A “cultural bent” away from freedom of information functions within the office of the Australian information commissioner (OAIC) led to the former FOI commissioner’s resignation, a Senate inquiry into the broken system has heard.
Leo Hardiman KC — who resigned in March, less than one year into the job — was among the most hotly anticipated witnesses to appear before the Senate inquiry into Australia’s dysfunctional FOI regime on day two of hearings.
“I would say, from the very outset, there were attempts to manhandle me; demands that I would tell the information commissioner absolutely everything I was doing; I wouldn’t make decisions on FOI matters without discussing those things with her,” Hardiman told the inquiry.
In an 18-page opening statement on Tuesday morning, Hardiman said he encountered “a large number of issues” when he stepped into the role in April last year.
Most of the issues centred around a powerlessness to carry out the objectives of the relevant legislation, serious staff and resourcing issues, “cycles of panic” among the office’s senior ranks, and a tendency of the OAIC to misrepresent its performance on FOI by concocting “narratives” designed to distract from its failures — namely to the Federal Court.
The narrative spun before the Federal Court, Hardiman said, was pegged to the idea that the government of the day wasn’t allocating enough resourcing to the OAIC’s FOI branch, and suggested that only the government could resolve resourcing issues within the agency.
“I first became aware of this narrative when, early after my appointment commenced, I was asked by [the information commissioner] to assist her with instructing on the Federal Court unreasonable delay proceedings which Mr Rex Patrick had brought against the [information commissioner],” Hardiman said.
He said a leading line of argument taken by information commissioner Falk was that the backlog of reviews stacked up on her desk — which for the 2021-22 financial year amounted to 1956 applications — was the result of waning resources allocated by the government.
Meanwhile, Hardiman told the inquiry that he had been catching the bus between Canberra and Sydney for work events as part of an effort to preserve funding, which he hoped could be redirected to the OAIC’s FOI function.
The Legal and Constitutional Affairs Legislation Committee inquiry, chaired by Liberal Senator Paul Scarr, has set out to probe the circumstances that led to Hardiman resigning, citing an inability to achieve the objectives of the legislation.
It has also set out to investigate broader delays in the review of appeals with Falk, the resourcing allocated to responding to FOI applications and reviews, and “the creation of a statutory timeframe for completion of reviews”.
Hardiman’s short-lived tenure offered a flashpoint for Australia’s worsening FOI infrastructure. In a LinkedIn post shortly after he resigned, he said serious changes were required to ensure timely access to government-held information, but the power to implement those changes fell beyond his reach.
On resourcing, Hardiman said it became clear that Falk had no interest in boosting the resources allocated to the OAIC’s FOI function, despite allocating additional resources to corporate support and discretionary privacy policy functions at a “far greater” rate than the OAIC’s core FOI functions.
“In relation to cultural issues, I could not change the fact that [the information commissioner] was not committed to the three-commissioner model. Rather, [the information commissioner] 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 said.
“[The information commissioner] 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 information commissioner] was only desirous of an appointed FOI commissioner if [the information commissioner] 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.”
In his opening statement, Hardiman said there was a need for significant changes to the FOI system, including at the agency level, where he said review decisions are “overly complex”.
The issues were reflective of a “deficiency” in leadership and culture across the public service, where in his view there was a shortage of FOI expertise. He said reforms should target that shortage of expertise and look to install a more “pro-information access culture” across agencies and departments.
In its submission to the inquiry, the Centre for Public Integrity suggested that “perhaps more worrying” than the “incessant clogging” of the FOI system’s appeals process has been the “emerging culture of secrecy” among government agencies and departments.
The issue was highlighted by former independent senator Rex Patrick, whose view is that many if not close to all of the system’s failings can be boiled down to just two components: resourcing and culture.
Hardiman also said reforms might target the governance arrangements put in place to oversee the FOI system, as well as a rethink of the “financial signalling” built into the FOI system, which he said should be simplified and made “incapable of gaming” by agencies, who frequently charge eye-watering amounts to applicants looking to unearth documents.
“There may also be merit in creating a new financial incentive for agencies to seek to resolve FOI disputes without the institution, or continuation of, a review process wherever that might be possible and appropriate — an incentive of that kind might, for example, take the form of a requirement to contribute to the costs incurred by a review body in the conduct of a review,” he said.
He also suggested reforming governance arrangements responsible for its oversight. Among them, he said, could be moving the oversight of FOI to a different agency “with greater focus” on government accountability.
Falk is scheduled to deliver a reply to the inquiry on Tuesday afternoon.
