Federal officials are flouting their own rules by rejecting fair requests to release documents and disclose the reasons for sweeping decisions, sparking a new warning about a “culture of secrecy” in politics and government.
The decisions have created a “clogged and slow” system that drags out many of the 35,000 requests from Australians under the Freedom of Information Act each year, with a soaring number of outright rejections.
A new report by the Centre for Public Integrity reveals a 50 per cent increase over the past decade in the proportion of FOI requests that have been refused in full each year and concludes the trend is denying Australians a basic right in making the government accountable for its actions.
“There is a degree of lawlessness about all of this – the research shows that close to one in four government decisions failed to comply with statutory deadlines,” write barrister Geoffrey Watson, SC, and researcher Max Douglass about the new findings.
Prime Minister Anthony Albanese came to power in May with a pledge to be more transparent after he accused his predecessor, Scott Morrison, of cloaking his government in secrecy.
The new report, to be issued on Monday, shows that 1.3 per cent of all FOI requests were decided more than 90 days late a decade ago, but the number had reached 12.4 per cent last year.
While the FOI Act was passed in 1982 with an expectation that decisions would take 30 days, the new research finds that almost half of all requests are being resolved outside the statutory timeframe.
In a close examination of FOI decisions and appeals, the study found many valid claims were being denied or delayed when they could have succeeded with faster access to an appeal to the Administrative Appeals Tribunal.
A key factor, the researchers found, was that the first step in an appeal against a government department was to the Office of the Australian Information Commissioner, an agency that does not have enough staff to decide matters quickly and slows the process of taking the case to the AAT.
Former Commonwealth ombudsman John McMillan warned in 2019 the government’s approach to FOI was undermining transparency and breaching the spirit of federal law, but decisions have become slower in recent years.
While the media uses FOI law to seek policy documents, most applications are from individuals and 77 per cent of all requests last year were for personal information. The majority of requests each year go to the Department of Home Affairs and Services Australia regarding decisions that have an impact on individuals.
The Centre for Public Integrity is a not-for-profit think tank with directors including former NSW Supreme Court judge Anthony Whealy, QC, former Victorian Court of Appeal judge Stephen Charles, QC, University of Melbourne professor Joo Cheong Tham and University of NSW professor Gabrielle Appleby.
Bret Walker SC, a leading barrister, said Australians should be able to find out about government decisions.
“Without knowing about what government is doing, the idea of democracy is defeated,” he said.
“The desire for secrecy has gone way beyond acceptable limits on the part of governments in this country. The supposed benefits of freedom of information legislation have nearly been destroyed by recalcitrant administrators and counterproductive exemptions.”
With the government working on draft laws to create a national integrity commission, campaigners for FOI reform want Attorney-General Mark Dreyfus to commit to greater transparency to honour the assurances he and Albanese made before the election.
Former independent senator Rex Patrick said he had five FOI requests that have taken more than two years to be resolved and several more that have taken almost three years.
The new report comes with seven recommendations including more resources for the Office of the Information Commissioner to rule on appeals and work across the federal government on a “pro-disclosure” culture.
The report recommends disciplinary sanctions when federal officials repeatedly make decisions that are overturned on appeal because they are contrary to FOI law, saying this could also extend to people who “direct or influence them” to make these decisions. It adds that criminal sanctions might also be available.
It recommends a cross-party committee in parliament to make government agencies more accountable for their FOI decisions and it seeks a change in the law so departments do not invalidate requests for information when there is a change of government or minister.
“The facts establish that transparency has been killed by pure bloody-minded obstruction,” write Watson and Douglass in The Sydney Morning Herald and The Age on Monday.
“The FOI scheme is now moribund. Claims of exemption are wantonly deployed to defeat transparency and accountability. The Morrison government has been the worst example of this – it was obsessed with secrecy.
“The research shows that the exemption claims being made by the federal government are frequently bogus. Close to half of the claims for exemption made by government are overturned on appeal. That is a shocking figure – it really demonstrates that the government is consistently wrong.”
Written by David Crowe. Originally published in the Sydney Morning Herald on September 5, 2022