Who's Watching The Watchdog?

The Age

Tuesday May 2, 2000

Murray Mottram

THIS is Eildon's version of the XFiles, and it is a true story. It is a tangled tale of one man's hunt for the truth; of authorities reluctant to open their books, and giving contradictory answers when they do. Documents exist, then don't exist. Legal opinions veer 180 degrees overnight. There's a perfectly rational official explanation for each twist and turn, except sometimes it conflicts with the previous explanation.

The scary part is that some of the most perplexing contradictions come out of the Office of the Ombudsman, the public watchdog who is supposed to be the champion of people such as Chris Healy.

When Healy, an Eildon motelier, struck trouble with a freedom of information request to his local council three years ago, he thought the Ombudsman would be his savior.

Last month Healy read a report in The Age that the Victorian Government was considering giving the Ombudsman, Barry Perry, new powers to vet requests for commercial confidentiality in government contracts with private businesses. Healy felt it was time to go public. What if the watchdog himself was prone to excessive secrecy?

His saga began in February 1997, when the departing government-appointed commissioners of Murrindindi Shire, in northern Victoria, called for an architect's report on extending the council offices. The next month the shire returned to elected councillors.

The issue disappeared until July, when the architect's report surfaced at a council meeting. It outlined three options: the extension; rebuilding two existing council offices, at Alexandra and at Yea; or a new building at Alexandra.

The council chose the third option. Healy wanted to know how what began as a $320,000 extension was transformed into a new building costing ratepayers $1.2million without public discussion.

He made an FoI application to the council for the paper trail that would show who had requested the alternative plans, when and why.

The first explanation was there was no paper trail. The council's director of corporate services, Danny Hogan, said in a letter to Healy: ``The alternative option was raised for consideration by the architects and verbally agreed to by the senior management in order to expedite the production of a report that considered all issues. This request culminated in the report dated 14July 1997, which presented the ranges of options available to council."

Healy says that when he inspected the council file, in late 1997, he could find no paperwork revising the parameters of the architect's report.

He said the principal of the architecture firm, Ray White, told him he had written a report on the extension-only option, but Healy could not find that in the file either. White confirmed to The Age that he had given the council a report on the extension only.

``Nowhere in the file is he ever requested to design a new building," says Healy. ``Someone had to have officially asked him - that's what got me going in the first place."

Healy wrote to the Ombudsman, claiming the council was withholding documents commissioning the new building design.

Perry, after an investigation by his staff - which included a written report from the council chief executive, Janice Walsh - dismissed the complaint. In a letter to Healy on April3, 1998, Perry wrote: ``In addition to Ms Walsh's report, (investigating officer) Mr Stephens was given access to council files and he interviewed Ms Walsh. At interview Ms Walsh was adamant that documentation concerning the written/formal commissioning of Ray White Architects for design of the new offices does exist and had already been produced to you. At Mr Stephens' request, a copy of that documentation was provided to this office."

Healy was stunned. The letter was telling him he had already seen the documents he claimed the council was hiding. Healy says that during the five months of the Ombudsman's inquiry he was never contacted, and questions why Perry's office accepted Walsh's version over his without coming back to him.

It is not hard to see why Healy would be confused. The council originally told him the commissioning of the new office design was done verbally. Now Walsh had told the Ombudsman it was done in writing.

If this was perplexing, things only got worse.

Healy figured the quickest way to finally see the documents was to ask the Ombudsman's office for the copies it said it had been given. This time he was told that, after the architect was engaged in February, ``council officers chose to verbally expand the project brief".

In other words, back to square one.

Healy had separately made a complaint to the Office of Local Government about the council's handling of the new office. While finding no improper action by the council, the director of local government operations, Vern Robson, found the new office design was commissioned by ``separate written appointment".

A letter Healy received in June from the Ombudsman's office regarding that inquiry only thickened the plot. Mr R.G. Seamer, senior assistant ombudsman, wrote that ``in relation to your contention there is correspondence engaging the architects in relation to a new building ... no such document exists".

So now, according to the various answers Healy had been given, documentation that originally did not exist, then existed, again did not exist.

Healy was now determined to see exactly what Walsh said in her interview with the Ombudsman's investigator. He asked for the Ombudsman's investigation file. Perry refused. He told Healy he had legal advice his office was not subject to FoI, or the Victorian Civil and Administrative Tribunal, which rules on FoI disputes.

When Healy said he would lodge an FoI request anyway, he was told the Ombudsman's office had no facilities for processing the $20 fee. But Healy discovered the Office of the Ombudsman came under the Premier's Department. He drove to Treasury Place, presented himself at reception and his application was accepted with no fee.

A few days later he received a letter from Perry saying he ``had legal advice (that) whether subject to FoI or not, I had discretion as to exactly what documents I may release to an applicant who applied for investigation material".

The letter continued: ``I was further advised that the applicant does not have right of review to VCAT. Without conceding I may be subject to FoI, I am prepared to provide you with copies of correspondence between you and this office."

This was no more than Healy already had. He hired a barrister specialising in FoI, Jason Pizer, to pursue the point with the tribunal. A hearing on whether VCAT had power to hear Healy's case was set down for December 21.

A few days before the hearing, Perry suddenly changed his stance. Through the Government Solicitor, Ronald Beazley, he agreed to hand over the whole investigation file.

At this point it seemed Healy could claim victory. But after wading though investigation file N/97/733PO - the one he had been led to believe held the key documents he was after - he was still grasping at thin air. The record of the interview with Walsh was not there.

Furious, Healy wrote to Perry asking for an explanation.

The answer came in March, via Beazley. ``My client advises it did not discuss this matter with the CEO of Murrindindi Shire Council on 10.3.98. This explains the absence of any record that your client seeks."

Far from it, says Healy. Perry's letter in April 1998 clearly states Walsh was interviewed. In the investigation file, Healy found a handwritten note saying a meeting with Walsh had been arranged for 4pm on March 10. At the bottom of the page is written: ``Council files delivered by hand on 10/3 by J.Walsh."

Perry told The Age the interview with Walsh referred to in the April letter was a phone interview conducted in February. This is supported by a note in the investigation file. Perry says that when Walsh arrived for the March interview she was running late for another meeting and simply handed over the files and left.

Healy wonders why the otherwise meticulous file notes do not record arrangements for a new interview time.

After all, these were the files that were supposed to back up Walsh's claim the new office design had been requested in writing - the document that Healy was told, three months later, did not exist.

Perry admits some answers his office has given Healy are confusing, but says he believes it has now given him every document it has.

Perry says he always acted on legal advice that his office was exempt from FoI. He says it was only when a senior private barrister was retained to fight Healy at the tribunal that it was discovered that legislation passed by the Kennett government on the definition of government agencies inadvertently brought him under the FoI rules.

Perry says Healy was given all the documentation his office had given a commitment to provide.

Healy says that when the case went to VCAT the Ombudsman was supposed to supply the tribunal with a list of everything in his file. When the investigation file was handed over the list was missing, so he is unable to tell if everything that should be in the file is there. At least one letter - the one from the Local Government Office saying the commissioning documentation did not exist - is not in the file.

``I'm just on the outside trying to look in," Healy says. ``The Ombudsman is a great institution, he investigates the government ... but he should be subject to public scrutiny."

Although he has been left dissatisfied, Healy's quixotic campaign has, at least temporarily, opened the door for the Ombudsman's clients to check his performance.

Healy's barrister, Jason Pizer, says that if Healy's victory leads to change in the way the Office of the Ombudsman handles such cases, his victory will be ``very significant".

But Perry is showing no sign of a change of heart. He wants the legal position reviewed - in favor of exempting him from the discomforting eyes of FoI.

© 2000 The Age

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