OAIC heading for 'funding cliff' months before FOI commissioner resigned

The Office of the Australian Information Commissioner warned Attorney-General Mark Dreyfus at least eight times in meetings and letters since May last year of the "significant funding pressure" placed on the agency, saying it could not keep up with the incoming work.

Commissioner Angelene Falk said short-term funding pledges meant the lion's share of her budget would be reduced by 43 per cent in 2024-25, knocking it from around $24 million to $15 million, unless a lifeline was delivered in the upcoming federal budget.

Increased funding for the office's FOI functions, which had remained "relatively static" for years, were also critical to keep pace with the rising volume of work, she said.

It comes as FOI Commissioner Leo Hardiman announced his shock exit from the role after serving just 11 months of his five-year term, citing a lack of power to reform the backlogged system he was hired to fix.

Former senator and transparency advocate Rex Patrick said the office's funding state had already fallen off the cliff, and was "injured at the bottom, facing an avalanche, as the cliff collapses on top of them".

Officials have repeatedly raised the office's funding and resourcing as a key challenge, 122 pages of internal documents released to The Canberra Times following a freedom of information request show.

Deputy commissioner Elizabeth Hampton described the "funding cliff" and "most critical" issue with FOI resources in an August email, days before the commissioners met with Mr Dreyfus for the first time.

Ms Hampton, in draft notes ahead of a meeting with the Attorney-General's office, wrote the office saw an effective FOI regime as a "critical component" of the Albanese government's integrity agenda.

"Is it possible to have FOI funding considered as part of that regime? Undertaking from govt to fund?" she wrote in pre-meeting notes to herself in August.

The funding cry was delivered on a number of occasions to Attorney-General's Department staff and Mr Dreyfus' office across letters, meetings and calls between June 2022 and March 2023, including after Mr Hardiman announced his resignation.

Mr Dreyfus' office was contacted for comment but did not respond.

The OAIC was given $4.7 million in 2014-15 and received received 373 review applications, Ms Falk noted in an incoming government briefing handed to Mr Dreyfus in June.

Seven years later in 2021-22, the agency had just $3.5 million in FOI funding but had received more than 1800 review applications, she said.

The October federal budget delivered the OAIC a $5.5 million boost over two years for its response to the Optus breach incident.

No additional funding was given to its FOI operations.

Beyond funding, Ms Falk also called for legislative amendments that would allow her to delegate powers to other senior staff, freeing her up for more complex work.

"The ability to delegate these powers to a limited number of senior officers would result in operational and administrative efficiencies," she wrote to Mr Dreyfus in an August letter.

"The delegation of the s 55K IC review power will also be critical in the event the OAIC obtains additional short-term funding in the May 2022 Budget to address over 960 IC review applications that have been open for more than 12 months.

"In seeking the legislative authority to delegate these functions to a limited number of senior officers, commissioner focus could be dedicated to those matters that are more significant, systemic, complex or that explore new interpretations of the relevant legislation while overseeing consistency in the application of the law across case loads."

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Additional documents released to the senate in March reveal Mr Hardiman and Ms Falk met with the Attorney-General in late February this year, less than a fortnight before the FOI commissioner resigned.

A heavily redacted meeting briefing shows the discussion centred around funding and personnel requirements with department officials expecting Ms Falk to seek clarity regarding the budget.

Prior to Mr Hardiman's appointment, the position of FOI commissioner had been left unfilled since the Abbott government proposed to disband the office in 2015, leaving the Information Commissioner to undertake the duties as the sole commissioner for seven years.

Briefs prepared by the Attorney-General's Department in October following the budget show Mr Dreyfus was told Ms Falk had warned her office did "not have the resources to meet rises in the volume and complexity of FOI work" despite Mr Hardiman's appointment.

In prepared hot topic and question time briefs, Mr Dreyfus was advised to respond the government "expects that the new FOI commissioner and associated staff will assist to progress the FOI workload more strategically".

On March 6, Mr Hardiman announced his resignation, saying he could not increase the timeliness of FOI reviews without major reforms, which he did not have the power to do.

Mr Hardiman, once he formally leaves the role in May, will have served a little more than a year of his five-year term.

The documents tabled in the senate show Ms Falk and Mr Dreyfus met weeks later in March where they discussed Mr Hardiman's resignation, the operation of the FOI system and staffing levels within the office.

Mr Patrick, who is challenging the office's lengthy FOI review delays in court, said it was time for Mr Dreyfus to step in and resolve the problems with the system once and for all.

"Transparency is a critically important part of a functional democracy," the former South Australian senator said.

"Mark Dreyfus says he cares about the 'fabric of government', yet he seems comfortable sitting by with our FOI regime looking like a worn-out, ripped pair of jeans."

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