The Prime Minister’s Department violated FOI laws over the release of Brittany Higgins documents | Australian politics

The Prime Minister’s Department violated the Freedom of Information Act by withdrawing a request for internal documents on the alleged rape of Brittany Higgins, prompting the regulator to warn it to rectify its “compliance with the FOI Act” as soon as possible.

In April this year, two months after Higgins made a public statement about her alleged attack in March 2019, the Prime Minister’s Office and Cabinet received a targeted FOI request for documents regarding its handling of the case.

The request, made by an anonymous member of the public, asked for emails sent or received by a specific assistant secretary within a two-month window containing the keyword “Brittany”.

FOI captured only 20 relevant documents.

However, the department complained that the request was “complex and voluminous” and twice asked for an extension of the 30-day statutory deadline to respond.

It also drove its decision past the Prime Minister’s office, something departments are not legally obliged to do.

The department received the extensions until June 4, 2021, but still did not meet the statutory deadline. This led to a complaint to the Office of the Australian Information Commissioner (OAIC).

The OAIC’s as yet unreleased investigation report, seen by Guardian Australia, found that the department had violated FOI law.

Explaining its actions, the department told the regulator that it had been delayed by the complex and sensitive nature of the request, but also by an obvious requirement that “all PM&C FOI decisions must be noted by relevant executives and the Prime Minister’s Office”.

“The department did not explain the extent to which the collaboration with relevant senior staff and the Prime Minister’s Office contributed to the processing delay,” the OAIC report states.

A decision was finally made in July 2021.

Despite the request being “complex” and “voluminous”, the department released only two out of 20 relevant documents.

They included a benign email from all staff from Secretary Phil Gaetjens urging her staff to seek support if they needed it, and a copy of a public statement from Higgins about her alleged rape, which was forwarded to assistants. Secretary Peter Rush without further comment.

The rest of the documents were blocked for a number of reasons, including because they contained information that could harm personal privacy, reveal a major case or compromise the efficient and correct conduct of some operations in the department.

This is the second time in as many years that the department has been convicted of violating FOI law in this way.

Last year, the OAIC criticized the department for inexplicably delaying a request for freedom of information on allegations that the former public service commissioner wrongfully assisted the right-wing Institute of Public Affairs.

This gave rise to a number of recommendations, including that it revise itself and report back to the regulator on its “compliance with statutory time frames”.

Now, the OAIC has recommended the department appoint an information advocate, potentially supported by an information management council, to “provide the leadership, oversight and accountability necessary to promote and operationalize the department’s compliance with the FOI Act”. It should happen by November 5, 2021.

The department was also asked to provide training to FOI section staff and relevant executives “on the obligations under the FOI Act to comply with statutory treatment periods”. The department was given a deadline of 5 January next year to complete the education.

Guardian Australia asked the department if the recommendations had been implemented. It refused to comment on the matter.

“These cases are the subject of a complaint lodged with the Office of the Australian Information Commissioner, to which the department has responded,” a spokesman said.

“Until the acting Commissioner for Freedom of Information publishes information on the complaint, it is not appropriate for the department to comment further.”

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