Former Freedom of Information commissioner Leo Hardiman has given explosive evidence at a senate committee accusing information commissioner Angelene Falk of nobbling the FoI review function.
Appearing at a parliamentary committee examining commonwealth FoI laws, Hardiman said Falk wanted to maintain control of the Office of the Australian Information Commissioner (OAIC) rather than commit to a three-commissioner model.
He pointed to the use of spin by the OAIC to present the performance of the office’s FoI functions in a positive manner without dealing with the issues hampering progress on the review of applications.
The former FoI commissioner identified a long laundry list of deficiencies including serious staff and resourcing issues, lack of focus on performance, absence of engagement with staff on technical issues related to FoI even when staff sought such engagement, and unproductive relationships with regulated entities.
He said staff were given tasks unrelated to the FoI function, distracting them from their main task.
There was “a diversion of staff away from core FoI work for the purpose of making constant process changes which did not in any significant sense deal with the real problems in the performance of FoI functions, and an associated feeling of complete overwhelm amongst the more senior staff members of the OAIC’s FoI branch,” Hardiman wrote in his 18-page statement to the committee.
Hardiman resigned from his role as the head of the OAIC’s FoI function earlier this year after saying it was clear he would not be given sufficient resources to do his job properly.
He said that he attempted to deal with some problems, and some issues were addressed.
“More particularly, I was able to create a much more focused and stable working environment for staff of the FoI branch,” Hardiman’s statement reads.
“I engaged closely with staff, particularly in their technical development and in necessary change management. I put significant effort into improving the quality of IC review decision-making and the development of technical FOI guidance through IC review decisions.
“I streamlined day-to-day work processes and, with the FOI branch leadership team, developed significant proposed changes to the procedure for IC reviews. I worked to create more functional relationships with regulated agencies.”
Hardiman told the senate he reviewed the conduct of information commissioner reviews and sought to use the limited resources of the FoI branch in a way that meant more review applications got attention.
Falk, according to Hardiman, did not want him focused on this process issue.
“This necessary change was of apparent concern to the IC who, after I first proposed it, told me that I should not be involving myself in such matters – that is, as FOI commissioner I should not be involving myself in the approach to management of the IC review workload and backlog,” Hardiman says.
“I pushed on and significant structural changes, with a much greater focus on the active management of IC reviews, were implemented on 1 February 2023. As at the cessation of my appointment three or so months later, that restructure had begun resulting in increased progression of substantive IC review matters.”
These changes were not enough and Hardiman’s statement says that greater resources were needed to ensure a backlog could be met.
“Relevantly in that regard, I was ultimately unable to change the distracting ‘narratives’ developed and promulgated by the OAIC, particularly around the issue of resourcing. I was also ultimately unable to change significant cultural issues affecting the performance of the FoI functions,” the statement reads.
Other cultural problems highlighted in Hardiman’s statement included a heightened sense of tension in time when external scrutiny was going to occur such as “external scrutiny, especially senate estimates appearances and critical points in the court timetable for the Federal Court unreasonable delay proceedings brought by Mr Rex Patrick”.
Hardiman is critical of two particular narratives used by Falk – the first being about the substantial throughput of finalising reviews and a resourcing narrative – that was designed to represent the agency’s performance in the best light.
The throughput narrative was designed to make it appear that finalisation outcomes were better than they were, and it failed to deal with the fact that more difficult and substantive matters were a part of the backlog.
“For example, the receipt of approximately 2,000 matters in a 12-month period and the finalisation of 1,200 matters in that period produces a percentage of 60%. But in those circumstances, the narrative referred to a percentage above 80%,” Hardiman’s statement reads.
“As best I could determine, the percentage quoted in the narrative in fact reflected the percentage of all matters finalised in a relevant period (a number significantly lower than the number of matters received) which were finalised within 12 months.”
Hardiman said that the resourcing narrative put forward by the information commission relied on the argument that additional resources for the FoI function could be resolved but only if the government specifically identified funds as being for the purposes of the FoI functions of the OAIC.
The OAIC’s former FoI chief said that the narrative ignored that appropriations given to the OAIC were given on a departmental basis – meaning that the OAIC itself could allocate more resources to the FoI function – rather than an administered basis, and that there was scope to allocated more resources for FoI functions.
“The resourcing narrative was vigorously promulgated while, at the same time, resources were being allocated to activities which were not essential to the performance of the OAIC’s two core regulatory function areas, of which FOI was one,” Hardiman’s statement says.
The OAIC was established with a three-commissioner model in mind but Falk was not committed to putting that in place, according to Hardiman’s statement.
“In relation to cultural issues, I could not change the fact that the IC was not committed to the three-commissioner model. Rather, the IC was committed to a model under which she would remain, in effect, a ‘super’ Privacy Commissioner with a subordinate rather than equally independent co-Commissioner for FOI,” Hardiman’s statement reads.
“The IC had expressly said to me following the 2022 federal election that she was concerned about the possibility of, and did not want, the appointment of a separate Privacy Commissioner. It was also made abundantly clear to me that the IC was only desirous of an appointed FOI Commissioner if the IC could control that Commissioner, particularly in so far as they might say or do anything which called into question prior stewardship of the FOI functions.”
Hardiman told the parliament in his statement that the confirmation in February this year of no additional resources for the FoI functions of the OAIC meant his position was untenable.
“Resignation was an incredibly difficult decision to contemplate. But I could not with a necessary sense of integrity play the game of maintaining the status quo.,” Hardiman’s statement reads. “Change was desperately required and it was not going to occur if I continued on.”
