Coalition unlawfully blocking freedom of information requests – The Guardian Australia

Australias freedom of information system is broken and the government is potentially unlawfully blocking the release of documents to the public, a new report has found.

Experts have long warned of the degradation of Australias FoI system, fuelled by increased delays and complaints, the use of heavy redactions and a higher refusal rate from government agencies.

On Thursday the Grata Fund, an organisation supporting public interest litigation, released the results of a two-year review.

The organisation found that despite its importance, Australias FOI system is broken and has written directly to the attorney general, Michaelia Cash, to warn that the overuse of exemptions to block the release of information is often unlawful.

The report identifies four areas where the handling of FoI requests would most likely be found unlawful, and contemplates using strategic litigation to test a series of issues before the federal court or administrative appeals tribunal.

They include the inappropriate use of cabinet confidentiality to block requests, and the unreasonable refusal of FoIs seeking text, Whatsapp, Signal or other electronic messages.

The common practice of ruling that documents in a ministers office cease to exist when they switch roles is also likely unlawful, the report says. Overused, broad exemptions from FoI should also be tested by the courts, including exemptions that withhold records that disclose personal information, law enforcement, commercial information, certain operations of agencies or deliberative processes.

Clarification of these provisions of the FOI Act, through the AAT or Federal Court, would create enforceable obligations on government bodies to apply the exemptions consistently with the Courts or Tribunals rulings, the report says.

Such test cases would follow the success of the independent senator Rex Patricks AAT challenge against the use of cabinet confidentiality to block FoI requests for national cabinet records.

The report also warns that the lack of resourcing for the Office of the Australian Information Commissioner is also contributing to the significant delays in that agency reviewing government FoI decisions.

Lou Dargan, Grata Funds head of strategic litigation, said delays reduced the worth of information and discouraged applicants from continuing to pursue requests.

Weve been hearing from partner organisations who use the FoI system all the time that it can take up to two years for an officer to be appointed to even look at your case, she told Guardian Australia.

Its really hard to see all of these efforts by various government agencies at various times, and ministers offices, to delay the release of information as anything other than gaming the system.

The report said government bodies only granted 26% of FoIs for non-personal information in full in 2019-20. A further 34% were granted in part and 41% were refused.

About 10% of FoIs were decided more than 90 days late, a five-fold increase from the previous year. Delays have worsened each year for three years, and 79% of requests were processed within the 30-day statutory time period in 2019-20, down from 85% in 2017-18.

As part of its research, the Grata Fund submitted FoIs to various government agencies for non-contentious documents about FoI handling practices.

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None of the requests were finalised within the 30-day statutory time limit. The home affairs department, which receives a huge number of FoI requests, did not even acknowledge receipt of the request within 30 days.

Delays in processing FOIs undermine the efficacy of the system, the report said. If government decision-making is to be scrutinised and decision-makers are to be held accountable, information must be provided quickly.

The report identifies a overarching cultural problem that actively resists disclosure.

The approach is inconsistent with its obligations under the FoI Act, the Grata Fund says.

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Coalition unlawfully blocking freedom of information requests - The Guardian Australia