The Federal Government is routinely rejecting Freedom of Information (FOI) requests from journalists, civil society organisations and the public on spurious and potentially unlawful grounds, according to analysis by Grata Fund.
Grata Fund, which supports people and communities to bring public interest legal challenges, has identified a ‘litigation hit list’ of the worst excuses used by ministers and government agencies to reject FOI requests, based on consultation with journalists and civil society advocates. It has written to the Office of the Attorney General, notifying them that it believes that the widespread use of exemptions is unlawful.
“Ministers keep trotting out the same old excuses to limit access to information that should be public. We believe that the reasons for refusal provided by ministers and Government departments are unlawful, and should be tested in court,” said Isabelle Reinekce, Founder and Executive Director of Grata Fund.
“This abuse of FOI law means that vulnerable communities are unable to interrogate policies or decisions that affect them and the Government is less accountable to the people. Ministers and agencies who breach FOI law to the detriment of our most vulnerable communities should consider themselves on notice,” said Ms Reinecke.
The recent Cabinet reshuffle exposed the oddities of the system with ministers refusing access to documents created under their previous portfolio on the basis that they ‘cease to exist’.
“How is it possible that when a minister changes portfolios the documents created throughout their time suddenly, poof, disappear,” said Ms Reinecke.
The FOI system is an essential part of a healthy democracy. It provides the public with the ability to see and scrutinise the decisions and workings of governments. Data obtained through FOI requests allow journalists, advocates, NGOs and the public to shine a light into some of the darkest places of government, like places of detention and aged and disability care, to expose abuse, and ultimately protect vulnerable communities from harm.
However, FOI administration is plagued by inappropriate and potentially unlawful action by government agencies and ministers, including unreasonable delays, the overuse of exemptions and the unsubstantiated application of exemptions.
Last year, almost three quarters of all FOI requests submitted to the Federal government that were not merely requests for personal information were fully or partially rejected.
GRATA FOI LITIGATION HITLIST
Grata Fund has interviewed journalists, individuals and representatives of civil society organisations to understand the Federal government’s approach when processing FOI requests.
This has identified a list of FOI exemptions and approaches used by Federal Government ministers and agencies that we believe are often applied unlawfully. Grata is interested in supporting cases in the areas below that are ripe for legal challenge.
- FOIs inappropriately refused on the basis that the documents are subject to cabinet confidentiality
- FOIs refused because of a change in or resignation of a Minister
- FOIs seeking Text Messages, Whatsapp, Signal or other electronic messaging platforms that are unreasonably refused
- Unreasonable delay by the Office of the Information Commissioner (‘OAIC’) in decision-making on reviews of FOIs by the Office of the Australian Information Commissioner
Overuse of exemptions without substantiation by Government agencies or ministers, in particular:
- personal privacy (s 47F),
- certain operations of agencies (s 47E),
- enforcement of law and public safety (s 37),
- deliberative processes (s 47C),
- confidential information (s 45), and
- trade secrets and commercially valuable information (s 47).
Information about applications for support and the report, FOI Litigation Hit List, can be found on the Grata Fund website.
Belinda Lowe 0428805696