Proposed changes to Freedom of Information Act blacked out in documents released to journalists

The attorney-general has not ruled out making changes to the Freedom of Information (FOI) Act — but legal tweaks suggested by a former top official in the field are being kept secret for now. 

Former freedom of information commissioner Leo Hardiman suggested “potential legislative amendments” in an email to his boss on February 22 this year. 

“These are the technical amendments. They are all minor,” Hardiman wrote to information commissioner Angelene Falk in an email that has been released under the FOI Act — the law that allows the public to access government documents. 

Crikey has sought to spotlight the concerns around freedom of information in our new series REDACTED, showing readers how FOI requests are used, by whom, and why they matter. 

The changes Hardiman proposed have been completely blacked out by his former colleagues, who cited an exemption in the act that applies to information relating to government deliberations. 

“These are the technical amendments. They are all minor,” Hardiman wrote in a part of an email left unredacted.

The Australian, which filed the FOI request to access Hardiman’s email, reported it was told by the Office of the Australian Information Commissioner (OAIC) that the release of the proposed legal changes would be against the public interest “because in the event any FOI legislative changes occur, there are ‘established processes to ensure extensive public consultation is undertaken'”.

The newspaper was also told “document disclosure would or could be reasonably expected to prejudice the ability of the OAIC to do its job and ‘adversely affect matters of ongoing government deliberation’.”

The paper reported that “Attorney-General Mark Dreyfus to date has ruled out any reform of the FOI Act”.

However, Crikey has been told that is incorrect — a spokesman for Dreyfus clarified that while no specific changes are in the works, the attorney-general has not ruled out any future action. 

Questions about why Hardiman’s proposal should be kept secret were referred to the OAIC, which was contacted for comment. 

Despite being copied in on the email from Hardiman, Falk told a budget estimates hearing last week she had no recollection of any changes being proposed. 

“Commissioner Hardiman did not raise matters with me prior to his resignation, nor foreshadow his resignation,” she said. 

Hardiman resigned on March 5, and the circumstances around his resignation will be the focus of an upcoming Senate inquiry. 

One of the complaints Hardiman made in emails to his colleagues before leaving was a lack of resources for processing FOI requests. 

Falk acknowledged in her estimates testimony she had requested more funding for FOI. 

“I requested funding across the privacy and FOI functions, and there was funding provided for the privacy functions of the office,” she said. 

However, when pressed by Coalition Senator Paul Scarr on how much she’d asked for, Labor Senator Murray Watt, representing the attorney-general, stepped in to shut the questions down. 

“Ms Falk has been very helpful, but you are getting into areas of advice and the deliberations of ministers, and that kind of content is not normally provided in answers to questions at estimates,” Watt told Scarr.

“I’d also point out that I remember asking questions very similar to the ones that you’re asking, when we were in opposition, and it would be fair to say — in fact, I think Ms Falk was in the role answering those questions — that Ms Falk and others of her colleagues have raised issues around resourcing for quite some time now.”

The government began accepting job applications for Hardiman’s replacement on May 3, and applications closed last Friday at 5pm.