“A bureaucratic jungle faces the hapless seeker of information… The applicant needs to have endless patience, the fortitude to resist the many obstacles, much time to spare, and either a lot of money or no money at all.” HUGH SELBY grades the FOI system a fail.

Iain Anderson, the ACT Ombudsman (the Commonwealth Ombudsman wearing another hat), publishes a half year report, the most recent of which covers the second half of 2024.

His office has many functions that take more than a printed page to set out – a far cry from its inception in the mid ’70s when the job was to improve the standards of service provided by public servants following complaints (many of them at the office counter or by phone) from unhappy service users.

Those complainants knew about the ombudsman because the service was advertised and the ombudsman, Jack Richardson, was out and about, and in the news, talking about this innovative approach to giving voice and responses to criticisms of service.

His energy led to some forceful, entertaining public spats, with the likes of John Stone, then Treasury’s head, and also Prof Leone Kramer – neither of whom was given to giving in. 

It has been a long time since the Ombudsman’s office wanted to be well known.

In that pre-desktop/laptop age the annual report included details of cases. It was intended that it be easy to follow, fact driven, informative and entertaining.

Near a half century later the following appears in the latest half year report:

“To address performance shortfalls, the ACT Ombudsman is developing enhanced complaint handling guidance materials designed to support staff capability and confidence, and the retention of technical knowledge.

“The continued focus on strengthening staff onboarding, and the implementation of a process change to anchor responsibility within our complaints team for mandatory transfers of complaints to other bodies under the Ombudsman Act 1989 is also anticipated to support greater front-end efficiency.”

In New Zealand this explanation might have been a good entry in the Gobbledygook competition for a “brainstrain” award. In the UK, the Golden Bull award is a booby prize given for particularly bad writing, aka “tripe”, such as the above unintelligible drivel. See the Plain English Campaign here. 

Fortunately, most of the report is easy to follow, albeit lacking any information about, for example, how complaints are prioritised, the skill sets of those in the office making inquiries, the approach to investigations, how time frames are set and monitored, and the extent, if any, to which feasible recommendations for remedial action are negotiated with entities being investigated.

Ensuring failure

We are told that the aim is to finalise complaints: 50 per cent within 30 working days (6 weeks); 75 per cent within 90 working days (18 weeks); 85 per cent within 26 weeks; and 99 per cent within a year.

On what basis or bases these aims are set is not shared. Suffice to say, they were not met.

A telling example is the section about freedom of information (FOI) contacts.

When the office first became a point of complaint about the delays, the obfuscation and the reasons for refusal to give access to information, the FOI regime was new.

The need to develop robust processes and reasons to delay and deny access became clear as Canberra journalist Jack Waterford used the new law as though it was meant to work to give information. I salute Jack for his efforts.

To be balanced, I must also acknowledge the very senior officer in a powerful Commonwealth department who put anything that mattered on yellow Post-it notes that would be removed at any sign of pests and busy bodies.

But that officer was a rank amateur by comparison with what I later encountered with the NSW Police. 

They sent an uninformed admin officer to a tribunal FOI hearing who had heard, seen and knew nothing. Those who knew all were suddenly unavailable. Who would have thought that the topic of rewards leading to information about a crime would be so dangerous to the reputation of that force. 

Nowadays the ombudsman is saddled with the capacity to review decisions adverse to an applicant. I say “saddled” because the overall effect is simply to add another layer of delay. If the entity has decided to resist, then it will do so, well beyond the Ombudsman review stage.

“A bureaucratic jungle” faces the hapless seeker of information. They can seek internal review. They can take their problem to the Information Commissioner who can flick it to the Ombudsman. There are further actions, such as tribunal review on the merits, and federal court review on questions of what is the applicable law.

The applicant needs to have endless patience, the fortitude to resist the many obstacles, much time to spare, and either a lot of money or no money at all.

As to endless patience, the Ombudsman failed in the second half of last year to get even close to its self-inflicted performance standards for FOI matters. At the 26-week mark they had finalised 33 per cent when their target was 85 per cent.

No credibility

The Ombudsman has the role of being the “inspector” (that is, the person to whom complaints can be made) for our Integrity Commission. The report notes that the Ombudsman began an investigation into something in November 2023 – that’s over a year ago.

Is there no shame?

Hugh Selby is a former barrister and the CityNews legal columnist.