by A J George and Julie-Anne Tarr

 

A critical component in the success of much academic research is timely and cost-effective access to information. Often, we require access to (inconvenient, uncomfortable) government information. This is where Freedom of Information (FOI) laws should assist us – and why academics need to watch for the results of the latest FOI inquiry.

The Freedom of Information Act 1982 (Cth) gives Australians a right to access documents; it states the Act promotes democracy by increasing scrutiny, discussion, comment and review of the Government’s activities. Government information is to be managed for public purposes, and is a national resource. As far as possible, public access to information is to be provided promptly and at the lowest reasonable cost.

Unfortunately, at present, our FOI laws are broken. And unfortunately, this is not news. Questions around efficacy have beleaguered the FOI regime since its inception, resulting in a 1995 ALRC inquiry; they continued to 2010 , when reforms to insert the above right were introduced; they were discussed in the Shergold Report and the Thodey Review of the public service; and they have resurfaced again.

At the 2022 Universal Access to Information Day the federal government reiterated it was “firmly committed to transparency and accountability”– but exactly six months later the Freedom of Information Commissioner, Leo Hardiman, had quit and the Senate voted to establish another inquiry into Commonwealth Freedom of Information (FOI) laws.

Key to understanding the present inquiry is the legislation’s interface with the time-honoured Westminster political tradition of ‘secrecy’ in Cabinet government. While the legislation provides a right to access, it also provides a number of exemptions which allow the government to refuse disclosure.

Prime among these is the section 47C exemption for “deliberative matter,” allowing non-disclosure of any content in documents involving ministerial or agency deliberations, including policy-making and implementation. Even back in 1979, this was recognised as representing a “vast potential for frustration” of the legislative intent. The other main exemption is for any documents with the dominant purpose of submission to cabinet. This is a formidable exemption, and is not subject to a public interest test.

There are a number of other ways to circumvent the legislation, including s 24 “practical refusal”, where disclosure would “substantially and unreasonably divert the resources of the agency.” Fees for access may be charged – one notable example being a quoted charge for $605,284.72 for a single application which was ultimately reduced to just $284.

The other issue is timeliness – which this is at the heart of the current inquiry. The FOI Act requires a decision on access or refusal within 30 days, but this does not apply to reviews by the Information Commissioner. In our article, we note that in 2018-19 of 928 applications for review, average time to complete was 7.8 months (up another month from the previous year), and almost two thirds (61.7 per cent) of agency decisions were set aside. In 2017-2018 complaints rose 72 per cent, and 18 per cent took longer than 12 months. Complaints mostly related to charging, timeliness and poor service.

In May this year, the Office of the Australian Information Commissioner (OAIC) was still reviewing 34 matters from 2018, 172 matters from 2019, 310 matters from 2020, 451 matters from 2021, 702 matters from 2022 and 391 matters from this year alone. As many academics will attest, such protracted delays will often mean the information becomes redundant, rendering the research unpublishable.

Part of the timeliness problem is, as noted, a lack of statutory timeframe for the OAIC to complete reviews of agency decision-making.

This was exacerbated by the recent Federal Court judgment in Patrick v Australian Information Commissioner. The court’s intervention was sought regarding cases that were outstanding (up to 3 plus years). Given there was no statutory timeframe, the “reasonableness” of delay became the benchmark to meet. In looking at reasonableness, the court took into account the OAIC’s severe staff shortages and resourcing constraints that led to delay and drove out timelines. This, the Judge concluded, meant the delay was reasonable, and: “[w]hether the situation is acceptable is not a question for the court to decide.”

Against this reasoning and the current statute’s framing, all academics should therefore lend strong support to the proposition that a pressing need exists for a considered overhaul of the FOI framework – and resulting budget and staffing capacities that flow from this.

Absent a formal timeframe “trigger point” being established in the Act, which in turn attracts penalties for non-compliance, continuation of the “unreasonable delay” standard will ensure the office remains subject, as  commentators have standardly referred to it, to productivity constraints through “starving” of FOI resources.

Commissioner Hardiman’s unwillingness to further enable this dynamic is therefore to be applauded. The capacity of the Albanese government to rectify this and restore the critical role of transparency and timely access to what are publicly owned information documents will be something that requires close scrutiny going forward.

Dr Amanda-Jane George teaches IP law at CQU. She has an LLM in intellectual property. Prof Julie-Anne Tarr teaches Commercial Law at QUT

Dr Amanda-Jane George teaches IP law at CQU. She has an LLM in intellectual property. Professor Julie-Anne Tarr teaches commercial law at QUT