MEDIA RELEASE

5 March 2024

Civil society urges Attorney-General to fix broken Freedom of Information system

Legal organisations, freedom of information (FOI) experts and media groups are urging Attorney-General Mark Dreyfus to publicly clarify the Government’s position on FOI reform.

Following a damning Senate Committee report into the operation of Commonwealth FOI laws, an open letter from organisations and individuals including the Public Interest Advocacy Centre (PIAC), Grata Fund, the Media, Entertainment & Arts Alliance (MEAA), Transparency International Australia and former senator Rex Patrick has emphasised the urgent need for reform.

It highlights the Albanese Government’s support for increased transparency while in opposition, but notes that reform of the FOI system continues to be under-resourced and under-prioritised. The signatories are calling on the Government to act in this parliamentary term to implement the recommendations of the Senate Committee Report, with a focus on:

  • increasing funding to the Australian Public Service to properly fulfil its FOI duties;
  • legal reforms to speed up processing of FOI requests: by setting mandatory timeframes,
  • closing loopholes, and removing internal agency reviews; and
  • committing to an independent investigation of the Office of the Australian Information Commissioner following troubling complaints about workplace culture.

The full text of the letter and list of signatories is below.

Comments attributable to PIAC Principal Solicitor, Jonathan Hall Spence:
‘The FOI system is convoluted and confusing. It prevents people from seeing information that agencies hold about them – information they are entitled to and that they need to understand their legal rights.’
‘PIAC represents people who have been handcuffed to go to medical appointments while they’re in immigration detention. Border Force says use of handcuffs is based on ‘risk’, but when our clients try to get information to understand how risk is assessed, the documents we receive are
so heavily redacted they tell us nothing. Without that information, we don’t know if the handcuffing was done appropriately or lawfully.’
‘The Albanese Government came to power vowing to restore trust in government. It’s time they showed they are serious by committing to repair Australia’s dysfunctional FOI system.’

Comments attributable to Grata Fund Executive Director, Isabelle Reinecke:
‘The FOI system is so broken that Australians are regularly forced to take the government to court to get them to do the right thing. Some of the cases we and our partners are supporting right now are over documents with huge public interest value, yet were denied on dubious
grounds – such as Justin Warren’s battle for Robodebt documents, and Rex Patrick’s fight for ‘sports rorts’ documents.’
‘It shouldn’t take a court case to access government information in the public interest. It’s our legal right, enshrined in the FOI Act. The Albanese Government must put urgent FOI reform on its integrity agenda.’

Comments attributable to Rex Patrick:
‘FOI is a transparency right granted to citizens by the parliament. But delays and dysfunctions are stripping us of this right.’
‘The objectives of the FOI Act are to increase public participation in Government processes and increase scrutiny, discussion, comment and review of the Government’s activities. That can’t be achieved if citizens won’t even enter the minefield that is the FOI regime. Neither can it be achieved with 3 to 4 years delay for those with the skills and tenacity to walk the minefield. By that time all you receive is historical documents, often of a past Government.’
‘It’s time the Albanese Government came good on its promise to restore integrity and fixed FOI.’

Comments attributable to MEAA Media Federal President Karen Percy:
‘Media freedom is crucial to a functioning democracy, yet the operation of Australia’s freedom of information laws is preventing our members from reporting the facts and holding power to account.’
‘Our members tell us that the FOI regimes are costly, time consuming, and largely seen as unproductive. If documents are released they are so often subject to extreme levels of redaction. This is contrary to the public interest and undermines the public’s right to know.
‘The Albanese Government must act on its promises to reform the FOI system, so journalists can continue their important role in scrutinising the actions of governments, agencies and institutions.’

Comments attributable to Transparency International Australia CEO Clancy Moore:
‘Our FOI system can feel like trying to navigate a maze blindfolded. The system is overly complex; it can take months if not years to move through and means that important government information and decisions are often hidden under a cloak of secrecy.
‘The government can clear the path by committing to the reform that is needed – removing loopholes, and resourcing the system effectively so that trust in FOI is restored.’

JOINT LETTER TO ATTORNEY-GENERAL MARK DREYFUS URGING FREEDOM OF INFORMATION REFORM

Dear Attorney-General,

Freedom of information reform is long overdue.

We write to urge the Government to act on the recommendations made in the recent report of the Senate Legal and Constitutional Affairs References Committee’s inquiry into the operation of the Commonwealth Freedom of Information (‘FOI’) laws.

As you will be aware, the Committee unanimously acknowledged the need for urgent reform to the FOI system. The Committee’s report describes a highly dysfunctional, under-resourced FOI regime, citing multi-year delays, excessive use of exemptions, problematic interpretations of FOI laws, prohibitive expenses, and cultural issues within the Australian Public Service (‘APS’) and at the Office of the Australian Information Commissioner (‘OAIC’).

While in opposition, Labor rightly decried a culture of secrecy and impunity that thrived under the Morrison Government. Now in government, your department has taken positive steps toward remedying this, including establishing the National Anti-Corruption Commission and introducing legislation to establish the new Administrative Review Tribunal.

While we welcome these reforms, we note that the Albanese Government has continued to under-resource and under-prioritise the reform of FOI— a core transparency function, vital for restoring integrity and public trust in government.

The recommendations contained in the Senate Committee’s report represent a comprehensive, actionable blueprint for reform, and an opportunity for the Albanese Government to demonstrate its election commitment to open government and a strong democracy.

We urge the Government to act, in this term, to implement the Committee’s recommendations, with a particular focus on:

  • Increasing resources for FOI administration and oversight with an overdue injection of funding into the FOI functions of the APS and OAIC.
  • Legislating reforms to the Freedom of Information Act 1982, to remove internal agency reviews and introduce statutory timeframes for finalisation of FOI reviews.
  • Amending the Freedom of Information Act 1982 to ensure that a change in minister does not impede the right to access documents under the FOI system
  • Conducting an independent investigation of the troubling complaints about workplace culture and leadership at the OAIC.

The FOI system is crucial to ensuring government remains transparent and accountable. It enhances public participation in representative democracy and leads to better quality decision-making through increased scrutiny, discussion, comment and review of government activities.

We are deeply concerned by the dissenting inquiry report released by the Government members of the Committee, which expressed support for Australians’ right to obtain information through FOI laws but failed to meaningfully engage with the delays, cultural issues and under-resourcing within the system. Without taking further steps, the Government’s support of the public’s right to access information is hollow.

Our organisations, representing broad interests and experiences across the community, therefore call on the Government to uphold its commitment to accountability and transparency and urgently fix the deeply broken FOI system.

Together, we urge you to publicly clarify the Government’s position on FOI following the Senate Committee’s report, and share your intended plans for reform to resolve pressing issues undermining the FOI function, which are now beyond dispute.

Signatories:

Accountability Round Table

Australian Conservation Foundation

Australian Democracy Network

Centre for Public Integrity

Community Legal Centres Australia

Grata Fund

Lauren Gray

Media, Entertainment & Arts Alliance

NSW Council for Civil Liberties

OpenAustralia Foundation

Peter Timmins

Professor Peter Tregear OAM

Public Interest Advocacy Centre (PIAC)

Refugee Advice and Casework Service (RACS)

Rex Patrick

Transparency International Australia

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