On Monday 20 March from 10.15am, the Federal Court in Melbourne will hear a long-awaited challenge to the lengthy delays that plague freedom of information (FOI) requests being reviewed by the Australian Information Commissioner.

This case brought by former Senator Rex Patrick goes to the heart of how the Australian FOI system works and will have far-reaching implications for the rights of journalists, civil society organisations and the wider public to access government information, hold leaders and decision-makers to account, and understand what is being done in their name. 

Ensuring that people can access government information in a timely manner through the FOI system is an essential part of a healthy democracy, but in Australia, the FOI system is broken. At the federal level, government bodies routinely reject FOI requests on spurious grounds and FOI administration is plagued by excessive delays at every stage. These delays effectively enable government bodies to shield their activities from scrutiny, particularly as the newsworthiness and value of information typically is often reduced over time. In fact Leo Hardiman resigned as Commissioner earlier this month citing an inability to function within the current system.

Former Independent Senator Rex Patrick currently has over 20 contested FOI applications awaiting review by the Information Commissioner, some of which have been sitting with the Information Commissioner for over three years (a full term of government) awaiting a decision.  Some of the outstanding FOI’s include:

• Oil and gas processing options for the Greater Sunrise oil and gas resources in the Timor Sea, 
• National Radioactive Waste Management Facility ministerial briefs.
• Foreign Investment Review Board Decision and Conditions on the sale of Bellemy Australia to China Menguniu Dairy Company
• Baseline schedule and milestone payment details for Snowy 2.0
• AHPPC information COVID-19 on border closures
• Gas reservation policy ministerial brief
• Stage three tax cuts ministerial brief

Currently the Information Commissioner is under no legal obligation to reach a decision within a specific period of time. Mr Patrick has brought this case to the Federal Court, challenging the Information Commissioner’s failure to make a decision. Mr Patrick is arguing that under Australian law, public decision-makers like the Information Commissioner are required to act without unreasonable delay. On this basis, he is asking the Federal Court to decide how long the Information Commissioner can take to make review decisions, and under what circumstances these kinds of delays are unreasonable.

Rex Patrick says, “Delay is the enemy of FOI. The Information Commissioner is still processing FOI review requests that are almost 5 years old. Five years of delay on FOI reviews turns information that would otherwise be useful to engage in policy debates or conduct government oversight into information useful only to historians. Agencies can say ‘no’ to releasing information under FOI knowing fully aware that once it enters the Office of the Australian Information, the information is buried for another three to five years”.

This important case has the potential to help everyone who uses the FOI system by forcing the Information Commissioner to act more quickly. This outcome would mean faster access to information for everyone who uses the FOI system, and in turn, greater government accountability.

An upcoming report from The Australia Institute will highlight how urgently a review of Australia’s FOI system and culture is needed. It finds that FOI decisions cost twice as much as they used to, three in 10 FOI decisions are late and, when reviewed, one in two turns out to be wrong. Polling shows that four in five Australians (79%) believe that a 3 month wait on FOI request reviews is too long. The Australia Institute’s Democracy & Accountability Program Director, Bill Browne, says: “Australia's democracy needs consequences for departments that abuse the FOI system, and a watchdog that is willing and able to hold them to account. Public servants and ministers have taken advantage of the FOI system to delay and hold back information that is in the public interest, and that the public is entitled to by law”. 

Grata Fund is an advocacy partner supporting this case. Isabelle Reinecke,  Executive Director, Grata Fund says: ”Access to information, and the ability to scrutinise government is absolutely essential to a healthy functioning democracy. Unreasonable delays from the OAIC in reviewing decisions ultimately conceals information by preventing time sensitive public airing of information that is proper and necessary to hold public officials to account -- this case tackles that roadblock in the FOI system.”

It is expected that a decision by the Federal Court in the Rex Patrick FOI case will be reached later this year.

MEDIA ENQUIRIES

For more information or to request interviews please contact:
Terri King at Pitch on 0488036740 or [email protected] 

Available for interview: 

• Rex Patrick, Director, Transparency Warrior
• Isabelle Reinecke, Executive Director, Grata Fund

There will be a doorstop at the Federal Court in Melbourne at 9.45am on the morning of Monday 20 March.

ABOUT GRATA FUND

Grata Fund is Australia’s first specialist non-profit strategic litigation incubator and funder. Grata develops, funds, and builds sophisticated campaign architecture around high impact, strategic litigation brought by people and communities in Australia. We focus on communities, cases and campaigns that have the potential to break systemic gridlocks across human rights, climate action and democratic freedoms.