A host of delayed and blocked freedom-of-information requests may never see the light of day if the government changes hands at the federal election.
Labor has revealed it will not follow the Coalition by blocking access to national cabinet documents, but has flagged it could scrap the meetings entirely.
The Administrative Appeals Tribunal in August found the national cabinet is not actually a type of cabinet, and documents related to it are therefore not subject to cabinet-in-confidence exemptions.
The Coalition has defied that ruling, barring access to information on national cabinet meetings, which are attended by Commonwealth and state and territory officials.
Shadow attorney-general Mark Dreyfus confirmed Labor will reverse that position if elected.
"As [ACT Chief Minister] Andrew Barr has observed, 'National cabinet is reaching the end of its fairly limited lifespan'," he said.
"But Labor's position is that it was never subject to cabinet-in-confidence rules for FOI requests, and we would adhere to this in office."
Independent senator Rex Patrick, who has repeatedly blasted the Coalition for being "addicted to secrecy", welcomed Labor's change in tack.
But with pending requests to be sent to the National Archives if Labor wins, Senator Patrick warned a number of requests will fall through the cracks regardless.
"Mark Dreyfus is taking the high ground here, and has given proper regard to [the court ruling]. But that may not help people who have matters on foot," he said.
'Contrary to law'
A potential change in government also has implications for a large backlog of freedom-of-information requests, exacerbated by what the Grata Fund has warned are "often unlawful" uses of exemptions to block requests.
Under freedom-of-information rules, requests to specific ministers are terminated when the minister leaves office.
There are around 40 such requests currently pending, and an Office of the Australian Information Commissioner spokesperson has insisted it is working as quickly as possible to fix the backlog.
"We continue to prioritise matters that warrant expedition in accordance with our usual practice and to give consideration to all relevant factors," the spokesperson said.
Senator Patrick said he alone had five or six pending which would not be answered after a change in government, and has written to the Information Commissioner to sound the alarm.
He has also taken the commissioner to the Federal Court, arguing the office is processing requests at a glacial pace.
"Up to 40 people potentially losing their opportunity to get access to information ... is occurring because the Information Commissioner is not conducting reviews in a reasonable time frame," he said.
"It's my belief that she's operating contrary to law."
The Coalition has been criticised for using the rule to reject requests for access to a key sports rorts letter, filed to former attorney-general Christian Porter before he resigned from the position.
The document is believed to contain Mr Porter's advice to Prime Minister Scott Morrison on whether then-sports minister Bridget McKenzie had the authority to overrule recommendations from Sports Australia when she allocated funding.
His replacement, Senator Michaelia Cash, has refused to release the letter, as Mr Porter is no longer the minister.
The Information Commissioner's office this month told Senator Patrick it was reasonable to expect the document would be transferred to Senator Cash, given both were Coalition attorneys-general in the same term of government.
Untested strategy
ANU political researcher Daniel Casey is hopeful an untested legal strategy could unlock answers.
A minister's documents are transferred to the National Archives of Australia when they leave office, putting them behind lock and key for 20 years.
But that exemption is on the understanding the documents are a donation from an individual: the minister.
Given ministers are required to submit documents to the archives by law, Mr Casey believes they cannot be considered a donation, and therefore are still subject to FOI requests.
He argues there is a legal distinction between a minister voluntarily "placing" a personal document - like John Howard's personal diary - and being legally required to "transfer" one - like a letter relating to government operations.
"The minister has no agency and no choice. Therefore it couldn't have been placed in the archives by the minister," he said.
"The only things that the minister has a choice to 'place' in the archives are his or her own personal material. Only this material is exempt from FOI requests."
Finn McHugh
Finn McHugh has been federal political reporter for The Canberra Times since July 2021. He joined the Canberra Press Gallery in 2019 where he was executive producer of Sky News's AM Agenda, before joining NCA NewsWire as a federal political reporter. He has previously interned at the Kuwait Times.
Finn McHugh has been federal political reporter for The Canberra Times since July 2021. He joined the Canberra Press Gallery in 2019 where he was executive producer of Sky News's AM Agenda, before joining NCA NewsWire as a federal political reporter. He has previously interned at the Kuwait Times.
