Introduction

An article in yesterday’s Mercury, Shh…secret state rules by David Killick again highlighted issues with the response of public institutions in Tasmania to Right to Information (RTI) applications.

My own experience dealing with Tasmanian public institutions on RTI applications has been frustrating and disappointing.

As a member of the SaveUTAS Campus Supporters group, I believe as much light as possible needs to be shone on UTAS’ proposed move to the Hobart CBD (and the Government’s involvement) as soon as possible.

  • Despite its doublespeak, continual posturing and cynical displays of ‘consultation‘, UTAS presses on with its flawed and unevidenced CBD plan.

I have been researching aspects of UTAS’ proposed move since March this year. This has so far involved submission of 12 RTI applications: eight to UTAS, and one each to the Hobart City Council and the Departments of Premier and Cabinet (DPAC), State Growth (DSG) and Education (DE). I have received initial decisions on 11 applications and sought internal review of 10. I have already requested external review by the Ombudsman of 7 internal review decisions.  I will almost certainly be making further requests for review to the Ombudsman. All my review applications relate to documents being unnecessarily withheld or redacted, or a failure to identify relevant documents in search processes.

  • Generally, the process for RTI applications requires that review of an agency’s initial decision must be sought from that agency through internal review mechanisms. Only if the review decision is unsatisfactory or exceeds time limits, can external review then be sought from the Ombudsman.
  • I am counting my application to DPAC as three applications as it entailed forwarding the application to DSG and DE, both of which then processed it as a separate application.

DPAC’s performance

It might be expected that DPAC would model best practice behaviour, in respect of its statutory RTI obligations, to the rest of the Tasmanian public service and, indeed, to all Tasmanian public institutions,

Instead, the performance of DPAC has indicated that Tasmania’s RTI problems start right at the top.

Delays

Of my 12 RTI applications, the worst delays have come from DPAC.

DPAC took 82 working days to provide an initial decision on my RTI application – the period from 4 May to 29 August.

As this decision raised major issues, I wrote to the Secretary of DPAC, Ms Jenny Gale, in her capacity as the Principal Officer of DPAC under the Right to Information Act 2009 (the RTI Act), to seek an internal review on 27 September. Only today, 35 working days later, and following two follow up emails and two phone calls to Ms Gale’s office in the last two weeks, have I received an interim response, signaling that my letter was now receiving attention.

  • Under the Right to Information Act 2009 (the RTI Act), public institutions have 20 working days to respond to both initial applications and requests for internal review, with extensions provided for under the RTI Act in certain circumstances. As detailed in Background provided below, there were some legitimate delays in the processing of my initial RTI application to DPAC, but certainly not to the extent of 62 working days. No reasons have been provided in relation to the delay in processing my internal review application.

Inadequacies in records provided

I found DPAC’s initial decision largely unresponsive to my request for information, which focused on obtaining key records relating to the role of the Government in UTAS’ proposed move.

  • The wording of my request is provided in full in Background.

After being initially advised by DPAC that “A preliminary search of DPAC records has identified potentially hundreds of pages of information which may be relevant to your request,” I received only 20 pages of documents with the decision. These documents raised more questions than they answered. As well as redactions, documents were withheld and there were gaps, which became even clearer when I compared the documents provided by DPAC, DSG and DSE with each other.

  • DE’s initial decision found no relevant records. Following, my request for internal review, 39 gap filled pages were provided. I have sought external review by the Ombudsman.
  • DSG provided 95 pages of documents‘, which when compared to DPAC and DE’s responses also seem to have gaps.
  • I wrote at length about the documents I received from the three agencies, and more particularly the gaps and omissions in documentation, in my first blog post – RTI papers reveal Government left governing to UTAS, on 6 October.

Other issues

DPAC also sought to contest public interest in the scope of my RTI application and was slow to forward it on to DSG and DE.  There are also some indications that, in consulting UTAS, as it was required to do, DPAC accepted some of UTAS’ requests for exemption without question (DPAC also seems to follow UTAS’ ludicrous argument that UTAS’ Business Case for building a new STEM centre in Hobart CBD is the same thing as Infrastructure Australia’s evaluation of UTAS’ Business Case).

The letter I wrote to DPAC Secretary, Jenny Gale, on 27 September seeking internal review of DPAC’s initial decision of my RTI application, also raised more general issues around RTI with Ms Gale in her role as Head of the State Service.  These included suggesting a review of UTAS’ RTI performance over the last three years. As with my request for internal review, I had heard nothing until the interim response provided by DPAC today.

Background – details of my RTI application to DPAC

My application

I submitted my RTI application to DPAC on 4 May 2022, requesting:

“the following records in relation to the period 1 January 2015 to 4 May 2022:

[1] All briefs provided to senior officers (Executives) and the Premier/Ministers of the Departments of Premier and Cabinet, Education and Infrastructure (or such names as these Departments were known in the relevant period) in relation to the proposed move of UTAS into the Hobart CBD and/or redevelopment of the Sandy Bay campus;

[2] All analysis undertaken by the Departments of Premier and Cabinet, Education and Infrastructure in relation to the proposed move of UTAS into the Hobart CBD and/or redevelopment of the Sandy Bay campus;

[3] All records relating to the inclusion of UTAS in the Hobart City Deal; and

[4] All briefs and correspondence relating to the appointment of UTAS Councilors by the Minister for Education under ss 8.(1)(d) and 8.(5) of the University of Tasmania Act 1992.”

Timeline

(details of responses to my RTI application are also provided for DSG and DE)

  • 4 May – I submitted my RTI application to DPAC.
  • 10 May – DPAC acknowledged receipt of application.
  • 17 May – I received a letter from DPAC requesting that I narrow the scope of my application, as there was insufficient public interest to justify the resource effort required by DPAC.
  • 18 and 23 May (the latter being 4 working days from DPAC’s letter) – I sent emails to DPAC regarding the high level of public interest in UTAS’ proposed CBD move.
  • 27-31 May – DPAC accepted the initial scope of my RTI application and also forwarded my RTI application to DE and DSG, for their consideration.
  • 5 July – I was emailed a decision letter from DE, advising that no information within the scope of my request could be found.
  • 29 July – I received a decision letter from DSG, attaching 95 pages of documents.
  • 31 July – I sought internal review of DE’s decision.
  • 29 August – I was emailed an initial decision letter by DPAC, although the letter was dated 25 August, attaching 20 pages of documentation. 
  • 13 September, I was emailed an internal review decision letter from DE (the letter was dated 9 September), attaching 39 pages of documents. 
  • 27 September – I wrote to Ms Gale to seek internal review of DPAC’s decision and to raise more general issues about RTIs in relation to her role as Head of the State Service.
  • 10 October – I submitted a request for external review of DE’s decision with the Ombudsman.
  • 7 November – I emailed Ms Gale to follow up on my request for internal review. This was followed by a further email on 9 November, and phone calls to Ms Gale’s office on 10 and 15 November. I received an interim response by email on 16 November.

Comment

In presenting this timeline, I acknowledge that some part of the 82 working days DPAC spent making its initial decision were devoted to discussion of scope with me (4 working days) and third-party consultation, for which there is provision of up to 20 days under the RTI Act. However, I note that this goes nowhere near explaining a 62 working day delay and that any discussion with UTAS as a third party seems only to have resulted in unquestioning withholding of material. On occasion I did also give my agreement to other extensions, but mainly because there seemed no reasonable alternative. No extensions have been sought in respect of my request for internal review.

By : Robert Hogan