The recent budget announcement of additional funding to appoint a Freedom of Information Commissioner represents a welcome step towards rehabilitating the Office of the Australian Information Commissioner. As originally established in the 2010 legislation, the OAIC has three commissioners: an Information Commissioner, who is agency head and responsible for advising government on information policy and conducting reviews of relevant government decisions; in addition, a Privacy Commissioner and a Freedom of Information Commissioner, who each have responsibilities in the office's two main areas of concern, privacy and freedom of information.
In 2015, the Abbott government's attempt to starve the OAIC into extinction left only the Privacy Commissioner, Timothy Pilgrim, in place. Mr Pilgrim also took over the role of Information Commissioner while at the same time being responsible for FOI functions, though with greatly reduced resources. The legislation presciently allowed the commissioners to exercise each other's functions, meaning that a Freedom of Information Commissioner has not been essential for the OAIC to carry out all its statutory obligations.
The same arrangement has continued up to the present, with Angelene Falk taking over the combined Information and Privacy Commissioner roles in 2018. In the meantime, the funds available for the FOI functions have been gradually restored, though still at inadequate levels. During her tenure, in addition to overseeing increasing demands on the privacy function due to the burgeoning field of data management, Ms Falk has also made valiant efforts to handle continuing pressures on the FOI side, particularly in relation to the chronic backlog of uncompleted reviews of government FOI decisions. She and her staff have introduced a number of measures aimed at speeding up the processing of reviews, including a triage system to sort out reviews that can be dealt with relatively quickly and also active management of the backlog to see if some longstanding reviews can be resolved in the light of more recent decisions or can be otherwise short-circuited. Ms Falk has also made time to be more proactive on FOI issues. Last year she took up the question of redacting the names of public servants dealing with individual cases and ruled against the common practice of redacting the names of junior staff while disclosing those of more senior staff. She has also been conducting an own-initiative inquiry into the FOI performance of the Department of Home Affairs, the agency that attracts by far the highest number of inquiries.
When public servants face questions in dealing with FOI requests, they are inclined to answer in ways that suit their own and their ministers' convenience.
Even so, the OAIC has still been hamstrung by lack of resources. In spite of undoubted efficiency gains, the backlog of incomplete FOI reviews continues to increase. For instance the number of matters outstanding for more than two years has more than doubled since 2019, from 117 to 254. At a recent Senate estimates meeting, Ms Falk welcomed the extra funds for four positions (including the FOI Commissioner) to help deal with FOI matters. While filling the long-vacant position of FOI Commissioner was a bonus, the main benefit would come from having at least one, and preferably, two additional senior colleagues to help carry the load, especially with resolving complicated reviews. A new commissioner would no doubt be expected to take on some of the wider FOI functions currently exercised by the Information Commissioner, which will require some adjustment of duties between the two commissioners. But Ms Falk was clear that prompt handling of all reviews was the top priority and, even with the new posts, would be difficult to achieve.
A speedy review process is vital to the effective operation of the FOI legislation. Many FOI decisions require the application of complex and contestable concepts, particularly in connection with non-personal matters of government policy. For example, what counts as a cabinet document or a trade secret? Where should the balance be struck between the public interest and the need for privacy or for confidentiality in government's deliberative processes? When public servants face these questions in dealing with FOI requests, they are naturally inclined to answer in ways that suit their own and their ministers' convenience rather than the intent of the legislation. For this reason, regular, independent review by the Information Commissioner, monitored by further appeal to the Administrative Appeals Tribunal, is essential for maintaining the integrity of the FOI regime.
According to the OAIC's annual reports, Information Commissioner's reviews decide in favour of the complainant in around 50 per cent of cases, thus confirming the need for external correction. To underline the point, Senator Rex Patrick, a keen advocate of FOI, has successfully challenged adverse decisions from a range of agencies and ministers on a number of issues such as deliberative processes and unreasonable disclosure of personal information. His score to date: "Rex 10, government nil", as he told Senate estimates.
Delay in processing reviews unfairly tilts the FOI regime in the government's favour. The new FOI Commissioner's assistance with handling reviews and reducing the backlog will therefore be welcome. At the same time, the commissioner should also find time for public advocacy on general information policy and the benefits of open government. In recent years, particularly since the onset of the pandemic and the additional pressures on government, public servants appear to have become even more resistant to transparency. As a statutorily designated spokesperson for FOI, the commissioner should carve out a role as a vigorous defender of FOI's contribution to accountability and effective government.
- Richard Mulgan is an emeritus professor at the ANU's Crawford School of Public Policy. firstname.lastname@example.org.