Appeal court rules on freedom-of-information delays

The full Federal Court dismissed Mr Patrick's appeal of the court's decision that there was no obligation for the Australian Information Commissioner to process FOI requests within a specific timeframe.

Transparency advocates had hoped the appeal, backed by The Australia Institute, Matilda Legal and the Grata Fund, would lead to the federal government to beef up the Office of the Australian Information Commissioner, to speed up decisions and increase public access to documents.

But on Thursday afternoon, the full Federal Court dismissed the appeal and ordered Mr Patrick to pay the commissioner's costs.

The case related to six FOI requests, including one that Mr Patrick waited two-and-a-half years for the commissioner to review.

"Recognising the delay is very lengthy, we nonetheless are not satisfied that this delay, although unfortunate, is unreasonable," the full court decision said.

"Although ... the review is to be conducted in a manner as timely as possible, the FOI Act provides no time limits and entrusts the Commissioner with the freedom of designing the process and allocating the resources, which are finite."

The delay "has not occurred because of any act of capriciousness, negligence or oversight," the decision said.

It concerned a request to the Department of Health to access documents related to meetings of the Australian Health Protection Principal Committee since 29 May 2020 on the topic of State border closures. Ten documents fell within the request.

The Department refused access to all of those documents based on an exemption allowing refusal if disclosure of the document "would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State".

The full court decision said that, when the Federal Court initially heard the matter, there were 193 similar matters awaiting review that had been lodged earlier in time.

Mr Patrick's legal team will consider the Federal Court's full written reasons before contemplating any further appeal.

His appeal had asked the court to examine how long it takes the commissioner to make decisions and to outline what was an unreasonable delay.

Justice Michael Wheelahan last year found the commissioner had limited resources to undertake the volume of reviews before her and the delays were due to an "unquestionable shortage of resources".

But the justice said it would be inappropriate for the court to evaluate the commissioner's workload, assess her priorities or determine how she should best manage those limited resources.

Mr Patrick's case would also involve "inappropriate judicial interference with the decisional freedom of an executive body", Justice Wheelahan said.

The dismissal of the appeal means this decision has been upheld.

The initial case concerned seven FOI cases, but one was withdrawn after the Department of Prime Minister and Cabinet made the documents available.

Mr Patrick's lawyers had argued the years-long delays meant the OAIC was not carrying out its statutory functions and therefore the delays were unreasonable and not legally sound.

Australia Institute research has found lengthy delays have undermined confidence in Australia's freedom of information system.

The institute has pointed to the South Australian FOI review system as evidence "a better system is possible".

In 2023, the institute said, the Commonwealth FOI review process had a backlog of 967 reviews that have been outstanding since 2021 or earlier, including 34 from 2018.

"When a minister leaves office, their documents are often destroyed or otherwise no longer accessible by FOI - even though the FOI request may have been made months or years earlier," the institute said.

In December, a parliamentary committee found "the Commonwealth freedom of information (FOI) system is not working effectively and for some time has not functioned as it was intended".

An OAIC spokesperson said the commission "will study the judgment made to day by the Full Federal Court".