The practice of using ministerial portfolio changes to keep large swathes of government documents secret is severely undermining transparency and accountability, the federal court will hear on Monday.
Rex Patrick, who marked himself as a transparency campaigner during his time in the Senate, is mounting a legal challenge against a common method of denying freedom of information requests for documents held by government ministers.
When a minister leaves a portfolio, any document held by them during their time in office is deemed to be impervious to FoI requests, because it is no longer considered to be in the possession of their successor.
The rule keeps large swathes of government documents held in ministerial offices out of reach of the public. Its impact is compounded by vast delays at various stages of the FoI process, which create windows for ministerial changes to take place.
Patrick is challenging a single FoI decision relating to a request for documents on the sports rorts affair. In 2020, he sought access to the advice given by the then attorney general, Christian Porter, to Scott Morrison about the grants program.
Patrick was refused access to the documents and sought a review from the FoI watchdog, the office of the Australian information commissioner. The OAIC’s review took so long that the holder of the attorney general portfolio changed twice, first to Michaelia Cash and then to Mark Dreyfus.
This year, the OAIC ruled that the portfolio changes meant the documents were no longer in the possession of the attorney general and therefore could not be released.
Patrick told Guardian Australia that the inordinate delays in the FoI regime were exacerbating the problem. “I’m in this situation because the information commissioner took so long to conduct the review that the office of the attorney general changed twice, first to Michaelia Cash and [then] Mark Dreyfus,” said.
Patrick is being represented by Maurice Blackburn, and the case is being supported by the Grata Fund, which finances public interest litigation.
Jacinta Lewin, principal lawyer with Maurice Blackburn Lawyers, said the case was designed to ensure that a change of job could not be used to deny access to information.
“Robust FoI laws are integral to a strong democracy. Journalists and ordinary Australians need lasting access to information to hold governments to account for the decisions they make,” Lewin said.
Greens senator David Shoebridge raised the case with the OAIC in Senate estimates last month, asking information commissioner Angelene Falk about the delays in her office reviewing the FoI decision.
“It comes back to this continual issue with your office – the inordinate delay in decision-making. In this case, the delay in decision-making in your office created this whole mess,” Shoebridge said. “If you’d made a decision promptly – within a month or two months of having the review brought – none of this would have happened, would it?”
Falk acknowledged that the “effluxion of time is an issue” in reviewing FoI decisions, but said suggestions that it should have been reviewed within a number of weeks or months were “not realistic in any FoI processing regime”.
The Grata Fund executive director Isabelle Reinecke said the laws were untenable in a healthy democracy.
“This loophole is a major roadblock to a functional FoI system and has created a significant gap in the accountability of government and the public service,” she said.
The case will be heard on Monday in the federal court in Adelaide.
