1. The issues
“A well-functioning and comprehensive FOI system acts as a deterrent against corruption within political systems, as those involved are aware of the high likelihood of being exposed. It also empowers the public with independent access to information, enabling greater participation in the political process and fostering a healthier democratic environment.”
Johan Lidberg, Associate Professor of Journalism at Monash University .
Researchers at Monash University undertook 377 surveys as well as interviews with 257 individuals at 96 agencies from hospitals, government departments, statutory agencies, local government and universities across Victoria, South Australia and Western Australia. They found informational bottlenecks, inadequate resources, and a lack of understanding or commitment to FOI principles beyond dedicated FOI teams in government agencies.
A culture of 'damage control' and reluctance to release sensitive information was found to create significant challenges for FOI coordinators, who struggle to comply with legislation while staff are perpetually underfunded. The culture has become one of secrecy and obstruction.
In some agencies, applications for even routine documents face delaying tactics and excessive and unjustifiable expense. To overcome delay, an information commissioner was appointed but even longer delays are now the norm with FOI applications taking two years or more to resolve. That said, enormous amounts of time and effort go into responding to FOI requests and it can be difficult to determine what is vexatious, unreasonably burdensome, a ‘fishing expedition’ and what is in the public interest.
2. Our plan
- Making proactive information release the default, rather than using FOI for access to information
- Requiring government information relating to policy decision-making to be in the public domain.
- Requiring Cabinet and other exemptions from FOI to be subject to a public interest test
- Reduce the scope of documents covered by cabinet confidentiality
- Publicly release Cabinet documents within 10 years instead of the current 30
- Government agencies to be more proactive in disclosing the details of the automated technologies they use
- Ensuring that terminology and procedures are reflective of modern digital environments rather than of the paper-based environments that prevailed when the FOI Acts were first enacted
- Streamlining consultation requirements to ensure that consultation is required only when it is reasonable and practicable
- Ensuring that legislative timeframes are realistic
- Making clear and adequate procedures for dealing with vexatious applications in legislation
3. The evidence
FOI laws were introduced in 1982 when hard copies were the norm and there has been no significant overhaul since.
The Senate Legal and Constitutional Affairs Committee inquired into Commonwealth Freedom of Information Laws in 2023-4. It made 15 recommendations. The inquiry found that Australia’s freedom of information regime has become “dysfunctional and broken” after years of funding and resourcing neglect and chronic backlogs caused in part by a pro-secrecy culture within the bureaucracy.
The Freedom of Information Act 1982 (FOI Act) gives citizens the right to request access to government-held information. This includes information they hold about people or about government policies and decisions. Agencies are required to respond within 30 days of receiving the application. Charges apply depending on the time spent on searching for or retrieving a document.
According to the OAIC annual reports, FOI requests to Victorian agencies reached 48,117 in 2022-23, higher than any other state bar WA.
‘The introduction of the OAIC in 2010 was supposed to speed up and cheapen the [Federal] FOI appeal process by providing a flexible clearing house antecedent to the AAT. According to Geoffrey Watson SC, it has in fact had the opposite effect on cost and speed. This conclusion is corroborated by the OAIC’s own data. Since 1984 the number of FOI requests has hovered between 20,000 and 45,000 per year…’
Current exemptions for FOI include:
- Documents affecting national security, defence or international relations
- Cabinet documents
- Documents affecting enforcement of law and protection of public safety
- Documents to which secrecy provisions of enactment apply
Conditional exemption documents include Commonwealth-State relations, deliberative processes of the Commonwealth Government. Operations of agencies and those that may have a substantial adverse effect on Australia’s economy.
4. References
New report exposes critical issues and highlights reforms needed in Freedom of Information culture and practices
Australia’s freedom of information system ‘dysfunctional and broken’, inquiry finds
Inquiry into the operation of the Freedom of Information Act 1982 Submission - The Australia Institute
Delay and Decay: Australia’s Freedom of Information Crisis
Schedule of FOI request fees and charges