Former freedom of information commissioner Leo Hardiman has made explosive allegations in the Senate about his former agency and its most senior leader, saying his efforts to solve a vast FoI backlog were deliberately frustrated, after voicing concerns publicly, and that a false narrative about the agency’s funding constraints was presented to the federal court to defend extraordinary delays in its work.
Falk, who appeared before the committee hours later on Tuesday afternoon, said she took issue with a number of Hardiman’s comments but said she had “very limited opportunity to consider the matters” aired by her former colleague and needed a “reasonable opportunity to respond”.
Hardiman resigned from his statutory position as FoI commissioner in March, less than 12 months into a five-year appointment, and issued a public statement criticising chronic delays in the FoI system, the consequences for government transparency, and the lack of power he held to bring about change.
Internal documents, previously revealed by Guardian Australia, show he had expressed similar sentiments to the Office of the Australian Information Commissioner leadership in the weeks prior to his resignation, complaining to information commissioner, Angelene Falk, that he was being routinely ignored within his own agency and that his “very limited” staff were being pointlessly diverted from FoI work.
On Tuesday, Hardiman gave comprehensive and damning evidence to a Senate inquiry exploring FoI problems about his time at the OAIC and Falk’s leadership.
He alleged to the Senate inquiry that Falk had attempted to intimidate him after his resignation, saying he caught a bus to Sydney to meet with her instead of flying, to save money for his vastly under-resourced branch.
“When we went in there, I would say that her behaviour towards me was an attempt to intimidate me into spilling the beans about my resignation because she didn’t have control of this,” he said. “She literally just stared at me, glared at me, would not take her eyes off me. She tried to gaslight me, put words in my mouth, and I just said ‘I am not discussing my resignation with you’.”
Falk was given three weeks to provide her full response to Hardiman’s claims after requesting additional time from senators to address the “number of measures obviously that will be warranting my attention”.
Hardiman had earlier said the OAIC treated FoI work as secondary and that the OAIC leadership ignored major problems causing the massive backlog in FoI decision reviews, instead promulgating false narratives about its funding constraints and its improvements in FoI work in recent years.
Hardiman spoke of deep cultural problems, saying FoI staff were in a state of “complete overwhelm” and that “cycles of panic” gripped the agency prior to Senate estimates hearings and at key moments in a federal court case challenging the lawfulness of delays to its completion of FoI reviews, brought by former senator Rex Patrick.
He said one of those narratives – suggesting the OAIC had no control over the resourcing available for its FoI work – was presented to the federal court by the OAIC to defend the Patrick case.
Hardiman said he raised concerns about the narrative internally, because the OAIC itself had the power to divert departmental funds to FoI. He said he was unaware of whether the OAIC corrected the narrative to the court.
Greens senator David Shoebridge said he was “deeply disturbed” that the OAIC allowed a “false narrative to be given to the federal court to defend Mr Patrick’s legal proceedings”.
Hardiman said: “Yes. I did sort of press the issue in my meeting with the legal officers in the OAIC and the deputy commissioner. I wasn’t involved in any of these discussions, but my understanding is that it was raised with counsel, and the message that came back to me was ‘It’s not a risk, and it’s not going to be raised, and we’re not worried about that issue’. And it was kind of left there.”
Hardiman said the cultural problems at the OAIC were “entirely a product” of Falk’s leadership.
“Try as I may, I simply could not change that culture and its performance on the FoI functions,” he said.
He said he introduced structural changes but realised that the FoI review backlog could not be reduced without more staffing.
“Resignation was an incredibly difficult, in fact, the most difficult decision of my career to contemplate. But I could not, with the necessary sense of integrity, play the game of maintaining the status quo. Change was desperately required and it was not going to occur if I continued on.”
Hardiman said attempts were made to “manhandle” him as soon as he was appointed in early 2022.
“Demands that I would tell the [information commissioner] absolutely everything I was doing; I wouldn’t make a decision about FoI matters without discussing them with her first,” he said.
He told the Senate he had never encountered anyone else like Falk in his career.
“With hindsight, I look back at this and I regret that I wasn’t assertive enough in the relationship in the beginning,” he said. “That said, I have never encountered a person like the information commissioner or her approach to relationships of that kind in my 30 years as a commonwealth public servant.”
He spoke of being left “flabbergasted” after meetings with Falk last year, in which he pointed out the “screamingly obvious issue” that he did not have enough staff to get through the massive backlog in FoI review cases. He told Falk there were obvious structural changes that should have been made to resolve the issue earlier.
“I think it caused visible shock in the information commissioner. There was silence at that statement and a visible moving back in the chair at the suggestion,” he said.
When he returned to Canberra, Hardiman said remembered being told to stop getting involved in such matters.
“The information commissioner said to me that I should not be involving myself in these matters, in other words in the restructure, thinking about the structure of the team, how to manage the workload, how to increase work flows within the IC review caseload,” he said.
“I was flabbergasted.”
