A legal fight to speed up responses to freedom of information requests could set a precedent to stop governments starving key public services of funding. By Karen Middleton.

The Federal Court will soon hear a landmark appeal in a freedom of information case that seeks to stop governments avoiding public scrutiny by starving agencies of the funding that enables it.

Former independent senator turned transparency campaigner Rex Patrick is appealing against the judgement in a case involving the Australian Information Commissioner that he initiated in 2021. Patrick alleged persistent lengthy delays in reviewing freedom of information (FOI) requests were not only unacceptable but “unreasonable” under the law.

Patrick’s case centres on the role of the Freedom of Information Act, which is designed to hold governments to account by providing public access to information and allowing their activities to be scrutinised.

“There is a public interest in the objectives of the FOI Act being achieved,” Patrick told the court. “This requires that information which can be provided in accordance with the act is provided in a timely manner.”

The case that was heard in March last year arose from chronic delays in processing almost two dozen FOI requests Patrick had lodged with various government agencies. All had been sent on to the information commissioner for merits review as required and then stalled – some for two years or more – because the resources to deal with them were lacking.

At the court’s request, the former senator whittled the list down to nine key examples. Two were finalised while the case was under way, leaving seven for the court to examine.

Under the Administrative Decisions (Judicial Review) Act, people who are frustrated that a government agency is failing to make a timely decision can ask the Federal Court to find the delay “unreasonable” and make “an order of review”. However, the act does not define what constitutes an “unreasonable” delay, nor specify any remedy beyond that.

After two years of proceedings in which the Morrison and Albanese governments spent a total of $780,000 defending the delays, the Federal Court ruled against Patrick last year. Next week, it will hear his appeal.

In his original judgement, Justice Michael Wheelahan strongly criticised the delays but found they had occurred because of under-resourcing. On that basis, he determined they could not be deemed legally “unreasonable”.

Wheelahan observed that reviews by the information commissioner regularly involved “very significant delays” where they “may lie dormant for long periods and take years to complete”. He said Patrick, through his lawyers, had depicted that situation “with great clarity” via the seven examples and the evidence pointed to “an unquestionable shortage of resources”. However, he said that was not what he was required to judge.

“Whether that situation is acceptable is not a question for the court to decide,” Wheelahan said. “It is commonplace that resources available for government institutions and services, such as public hospitals, other care facilities, public transport, government schools, administrative decision-makers and courts, are finite.”

Underfunding of the Office of the Australian Information Commissioner has been the subject of complaint for a decade. The Abbott government sought to abolish the position in 2014, along with those of the freedom of information commissioner and the privacy commissioner. When the Senate refused to support the abolition legislation, the then government combined all three functions into a single office and dramatically reduced its funding. In the years since, the backlog of FOI applications has ballooned, with the office reporting in 2020 that of 325 applications awaiting review, 80 per cent had not even been assigned to a reviewer. Last year the number of unresolved matters had grown to 2060, some reaching back to 2018.

Transparency International’s chief executive, Clancy Moore, suggests under-resourcing has significantly undermined the role of FOI in holding governments to account in Australia.

“The fact that the previous federal government chose to leave the role of freedom of information commissioner vacant from 2014 to 2022, and the evidence of some departments’ underfunding of FOI functions, has clearly contributed to a broken system,” Moore tells The Saturday Paper.

He points to the findings of a Senate inquiry into the FOI system last year, which identified a “chronic backlog” and recommended a strategic assessment of the information commissioner’s role – then already under way in the attorney-general’s department – should examine the level of funding and make its findings public. Those findings were handed to the government this week.

In its report, the committee noted the information commissioner’s website called government-held information “a national resource” managed for public purposes, and said public access to it should have been both “prompt and at the lowest reasonable cost”.

In responding to Patrick’s original case, Information Commissioner Angelene Falk acknowledged the delays, arguing they were unavoidable given the workload and resources. In his judgement last year, Justice Wheelahan agreed, finding they were reasonable on that basis.

He said failing to meet “the expectations of some users of government services” did not on its own mean relevant officials had “acted unreasonably in the eyes of the law”.

“It is ultimately for the Commonwealth Parliament to legislate so as to appropriate monies to the Office of the Australian Information Commissioner in order to enable the discharge of the commissioner’s statutory functions,” the judge said. “Any legislative decision no doubt needs to balance competing budgetary demands, which are for the parliament to consider.”

While insisting he was not required to pass judgement on the government over how well it funded the commission, Wheelahan said he did have to consider how funding affected the commission’s work and “the competing demands on those resources”.

Rex Patrick had asked him to find they were unreasonable and to order the commissioner to finish reviewing his applications. Wheelahan found against him on the first request and said even if he had found in favour, legally he could not fulfil the second request.

“It is for the commissioner to determine the best and most efficient way to use the resources that are available,” Wheelahan said.

In reaching his decision, the judge assessed the delays in Patrick’s seven FOI applications in the context of a whole system marked by delays. In other words, he effectively assessed whether the delays in reviewing Patrick’s applications were any more unreasonable than the delays in reviewing others.

Patrick argues this is where the judge has erred. He says Wheelahan should have assessed whether the delays were objectively unreasonable when measured against the objectives of the Freedom of Information Act, not against other delays.

All parties had agreed the resourcing was seriously inadequate, but he argues that should not have been the basis for the ruling because while under-resourcing may explain the delays, it cannot be allowed to justify or excuse them.

Patrick emphasises the FOI Act makes information access a legislated right. “It turns a plea for information into a mandatory task for an official,” he tells The Saturday Paper.

In appealing, Patrick argues enshrining that duty in legislation naturally assumes sufficient resources will be provided to allow functions associated with it to be performed within a reasonable time. He says the issue is the extent of the delays and argues delays of the kind he experienced mean the system cannot be used as intended – that is, to hold governments to account.

In his appeal, Patrick has amended the orders he sought in the original case.

He abandoned his request that the court order the information commissioner to process his applications promptly. That avoids seeking any remedy that might require the court to effectively dictate to government how to order its administrative priorities.

Instead, the former senator wants the appeal judges to limit their considerations to Patrick’s matters alone. He argues any assessment should be based on whether the delays fundamentally undermine the public’s ability to access information, as the law is supposed to allow. He says some delays may be reasonable, even when the commission is properly resourced, but lengthy delays in which nothing is done for long periods are not.

“This is the one means that regular people have to seek information about issues that concern them and to scrutinise the government,” Patrick said of the FOI system this week. “It doesn’t require access to a senator or an MP or an auditor-general or an official of some sort to assist. You can do it all by yourself. It’s a unique power – a legally enforceable right.”

In response to his appeal submission, lawyers for the information commissioner effectively suggest Patrick is seeking to cherrypick the FOI Act and, while he is right that it emphasises timeliness, he is overlooking other factors.

“The provisions in relation to the timeliness of decision-making are qualified and also reflect a balance between the interests of applicants in timely outcomes and the need for proper consideration of the issues,” their response says, insisting the primary judge’s finding was correct.

Patrick argues that if a delay fundamentally undermines the whole purpose of an act, then a government is legally obliged to ensure the relevant agency is able to deliver on the act’s objectives, however that may be achieved. The commissioner responds that Patrick cannot point to any authority under current law to support his assumption – something he acknowledges, arguing the point has never been tested.

Even without a court specifically ordering the government to put more money into FOI processing, Patrick believes if it accepts his argument and finds the delays unreasonable, that is ultimately what the government would have to do.

“Freedom of information laws are essential to Australia’s democracy because they give the Australian public and media access to information about what the government elected by the Australian people is doing in their name,” Dreyfus tells The Saturday Paper.

Dreyfus is now the minister whose department is putting the information commissioner’s case. While in opposition, he provided an affidavit to the court in support of Patrick. Dreyfus told the court in 2021 that he, too, had FOI applications before the commissioner for merits review, one of which had been delayed by 18 months and another for more than two years. He said the delays had “hindered” him in performing his role as a member of parliament, “which includes scrutinising, discussing, commenting and reviewing the government’s activities”.

Progressive think tank The Australia Institute and public-interest litigation funder Grata Fund are supporting Rex Patrick’s case by indemnifying him against any adverse cost orders.

The appeal will be heard on Monday.

This piece was modified on February 24, 2024, to make clear that the increased funding to the commissioner was for both privacy and FOI.

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