Bid to keep documents from Daniel Andrews’ time in office secret after his resignation

In what has been described as a legal test case, the Victorian government is fighting to keep documents from Daniel Andrews’ time in office secret after his resignation.

The Premier’s office is fighting to keep hundreds of documents from Daniel Andrews’ time in office secret in a legal case with ramifications for government transparency.

Lawyers for Premier Jacinta Allan are arguing in the Victorian Civil and Administrative Tribunal that the documents – relating to the fatally bungled hotel quarantine program – can no longer be accessed under Freedom of Information laws following Mr Andrews’ resignation in September.

The opposition has accused the former premier of “running down the clock” to escape scrutiny, saying the case could set a precedent and enable the government to block ­access to thousands of documents from his ­administration.

Lawyers for Premier Jacinta Allan are arguing in the Victorian Civil and Administrative Tribunal that the documents can no longer be accessed under FOI laws. Picture: AAP

The case centres around a 2021 Freedom of Information request by Liberal MP David Davis for access to correspondence between the former premier, his chief of staff Lissie Ratcliff and his department regarding hotel quarantine.

The Premier’s office had agreed to hand over hundreds of documents, but now argues it can no longer access certain documents or is not legally ­required to do so following Mr Andrews’ departure.

“This is a blatant attempt to defeat the FOI Act by dragging it into the long distance,” Mr Davis told VCAT.

“And then a novel argument that because he’s no longer the premier he no longer has ­access to documents from his time period as premier.

“I don’t believe that, I believe he does have access to those documents. I believe the court has access to those documents. I believe we can access those documents and they could well be processed.”

Daniel Andrews’ last day as premier was in September 2023. Picture: David Geraghty

But on Tuesday, Premier Jacinta Allan claimed she was “not aware” of where the FOI documents were and what the case entailed.

“I am not aware of the specific circumstances behind the set of documents because clearly they are not my documents,” she said.

When asked whether her government had destroyed any documents subject to FOIs or court cases, Ms Allan fiercely rejected any wrongdoing.

“That is quite an allegation,” she said.

“I’d suggest if there was any evidence of that allegation it should be referred to the appropriate agencies.”

Ms Allan said it was her expectation that government departments and officials “comply with the requirements of any legislative framework that governs their work”.

Ms Allan said she was unable to give any further details because the case was an “existing matter that’s before VCAT”.

“I am limited somewhat in what I can say,” she said.

The case centres around a 2021 FOI request for access to correspondence between Mr Andrews, his chief of staff and his department about hotel quarantine. Picture: Daniel Pockett

The Australian Information Commissioner and the Victorian Information Commissioner have both held that ­FOI requests do not cease simply because of a change of minister.

“Rather, the new minister, who takes over the relevant area or areas of responsibility of the former minister, is taken to be the relevant minister or ‘respondent’ for the purposes of the ongoing handling of the request or review,” Victoria’s public access deputy commissioner Joanne Kummrow said in a recent decision.

“This view is supported by several other decisions made by the Australian Information Commissioner, in which different holders of that office have consistently held that an FOI review application does not automatically cease when a minister ceases to hold their ministerial portfolio or their ministerial portfolio ceases and the matter continues to be handled by the new relevant minister.”

Mr Davis said his request sought documents central to government decision-making. “We believe that the proceeding is an important one … it goes to a very significant ­decisions of government,” he said.

“People will remember back to the period of the pandemic and the period where the virus escaped from hotel quarantine and spread wildly through the community … resulting in so many Victorians (dying).

“It’s hard to think of a set of decisions beyond the establishment of hotel quarantine that have had greater moments in the Victorian community.

“It would be extraordinary if a claim that because the premier, premier Daniel Andrews, is no longer the premier … that the FOI claim would be thereby defeated.”

Lawyers for Mr Andrews argue documents from his time as premier should be kept secret. Picture: Luis Enrique Ascui

Just one day after Mr Andrews resigned, Acting Victorian Information Commissioner Rachel Dixon reminded ministers and their departments of their obligation to keep documents subject to FOI requests and the VCAT “even when ministers or their responsibilities may change”.

In an email the day after Mr Andrews resigned, Mr Davis – who has been fighting for the release of the documents for three years – expressed concern that they would be “subject to or at risk from a systematic destruction” that “may occur today or in coming days”.

“Senior officials in government, including Premiers, must not be allowed to sneak from office destroying potentially embarrassing or troublesome records on the way through, potentially breaching statutory obligations,” he wrote.

In response, Ms Dixon said she ­had reminded Ministers and their departments and advised Mr Davis that relevant agencies had “acknowledged my office’s reminders” of their obligations.

The release of documents under FOI laws has slowed since Labor came to power in 2014. Government departments denied full access to more than a third of the 48,117 requests last financial year, data shows. Complaints to the Office of the Victorian Information Commissioner about FOIs have soared from 243 in 2014-15 to 651 in 2022-23.

A government spokeswoman said as the matter was ­before VCAT “it would be inappropriate to comment”.

“We have delivered a strong Freedom of Information system, one that is fair and efficient,” she said. “We continue to consider ways to improve the FOI process.”

The case is due to return to VCAT next week.