Has the government forgotten who employs it? Everyone should get their Freedom of Information requests dealt with in a reasonable time, writes former senator and transparency warrior Rex Patrick.
When Ralph Nader coined the phrase, “information is the currency of democracy”, he was talking about timely information and information beyond what government actively decides to share.
And if you agree with the US consumer and transparency advocate’s proposition, then last week’s examination of the Information Commissioner’s (IC) performance at Senate Estimates by Greens Senator David Shoebridge would cause serious concern.
Last financial year the IC received 1956 applications to reviews agencies’ Freedom of Information (FOI) access refusals. That’s up 60% from the previous year. And of those, the IC only got through 1377. That’s a deficit of 579 reviews.
As of this week the IC has 2042 reviews in progress: 889 are from this calendar year, 498 are from 2021, 346 are from 2020, 249 are from 2019 and 60 are from 2018.
| <1 year | >1 year | >2 years | > 3 years | > 4 years |
| 889 | 498 | 346 | 249 | 60 |
Sixty from 2018! Yes. That’s three prime ministers ago.
From Estimates:
Senator Shoebridge:
Waiting more than four years for an FOI determination by your office defeats the very purpose of FOI. Some of these might have been in relation to now extremely former prime minister Malcolm Turnbull. It defeats the purpose, doesn’t it?
Information Commissioner Falk: “I don’t disagree with you that FOI should be about timely access to information.”
My experience with the IC is relatively good. Occasionally the Commissioner makes decisions that I don’t like, but that’s OK, because I have the choice to appeal to the Administrative Appeals Tribunal (AAT). Also in my experience, it’s rare for the IC not to vary or overturn challenged agency access refusals.
Recently we’ve seen a brave, albeit very late, decisions by the Commissioner to order the release of the Gaetjens Sports Rorts review.
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A worsening system
While an extra $5.5 million was given to the IC in the Budget to deal with the Optus data hack, nothing was provided to deal with the overload of FOI work.
The IC inferred in her testimony to Shoebridge that she needed an extra 18 case officers to deal with the tsunami of FOI review requests.
The FOI Commissioner was also blunt in expressing his views writing to the Attorney-General, Mark Dreyfus, KC in June, also expressed to the Senate:
We are unable to keep up with the incoming work with less funding for this function than we received in 2014-15, owing to the increased volume and complexity of the work.
Despite the Attorney-General swearing evidence in the Federal Court while he was in opposition to say that the system isn’t working, he’s happy to let the system worsen under his supervision.
The cost to meet the IC’s staffing wishes is less than 0.1% of the $4 billion the government wasted on the cancelled future submarine project (and, ironically, I’m still in the AAT seeking access to submarine project documents that would have shown it was going off the rails).
Transparency is a word that is only shouted from opposition benches.
Backwards and forwards
But it’s not all about resources. The IC has discretion and powers to run the reviews in a different way.
Right now, and I know this through my own experience, the Commissioner is shy in exercising her powers to get agencies to provide her with documents and assistance in a timely manner.
She also promotes a process whereby submissions go backwards and forwards and backwards and forwards between applicants and responding agencies as though they were playing a game of submission tennis. By contrast, the South Australian Ombudsman calls for documents from a state agency, makes a provisional decision, invites input and then concludes the review. It’s all over in a few months.
Finally, if the secrecy culture in the agencies could be addressed, the Information Commissioner would not need to deal with the large number of erroneous decisions she’s being asked to review. The IC recognises if she had more case officers, some could be used to develop a “pro-disclosure culture” across government.
Prevention would be so much better than cure.
$700,000 in wasted resources
At the conclusion of the IC’s appearance at Senate Estimates, Shoebridge probed her on the case I have bought against her in the Federal Court.
Senator Shoebridge:
I suppose I’m equally troubled by the fact that, while we’re seeing delay of this order, significant resources from your office are being spent defending against a case brought by a former senator who is simply trying to assert that you have an obligation to deal with these matters in a reasonable amount of time. Do you say you have no obligation to deal with matters in a reasonable amount of time?
Information Commissioner Angelene Falk: “We seek to deal with all matters in as timely a manner as possible. It’s regrettable that we have a legacy case load.”
Senator Shoebridge: “But you’re out there opposing a case that is simply trying to say that your office has an obligation to decide matters in a reasonable amount of time, to which you’re saying, ‘No, we don’t.’ That’s the case, isn’t it?”
Half a million squandered by Information Commissioner on frustrating public’s right to know
The IC went on to reveal an estimated $700,000 of taxpayer’s money would be spent on the case and that, additionally, the case had been “a significant impost on the office”. That’s money and resources that could have been spent on getting on with delayed FOI reviews.
But the IC is refusing to acquiesce to the idea I’m advancing in the Federal Court that she should not take an unreasonable time frame to do her job.
The IC explains her concern:
And, in terms of the remedy that is sought, it would require me to prioritise [matter above hundreds of other applicants], merely because they have the means to bring the legal proceedings.
That misses the point completely. No-one wants to commence litigation. And I certainly don’t want to be treated specially in the event that I win.
I want the court to determine what is reasonable in terms of the time the Information Commissioner is taking to do her job. I want a precedent to be set for others to use.
Everyone should get their FOI requests dealt with in a reasonable time so that they in possession of the currency of democracy that Nader refers to. Sadly, the IC is bankrupting everyone’s power of democratic participation.
Editor’s Note: this story from ten years ago …
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 - www.transparencywarrior.com.au.