‘The system is broken’: a landmark legal battle sets the stage for FOI reform

This piece is part of a series. Find the full series here.

On March 20, the Federal Court heard a highly anticipated dispute over the onerous wait times endured by the majority of those whose freedom of information (FOI) requests are reviewed by the Office of the Australian Information Commissioner (OAIC).

The applicant was former senator Rex Patrick, who first launched the action in 2021 while he was a senator for South Australia. The case struck at the centre of much of what is failing within Australia’s FOI system, which arms the public with a right to access various government documents via email request.

“Lawyers for Mr Patrick say he has more than 20 FOI applications under review, with some in the queue for as long as three years,” said Justice Michael Wheelahan, presiding over the case from a Melbourne courtroom in late March. 

“The delays are striking, striking — they really are.” 

On Friday, Wheelahan ultimately ruled against Patrick, saying that the delays weren’t “legally unreasonable” because the OAIC isn’t resourced efficiently enough to deal with the deluge of applications that come across the commissioner’s desk.

Delays such as those in Patrick’s case will be the primary focus of a Senate inquiry into the FOI system later this year.

“I think [the case] feeds into the inquiry, because it’s clear from the reading of the judgment that the court understands that the system is broken. And it clearly directs the remedy at Parliament,” Patrick told Crikey.

“What the judgment does is leave FOI applicants in purgatory. It appears the government is not interested in fixing this problem; Parliament has been unable to, and the court is unwilling to.”

Investigating a broken system

In the lead-up to the inquiry, Crikey brings you REDACTED, a series showing readers how FOI requests are used, by whom, and why they matter. 

The series also compares Australia’s information ecosystem to those in other major democracies, details some of the most extraordinary obstructions Australian journalists can recall, and compiles noteworthy public policy and political revelations brought to the national debate through the FOI system in recent years.

For close observers of transparency in Australian democracy, Patrick’s case is a good place to start. 

Some of the documents sought by Patrick include details related to ministerial briefs on the stage three tax cuts and gas reservation policy, along with baseline schedule and milestone payment details for the Snowy 2.0 project, as well as further ministerial briefs on the National Radioactive Waste Management Facility. 

Before Wheelahan handed down his judgment, Patrick and his lawyers were hopeful for a ruling that could improve the lives of all who come into contact with Australia’s FOI infrastructure, and reach so far as to set a precedent by defining how long the information commissioner should be given before a response time is considered unreasonable.

Some of the requests in question have been on the shelf for a full term of government.

In the end, though, Wheelahan said it would be up to Parliament to make the call, after first ensuring the offices responsible for carrying out these reviews have the resources required to do so in a timely manner. 

The OAIC plays a crucial role in offering recourse to those whose applications for government information have been denied. In doing so, the agency is there to ensure that documents accessible under the Freedom of Information Act aren’t withheld from public view.

Delays and obfuscation

Too often, though, these reviews are subject to years-long delays, which invariably prevent the use of such documents to inform timely, public policy debates. In late March, for instance, it was reported that close to 600 FOI cases had stalled for a period of longer than three years. Some 42 of them had been stuck there for longer than five.

Recent analysis carried out by left-leaning think tank the Australia Institute suggested that ministers are “devoting more resources to stymieing or evading” FOI requests than they did in the past. For example, in the 2006-07 financial year, some 34,000 FOI determinations were made, at a cost of $25 million to the federal government. By the 2021-22 financial year, the number of determinations had fallen to 25,000, while the cost had blown out to $65 million.

Just over a week after Patrick’s case was heard in March, the Senate voted in favour of an inquiry into what’s causing the delays to the commissioner’s review decisions, the resourcing allocated to responding to FOI applications, along with the circumstances that led to the swift resignation of the first FOI commissioner appointed to the role in seven years.

Former FOI commissioner Leo Hardiman KC’s departure in early March offered a flashpoint for government intervention, following a years-long political campaign for reform. And yet when it came to an inquiry, Labor opposed the move.

“I think [Labor] is developing an allergy to transparency. Transparency is a word that is only shouted from opposition benches. The government knows that the FOI system is broken,” Patrick said. 

He said that, in opposing the inquiry, the government was guilty of withholding resources from the statutory positions — the offices of the Australian information commissioner, the privacy commissioner and the FOI commissioner — that Labor had itself created. 

“This is a government that can fund a $368 billion submarine program, but can’t spend a few million dollars properly funding a critical transparency regime that exists for all Australians to get access to the information for which they have paid.”

Hardiman exited less than one year into his five-year appointment, citing a lack of power, onerous delays and an acute resource squeeze on the way out. Since leaving his post, he has remained tactfully hushed, save for a LinkedIn statement detailing his reasons for leaving. But his silence won’t hold for long. Hardiman is expected to give the Legal and Constitutional Affairs References Committee a professional assessment of his former employer when the inquiry kicks off in December, placing him among the most anticipated witnesses the inquiry will hear from.

Patrick’s battle in the Federal Court, too, will likely offer the committee plenty of case study fodder to pore over, along with the more than 20 contested FOI applications he currently has before the commissioner for review, and a submission to the inquiry of his own.

“Back five or 10 years ago, and that’s how long I’ve been doing this for now, the sorts of delays we experience now did not occur,” Patrick said. “Now, we’ve seen the delays [of reviews conducted by the information commissioner] move from one year, to two years, to three years that are a function of a number of things that are broken within the [broader] system.”

Diagnosing the problem

From Patrick’s perspective, the FOI system’s failings can be boiled down to two components: resourcing and culture.

For much of the past decade, just one commissioner oversaw the duties of three different roles. That changed in May, however, when Attorney-General Mark Dreyfus announced that Information Commissioner Angelene Falk would be joined by a standalone privacy commissioner, along with interim Freedom of Information Commissioner Toni Pirani, who succeeded Hardiman in the role last month.

But it “doesn’t matter” if you have the three commissioners — while the agency sees a “significant” increase in freedom of information request reviews — if there’s not a “commensurate increase in the resources available” to carry them all out, Patrick said. “Because there’s the high-level stuff, and then there are case officers” and other rank-and-file officers throughout the agency.

On culture, Patrick said the entire FOI system can be vulnerable to politicisation. He pointed to a 2021 decision by an FOI Act delegate in the Department of the Prime Minister and Cabinet to withhold national cabinet meeting records through the peak of the COVID-19 pandemic as a symbol of some of the training and oversight shortfalls across the system.

The staffer, Angie McKenzie, ultimately refused Patrick’s request, despite an Administrative Appeals Tribunal ruling that fell in Patrick’s favour. On the Senate floor, Patrick called McKenzie’s decision various renditions of “disgraceful”, saying she hadn’t just “trimmed her political sails” but “actually put up her Liberal Party spinnaker” in making the decision.

“You’ve got to ask yourself: how was it that a decision-maker in the FOI space, on such a high-profile matter … made a decision to deny me access to those documents [with her own discretion]?”

The inquiry will open for public consultation in June and is expected to field submissions from a swarm of current and former politicians, non-government organisations and media companies, including Crikey, whose submission will touch on the ways case management and delays subvert the media’s ability to hold governments accountable. 

Patrick will be making a submission of his own, which he said will offer up a trove of supporting evidence exemplifying how delays are the “enemy of freedom of information”. His several experiences with Information Commissioner Angelene Falk will no doubt form a large part. He said too often she will launch a review by starting the process from the beginning.

“I think she is actually cowardly in her approach in this regard. She tiptoes through the legislation. What is required is a forceful and decisive decision, knowing full well the department can appeal it, knowing full well they can pay the application fee,” he said. 

“She just needs to be ruthless”, he said, but instead she “acts as though she’s the High Court, the last decision-maker”. 

What role the commissioner has come to play in the delays, and what more she could do to expedite the reviews stacked up on her desk, will offer the committee plenty to chew on when it forms in December this year. So too will the delays imposed upon applicants by government departments on the frontline, as well as the culture that influences an increasing number of refusals, or whether the relevant staff have the resources required to effectively carry out their duties under the law. 

As far as Labor is concerned, it’s doing all it can.