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The FoI commissioner who doesn’t much like FoI requests

Victoria’s new Freedom of Information Commissioner is already on the back foot less than three hours into her new job courtesy of ABC presenter Jon Faine’s expert grilling.

It was the roughest of rough first days for Victoria’s first ever Freedom of Information Commissioner, Lynne Bertolini, after the career public servant suffered the wrath of ABC inquisitor Jon Faine’s brutal logic in a disastrous on-air debut.

In one of the best takedowns in recent morning radio history (listen to the full audio here), Bertolini’s FoI record as director of licensing and approvals at the Victorian Commission of Gambling and Liquor Regulation was dredged up to expose hypocrisy at the heart of the Baillieu government.

Faine, clearly undergoing a late-career renaissance reminiscent of his mid-’90s glory days on ABC TV’s Investigators program, cited VCGR’s 2010-11 annual report, which showed of 11 FoI requests received, none were granted in full. The average processing time was 39 days.

In 2011-12, of nine requests received by the statutory authority, none were fully granted. And in 2009/10, the VCGR averaged a glacial 48 days processing time for the 12 requests received, in contravention of the FOI Act which mandates requests should be decided within 45 days. Faine pointed out that Bertolini’s previous employer had breached the FoI Act she is now overseeing.

The comparison may have been a little unfair given that it’s actually the VCGR’s director of legal and legislation that has carriage of FoI requests — Bertolini would have played a bit part, at best, in assessing the applications.

But Faine, arguably exceeding the lofty benchmark set by Neil Mitchell’s infamous defenestration of 2008 Melbourne City Council mayoral candidate Will Fowles, sunk the knife in deep, recalling some of the more impressive eviscerations in the 2011 Ryan Gosling hit Drive. A stammering Bertolini said she intended to “work with government agencies to ensure they’re meeting their FoI requirements”.

I’m not here to talk about specific cases today … I understand there are a number of issues that people have raised with FoI across the public service in general — I intend to ensure there is a proper education program, and people work within the spirit of the legislation,” she said.

She declined to take responsibility for her old authority’s blinkered approach: “I understand there are a number of issues that people have raised with FoI across the public service in general — I intend to ensure there is a proper education program, and people work within the spirit of the legislation. It just shows that we have a lot of work to do.”

Despite Ted Baillieu’s troll-worthy claims before the 2010 election that FoI would be governed by a principle of “ask and you shall receive”, the sorry state of FoI in Victoria means that politically sensitive documents can almost always be knocked back if a minister reckons the request could end up, for example, as a fat cat rort yarn on the front page of the Herald Sun.

In her new role, Bertolini has no ability to enforce a ruling on departmental secretaries or slap down decisions by ministers. A decision by the commission can also be appealed to further gum up the release process.

In this reporter’s experience, Victorian government agencies wait until the last possible moment before issuing a decision, hoping to kill a story’s momentum in six weeks between the genesis of a hunch and its eventual (non) appearance in print. Journos are then left with the dregs of a “we woz robbed” piece.

Garden State FoI veteran Don Coulson — who has a history of complaining about Labor governments — is housed in the Premier’s private office and acts as a bizarre information muzzler. Coulson’s hot inbox is where all sensitive requests are crushed and he is ultimately answerable to Baillieu hard man Tony Nutt, rather than the Premier’s Department.

The debacle is mirrored at the federal level where Julia Gillard once promised to “let the sun shine in”. A recent report from the Office of the Australian Information Commissioner ran a scythe through the processes of the federal Immigration Department and a “review” of FoI laws is currently being conducted by former Paul Keating chief-of-staff Allan Hawke.

Opposition scrutiny of government spokesperson and former National Union of Workers supremo Martin Pakula told Crikey this morning that Bertolini was at the mercy of Baillieu’s inadequate laws (even though they arguably represent an improvement over the Bracks and Brumby era).

The powers are incredibly limited and quite different to what the government promised,” he said. “She’s got no power to override the decisions made by ministers, no power to overrule department heads and no authority when a claim is rejected and she’s under resourced.”

The struggling Liberal government — which would be wiped out at the ballot box if an election were held today — is also struggling on other fronts, with senior Victorian administrators seemingly unwilling to assume high office on its sinking Spring Street ship.

There are now at least seven major state edifices kicking around without heads. There is no equal opportunity commissioner (favoured candidate Hugh de Kretser was knocked back by Attorney-General Robert Clark), no electoral commissioner, no corrections commissioner, no secretary of the Justice Department, no CEO of the Magistrates’ Court, no chief magistrate and no permanent head of the Independent Broad-based Anti-corruption Commission (IBAC).

Pakula says IBAC, for which final stage legislation will apparently be introduced soon, is “a toothless tiger with gum disease”. On this morning’s evidence, the same might be said of the FoI commissioner.

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  • 1
    Elliott Vanessa
    Posted Friday, 9 November 2012 at 8:31 pm | Permalink

    I think there might be a bit of inter journalistic back slapping going on here…how does anyone know if she was directly responsible for, or had any knowledge of, those FOI requests? I hate those over dramatized interviews when the interviewer is just trying to make the interviewee slip by frustrating them. It’s so obvious and doesn’t give the public any information of which we might actually be interested in, such as…okay the FOI process has been cfap in the past what are you going to do about it?
    Too Kochy-esque for my liking.

  • 2
    Anthony Corocran
    Posted Friday, 9 November 2012 at 10:59 pm | Permalink

    Faine is being disingenuous. When he states that 2 requests were not ‘granted in full’ that could mean that something as simple as mobile phone numbers were redacted. He is simply beating up the bald statistics unless he has specific evidence that there were heavy redactions. And even then, they might be quite justified. Gotya journalism at its worst!

  • 3
    Wombat
    Posted Saturday, 10 November 2012 at 6:28 pm | Permalink

    I was a teenager when Australia went to war in Iraq, and I remember arguing with an elderly relative that we should give Howard the benefit of the doubt and assume that he knew a great deal more about Iraq’s capacity for WMD than he could tell us. I have grown up a lot since then.

    When the new FOI Commissioner turns out to have rejected every FOI request to her previous department, I don’t for one second believe that it was because she wasn’t directly responsible for it, or that it was simply phone numbers being redacted. I assume that Bertolini, like any career public servant, paid zero attention to FOI requests during her time in the job, and has been rewarded with a job for which she should never have been interviewed.

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