Australia's freedom of information regime labelled 'dysfunctional' in scathing audit

Christopher Knaus and Lisa Cox
·4 min read

An audit of Australia’s “dysfunctional” freedom of information system has called for an independent investigation into the way the prime minister and ministers treat requests for government documents.

The Australian Conservation Foundation audited FOI outcomes for environment-related information over five years, and found the system is increasingly opaque, slow and costly.

The audit’s preliminary findings, previously reported by the Guardian, show that refusal rates had more than doubled from 12 to 25%, while the proportion of requests that were more than a month overdue stood at 60%.

Costs for environment-related FOIs was double the average, and lengthy review processes were being used as “a key tool for denying access to information”.

Related: Scott Morrison's office met freedom of information deadlines in just 7.5% of cases

The full ACF report, released on Friday, described the system as “dysfunctional” and called for targeted investigations by the information commissioner of the “negative trends in the outcome of requests for environmental information”.

The watchdog’s investigation should, at the very least, examine the actions of ministers and the prime minister’s office, the ACF said. The information commissioner has such powers, the report noted, yet had only used them twice between 2018 and 2020.

“Information critical to environmental protection and action on climate change is often released too late to be of any use, and often heavily redacted or withheld entirely,” the report finds. “This makes it increasingly difficult to hold governments to account for acting in the interest of people and the planet.”

The ACF called for the proper resourcing of government FOI teams and the Office of the Australian Information Commissioner, including the reappointment of a dedicated commissioner for FOI.

It said the current arrangement – where one commissioner is fulfilling duties previously undertaken by three – was “arguably unconstitutional”.

The report called for broader reforms to improve the FOI system, including the government being more upfront about how and where it searched for documents.

In July last year, Guardian Australia sought access to documents that discussed changing the boundary of the Ramsar-listed Moreton Bay wetland where Walker Corporation has proposed building up to 3,600 apartments for its Toondah Harbour development.

The department blocked the application in its original form because preliminary searches had identified 4,704 documents, making the scope too large to process.

After negotiations, revised search terms retrieved about 100 documents, of which just two were ultimately deemed within the scope of the application.

Those documents were released almost in full in December. The Guardian has now submitted a fresh FOI application.

The report recommended the information commissioner develop guidance for government on how information in non-official systems, email accounts and devices should be recorded.

“This is particularly important amid increasing use of WhatsApp and other mobile devices by ministers to conduct the business of state,” the report said.

The ACF also called for a parliamentary inquiry into transparency laws in Australia, examining the changing nature of information, WhatsApp and phone use, the suitability of compliance options, and FOI training.

As part of its research, the ACF analysed the use of exemptions to withhold FOI documents in part or in full, finding that their use had roughly doubled from 306 in 2015–16 to 593 last financial year.

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While this trend is partially explained by a greater volume of requests, the ACF has warned that their disproportionate use should raise “red flags”.

Cabinet secrecy is one exemption that is being used at a far higher rate to deny FOI material.

The use of the cabinet deliberations exemption has more than quadrupled in five years, from five cases in 2015–16 to 26 last financial year.

The use of the “personal privacy” exemption has also increased from 66 cases in 2015–16 to 164 last financial year.

The report also warned of the “aggressive” use of exemptions to withhold entire documents, instead of simply using smaller redactions to hide small portions of information.

Guardian Australia has a number of matters currently before the Office of the Australian Information Commissioner contesting the use of exemptions including cabinet secrecy and personal privacy in environmental FOI decisions. One of the cases awaiting a decision was submitted to the OAIC for review more than a year ago.

The Department of Agriculture, Water and the Environment said it routinely reports on its performance on FOI to the public and said it treats applications “in accordance with processes and timeframes under the Freedom of Information Act” and other regulations and guidance.

“The Department of Agriculture, Water and the Environment was formed on 1 February 2020 following machinery of government changes,” a spokesman said. “All requests received by the department have been processed within statutory timeframes.”