information also go down, which is why the community is looking on and is upset – understandably so, because our Government should be fully transparent.

More recently the Information Commissioner released a report, The State of Freedom of Information in Victoria, in April 2022, which covered the period of 2019 to 2021 – another very important document which speaks to the more recent behaviour of government when it comes to freedom of information and also to culture. The commission noted a number of trends that are worth speaking to. They are:

increased delays in the ability and capability of agencies to process FOI requests within statutory timeframes …

which have resulted in significant backlogs and delays,

an increase in complaints made to OVIC about delays and issues with handling of FOI requests; and

increasing use by agencies of the power under section 25A(5) to categorically refuse an FOI –

so just a flat refusal –

without identifying or processing any documents …

at all – so a flat refusal. What we saw in the first work done by the independent agency was a growth over time of that flat refusal and, in the more recent analysis, a serious and notable trend in that behaviour. That is why the agency did note that:

… FOI analysis continues to show the FOI Act no longer provides an optimal legislative scheme for the timely disclosure of information held by government.

That is why the Coalition will not oppose the final motion but believes that it is worth amending to note those additional points.

Before finishing I will note I have referred to section 25A(1) and (5) and their use by departments and agencies in those refusals. One finding that is worth mentioning is:

Between 2019 and 2021, agency reliance on section 25A(5) almost tripled.

It almost tripled. That is a significant increase, from 10 to 30 per cent. These are significant behavioural changes that have a profound effect on the way the government operates in secret, and we know that this Government does operate in secret. When we look at the information Commissioner’s findings, we know that timeliness is an issue, full access to decision-making is an issue and sunlight is an issue.

The final point I will note is that effectively the Government is referring these matters to a Committee on which it has four members, the Liberal Party has one member, the National Party has one member and there is a Green and an independent. So, it would be fair to say that the Government is not in outright control but is in extremely strong control of this Gommittee and has effectively referred the FOI process and transparency of Government to a committee in a way that means the cheat will be in charge of the till. That should concern every Victorian, because it is about trust at the end of the day, and we effectively are allowing a Government which has caused many problems with the FOI act by not being transparent to be in charge of the review into the Act.

The Coalition will be looking very closely at this throughout this inquiry, because it is important that Victorians have access to the information they deserve and have access to the operation of Government.

So, the Coalition will be very closely participating in this review to ensure that the cheats who are in charge of the till do the right thing in relation to Freedom of Information, because we should be doing better. When you look around Australia, we should be doing better, and we are not.