This piece is part of a series. Read the introduction and find the full series here.
In a letter sent last November, the chief prosecutor in the Bruce Lehrmann trial, Shane Drumgold, accused police of running a “very clear” campaign to pressure him not to lay charges over the alleged sexual assault of Brittany Higgins. Lehrmann denies the allegation.
The letter set in motion what is now an ongoing inquiry into the handling of the case, but would never have entered the public domain had it not been requested by Guardian Australia under freedom of information laws.
The Drumgold letter is the latest high-profile revelation made by Australian journalists through the freedom of information system, which arms the public with a set of rights to government information.
For the news organisations that can afford to dedicate ample time and resources to peppering government agencies with enquiries tuned to narrowly defined parameters — and later managing their progress — the system can extract information so consequential that in some cases ministers are left with no choice but to resign.
FOI requests can be used by reporters to force government figures into answering follow-up questions. They can also be used to request modelling for major spending decisions, to obtain context and communique on ministerial decisions, or to simply follow up on something mentioned briefly during question time or Senate estimates.
But in recent years, it has grown increasingly difficult to get that information at all. The efficiency of the FOI system will be the primary focus of a forthcoming Senate inquiry later this year. In the lead-up, Crikey brings you REDACTED, a series showing readers how FOI requests are used, by whom, and why they matter.
It will also compare Australia’s information ecosystem to those in other major democracies, detail some of the most extraordinary obstructions Australian journalists can recall, and clock the noteworthy public policy and political revelations thrown into the national debate through the FOI system in recent years.
Take, for example, the au pair controversy that embroiled then-immigration minister Peter Dutton. Dutton dominated headlines for months in 2018 for making random visa interventions to save two travellers working as au pairs from deportation at the Australian border, before being found guilty by an inquiry for misleading Parliament over his association with their prospective employers.
The story originated from a series of freedom of information requests submitted by Lisa Martin, a journalist formerly of Australian Associated Press and later Guardian Australia, where she continued to break new details as the saga unfolded.
Media executives worry that breaking stories like these via FOI is becoming increasingly difficult in the face of a dysfunctional and delayed FOI system. Australia’s Right to Know coalition, which includes Nine, Guardia Australia, News Corp, the Media, Entertainment and Arts Alliance (MEAA) and others, was represented among the media executives who met with Attorney-General Mark Dreyfus in February to discuss a number of big-ticket items on press freedoms, including delays to FOI requests.
When an FOI request is submitted, the relevant department has 30 days to respond. Over the past decade, though, delays beyond that statutory period have doubled. Delays longer than 90 days, meanwhile, have increased tenfold, up from 1.3% in 2011 to 12.4% in 2021, according to research from the Centre for Public Integrity released in September last year. The number of requests released in full dropped by 30% over the same period.
On the occasions that journalists are granted access to requested material, its impact isn’t limited to federal politics. In fact, some of the most extraordinary information extracted from government departments has regarded subjects such as social affairs, justice and the environment.
Documents obtained by the ABC in 2017, for instance, revealed that correctional services across Australia had prevented potentially thousands of prisoners from voting in the 2010, 2013 and 2016 elections due to a failure to enrol inmates and register their ballots, despite the best efforts of the Australian Electoral Commission.
The Seven Network’s freedom of information investigation into reports of rape, attempted rape and sexual misconduct at Australian universities emerges as another noteworthy example, even if it wasn’t sourced at a federal level. The investigation, Australia’s largest into the university sector, revealed that of 575 reported cases of misconduct in the five years to October 2016, just six led to the expulsion of perpetrators.
Some of the institutions that fielded requests, including Monash University and the University of Western Australia, refused to cooperate with the network at all. Alison Sandy, the freedom of information editor at the Seven Network who worked on the investigation, said it’s unlikely a body of work like that would come together again.
“[Universities] have [since] really consolidated their power to work against this sort of information being made public, particularly via FOI,” she told Crikey.
Another recent example came in the form of a story published by the ABC in December 2020, which revealed to readers that the taxpayer-funded Future Fund had invested some $3 million in an Adani-owned company funding a rail link between the controversial Carmichael coal mine and the Great Barrier Reef.
The utility afforded to media organisations by the FOI system isn’t limited to breaking stories. It can be helpful for adding minor details to rolling news developments, too.
After Reserve Bank governor Philip Lowe briefed bankers from the country’s biggest banks at a private lunch after an interest rate meeting, for example, an FOI request submitted by The Australian Financial Review revealed that he was there at Australian financial services firm Barrenjoey’s invitation.
The FOI system has also allowed journalists to advance reporting on the Australian Federal Police raids of then News Corp journalist Annika Smethurst and ABC Sydney headquarters in 2019, and reveal staff at the RBA whining over ABC coverage in 2020.
In other cases, it’s what an FOI request fails to disclose, and the details that can be confirmed by way of a refusal, that lay the foundation for a story.
In January, that was the case for former senator Rex Patrick, whose FOI request for communications from or on behalf of Prime Minister Anthony Albanese to United States President Joe Biden relating to Julian Assange, between May 23 2022 and January this year, turned up nothing — after Albanese promised voters he was doing all he could to secure Assange’s release. He wrote about the matter himself.
In another instance, reporter Royce Kurmelovs was able to confirm the existence of an email sent to staff by the Department of Human Services explaining “a number of debts” wrongly issued.
“I had seen the email and asked for it under FOI, but the department refused to hand it over. In refusing it, they confirmed it existed and was real, so instead of waiting for the appeal to come through, I wrote the story and the details were confirmed at [a] Senate estimates hearing,” he told Crikey.
“It turns out the department accidentally released 10,000 debts after they built a dead-man’s switch into their system but the techs forgot to input the code when the timer finally ran out, and so the ‘zombie robodebts’ were sent out.”
Correct: A previous version of this story said Private Media was a member of the Right to Know coalition, which it is not.
