In the weeks before his shock resignation, Australia’s freedom of information commissioner complained about being routinely ignored within his own agency and of the pointless diversion of his “very limited” staff, internal records show.
Leo Hardiman, a king’s counsel and former deputy chief general counsel at the Australian government solicitor, resigned as FOI commissioner in March, less than 12 months into a five-year appointment.
In a public post announcing his decision, Hardiman expressed serious concerns about chronic delays in the FOI system, the consequences for government transparency, and the lack of power he held to bring about change.
But a series of tense emails, obtained by the former senator Rex Patrick using FOI, show Hardiman was also expressing deep frustrations directly to the agency head, Angelene Falk, about the treatment of his role and his FOI staff before to his resignation.
In one email chain, Hardiman complained to Falk about the potential diversion of FOI staff for work on a corporate compliance program.
He said it “should not be yet another thing distracting the very limited resources of the FOI branch from the enormous core statutory function task before it”.
Hardiman noted that his previous email on the subject had been ignored. He described this as “par for the course”.
When Falk apologised for the “evident frustration” the proposal had caused, Hardiman replied in an email dated 16 February: “While I don’t find the attribution to me of ‘evident frustration’ useful, it is, in any case, a misinterpretation. So let me put my views more directly in the hope of clarifying any misunderstanding.
“Given the state of the FOI regulatory function and the resources allocated to it, there is simply no capacity for FOI Branch resources to be distracted by management of a corporate compliance function. That is obvious, and must have been so for a very long time.
“I do not have any control over the corporate functions of the OAIC. Nor am I an employee working for you. It is not appropriate that the FOI Commissioner’s time be spent dealing with management of a corporate compliance assurance activity.”
He finished the email by remarking:
“Would I find it helpful if a number of your employees were more responsive to me in my role as FOI Commissioner? Indeed, I would. That is, of course, a matter of leadership for you as agency head.”
Other emails suggest Hardiman announced his resignation with a post on LinkedIn before sending an email notifying Falk of the decision.
He told Falk that he did not want the OAIC or her saying anything publicly about his resignation “without my express written agreement to its terms”.
Hardiman also said told Falk he wanted to cease their weekly meetings and stop attending OAIC executive meetings.
“In my experience, that forum has relatively little focus on the FOI side of the agency’s core regulatory functions,” he said. “To the extent my input is needed for anything, I am happy to provide it.
“I also think we should put our weekly catch ups aside. I intend to provide you with a monthly update (commencing the end of this week for February) on how we are progressing with matters.”
FOI workload mounts after ‘significant staff attrition’
The documents also reveal the latest updates on the agency’s FOI workload, sent to Attorney General’s Department. The OAIC has persistently warned that it is facing an ever-increasing workload without sufficient resourcing, particularly after savage cuts under the Abbott government.
One of the agency’s core roles is to act as a watchdog over government department FOI decisions.
But the documents reveal 20% of requests for reviews of FOI decisions that were received in 2019 – three years ago – were yet to be allocated to an officer within the OAIC by February this year.
In explaining the statistic to government, the OAIC said it had suffered “significant staff attrition within the FOI Branch”.
It was also grappling with significant year-on-year increases in applications for FOI reviews, without commensurate resources, and also having to focus on other FOI regulatory priorities.
The pandemic had also made it more difficult for government departments to respond to the OAIC’s requests for submissions and had caused delays to review processes.
Patrick, who has continued campaigning on transparency since leaving parliament, said Hardiman was right to focus on his statutory work, particularly given he had more than 2,000 outstanding FOI reviews to conduct, some dating back to 2018.
“The Office of the Australian Information Commissioner is completely under-resourced,” Patrick said. “The office is doing too many things without proper resourcing. The Information Commissioner needs to put the office’s statutory work first, not keep taking on more.”
A spokesperson for the OAIC said the office strives to deliver its role within available resources in the most efficient way possible.
“A significant legacy caseload and an increasing number of Information Commissioner (IC) Reviews, combined with the impact of the Covid-19 pandemic, have affected our ability to deal with this caseload, given the resources we have available,” the spokesperson said.
“Notwithstanding these challenges, the OAIC has increased the number of IC Reviews we finalise each year and we continue to seek to improve the timeliness of IC Review processing.”
