Rex Patrick threatens to take information commissioner to court over FOI speed

By Shannon Jenkins

April 26, 2021

in late 2019 information commissioner Angelene Falk ordered Services Australia to release the documents.
In late 2019 information commissioner Angelene Falk ordered Services Australia to release the documents. (AAP Image/Mick Tsikas)

Independent senator Rex Patrick has threatened to take information commissioner Angelene Falk to court over “significant delays” in Freedom of Information (FOI) reviews.

Over the weekend Patrick said he hoped Federal Court action would force the Office of the Australian Information Commissioner to deal with what he has described as a “train smash” within the Australian FOI review regime.

“I have a number of FOI matters before the information commissioner due to bad decision making at the departmental Level. Four of them have been with the information commissioner for more than a year and another three for more than two years,” he said in a statement.

“To expedite my matters, which are all related to my role as a senator, I have written to the information commissioner foreshadowing the initiation of Federal Court Proceedings. It is my hope that whatever remedy I am able to achieve will benefit all who utilise the services of the information commissioner.”

The senator — who last year launched proceedings in the Administrative Appeals Tribunal after his FOI requests relating to national cabinet meetings were denied — noted that at least 300 applicants have waited more than a year for decisions to be made in relation to FOI reviews. As at last October, 55 journalist FOIs had been outstanding for more than one year, and 31 more than two years.

READ MORE: PM&C hires lawyer to fight attempts to access national cabinet documents

An OAIC spokesperson told The Mandarin that while the agency has “significantly increased” the number of information commissioner reviews it finalises each year, to more than 80%, improvements to review processes “are not able to keep pace with the continuing rise in the number of applications”.

The number of review applications lodged each year increased by almost 109% between 2015-16 and 2019-20. Meanwhile, the number finalised each year only increased by 83%.

“Last year, we finalised 72% of IC reviews (829) within 12 months,” the spokesperson said.

“In the first 8 months of 2020-21 (to 1 March 2021) we received 803 IC review applications, a 25% increase on the same period in 2019-20. During this period, the average time to complete an IC review was 8.2 months.”

Citizens can ask the information commissioner to review decisions that have been made in regard to FOI requests. While the FOI Act does require the commissioner to make decisions as a result of those reviews, it does not mandate a time frame for those decisions, Patrick noted.

The agency spokesperson told The Mandarin that the portfolio budget statement for the OAIC sets a target of 80% of information commissioner reviews to be finalised within 12 months.

Patrick has argued that by the time Falk grants people access to information, the opportunity to engage in policy discussion and debate has passed.

“The late release of information does not allow people to participate in democracy, it only provides a means to write the history. That’s not how it’s supposed to be,” he said.

He noted that individuals can go through the Federal Court where decisions have been delayed for an unreasonable amount of time.

The OAIC spokesperson said the agency seeks to resolve all review applications “as efficiently and effectively as possible”. However, the review process is often “complex”, due to many documents subject to review being sensitive, and many matters involving consideration of multiple exemptions and large volumes of material, they said.

“There are often affected third parties whose interests and rights need to be considered,” they added.

Patrick has accused the government of “encouraging opaqueness and obfuscation” and under-funding the OAIC.

“Officials who have sensed the government’s goal are making reckless FOI decisions that deny access to information, often across the board. They are setting aside their fiduciary duty to the public in preference to pleasing their minister,” the senator said.

“Whilst court proceedings will force resolution of my own matters, the government has to address the significant under resourcing of the Office of the Australian Information Commissioner, otherwise others may also have to adopt this approach.”

Patrick is currently in discussions with Falk.

READ MORE: Home Affairs to task senior public servant with addressing FoI compliance issues


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