The Federal Court to hear Rex Patrick’s case against delays in FOI requests
The Federal Court today will hear a challenge against the Australian Information Commissioner and its freedom of information (FOI) system, the outcome of which could have lasting impacts on how journalist access information that’s in the public interest.
Under The Freedom of Information Act 1982, public groups like journalists and civil society organisations have the right to request access to government-held information.
The Federal Court in Melbourne
The case was brought forward by former South Australian Senator Rex Patrick. Citing the recent resignation of FOI Commissioner Leo Hardiman as evidence of the FOI system’s inability to function, Patrick argued that delays in processing FOI requests “plagued” the public’ access to information and prevented government bodies from being scrutinised over their activities.
The hearing is expected to extend over two days.
“Delay is the enemy of FOI. The Information Commissioner is still processing FOI review requests that are almost five years old. Five years of delay on FOI reviews turns information that would otherwise be useful to engage in policy debates or conduct government oversight into information useful only to historians,” Patrick said.
“Agencies can say ‘no’ to releasing information under FOI knowing fully aware that once it enters the Office of the Australian Information, the information is buried for another three to five years.”
The Information Commissioner is currently under no legal obligation to reach a decision about FOI requests within a specific period of time. Patrick has asked the Federal Court to set a decision period for the Commissioner and define under what circumstances these kinds of delays become unreasonable.
A statement from Information Commissioner’s office said it aims to resolve all applications under Information Commissioner review (IC review) “as efficiently as possible and in accordance with all requirements under the relevant legislation”.
“A significant legacy caseload and an increasing number of IC reviews, combined with the impact of the COVID-19 pandemic, have affected our ability to deal with this caseload, given the resources we have available. Last year alone, the number of IC Review applications rose by approximately 63%.”
The office said it had made submissions on the issues raised, including the remedies sought, and filed evidence, but will not comment further as the case is before the court.
This hearing comes after amid the ongoing discussion of the Federal Court changing journalists’ access to court documents in January. Implemented without consultation, the new rules prevent journalists from accessing documents including statements of claim, originating applications, interlocutory applications and defences until first or directions hearings.
Speaking to Mumbrella at the time, professor of journalism and media freedom activist Peter Greste said the decision was “an attack on press freedom and runs against the principles of open justice”.
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Darcy Song was a reporter at Mumbrella, covering media owners, adtech and social platforms. She left in October 2023.
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