The full federal court has rejected the Commonwealth’s attempt to keep ministerial documents beyond the reach of freedom-of-information requests after their authors leave office.
Three judges dismissed a federal government appeal against a single judge’s ruling made earlier this year in favour of former independent senator Rex Patrick. The self-described “transparency warrior” had challenged an FOI refusal that spanned four years, three attorneys-general and two governments.
The judges’ ruling on Wednesday confirms ministers can no longer assume their documents are automatically protected from FOI access after a ministerial reshuffle or change of government, in a case in which the originating judge had decried the practice of ministers shredding documents upon leaving office.
“Today the full court delivered a massive win for ministerial transparency and accountability,” Patrick told Guardian Australia on Wednesday.
Patrick’s 2020 request for Morrison government documents relating to sports grants funding took so long to consider through the FOI process that attorney-general Christian Porter had been succeeded by Michaelia Cash and then, after the 2022 change of government, Mark Dreyfus, by the time a final decision was made.
Dreyfus argued that the documents in question were not in his “possession” because of ministerial changeovers.
The case ended up in the federal court where Patrick argued that ownership of the documents belonged to the ministerial office, not the individual minister, and should transfer from one to the next.
The ruling relates to documents for which an FOI application has been lodged before a minister leaves office. The arguments came down to what constituted an “official document of a minister”, what constituted “possession” and whether those determinations should be made only at the time the FOI application was lodged – which was Patrick’s argument – or revisited later in the process when it was being decided.
Dreyfus, who brought the appeal, had argued that whether or not something was “an official document” could be revisited again when a decision was being made. He argued that if the originating minister had left office, the document could not be considered to be in a successor’s possession and was therefore not required to be released.
The judges rejected that argument. But some caveats within their ruling suggest there may still be practical obstacles to obtaining such documents under FOI, once their authors have moved on.
The judges found that aspects of the originating judge’s findings were “too prescriptive and go beyond what is necessary for the provisions of the [FOI] Act to operate”, suggesting the first judgment need not have specified how things should be done.
They disagreed that a minister dealing with an FOI request must personally maintain possession of it until the request is determined, nor the proposition that a new minister could demand a previous minister transfer custody of a document that is subject to an access request.
Such compulsion powers still reside elsewhere including with the information commissioner.
“Given the implications that may arise in relation to cabinet documents where there is a change in government, it may be that there are other ways of dealing with such a situation that preserve the applicant’s rights under the Act,” the judgment said.
The judges suggested transferring documents to an agency might be required, and upheld the finding that ministers must not frustrate the access process.
The judgment came as Dreyfus provided details to the Senate of what the legal proceedings had cost, estimated at $298,299.89. The figure, released in response to a request from senator Jacqui Lambie, did not include the appeal proceedings nor as-yet-unspecified costs awarded against the commonwealth for both the original case and the appeal.
“The sum total of all of this is that Mark Dreyfus has wasted over $300,000 in taxpayers’ money trying to defend the right of ministers to sweep their dirt under the carpet as they leave their offices,” Patrick said. He said a win for Dreyfus would have enabled future cover-ups.
“The irony of all this is that the document I am still seeking to obtain – a ‘sports rorts’ document from 2020 – was one that Mr Dreyfus called for scrutiny over when Labor was in opposition and he was the shadow attorney-general.”
A spokesperson for Dreyfus said the decision “raises significant legal questions around the operation of the Freedom of Information Act 1982”.
“The government is considering the full federal court’s decision.”
