Australia’s first Freedom of Information (FOI) Commissioner since 2014 is set to be appointed “in the next few weeks”, Attorney-General Michaela Cash has confirmed as the chronically under-resourced Office of the Australian Information Commissioner (OAIC) struggles withh a hundreds-strong backlog of FOI matters, many of which have dragged on for years.
The OAIC was managing 667 different FOI-related information commissioner (IC) reviews as of mid 2021, Senator Rex Patrick noted during recent questioning by the Senate Legal and Constitutional Affairs Legislation Committee.
“It seems like we’re going nowhere,” Patrick said, noting that the case load had increased steadily since 2018 – when there were just 81 IC reviews pending – with 250 matters in 2019 and 460 matters as of mid 2020.
IC reviews are appeals lodged by parties whose FOI requests have been denied, or where an FOI request has not been met within the 30-day statutory timeframe provided for by the Freedom of Information Act 1982.
The OAIC’s failure to keep up with the FOI workload had been exacerbated by the “large number of matters on hand,” Falk said, noting that the number of reviews received during the last six months had increased by 38 per cent compared to the same period a year earlier.
An “acting arrangement” with acting FOI commissioner Elizabeth Hampton, as well as the recent appointment of three extra staff, had increased agency throughput by 37 per cent during the same time; the extra support “is and will continue to make a difference,” she said.
Yet the surge in demand had been “more than I had anticipated” during earlier modelling, Falk continued, admitting that “there is a significant cohort of cases on hand” and noting that she and Hampton were conducting modelling to determine how many staff it would take to clear the backlog.
A history of neglect
Revelations of a hobbled FOI process are nothing new: Falk, who assumed the dual role of Information Commissioner and Privacy Commissioner in mid 2018, also oversees the operation of the Privacy Act 1988 and the Notifiable Data Breaches (NDB) scheme, which was implemented in 2018 and has recorded thousands of data breaches against Australian organisations.
Falk’s multi-pronged responsibilities led Senator Patrick to praise her as a “one-armed juggler” – but with Falk now headlining a major multinational legal fight against Facebook that recently scored a Federal Court win, and a joint investigation with the UK Information Commissioner’s Office into biometric-scraping firm Clearview AI, the OAIC has never been under more pressure.
The escalating delays in resolving FOI matters highlight a long-festering issue with government transparency that traces back to 2015, when former FOI Commissioner James Popple resigned and the Abbott government unsuccessfully tried to abolish the role completely.
Australia may be a signatory to the Open Government Partnership, but more than six years and two prime ministers later – and despite pressure from transparency advocates to properly resource the agency – the continued absence of a dedicated FOI Commissioner has left Falk to maintain order in an overburdened agency that has struggled to keep up.
Despite the NDB scheme’s value as a tool of transparency, for example, in early 2020 the agency stopped issuing quarterly statistical reports on its functioning; it now issues biannual reports that provide less, not more, transparency into the more than 1,000 breaches reported every year.
The number of reports dropped in the latest report amidst concerns that many organisations aren’t reporting all of the breaches they should be.
A recent Information Age FOI request revealed the agency is limping along with just three NDB staff, providing little opportunity for follow-up into the largest and most significant data breaches affecting Australia.
Chronic resource constraints led Senator Patrick to warn last year that the FOI system is heading for a “train smash”, but the NDB and FOI schemes aren’t the only victims.
A letter from former Attorney-General Christian Porter and sent to Prime Minister Scott Morrison, which is subject to an outstanding request by Patrick, “has been lost” during the transition to new Attorney-General Michaela Cash.
The handling of another matter, also relating to the Attorney-General’s Department and the administration of the FOI Act, had “failed the basic test in terms of the way in which the Act should be properly administered,” Senator Kim Carr said during questioning.
That matter had been outstanding for over 18 months, Carr said. “It seems an extraordinary amount of time to complete an investigation.”
Falk was unapologetic: “It’s a matter of giving each matter the attention that it deserves,” she said, “and considering the legal issues that are raised in the context of many other matters.”