Freedom of Information laws are crucial to ensuring the transparency and accountability of policy and government decision making by giving Australians access to the information they need to participate fully in democratic processes.
However, systemic deficiencies in the federal FOI regime, including the existence of broad exceptions under the Freedom of Information Act 1982 (Cth) and persistent underfunding of the Office of the Australian Information Commissioner (OAIC), have eroded the effectiveness of the FOI regime, shielding politicians from public scrutiny and undermining public confidence in the integrity of government and public institutions.
Recent developments surrounding the deletion of FOI requests relating to Christian Porter’s ‘blind trust’ by the Department of Industry, Science, Energy and Resources have highlighted important gaps in the existing FOI regime. Further, the existing FOI regime has been plagued by unreasonable delays in the processing of FOI requests, rendering information provided pursuant to legitimate FOI requests irrelevant or obsolete due to the passage of significant time (i.e. often years later). These issues have resulted in a significant deterioration of the utility of the FOI regime over the past few years, and, subsequently, diminished the accountability of our public institutions and those who serve them, resulting in the erosion of Australians’ confidence in the integrity of public institutions, politicians and government.
NSWCCL wrote to the Australian Information Commissioner to express our support for OAIC taking a leading role as part of necessary and urgent reform to the existing FOI regime, and in particular the way the FOI Act is applied by Government agencies.
We consider that the current application of the FOI Act to deny access to information in circumstances whereby an applicant requests the documents of a former Minister is inconsistent with the aim of open government, which the FOI Act is intended to facilitate. To this end, NSWCCL supports efforts by Senator Rex Patrick to challenge the relevant sections of the FOI Act in court and, if unsuccessful, by seeking to move amendments to the FOI Act in Parliament.
NSWCCL urged that:
- OAIC review and reconsider its current interpretation of s 4(1) of the FOI Act (as provided for in paragraph 2.52 of the OAIC Guidelines) in order to facilitate access to the documents of a former Minister;
- OAIC initiate further investigations into the handling of FOI matters by government agencies and where relevant propose recommendations (in order to address systemic issues relating to the application of the FOI Act by Government agencies resulting in unreasonable delays in the handling of FOI requests); and,
- OAIC be provided with increased funding in order to properly manage its FOI functions (including reviews), thereby increasing the efficiency and transparency of Australia’s FOI system.