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24 April 2021

Senator Rex Patrick has written to the Information Commissioner as a preliminary step to Federal Court action to force the Office of the Australian Information Commissioner to deal with significant delays in Freedom of Information (FOI) reviews.

“Regrettably, it looks like I’ll have to take the Information Commissioner to court to force the Government to fix the train smash that has occurred in our FOI review regime,” said Senator Patrick.

The FOI Act imposes an obligation on the Information Commissioner to make a decision in FOI reviews, but does not place a time frame on the review. Section 7 of the Administrative Decisions (Judicial Review) Act permits a citizen to seek relief from the Federal Court if an official fails to make a decision in a reasonable time frame.

Lengthy delays by the Information Commissioner in reviewing Ministerial and Departmental FOI decisions has seen more than 300 applicants waiting more than a year for decisions to be made. As of October 2020 55 journalist FOIs had been outstanding for more than one year and 31 more than 2 years.

“People eventually get positive decisions from the Information Commissioner that grants them access to information, but the information comes too late to engage in policy discussion and debate. The late release of information does not allow people to participate in democracy, it only provides a means to write the history. That’s not how it’s supposed to be.”

“At the very highest levels the Government has been encouraging opaqueness and obfuscation. Officials who have sensed the Government’s goal are making reckless FOI decisions that deny access to information, often across the board. They are setting aside their fiduciary duty to the public in preference to pleasing their Minister,” said Senator Patrick.

“Improper decision making has seen an increase in applications to the Information Commissioner whilst the Government has been deliberately under funding her office. The Government have consciously crippled the FOI watchdog.” 

“I have a number of FOI matters before the Information Commissioner due to bad decision making at the departmental Level. Four of them have been with the Information Commissioner for more than a year and another three for more than two years.”

“To expedite my matters, which are all related to my role as a Senator, I have written to the Information Commissioner foreshadowing the initiation of Federal Court Proceedings. It is my hope that whatever remedy I am able to achieve will benefit all who utilise the services of the Information Commissioner.”

“I am now in discussions with the Information Commissioner. Whilst court proceedings will force resolution of my own matters, the Government has to address the significant under resourcing of the Office of the Australian Information Commissioner, otherwise others may also have to adopt this approach.”

“A well-informed citizenry is the lifeblood of democracy and in all arenas of government it is information, particularly timely information, that is the currency of power.”

Senator Patrick's letter to the Information Commissioner is available on request.