Media companies call for independent FOI commissioner to ‘champion’ accountability

Australian news publishers have called for reforms to freedom of information (FOI) laws that would install a commissioner as “a champion” of “openness and accountability”, one separate from the Office of the Australian Information Commissioner, a Senate inquiry has heard.

The call was first outlined in the Right to Know coalition’s submission to a Senate inquiry (launched Monday) into the delays that plague the FOI system and the waning resourcing that led to former FOI commissioner Leo Hardiman KC’s resignation less than a year into the job.

The coalition, which represents Australian news publishers including AAP, Nine, Guardian Australia, News Corp Australia and The West Australian, among others, called for urgent reform to the system’s relevant legislation to be drafted by the end of June next year.

Michael McKinnon, a former FOI editor at The Australian who appeared before the inquiry on behalf of the coalition, told the inquiry that publishers want a FOI commissioner who can be “a champion” of government transparency and accountability.

“We want them independent of the Office of the Australian Information Commissioner because that position is now almost subsumed by privacy-related issues, as it should be, given the great issues that are occurring with data breaches,” McKinnon said.

“But Australia right now would like a champion that stands up for government access, openness and accountability, that reviews documents, and points out that there’s no real reason why they should be kept secret from the Australian public.”

As part of the reforms, the news publishers that form the coalition called for new guardrails to be rolled out across the reviews and appeals processes.

These include the introduction of a 21-day timeframe within which government agencies can provide a statement of facts to the FOI commissioner once a review has been requested. If the window elapses without a statement being provided, the submission said, the commissioner should grant access to the documents requested.

The submission also called for a 56-day time limit on decisions made by the FOI commissioner.

The Legal and Constitutional Affairs Legislation Committee inquiry, led by Liberal Senator Paul Scarr and Greens Senator David Shoebridge, has set out to probe the circumstances that led to Hardiman leaving his post in March after citing an inability to achieve the objectives of the legislation.

It will also investigate broader delays in the review of appeals with the information commissioner, the resourcing allocated to responding to FOI applications and reviews, and “the creation of a statutory timeframe for completion of reviews”.

In its submission to the inquiry, the Centre for Public Integrity suggested that “perhaps more worrying” than the “incessant clogging” of the FOI system’s appeals process has been the “emerging culture of secrecy” among government agencies and departments. 

The issue was highlighted by former independent senator Rex Patrick, whose view is that many if not close to all of the system’s failings can be boiled down to just two components: resourcing and culture. 

On culture, Patrick said the entire FOI system can be vulnerable to politicisation. In May, 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. 

Witnesses, including the ABC, the Australian Press Council and Country Press Australia, appeared alongside the Right to Know coalition on day one of the inquiry, where representatives of each organisation laughed off questions about whether they had heard from the Albanese government on reform.

The government’s failure to act on a 2019 commitment from opposition to reform FOI laws so they cannot be “flouted by government” has perturbed a number of transparency advocates, including Patrick, who frequently attempt to extract documents under their protection.

Representatives of each of the media organisations said they weren’t aware of any attempts made by Attorney-General Mark Dreyfus to discuss reforms on behalf of the government. 

“I think for the first time since 1982, we’ve got a Commonwealth attorney-general who is very knowledgeable about the FOI Act,” McKinnon said. “There’s no doubt Dreyfus is. He’s run two appeals in opposition, which he won both against the then-current A-G, so it’s not bad work.”

In its submission to the inquiry, the Department of the Attorney-General failed to outline any sort of timeline or ambition for reform.