Queen Elizabeth has died yet an FOI request into plans for her death, made 4 years ago, lives on. The institutions responsible for citizens getting timely access to information that would otherwise allow them to participate in policy debates and hold the government to account are broken. It’s like getting spoilt fruit instead of fresh, reports Rex Patrick.
As a 16-year-old junior recruit in the Navy, I’d visit the mess hall three times a day to eat. There were always bowls of fruit around to supplement the meal or to take back to your cabin, but the fruit was always spoiled.
One day I plucked up the courage to ask the Leading Seaman cook if we ever got delivered fresh fruit. “All the time”, he said. “But we never put it out until the old fruit is eaten.” Go figure!
39 years later the same things happening to me, except this time it’s the Australian Information Commissioner serving up old fruit. But I’ll come back to that.
A Series of Greek Tragedies
On 7 November last year Green’s Senator David Shoebridge grilled the Freedom of Information Commissioner (a separate statutory office that works alongside the Information Commissioner) at Senate Estimates asking him for the statistics on outstanding FOI appeals sitting in his office. He answered:
For 2018 there are 60 ongoing reviews; for 2019 there are 249; for 2020 there are 346; for 2021 there are 498; and for 2022 there are 889.
Come on Mr Attorney-General, transparency is more than a cry for opposition benches
As readers will know, I have a keen interest in the performance of the FOI Commissioner. After that exchange in the Senate, I FOI’ed the Office of the Australian Information Commissioner (OAIC) to get the details on the nature of the sixty 2018 requests – that is requests for review that remained unresolved after more than four years? What sort of information was being withheld for that length of time?
The OAIC has now responded to my FOI and the list reads like a series of Greek tragedies.
There’s the request to the Department of Veteran Affairs (presumably from a veteran) for documents related to correspondence sent to him or her. Four years later and no decision on access from the Information Commissioner.
There’s the request to the Tax Office for documents relating to actions taken by the ATO against the applicant in relation to their own tax affairs. Or the request to the Department of Industry for information related to the applicant’s business.
There are other requests to Home Affairs and law enforcement that are most likely associated with immigration and legal matters.
The list goes on and on.
When I appeal questionable FOI decisions to the Information Commissioner, they’re about access to information associated with really big policy issues. That doesn’t make them more important than requests for information that go directly to a person’s life or income. They’re important in their own way. And yet neither the public policy nor personally important access requests are being dealt with in a remotely timely way.
Broken Democracy
The aim of Australia’s FOI regime is clearly spelt out in the enabling legislation. It’s there to promote Australia’s representative democracy by increasing public participation in Government processes, promoting better-informed decision-making and by increasing scrutiny, discussion, comment and review of the Government’s activities.
None of that is happening.
There are FOI decision reviews still on foot relating to 2018 FOI applications related to all manner of public policy topics; medical transfers and evacuations from offshore detention centres, PFAS, the Rudd Labor Government’s 2009 Home Insulation Program, correspondence related to the establishment of the 2001 Australia Indonesia Regional Cooperation Agreement, documents relating to My Health Records rules. The list goes on.
If the intent of the original decision makers in the various government departments was to issue an FOI decision with overzealous redactions to delay their public disclosure, they’ve been more than successful.
And the Information Commissioner, through her outrageous delays, has aided and abetted them.
The whole thing is an administrative disgrace.
Falk Lines: Information Commissioner fights for the right to hide information indefinitely, que?
London Bridge has Fallen Down
Perhaps the clearest example of the state of woe in the FOI world was the revelation that, since 2018, the Information Commissioner has been dealing with a request for access to Australian plans for “Operation London Bridge” – code name for the plan that was in place to respond to the death of Queen Elizabeth II.
The original application was most likely made by a journalist looking for the Australian counterpart to the United Kingdom Government’s plans that had been revealed in the British press.
Figure One – Review of an FOI request about “Operation London Bridge”
Since the review request has been made, the Queen has sadly passed away and the plan to mark the Monarch’s death rolled out in full view with all its pomp and pageantry. And yet the FOI review continues.
Spoilt Fruit
Returning to spoiled fruit …
In May last year I made an FOI request to the Department of Industry, Science and Resources for a brief held by the Department in relation to developing an East Coast gas reservation scheme. They responded confirming briefs existed but adopted the position that it was not in the public interest to release them. This was a pretty ridiculous claim. In the middle of a gas crisis, it wasn’t in the public interest for Australians to have Government briefs as to a solution to the crisis?
I requested an FOI review by the Information Commissioner and her office to expedite it. In December last year an OAIC assistant commissioner responded to me as follows:
“The OAIC is currently focusing on the case management and finalisation of aged matters, particularly the 305 IC review applications on hand received in 2018 and 2019. The OAIC received your IC review application on 19 July 2022 and I understand that there are approximately 1558 IC reviews on hand that were received prior to your application.”
A week or so ago the OAIC sent a similar letter to a client of mine stating that:
The OAIC has limited resources and is currently focused on finalising IC review applications lodged in 2018 and 2019.
It’s like my starting days in the Navy. The Information Commissioner is processing the spoiled fruit while keeping the fresh fruit stored away, until it’s spoiled fruit.
Clearly the FOI’s relating to contemporary issues is the fruit they need to be serving up.
I get it, though. The Information Commissioner can’t play God and choose which FOI is more important than the other – she’s taking a first in first out approach.
It just shows how broken the system is.
Ripped Fabric
Attorney-General Mark Dreyfuss claims he’s deeply interested in the fabric of government.
And yet he is very satisfied with under-resourcing the OAIC so that anyone who wants to participate in public policy discussion or deal with a contemporary issue can’t do so in an informed manner. They’re left with stale apples.
James Maddison nailed it in 1822 when he said:
A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.
Perhaps the current situation suits the government. I suspect the Attorney-General’s interest in the fabric of government is a bit like that of a teenage girl buying jeans. He wants the fabric that’s worn and ripped.
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.