It should be every citizen’s right. Instead, James Worsfold’s experience getting public information from public officials – via 40-year-old laws known as Freedom of Information (FOI) – was like waiting for the completion of the Metro Tunnel project.
The journalist was digging into the legality of fees that residential tenants are slugged when applying to transfer their lease, an issue likely affecting many during cost of living and housing crises.
He lodged an FOI request with Victoria’s Department of Government Services (DGS) in August last year and expected to hear back within the mandated 30-day period.
After requesting one extension to process Worsfold’s request, and assuring him it was in the final stages of processing in early September, the journalist continued to wait. By late October, the department had failed to request another extension (despite a legal obligation to do so) and advised, “I cannot give an ETA on when you’ll receive this back.”
“Does that mean they are understaffed? Does that mean someone in DGS doesn’t want my request to go through, so they’re obfuscating?,” Worsfold says.
He offered to further clarify the request to speed up a response, but “was just left in the dark.”
Finally, after 96 days, the department responded to Worsfold’s request on December 24 – providing only a single document that had no relevant information. The explanation offered for the delay was “a large volume of requests” due to a “backlog”.
James Worsfold’s experience of a system that was meant to be about radical transparency, but is actually bureaucratic and opaque, is an issue becoming all too common in Victoria.
There is growing evidence that DGS, launched by former premier Dan Andrews as a bold, digital-leaning way to modernise fast and efficient government services, including FOI, is ineffective. A four-month investigation by The Citizen reveals complaints are rising against a backdrop of apparent politically-motivated delays and obfuscation, declining funding and chronic understaffing.
So what if FOI processes are becoming increasingly obtuse and sluggish? Experts warn their decreasing functionality is a threat to citizens’ confidence in government, and, in an era when suspicion of public officials is at an all-time high, may even be eroding democracy itself.
Established in January 2023, the new super-services department of DGS assumed oversight of two enterprises central to the functioning of the state’s FOI processes: the Public Records Office of Victoria and Cenitex, the state-owned communication technology system.
Andrews predicted the new department would achieve “much greater efficiency” and improve the way consumers accessed government services. Instead, the department has joined a growing list of departments and agencies across Victoria experiencing FOI delays, according to reports by integrity watchdog, the Office of the Victorian Information Commissioner (OVIC), with delays reported in 2021 and 2022 continuing to dog the sector after DGS’s creation in 2024.
The watchdog also accused the department of “substantial or systemic breaches” of the FOI professional standards, which dictate agencies’ obligations to “extend as far as possible” the public’s right to information in a timely manner.
While the department blames delays on the fact that it is still a fairly young department, experts are concerned that the problems are likely associated with more than teething issues and set a dangerous example.
Professors Johan Lidberg and Moira Paterson, FOI experts at Monash University, published the results of a three-year study of the culture and practice of FOI in three Australian jurisdictions including Victoria in 2024. They say the DGS delays effectively set a precedent for other departments across Victoria in a context where the timeliness of FOI decision-making was already decreasing.
“An agency which is responsible for [FOI] should model best practice,” Paterson says. “The fact that it does not … suggests that it [is not] an area of high priority. Arguably, this sends out an unfortunate message to agencies and risks decreasing confidence on the part of the public.”
Delays are not just inconvenient, they can undermine FOI’s purpose, as efficiency and speed are often critical, the authors of “The culture of implementing Freedom of Information in Australia” say in an interview with The Citizen.
“[People] who require access to documents do so for specific reasons and in most cases the information is of less value to them (or even of no value) if it takes too long to provide,” says Paterson.
FOI may not be a sexy topic, Lidberg says, but its implications for democracy are profound. The ability to independently access information empowers the public, enabling greater participation in the political process and fostering a healthier democracy and greater public integrity.
“A well-functioning and comprehensive FOI system acts as a deterrent against corruption within political systems, as those involved are aware of the high likelihood of being exposed,” he says.
“To be perfectly frank, the Andrews’ government was one of the most secretive that we’ve had in Victoria in a long time, which is a bit ironic given that he actually won government in the outset on putting to the Napthine government that they were too secretive.”
Government departments are legally required to seek an extension with an applicant if they suspect they will fail to meet the mandatory 30-day deadline.
In its first six months of operation, the department received 26 FOI requests and finalised only 17 of these, according to its 2022-23 annual report.
Of requests processed, 59 per cent were made within the statutory 30-days , 12 per cent were overdue by up to 45 days, and 29 per cent were overdue by more than 45 days.
The department’s performance deteriorated further in its second year of operation. In the 2023-24 financial year, it received 79 requests and finalised only 40. Of the requests processed, 30 per cent were made within the statutory period, 15 per cent were overdue by up to 45 days, and more than half were overdue by more than 45 days.
State-wide FOI performance over the same time period stacks up significantly better. In the 2022-23 financial year, 78.8 per cent of FOI decisions were made within the statutory timeframe state-wide. This increased to 79.4 per cent in the 2023-24 financial year.
However, “timeliness in decision making has trended downward” since 2014-15, as acknowledged by OVIC in its submission to a 2024 Inquiry by 2024 Integrity and Oversight Committee (IOC) into how well FOI was operating.
The commissioner also identified “a growing number of agencies experiencing backlogs of requests” in its submission.
Despite a slight improvement in the number of decisions made within the statutory timeframe in the two years to 2023-24 period, OVIC experienced a 19.4 per cent increase in complaints by FOI applicants.
“The majority of complaints received by OVIC concern delays in making decisions on FOI requests within the statutory timeframes,” the commissioner’s 2023-24 annual report notes.
This apparent discrepancy, given improved responses within statutory timeframes that same year, may be explained by an overall increase in the number of days taken to process requests by those agencies experiencing delays. The number of requests overdue by more than 45 days across the state increased from 13.3 per cent to 14.4 per cent.
Australia’s Right to Know, a coalition of Australian media outlets, believes the discrepancy may also be explained by the fact that “requests subject to continuous 15 and 30 day extensions” are still categorised as meeting statutory timeframes, provided they meet extended deadlines.
Either way, the most recently available national data from the NSW Information and Privacy Commission ranked Victoria as the third-worst jurisdiction in processing FOI requests in the 2022-23 financial year.
In July 2023, The Citizen lodged a complaint with OVIC about delays to an FOI request (related to a separate investigation) submitted to DGS. The department told the watchdog delays were due to its recent creation.
“The Department is a newly established department. It naturally takes some time for best practice Freedom of Information processes to become embedded within the culture of a new organisation.”
A year later, the department continued to rely on the same line of argument to justify ongoing delays. It also claimed it was refining its FOI processes by implementing “a number of strategies, including recruiting,” of which it expected “tangible benefits in coming weeks and months”.
Monash legal expert Paterson expressed doubts about this explanation.
“[T]eething difficulties might be expected as the location of records would be more complex,” she says.
“However, the fact that the team has not been brought up to speed more rapidly suggests a lack of prioritisation of its functions.”
According to OVIC, the downward trend in the timeliness of FOI decision-making coincided with amendments to the FOI act that reduced the mandated processing time from 45 to 30 days.
An increased volume of requests is also a contributing factor to delays. A final report tabled by the Integrity and Oversight Committee upon completion of its 2024 Inquiry noted Victoria “has one of the highest per capita FOI request rates in Australia”, and that high workloads were resulting in delays to decision-making as well as complaints handling.
Critics argue Victorian departments and agencies have failed to increase the resources available to them despite their growing workload — sometimes intentionally.
Some principal officers (who are generally departmental secretaries, agency or authority heads) are “deliberately withholding resources” for [FOI] functions, according to OVIC’s submission to the 2024 IOC Inquiry. As a result, FOI officers are unable to process requests within expected timeframes.
As part of its role in overseeing the public sector’s use and disclosure of information, the commissioner monitors agencies’ compliance with FOI professional standards. Professional Standard 9 dictates, “A principal officer must ensure their agency has the necessary resources and procedures in place to be able to meet their agency’s statutory obligations”.
While unable to comment directly on findings of OVIC investigations into DGS’ compliance with professional standards due to “legislative confidentiality obligations,” the Victorian Information Commissioner, Sean Morrison, linked delays to resourcing failures by the department’s Principal Officer.
“DGS, like all other agencies subject to the FOI Act, is required to comply with the Professional Standards. These standards also require the principal officer of an agency to ensure that FOI units are appropriately resourced. In relation to DGS, we [OVIC] recorded seven engagements relating to non-compliance with the Professional Standards in the [2023-24] financial year.”
The Monash report led by Lidberg and Paterson found insufficient resourcing was occurring in a political context. They linked this to a low prioritisation of FOI by departmental ministers and executives operating within a culture of “damage control” and unwillingness to release sensitive information.
“The Monash report suggests a strong commitment to FOI on the part of FOI officers,” Paterson says. But senior politicians appear disengaged or actively avoidant.
“It’s not a priority for the Victorian government,” Lidberg says. “[W]e invited 20 of the portfolio-bearing Victorian ministers to comment. None of them participated in the study [which] shows that access information and FOI functionality is not prioritised.”
Both Paterson and Lidberg believe findings from the Monash report help to explain FOI delays within DGS.
Jo de Morton, DGS secretary and principal officer, did not respond directly to questions about whether she had appropriately resourced the department’s FOI team.
Instead, a departmental spokesperson said: “As a recently established department we have worked over the past 18 months to recruit a new [FOI] team and put in place robust and secure processes to support our [FOI] obligations. We are continuing to refine and improve our processes.”
Gabrielle Williams, minister for Government Services until December 2024, also failed to respond to The Citizen‘s questions about the Information Commissioner’s assessment, and whether a lack of priority afforded to FOI processes by her or departmental executives had played a role in delays during her time as minister.
Instead, a Victorian Government spokesperson said: “[FOI] requests require complex and thorough investigation into historical records that are often held across multiple departments and systems.”
After the Minister for Government Services Natalie Hutchins was appointed, The Citizen again sought a ministerial response to critics’ concerns.
A Department of Government Services spokesperson responded: “The government is committed to transparency and accountability, and giving the public a right to access government-held information. Since being established in January 2023, the Department of Government Services has established robust processes for handling FOIs.”
The Citizen lodged two separate FOI requests with DGS to investigate their FOI team’s staff numbers and funding (the first request was delayed by 70 days, and the second request by 30 days).
Documents released revealed a $25 million decrease in funding available to the department’s FOI team in 2023-24 (funded as part of the Digital Transformation Group as it does not have its own budget).
They also revealed the department had no dedicated staff within its FOI team on its establishment in January 2023 and hired its first team member only in June of the same year.
In 2023-24, DGS FOI had four team members, (a FOI manager who started in March 2024, and three FOI officers, one of whom started only weeks before the end of the year). It is unclear if or for how long team members’ periods of employment overlapped, but the department had no FOI officers for an unclear period.
Presented with the staffing data, Lidberg said high turnover is common in FOI teams.
“That’s consistent with findings in other agencies…
“They could have had four staff, but they were only there a very short period of time because it was an impossible work situation.”
FOI in action or inaction: Case study 1
When journalist James Worsfold was investigating tenancy issues for The Citizen, he found his request stuck between apparent overlaps between agencies and authorities.
He sent an FOI request to the Department of Government Services (DGS) as it is administratively responsible for state regulator Consumer Affairs Victoria (CAV), which includes the Commissioner for Residential Tenancies (CRT).
“I fear for the public service sector given it took four months to produce one document.”
Case study 2
Mark Nottingham, an IT professional, submitted an FOI request with the Department of Transport in April 2024 seeking information on privacy measures for the then-upcoming Victorian digital drivers licence scheme.
DGS is tasked with securing the digital privacy rights of Victorians through its oversight of Service Victoria, the agency in charge of online identity verifications.
Requiring two extensions from the department to consult with DGS, his request was delayed by two months and heavily redacted. The digital licensing scheme was launched before his request was finalised.
Nottingham says for the public, the current FOI system is “of extremely limited use”.
