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The nation’s Freedom of Information Commissioner has savaged the embattled Administrative Appeals Tribunal over a string of breaches and called for a major overhaul of its processes over serious failures in handing over documents to a member of the public.
Freedom of Information Commissioner Elizabeth Tydd has found the Administrative Appeals Tribunal had ”unduly delayed” providing documents; improperly disclosed private information — and “made contradictory statements” as to the “existence of documents” applied for.
Commissioner Tydd, whose appointment to the role was announced in May, has called for the AAT to officially apologise, issued it with 13 “formal recommendations”, and given it timelines of between one and three months to comply, it can be revealed.
The Klaxon can further reveal the head of the National Anti-Corruption Commission, Commissioner Paul Brereton and NACC CEO Philip Reed have also allegedly become involved in the case behind-the-scenes.
Tydd found the AAT repeatedly breached Freedom of Information laws and guidelines over its handling of a matter involving pro bono disability lawyer Karen Kline, overwhelmingly finding in Kline’s favour over a series of complaints.
The revelations come as the Federal Government is overhauling the AAT and replacing it with a new entity called the “Administrative Review Tribunal” (ART), to start on October 14, after the Coalition stacked the AAT with political appointees.
Tydd, in addition to her role as Freedom of Information Commissioner, will next week start as head of the overarching Office of Australian Information Commission (OAIC) — suggesting her crackdown on freedom of information failures could be felt by departments and agencies much more widely.
Since April 2022 Gold Coast-based disability lawyer Kline has been seeking documents from the AAT under Freedom of Information law in relation to a case involving a client who was rejected for certain funding by the National Disability Insurance Agency (NDIA).
After the NDIA rejected the funding, Kline took the matter to the Administrative Appeals Tribunal, which is the chief reviewer of Federal Government decisions.
The AAT sided with the NDIA, which Kline said “shocked” her, given the merits of her client’s case.
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Freedom of Information Commissioner Elizabeth Tydd. Source: NSW Government
Concerned there had been a high-level “intervention” at the AAT, Kline lodged a Freedom of Information request with the AAT seeking copies of correspondence between top officials of the AAT and NDIA.
Kline sought correspondence between AAT officials including its then President Fiona Meagher; former President David Thomas; and Ian Hanger, the AAT official who had made the ruling in her case.
On the NDIA side she sought correspondence involving then NDIA CEO Martin Hoffman, NDIA director Liam Stewart and NDIA’s lawyers.
An AAT Freedom of Information officer wrote to Kline on June 8 2022, six weeks after her request, stating they had identified a string of correspondence — including between Hangar and Meagher at the AAT, as well as from Hoffman and Stewart at the NDIA.
The officer said they had identified: “correspondence on the file from and between tribunal staff and members including DP Ian Hangar, Ben Anderson, president Fiona Meagher, former president David Thomas; and correspondence on the file from NDIA personal [sic] including Martin Hoffman, Liam Steward, Billy Neely”.
The AAT officer told Kline the documents would be provided to her the following day. They didn’t arrive until a week later.
When the documents did arrive, Kline discovered a much more senior AAT official had taken over — and that none of the correspondence between the previously named senior officials was included.
“None of the correspondence between the senior officials was included”
AAT’s director of legal and policy Sandra Koller, who had taken over the matter, told Kline none of that material could be located. Koller said the week delay had been because of a “problem with the redacting software affecting large documents”.
Kline tells The Klaxon the documents she received were “a mess”.
“It was very, very clear this file had been manipulated,” said.
“There were files missing and the number of duplicated documents was just unbelievable.
“I’d received very, very apologetic emails from the NDIS registrar at the AAT, and they were nowhere to be seen”.
Pro bono disability lawyer Karen Kline. Source: LinkedIn
In June of 2022 Kline applied for a review of the AAT’s FoI decision to be conducted by the Office of Australian Information Commission (OAIC), which in April 2023 launched an investigation.
On May 6 this year the OAIC said it would not undertake a formal “review” of the matter as a “merits review” into Kline’s FoI case would “most appropriately be handled” by the AAT.
Regardless, on June 27 FoI Commissioner Tydd issued a 31-page document based on nine complaints from Kline against the AAT, which formed an “official FoI complaint”.
In two cases Tydd made no findings because they were “outside the jurisdiction of the FoI complainant investigation” — and would more appropriately be considered by an AAT “merits review”.
In one case Tydd found the AAT was not in breach because although it had failed to deliver Kline’s response within the “statutory timeframes”, Kline had agreed to an extension.
In all five of Kline’s other complaints Tydd found the AAT had failed to comply with FoI laws and guidelines.
“I am satisfied that the (AAT) made contradictory statements in the access decision as to the existence of documents,” Tydd said.
The AAT had provided Kline with “duplicated documents” and also “disclosed unrelated third-party information to the complainant as part of the released documents”.
“The (AAT) did not comply with the requirement…to give access to the requested documents as soon as practicable and unduly delayed providing access to the material,” Tydd said.
It had also failed to comply with the official FoI Guidelines by not providing Kline a “schedule of documents…as part of the statement of reasons”.
Tydd said that within one month the AAT was to provide Kline with “an explanation and apology” for the “unsatisfactory handling of their FOI request”.
Within two months it was to “put into practice and update its formal guidance for staff” to “effect the prompt release of documents following an access decision”.
Some of the formal recommendations Commissioner Tydd has issued the AAT. Source: Federal Government
The AAT must also “undertake reasonable searches for documents” and “conduct searches of the ’N’ drive as a matter of course” and “consider using ‘wildcards’ when searching in appropriate cases”.
Wildcards are used to improve results in database searches.
In a statement to The Klaxon the AAT said it “does not comment on individual cases”.
Kline said her client had given up on the NDIA funding, but she was pursuing the FoI matter as it was connected to “serious wrongdoing at the highest levels”.
She said the biggest issue was not the NDIA’s rejection of the funding, but what had happened since.
Kline’s client, Dr Larry Laikind, a disability discrimination lawyer who has 1% peripheral vision, had sought NDIA funds to modify his waterfront backyard on the Gold Coast to make it more accessible.
Kline said the proposed modifications had initially been approved by an internal reviewer from the NDIA, on the basis the modifications would cost the NDIA less overall because Laiking would need fewer support workers overall to take him on outings.
She said the NDIA reviewer later noted that the funding presented “reputational risks” to the scheme, and Laikind’s application was later denied.
Kline has applied to the AAT for a “merits review” of its original FoI decision, with a directions hearing in the matter heard on Wednesday.
Kline said NACC Commissioner Brereton had twice written to her over the FoI matter, as had NACC CEO Philip Reed.
She said Brereton agreed “maladministration” — distinct to “corruption” — appeared to have occurred, but the NACC would consider launching an investigation pending the outcome of the AAT merits review.
“The Commission can confirm that it has corresponded with Ms Kline,” the NACC said in a statement to The Klaxon.
Do you know more? anthonyklan@protonmail.com
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