Australia’s FOI backlog: 587 cases remain unresolved more than three years on

Almost 600 freedom of information cases have languished before the nation’s information commissioner for more than three years, including 42 that are still not resolved after half a decade.

The Office of the Australian Commissioner plays a critical role in the functioning of the FOI system, reviewing decisions made by government departments and ensuring documents are not unlawfully hidden from the public.

But a case lodged by former senator Rex Patrick alleges the extensive delay in the OAIC’s review of FOI decisions has crippled the system and reduced transparency.

Evidence given to the federal court by the OAIC shows that, as of last week, it was yet to resolve 587 review requests submitted in 2020 or earlier.

Related: Delays plaguing Australia’s FOI system preventing scrutiny of government, Rex Patrick says

Forty-two of those reviews were lodged in 2018, half a decade ago.

Another 220 were lodged in 2019.

The remainder, 325, were submitted in 2020. Of the 325 lodged in 2020, about 80% have still not even been allocated to a reviewer within the OAIC.

The delays are, in some cases, punctuated by long periods of inactivity within the OAIC, during which FOI review cases do not progress. The longest period of inactivity was two years, the federal court heard on Tuesday. Others were not touched for eight months.

“The delays here are striking,” Justice Michael Wheelahan said at one point on Tuesday. “They really are striking.”

Wheelahan said that if the public was asked about the delays, it was likely “that a large majority of those persons would think there has been an unreasonable delay, if that were the test”.

The OAIC has suffered from a huge legacy workload of FOI cases, allowed to accrue due to understaffing and increasing demand for reviews. The watchdog suffered significant cuts under the Abbott government, which crippled its FOI work for many years.

The agency has since received more funding for its FOI work.

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Last month, it restructured its FOI team, though the restructure itself has “involved reallocating existing staff within the FOI branch, and has not involved an overall increase in the number of staff employed in the FOI branch”, the OAIC told the court.

The restructure has also involved a direction to OAIC staff that they must “prioritise 2018 and 2019 matters”.

“The OAIC’s allocation principles have not changed, but finalising the oldest IC Reviews has been identified by the FOI Commissioner as a primary focus of the FOI branch at the moment,” Rocelle Dowsett, assistant commissioner, said in an affidavit.

The agency was also expecting a small increase to its FOI staffing shortly.

Patrick, represented pro-bono by barrister Tiphanie Acreman, is arguing that the OAIC should be required to act without unreasonable delay. He is challenging the OAIC’s handling of FOI applications for documents relating to Snowy 2.0 project, Covid-19 border closures, the Greater Sunrise oil and gas fields in the Timor Sea, the gas reservation policy, and a decision to approve the sale of Bellamy’s Australia to the foreign-owned China Mengniu Dairy Company.

The inability to deal with delays was cited by information commissioner Leo Hardiman KC when he resigned this month, less than one year into a five-year appointment.

Hardiman cited his lack of power to “increase timeliness of IC reviews and access in a way which best promotes the objects of the FOI Act”.