Former senator and transparency advocate Rex Patrick has lost his appeal to the Full Federal Court challenging the Australian Information Commissioner’s multi-year delays in handling FOI reviews.  Some of Patrick’s outstanding FOI reviews have been awaiting decision for almost four years.

In a longstanding legal battle, Patrick sought to draw a line in the sand on lengthy FOI delays plaguing the dysfunctional regime and inhibiting timely public access to government information. He argued that the FOI Act requires information to be made accessible in a prompt or timely manner, and that the delays he experienced in his FOI reviews were objectively unreasonable.

Late yesterday, the Court recognised that the delay in processing Patrick’s FOI application was “very lengthy” and “unfortunate”. But it ultimately determined that resourcing is relevant in whether a delay is unreasonable. This effectively gives governments a license to underfund the Office of the Australian Information Commissioner (OAIC) and frustrate the FOI system without consequences.

The Court also noted that there was no ‘one size fits all’ time limit for Information Commissioner review decisions. This leaves little recourse for people waiting multiple years for FOI reviews to be finalised, often rendering information sought irrelevant and limiting scrutiny of government decision-making.

Rex Patrick has vowed to continue his fight to tackle lengthy FOI delays and government secrecy more broadly, and will be considering whether there are grounds to appeal this case to the High Court.

Ensuring that people can access government information in a timely manner through the FOI system is an essential part of a healthy democracy, but Australia’s FOI system is regularly described as broken. A Senate inquiry into the regime late last year found it to be highly dysfunctional and under-resourced, citing multi-year delays, excessive use of exemptions, problematic interpretations of FOI laws, prohibitive expenses, and cultural issues within the Australian Public Service and at the OAIC. It made 15 recommendations for reform, including setting statutory timeframes for the FOI reviews at the Information Commissioner level.

Patrick’s case is supported by The Australia Institute, Matilda Legal and Grata Fund, who is an advocacy partner, and Mr Patrick’s legal team: Estrin Saul Lawyers and barristers Stephen McDonald SC (prior to his appointment to the Federal Court) and Tiphanie Acreman.

Rex Patrick, Director of Transparency Warrior, said:

“The ruling has significant implications beyond FOI. The court has effectively found it’s OK for the Government to remove a right granted to a citizen by a Parliament, just by not funding the Government apparatus that delivers or enforces the right. Imagine the Government squeezing court funding until there’s no ability for a citizen to seek a judicial review from a court, or perhaps even constitutional writs. The possibilities are disturbing.

“I thank the Full Court justices for their consideration of the matter, but can’t deny I’m completely devastated by the outcome. The judgment, as it stands, leaves the job of fixing the problem, by properly funding the OAIC, to the very Government that benefits from the FOI system being broken.

“I will be considering whether there are grounds to appeal the judgment to the High Court.”

Isabelle Reinecke, Executive Director, Grata Fund said:

“This is a disappointing outcome for our FOI system and government transparency.

“Years-long FOI delays are effectively allowing governments to avoid scrutiny, and blocking the public from participating in decision-making that impacts their lives.

“It’s not acceptable to deplete statutory bodies of funding to the point that they can’t fulfill their obligations, and then hide behind this excuse when dysfunction festers.

“The Parliament can and should resource FOI properly, and go even further. A Senate Committee into FOI has laid out a comprehensive blueprint for reform — the Attorney-General just needs to put it on his agenda.”

Bill Browne, Director of The Australia Institute’s Democracy & Accountability Program said:

“Starving the body that reviews FOI complaints of resources appears to be a deliberate strategy to shield the government from scrutiny.

“It is unacceptable that so many FOI requests are late, and that the watchdog responsible is so poorly resourced that it cannot review all the questionable FOI decisions referred to it.

“Today’s decision makes it clear that Australia’s FOI system needs urgent and substantial reform to give citizens the information they are entitled to and shine a light on government decision-making.

“The Albanese Government promised greater transparency and accountability, but that will not happen while the freedom of information system remains skewed towards delay, denial and obfuscation.”