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10 September 2021

In the wake of his recent National Cabinet transparency win, Independent Senator Rex Patrick has commenced proceedings in the Federal Court to force Prime Minister Morrison’s Government to deal with significant delays in Freedom of Information (FOI) reviews.

“It is with regret I have had to take the Australian Information Commissioner to court to force the Government to fix the deliberate train smash that has occurred in the FOI review regime,” Senator Patrick said. 

“The obstructive tactics of Federal Ministerial offices and government departments and the chronic under-resourcing of the Information Commissioner’s office has led to an absolute mountain of FOI reviews building up, resulting in extended delays that effectively block timely access to information.”

Senator Patrick has successfully twisted the Government's arm to have a Freedom of Information Commissioner appointed for the first time since 2014, but this simply won't be enough to deal with the unreasonable delays in FOI review system.

“The present Government is absolutely allergic to transparency and accountability, and they have wrecked the national FOI system. It’s vital for our democracy that action is taken to fix that. ” 

The Freedom of Information Act 1982 imposes an obligation on the Information Commissioner to make a decision in FOI reviews, but does not place a time frame on the review. However Section 7 of the Administrative Decisions (Judicial Review) Act 1977 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 have seen more than 300 applicants waiting more than a year for decisions to be made. As of October 2020, 55 journalist FOIs were outstanding for more than one year and 31 more than 2 years.

Senator Patrick currently has 22 applications under the FOI Act which are the subject of refusals or partial access decisions by government departments and upon which he has sought Information Commissioner reviews, but has received no decision. Two review applications are outstanding after more than two years; twelve have been waiting for more than a year; and a further five have been with the Commissioner for more than six months. 

On 18 August, Senator Patrick received advice from the Information Commissioner that an application for review of a Department of Health FOI decision relating to aspects of Australia’s COVID-19 response may take up to twelve months just to have the matter further considered by a review advisor.

“The backlog of FOI reviews is a huge problem for efforts to improve government transparency and accountability”, Senator Patrick said. 

“People do get positive decisions from the Information Commissioner that grants them release information, but the information comes too late to be useful in engaging in policy discussion and debate. The late release of information denies opportunities for informed democratic participation, it only provides a means to write history. That’s not how the system is supposed to work.”

“This isn’t an accidental or an unintended policy failure.  It’s quite deliberate.  At the very highest levels the Government has been encouraging opaqueness and obfuscation.”  

“Well aware of the worst instincts of their political masters, government officials are making reckless FOI decisions that are designed to deny access to information, often across the board, and do so knowing that the review process will take years before any final decision is made.  They are setting aside the legislated transparency objectives of the FOI Act and their fiduciary duty to the public in preference to pleasing their Ministers.”

“Improper decision making has seen an increase in applications to the Information Commissioner whilst the Government has deliberately under-funded that agency. The Government have crippled the FOI watchdog while overloading it with access denial decisions.” 

“Whilst Federal Court proceedings will hopefully achieve resolution of my own matters, they should force the Government to address the very significant under-resourcing of the Office of the Australian Information Commissioner. There is a mountain of obstruction that must be knocked over.” 

“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.”

The matter is one of public interest and Senator Patrick has asked the Court to recognise it as so. A number of individuals, NGOs and media organisations have offered support to the proceedings.

Senator Patrick thanks Victorian barrister Tiphanie Acreman for agreeing to assist in the matter and The Australia Institute's support assistance in meeting the cost of the Federal Court application fee.