A government agency that allegedly spied on a woman to "dig up dirt" has been slammed by Victoria's information commissioner, who said the agency should apologise for its response to her request for information about the alleged spying.
In 2021, a private investigator told the ABC he was hired by Victoria's government-run logging agency, VicForests, to spy on environmentalist Sarah Rees.
When made aware of the matter in 2020, Ms Rees requested VicForests release all information about her, in accordance with state information laws.
Three years on, Ms Rees is yet to obtain the information, or even have requests for that information processed by VicForests, which the commissioner says is in "contravention" of the Freedom of Information (FOI) Act.
VicForests argued it did not need to apologise, and did not accept the commissioner's findings that it breached the law.
At the time of the alleged spying, Ms Rees was involved in conservation activity that opposed some of VicForests' operations.
"I was of the understanding Sarah Rees was a person of great interest that VicForests was trying to shut up," private investigator Alan Davey told the ABC in 2021.
Sworn testimony by VicForests staff in a civil court case showed Mr Davey was hired to monitor both protesters and VicForests' own contractors in logging areas.
Invoices seen by the ABC also confirm these accounts.
The ABC also revealed VicForests compiled a file of tweets and other statements made by Ms Rees, in a bid to have her fired from the board of the Forest Stewardship Council (FSC).
VicForests commissioned an investigation into the spying allegations, but the then-manager who hired and directed the private investigator refused to be interviewed.
The investigation concluded that while there was indirect evidence to support the spying allegations, direct evidence could not be found.
A separate investigation by Victoria's Office of the Information Commissioner (OVIC) remains ongoing, questioning whether the use of a private investigator and alleged digital surveillance is in breach of the state's privacy act.
VicForests contravened FOI Act: commissioner
In July 2020, Ms Rees applied to VicForests under the Freedom of Information Act to access any information the agency held on her.
The request is still outstanding.
In February 2023, VicForests provided Ms Rees the findings of its investigation into the spying allegations, nearly a month after it was publicly released.
"The fact that I haven't received any documents I've asked for — I've received information that was given to the public and a month after that — is upsetting," Ms Rees told the ABC.
"Without these FOI documents I can't get a fair process happening about the attacks on me and other directors of the FSC."
Victoria's information commissioner said in a new report, tabled in parliament on Wednesday, VicForests contravened the FOI Act in its treatment of Ms Rees's requests.
The commissioner said VicForests failed:
- in its duty to assist Ms Rees in making a valid FOI request
- to process three valid FOI requests
- to cooperate with the information commissioner as required by law
- to act consistently with the intention of the FOI Act in its handling of all four FOI requests and two complaints
"The process was substantially worse than it should have been," Information Commissioner Sven Bluemmel told the ABC.
"What this shows is what happens when you treat an FOI matter as your battle rather than an important part of our democracy.
"When you look at how this group of four applications was dealt with, to me it was a serious issue in relation to the disregard to the objects of the FOI Act."
The report noted impacts of the COVID-19 pandemic made handling of the request harder, and that VicForests complied with other sections of the FOI Act.
Ms Rees is pleased the information commissioner conducted the investigation, but is very upset by the whole situation.
"I'm left with a feeling of distress that VicForests haven't been able to bring themselves to apologise," she said.
Sarah is entitled to an apology: commissioner
The information commissioner's report says he believes Ms Rees is entitled to an apology.
An earlier draft report recommended an apology be made, but that VicForests argued against that finding, saying the FOI requests were processed in good faith without any intent to cause harm or distress to Ms Rees.
The commissioner said he was not swayed by VicForests' argument, but since an effective apology needs to be genuine not forced, the recommendation for an apology was removed in the final report.
The commissioner made a number of recommendations, including that VicForests update its FOI policy and procedures manual; improve its training of FOI officers; and provide the commissioner with two reports over the next year detailing how it has handled all its FOI requests.
In its response to the commissioner's final report, VicForests' chair Ben Hubbard said VicForests had at all times been "committed to meeting its obligations as a public entity under the FOI Act".
He said VicForests' responses to the FOI requests needed to be considered "in the context of the very substantial pressure on VicForests in meeting a range of priorities during the period when these requests were made".
Mr Hubbard said several of the report's findings were not accepted by VicForests but that it accepted all recommendations either in full or in principle.
Calls for changes to FOI
Commissioner Bluemmel said Victoria needed to review its FOI Act, with a view to making informal and proactive release of information more common.
Premier Daniel Andrews said on Wednesday he had not yet read the report, but said VicForests should look at the recommendations very seriously.
He added that Victoria was processing a record number of FOI applications.
Victorian Greens MP Ellen Sandell said the Victorian Labor government was running "a protection racket for VicForests" and called for the government to shut the organisation.
"This is an organisation that's been found to illegally log our native forests, spy on citizens, and is sending threatened species to the brink of extinction," she said.
"And now they've flouted the rules again when it comes to FOI."
