Former Senator Rex Patrick yesterday, asked the High Court to overturn a Full Federal Court ruling that found that lengthy delays - more than 3 years in some cases - by the Information Commissioner in reviewing Freedom Of Information (FOI) access refusal decisions were not legally unreasonable.
In a long running legal battle, Mr Patrick has argued that the delays plaguing the dysfunctional FOI regime inhibit the public’s timely access to government information and therefore defeats the objectives of the FOI Act.
The FOI regime is supposed to allow citizens to participate in government decision making and to scrutinise the government. That can’t be done if documents are released well after issues are decided or the government has changed. They simply became historical documents of little contemporary use.
The FOI Act requires information to be made accessible in a prompt or timely manner, and the delays Patrick, and many others, are experiencing in FOI reviews are unreasonable.
In July this year, the Full Federal Court recognised that the delays in processing Patrick’s FOI reviews were “very lengthy” and “unfortunate”. But the Court ultimately determined that the Information Commissioner’s under-resourcing was a valid reason for the delays - the High Court will be asked to reconsider this.
“We will argue that the Full Federal Court erred in its interpretation of the phrase ‘unreasonable delay’ and that years long delays in reviewing FOI decisions is unreasonable by any person's measure, and in the statutory sense,” said Mr Patrick, former Senator and now a ‘Transparency Warrior’.
"Excusing otherwise ‘unreasonable’ delays because of a lack of resourcing by the very government that benefits from the delay provides it a license to underfund the Office of the Australian Information Commissioner and frustrate the FOI system without consequences”, he said.
This challenge could have far reaching implications for the obligations of statutory bodies to fulfil their duties within a reasonable timeframe.
“It can’t be that a Government of the day can extinguish rights given to citizens by the Parliament by simply not funding the Government apparatus that delivers the rights,” , he said.
“We hope this sends a signal to the government that we are extremely serious about challenging secrecy. There are several cases before the courts identified in Grata’s FOI litigation Hitlist report regarding obfuscation and misuse of the FOI system. The government should expect more challenges until FOI law is adhered to by all ministers and government agencies and the regime is able to fulfil its democratic function for government accountability,” said Belinda Lowe, Director of Communication and Campaigns at Grata Fund.
This challenge forms part of Grata Fund’s advocacy work and FOI Project and the bread and butter of the Transparency Warrior’s work. Mr Patrick is represented by Estrin Saul Lawyers, and Bret Walker SC, Daniel Reynolds and Christopher Beshara of counsel.
The Special Leave application will be determined shortly, where the High Court will decide if the appeal will go to a full hearing.
Media contact: Belinda Lowe - [email protected] or 0428805696