Yesterday evening, the Senate’s Legal and Constitutional Affairs References Committee released its report into the operation of Commonwealth Freedom of Information (FOI) laws.
The Committee’s report paints a damning picture of a highly dysfunctional, under-resourced FOI regime, citing multi-year delays, excessive use of exemptions, problematic interpretations of FOI laws, prohibitive expenses, and cultural issues within the APS, including government agencies and at the OAIC.
It echoes long-held concerns of journalists, civil society groups, and parliamentarians from across the political spectrum, and identifies how the broken system is preventing Australians from accessing information they need to understand and enforce their rights.
The report makes 15 recommendations, representing a comprehensive overhaul of the plagued transparency function. These include:
Reform of FOI timeframes and review processes, including the removal of internal agency reviews and the introduction of statutory timeframes for external FOI reviews;
The overdue injection of more funding to FOI administration and oversight;
The amendment of the FOI Act to ensure that a change in minister does not impede the right to access documents under the FOI system;
An independent investigation of the troubling complaints about workplace culture and leadership at the OAIC;
The relocation of the FOI Commissioner and its functions from the OAIC to the Commonwealth Ombudsman; and
A focus in the OAIC’s strategic assessment (funded under the 2023-24 budget) on how FOI processes, fee regimes and proactive disclosures can be improved.
Democracy advocates Grata Fund, Rex Patrick, the Australia Institute, the Public Interest Advocacy Centre, and the Centre for Public Integrity strongly endorse the majority report’s recommendations, and urge Attorney-General Mark Dreyfus and the Albanese Government to take immediate steps toward implementing them (see below for individual statements).
The groups welcome the Committee’s recognition of FOI as a critical pillar of a healthy democracy, and underscore the vital role FOI plays in allowing the community to scrutinise government and participate in its decision-making.
The Government Members of the committee issued a dissenting report indicating they do not support the recommendations in the majority report.
Bill Browne, Director of the Australia Institute’s Democracy & Accountability Program, says:
“Democracies depend on transparency, but Australia’s freedom of information systems are not giving the public the information they are entitled to. Public servants and ministers have abused the freedom of information system to delay and obfuscate, holding back information that is in the public interest.”
Jonathan Hall Spence, Principal Solicitor – Strategic Litigation at the Public Interest Advocacy Centre (PIAC), says:
“In PIAC’s work, we regularly see how years of mismanagement and neglect have created massive problems in the FOI system, preventing Australians from knowing what their government is doing or even seeing the information it holds about them. The Commonwealth should welcome, not fear, a robust FOI system that creates accountability and confidence in government.’
Geoffrey Watson SC, Director of the Centre for Public Integrity, says:
“We are entitled to know how we are being governed, why we are being governed, and who is making the decisions which affect our daily lives. The growing secrecy in Canberra has denied us that opportunity. It’s time for it to be reversed”.
Rex Patrick, Executive Director at Transparency Warrior, says:
“Anthony Albanese came to Government promising greater transparency of Government than what had been occurring under Prime Minister Scott Morrison. The bar he set was a pretty low one.
As someone who did just under 300 FOI’s to the Morrison Government and has done 260 to the Albanese government, I’m qualified to say that it’s hard to tell the difference between the two. Albanese hasn’t even tried to exceed Morrison’s low bar.
Everyone knew Morrison was a secrecy maniac, and that he wasn’t too bothered about being labelled that. Albanese tries to pretend his government is awash in transparency. But the truth is, he’s a secrecy wolf wearing transparency sheep’s clothing. The latter situation is worse.”
Isabelle Reinecke, Executive Director at Grata Fund, says:
“The Senate’s report well and truly sounds the alarm on the state of crisis in our FOI system. It has also handed the Albanese Government the blueprint for fixing it — now the government needs to enact it and truly commit to open government and a strong democracy.”
REPORT: The operation of Commonwealth Freedom of Information (FOI) laws, Senate Legal and Constitutional Affairs References Committee
Last year, 7,505 FOI requests (three in 10) were determined late
The Commonwealth FOI review process had a backlog of 967 reviews that have been outstanding since 2021 or earlier, including 34 from 2018.
Last year, in 2022, the FOI system cost $2,551 per FOI request determined, more than twice the $730 per FOI request determined in 2007, even after adjusting for inflation