A whistleblower has accused the home affairs department of breaking freedom of information law to withhold documents about alleged legal breaches during pay negotiations with staff.

Documents obtained by Guardian Australia show the department is currently investigating a whistleblower complaint alleging it breached FOI law by failing to respond to a request for internal records relating to a staff pay dispute for 130 days – 100 days longer than typically allowed under FOI law.

The revelation comes as the information watchdog, the Office of the Australian Information Commissioner (OAIC), announced a separate and broader investigation of systemic failings by the department to deal with FOI requests on time.

Experts say delayed processing of FOI can render information useless or outdated by the time it is released, frustrating the purposes of the FOI act in promoting government transparency.

The OAIC said the department failed to deal with 56% of FOI requests for non-personal information within the required time.

Interactive element

The information commissioner’s office investigation will be the first of its kind in about five years.

“The OAIC has received a number of FOI complaints and review applications related to the department’s compliance with statutory timeframes for processing requests for non-personal information,” the information watchdog said in a statement.

The investigation comes after a week of campaigning by media outlets on creeping government secrecy and eroding media freedoms. A key plank of that campaign – dubbed the right-to-know campaign – calls for reforms to improve the FOI system.

In February, an anonymous public servant made an FOI request for internal records about possible unlawful conduct by the department during workplace negotiations with staff.

Until that point, the department had spent about five years locked in a tense pay dispute with staff, which had caused significant animosity and led to strikes.

The dispute ended up before the Fair Work Commission, which noted in January there were “legitimate questions as to whether the department has complied” with its legal requirements to act as a model litigant.

The anonymous public servant requested a single document under FOI showing a formal notice made by the department of home affairs to the attorney-general’s department alerting it to a possible breach of the model litigant requirements contained in the Legal Services Directions 2017.

But the FOI request was ignored.

The applicant received no response and, after 130 days, decided to lodge a whistleblower complaint to the department, alleging its FOI team was breaking the law.

“I contend that each and every Departmental officer responsible for failing to adhere to the requirements of the FOI Act in respect of my FOI application have engaged in disclosable conduct for the purposes of the Public Interest Disclosure Act 2013 because they have contravened the requirements of … the Public Service Act 1999,” the whistleblower complaint read.

In July, within two weeks of the complaint, the department released the document. It was redacted to the point of near uselessness.

The whistleblower complaint is yet to be resolved. The department has sought an extension until 2020 to deal with the investigation.

A spokesperson for the department said it “seeks to process all freedom of information (FOI) requests within the statutory timeframes”.

The department receives by far the highest volume of FOI requests of any government department, and has improved its compliance rate from several years ago. Its compliance rate – the number of personal and non-personal FOI requests finalised within the legal timeframe – sits at 82.5% so far this year

“The department is continuing to improve its compliance with the statutory timeframes contained in the FOI Act,” the department said in a statement. “For the 2018-19 financial year, the department finalised 75% of requests within statutory timeframes. The compliance rate for the 2019-20 financial year to date is 82.5%.”

The department said it believed that it had complied with all legal requirements during the pay negotiations with staff. It acknowledged the FWC had raised questions about its compliance with the model litigant requirements in “commentary in one paragraph” of its determination.

It declined to comment on the whistleblower’s allegations.



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