Prime minister?s department breached FOI laws over release of Brittany Higgins documents

The prime minister’s department breached freedom of information law by dragging out a request for internal documents about the alleged rape of Brittany Higgins, prompting the regulator to warn it to urgently fix its “compliance with the FOI act”.

In April this year, two months after Higgins spoke out publicly about her alleged attack in March 2019, the department of prime minister and cabinet received a targeted FOI request for documents relating to 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, which contained the keyword “Brittany”.

The FOI captured just 20 relevant documents.

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

It also ran its decision past the prime minister’s office, something departments are not legally obliged to do.

The department was granted the extensions, allowing it until 4 June 2021, but still failed to meet the legally-imposed deadline. That prompted a complaint to the Office of the Australian Information Commissioner (OAIC).

The OAIC’s yet-to-be-released investigation report, seen by Guardian Australia, found the department had breached FOI law.

In explaining its actions, the department told the regulator it had been delayed by the complex and sensitive nature of the request, but also by an apparent requirement that “all PM&C FOI decisions are to be noted by relevant senior executives and the prime minister’s office”.

“The department did not explain to what extent the engagement with relevant senior executives and the prime minister’s office contributed to the processing delay,” the OAIC report said.

A decision was eventually made in July 2021.

Despite claiming the request was “complex” and “voluminous”, the department released just two of 20 relevant documents.

They included a benign all-staff email from secretary Phil Gaetjens urging his employees to seek support if they needed it, and a copy of a public statement made by Higgins about her alleged rape, which was forwarded to the assistant secretary Peter Rush without any additional comment.

The rest of the documents were blocked on a range of grounds, including because they contained information that could harm personal privacy, disclose a deliberative matter, or compromise the efficient and proper conduct of some operations of the department.

It is the second time the department has been ruled to have broken the FOI law in this way in as many years.

Last year, the OAIC criticised the department for inexplicably delaying a freedom of information request about allegations the former public service commissioner improperly aided the rightwing Institute of Public Affairs.

That prompted a raft of recommendations, including that it audit itself and report back to the regulator on its “compliance with statutory timeframes”.

Now, the OAIC has recommended the department appoint an information champion, potentially supported by an information governance board, to “provide leadership, oversight and accountability necessary to promote and operationalise the department’s compliance with the FOI act”. That was supposed to occur by 5 November 2021.

The department was also told to provide training to FOI section staff and relevant senior executives “about the obligations under the FOI act to comply with statutory processing periods”. The department was given until 5 January next year to finish the training.

Guardian Australia asked the department whether the recommendations had been implemented. It refused to address the question.

“These matters are the subject of a complaint made to the Office of the Australian Information Commissioner, to which the department has responded,” a spokesperson said.

“Until the acting freedom of information commissioner publishes information about the complaint, it is not appropriate for the department to comment further.”