The full bench of the federal court will hear a case seeking to end chronic delays plaguing Australia’s freedom of information regime.
Rex Patrick, a former independent senator has lodged an appeal in his case against the Office of the Australian information commissioner, after a judge ruled this year that its at-times vast, multi-year delays in reviewing FoI decisions were not unreasonable, particularly given its funding constraints.
Patrick’s case, if successful, could have wide-ranging implications for a system he describes as “broken” and plagued by ongoing delays that often render information useless by the time it is released.
“Delay is the enemy of FoI,” he said. “There’s no point getting access to government documents several years after they lose their relevance, unless you’re an historian. Governments know that, and the current Labor government have adopted the same funding squeeze approach to the information commissioner as past Liberal governments.”
The OAIC has a key role in the functioning of FoI in Australia. It reviews government decisions on the release of documents to the public to ensure departments and agencies are following the law and complying with their transparency obligations.
But Patrick alleged the vast delays common to OAIC’s FoI reviews were unreasonable, and sought the court to intervene and compel it to make decisions by a certain date.
Patrick’s federal court case, heard in March, raised delays of almost three years in seven of his applications for review by the OAIC. Those FoI applications had sought documents concerning the Snowy 2.0 project, Covid-19 border closures, the Greater Sunrise oil and gas fields in the Timor Sea, the gas reservation policy and a decision about the location of a national radioactive waste management facility.
But justice Michael Wheelahan ruled against him, finding that the level of resourcing available to the OAIC must be taken into account when determining whether its delays were reasonable. Wheelahan said it was not for the court to tell the OAIC how to use the resources it was provided by the parliament.
“A claim that the information commissioner has engaged in unreasonable delays in completing the applicant’s applications for IC review must take account of the resources that are available to the Commissioner and the competing demands on those resources,” Wheelahan wrote. “It is for the Commissioner to determine the best and most efficient way to use the resources that are available.”
Wheelahan also found the evidence “did not demonstrate that the commissioner has treated the applicant any differently from any other applicant”.
“The orders sought by the applicant, if granted, would involve an inappropriate interference by the court with the information commissioner’s capacity to evaluate the entire workload of her statutory office, to assess the importance of competing priorities, and to determine how best to manage limited resources,” he found.
Patrick’s appeal says that the court failed to properly consider the FoI Act’s requirement that access to information be made in a prompt and timely manner.
“It just can’t be right that a transparency right granted to citizens by the parliament can be stripped away by a government that chooses to squeeze funding to the very office that helps facilitate the transparency right,” he said in a statement.
Patrick’s case is being supported by the Australia Institute, Matilda Legal and Grata Fund.
The Grata Fund executive director, Isabelle Reinecke, said under-resourcing should “never be an acceptable excuse for a government bodies’ failure to perform its basic statutory obligations”.
“Imagine the BOM apologising that it can’t communicate the weather because it’s so under-resourced?” she said. “This is an alarming breach of the separation of powers – the executive government has effectively neutered a statutory body’s ability to do the job parliament has given it.”
A spokesperson for the OAIC said it could not comment on court proceedings, except to say the OAIC acted in accordance with model litigant obligations.
“This means it is incumbent on the OAIC to respond to the matters raised by the applicant in the proceeding, and to cooperate with the court in determining those matters,” the spokesperson said.
Problems with the FoI system were brought into focus again last month when Leo Hardiman KC, the former freedom of information commissioner, gave explosive evidence to a Senate inquiry.
Hardiman alleged the OAIC had propagated false narratives, including a narrative that it had no control over the resourcing available to do FoI work. He said that narrative was presented in the Patrick case earlier this year.
Hardiman said he raised concerns about the narrative internally, because the OAIC itself had the power to divert departmental funds to FoI. He said he was unaware of whether the OAIC corrected the narrative to the court.
