I have made a significant breakthrough in my attempts to make the City of Yarra publish food hygiene inspection information. The details of the inspections, which they have previously refused to release, will now be provided to Fitzroyalty in the near future. Soon I will be able to report on the various reasons why Fitzroy food service businesses fail hygiene inspections.

In my previous report on the ongoing issue to get the City of Yarra to release more information about the hygiene inspections of food service businesses I wrote that the City of Yarra and the office of the Ombudsman had both failed to differentiate between two distinct sets of information: the names of the businesses that had been inspected and the details of the inspections.

On receiving my initial FOI application the council refused to release the details of the inspections claiming that it would ’substantially and unreasonably diverting Council Resources’ to do so. I appealed this and it rejected my appeal. In its investigation the Ombudsman found this excuse to be ‘incorrect’ but failed to direct the Council to release the information.

Despite the case remaining obviously incomplete, the Ombudsman and the Council chose to prematurely declare the matter closed in their letters, which I received on 24 August. I replied to both the same night by email. I pointed out that their previous correspondence indicated that they had initially understood the two sets of information were different, and that each had received different legal responses. I also pointed out that they had subsequently conflated or confused the two and that this fundamental error had resulted in flawed conclusions.

I received a letter dated 2 September acknowledging my email from Investigations Manager Anita Allen from the Ombudsman, and have received no further response to date. They seem incapable of reading a letter, comprehending it and acting accordingly. I have given up on them. Also, why can’t they use email? Email can be tracked, indexed and managed as well as paper letters. How backwards are they in that office?

I received an automated acknowledgement email the next day from the City of Yarra. It then took them 17 working days to actually respond to the  email. I eventually got an email from the City of Yarra’s Executive Manager / Freedom of Information Office Ivan Gilbert on 15 September:

Hi Brian,

My apologies for the delay in responding to your August email, I have had several staff absent on sick leave. I have now revisited the previous correspondence on your inquiry and reviewed the relevant legislation, being the Freedom of Information Act 1982 and the Food Act 1984.

The specific information (as outlined in your email below) which you have sought is not, not being released for the reason of ‘substantially and unreasonably diverting Council Resources’. Regretfully, Council is prevented from disclosing that information pursuant to the provisions of Section 54 of the Victorian Food Act  1984.

I trust that this clarifies the Council’s position in relation to your specific request. Please feel free to call me should you have any further queries.

This still does not acknowledge the two different sets of information. This is my response on the same day:

Dear Ivan

Again you have failed to identify which set of information you are talking about. Given that I clarified this in my previous email it now appears evident that you are being deliberately uncooperative.

You refused to release the business names due to privacy reasons based on the FOI Act and the Food Act. I am not contesting this.

My email to you was about the details of the inspections.

You initially refused to release the details of the inspections based on the grounds of it ‘substantially and unreasonably diverting Council Resources’. You have subsequently acknowledged that this is no grounds for refusing my request.

My advice is that the Food Act does not prevent the release of this information as long as the names of the businesses are not disclosed. You have consequently given no reason whatsoever for refusing to release the details of the inspections.

I therefore request a copy of the spreadsheet council has already provided me updated with the details of the inspections, ie not just pass or fail but the reasons why, eg cockroach infestation, contaminated food, food not stored correctly etc.

The next day, 16 September, I received a phone call from Ivan Gilbert. He conceded that the Council had misunderstood the issue, that it had no reason for not releasing the inspection details and that it would now do so. Gilbert stated that the data is not stored electronically, and that the inspection details will have to be collated from paper records, so it will take some time to complete.

I was very pleased to hear this and thanked him for his call and his cooperation. This is a significant breakthrough. I thought this issue was lost and held little hope that the Ombudsman could help. This proved to be correct, and in fact the Ombudsman made it more difficult to make progress on this issue.

The Council has admitted that it was wrong all along in refusing to release the details of the inspections. The ’substantially and unreasonably diverting Council Resources’ justification has been exposed as nothing more than a lazy excuse. This suggests that the Council’s initial response to my FOI application was flawed, and that their subsequent rejection of my appeal was a bureaucratic attempt to stifle transparency rather than an objective decision based on fact and law.

It’s amusing to note that the Age today published an article about how a ‘culture of secrecy’ encourages government departments to restrict and limit the release of information under FOI. My experience is a typical example. The Ombudsman‘s annual report (1.35mb PDF) was tabled in state parliament yesterday.

The Age says that Ombudsman George Brouwer believes “some departments remained reluctant to fully disclose matters of public interest, even after receiving guidance from his office.” To be fair to the City of Yarra in this instance, the supposed ‘guidance’ it received from the office of the Ombudsman was vague, clueless, incorrect or nonexistent.

I am satisfied that I am again making progress. I have not yet made my application to the Public Interest Law Clearing House (PILCH) in search of further legal support to pursue this matter. I will revise my application to focus on the release of the business names.

Fitzroyalty vs City of Yarra – food hygiene FOI battle round seven

2 thoughts on “Fitzroyalty vs City of Yarra – food hygiene FOI battle round seven

  • 17 September 2009 at 1:07 pm

    Good to hear. I’m looking forward to hearing the actual inspection results.


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