Words by: Smoko Henderson
Nobody Actually Gives a Shit If An Entity Breach the FOI Act of 1992
Because I am a decent bloke (and ultimately helpless) I will not name which government Department recently failed to respond to an FOI request within 45 days – something they must do under state law – but I will complain about the fact that nobody really gives a shit.
I thought this would be a big deal. It isn’t. I thought the Office of the Information Commissioner would care, or find it surprising. They didn’t. I thought that there would be some kind of advice agency outside the OIC available to West Australians who would have some kind of idea of what to do when a Department doesn’t respond to FOI requests. There isn’t.
Ultimately, I called the responsible Department, and got a response which more or less said “yeah mate we’re getting to it don’t stress.” It was far nicer and more professional than that, but ultimately, section 13 of the FOI Act 1992 is something far too beaucracratic to actually enforce.
It Costs $30 Just to Request Documents
I’m not going to lie, if it didn’t cost $30, people would use FOI requests as a way to hold Departments at complete ransom, in the same way that people DDoS attack websites. This is something that happens, and in America particularly, it was the sole reason that costs were introduced at all (also neoliberalism but whatever different article).
Requests for information about yourself are free, so there’s that. But FOI law implies by its very existence that information is not free, which turns out applies to both its literal monetary cost and availability out from underneath the weight of agency politics.
A Department Can Just Straight Up Ignore A Request
There’s also that. They can just literally cold shoulder your request (after taking your $30) and apart from making a complaint, there’s nothing you can do about it. This is legal procedure. If you then go back to the agency who ignored you and appeal for an Internal Review, they have to reply to you within 15 days, so there are elements of citizen power. However, I only found this out after pestering the OIC. It isn’t really advertised. To be fair, though, the OIC are more willing to deal with a case if that additional 15 day period gets ignored.
Ultimately, however, if the Deparment are able to find grounds for rejection of the application, that’s your $30 wasted, and you’ve got to wait 30 days until you can send off another one. Brutal or what?
The Ombudsman Is an Independent Statutory Entity With Ambiguous Power
Ultimately, worst case scenario, let’s assume that there’s some kind of shady cover up and a Department just fully ignore Mr. Joe-Curious Citizen for over 3 months and he finally goes to the Ombudsman.
Even so, the Ombudsman can’t really do anything. The Ombudsman is an independent entity who reports to Parliament. Breaches of FOI law aren’t handled by courts, they are handled by the OIC and often the departments under investigation themselves (FOI officers in those departments hate these investigations, for understandable reasons).
Only in extreme cases, like the one involving Brandis, ever make it to a serious, good-old separation-of-powers tier court.
And if They Do, They’re Prohibitively Expensive.
You’d better be rich, pal.
There is Literally No Obligation For Anyone To Identify Your Right to Information
This is obviously a clear area of law which needs to be reformed, and not reflective of some kind of shady, Aldous Huxley overworld where government departments have more intellectual rights than the citizens who elect them, but by the very word of the law, government departments have more intellectual rights than the citizens who protect them.
Not an issue to the Mum and Dad voter, sure, but still sort of important.
Anything You Do Get Back is Probably Going to be Redacted
At the end of the day, what documents you are allowed to apply for aren’t exactly diverse. All 3rd party names are excluded for collection, and if you’re trying to access anything in the private sector, good luck: “commercial in confidence” laws allow basically any profit-making agency to classify all of their internal documents because basically everything they do is in the effort to make money. Their lawyers have far more complex ways of saying it, but that’s what it comes down to.
Additionally, every entity named needs to be approached and asked for their consent on inclusion.
That 3rd party exclusion and 2nd party consent clause has its advantages. It could be the difference between a witness protection program working and failing, for instance.
But it can also be exploited to the whazoo by any agency who wants to keep shit nosed little question askers out of their business, and by lord, they do.