The Freedom of Information process is turning contemporary information useful for current debate and scrutiny into historical information of limited value. Rex Patrick knows it all too well.
Delay is just one of the tactics employed by ministers and agencies to frustrate citizens who make FOI requests. An exemption claim can be made that sees the FOI applicant refer that claim to the Information Commissioner for review. Agencies know that the Information Commissioner can take four to five years to overturn a bad decision.
But wait … there’s more.
If the Information Commissioner does overturn the decision, the minister or agency can just appeal that new decision to the Administrative Review Tribunal (ART).
In South Australia, when the Government doesn’t like an Ombudsman review (their equivalent of the Information Commissioner), it can only appeal to the SA Civil and Administrative Tribunal on “a point of law” and when they do, they must pay the applicant’s lawyer’s fees.
Not so in the Commonwealth jurisdiction. A federal Minister or agency can just have another go. To make matters worse, the government must engage professional lawyers and barristers to fight their case in the ART, leaving the poor citizen standing alone at the Tribunal’s bar table with a ‘picnic’ of lawyers arguing against them.
A year of appeals
In the past year, I’ve had several decisions that have taken four or five years for the Information Commissioner to overturn in my favour, only to have the Government lodge an ART appeal.
To make matters worse, they can lodge an appeal and then advance new exemptions that weren’t claimed previously, forcing the FOI applicant to start all over again.
In April 2024, I won an Information Commissioner review against a 2020 War Memorial decision hiding our history. The War Memorial appealed the decision and then asserted brand new national security exemptions.
They have since engaged an expensive Senior Counsel and successfully had the matter transferred to the Intelligence and Security Jurisdictional Area of the ART, and put forward an argument against document disclosure using secret arguments, backed by secret evidence from a secret witness from a secret agency.
I have no chance of holding on to the original win.
In October 2024, I won an Information Commissioner review against a 2020 Treasury decision refusing public access to why the Foreign Investment Review Board approved a Chinese company’s acquisition of Bellamy’s baby formula operations in Tasmania.
Rex finally cracks secret FIRB safe, finds vaults of ‘protected information’ for foreign interests
Treasury appealed the decision, and in the last few days have indicated that they intend to advance a new national security-related exemption and they want the matter transferred to the Intelligence and Security Jurisdictional Area of the ART. Déjà vu!
Finally, last month, Defence lost an FOI case in an Information Commissioner decision that was scathing of them. This week, they indicated that they are appealing the matter to the ART. I suppose it’s a case of ‘watch this space’.
Breaking ‘Model Litigant’ obligations
When a Minister or Agency really doesn’t want information released, they’ll appeal the independent umpire’s decision to the ART, causing further delays.
The government not arguing a particular exemption in one proceeding, and then adding it in when they lose on their original claim, is another technique that unnecessarily utilises the resources of the Information Commissioner and the ART, and adds further cost to the taxpayer.
It’s a breach of the model litigant rules, which state:
“The obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency by:
(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation
…
(c) acting consistently in the handling of claims and litigation
…
(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim
…
(h) not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest.”
Except, it appears, if these tactics are needed to avoid handing over information…
Rex Patrick is a former Senator for South Australia and, earlier, a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is also known as the "Transparency Warrior."