FOI reforms: efficiency or secrecy?

For those expecting the Albanese government to deliver on early election promises that it would be more transparent than the previous Coalition administration, they may have to wait a bit longer. Rather than improving transparency, proposed amendments to the freedom of information framework appear to be eroding it and making it more difficult to hold government accountable.

The bill reforms the Freedom of Information Act 1982 (FOI Act) and the Australian Information Commissioner Act 2010, with several changes that the government says will address processing delays, backlogs and an increase in vexatious and automated requests.

Among them is a prohibition on anonymous or pseudonymous FOI requests, requiring applicants to declare their identity, including when making submissions on behalf of others. Agencies will have the power to reject vexatious or frivolous applications and decline to process requests deemed an abuse of process.

A discretionary 40-hour processing cap is included, placing an upper limit on how much time can be spent on a single request. And application fees will be reintroduced, and expected to be between $30 and $58 each, with waivers for financial hardship and personal information requests.

Controversially, the bill expands exemptions for Cabinet documents. Under the current legislation, documents may be exempt if submitted for the ‘dominant purpose’ of going to Cabinet. The amendments, however, have changed this to ‘substantial purpose.’

Critics argue the reforms will curtail, rather than expand, public access to government information. The Centre for Public Integrity says it ‘spells trouble for public integrity and our democracy’ and calls fee reintroduction ‘a retrograde step.’

Application fees were  abolished in 2010 so the FOI process could be part of a ‘pro-disclosure culture’ and to ‘build a stronger foundation for more openness…’ Their restoration  risks creating a chilling effect, discouraging journalists, researchers, and ordinary citizens from lodging requests, particularly for complex investigations that exceed the 40-hour cap and be refused outright.

While the bill addresses perceived abuses that may be used to target ministers or public servants – from vexatious or frivolous applicants – the restriction on anonymous requests, could impact or even deter vulnerable individuals and whistleblowers fearing reprisal.

Curiously, it is not only when a request is deemed to be vexatious or frivolous that it can be refused, but if it is ‘likely [to] have the effect of, harassing or intimidating or otherwise causing harm (or a reasonable fear of harm) to another person.’ Helpfully, the Explanatory Memorandum offers an example of this applying to requests targeting someone who has a domestic violence order against the applicant. But the extent to which this rule may be used in practice is a little unclear. How will ‘likely’ be assessed? What’s the threshold of harassment, intimation or harm? Could it be relied upon as a convenient excuse to block uncomfortable requests?

Perhaps the most contentious change is the expansion of cabinet confidentiality. As the Centre for Public Integrity notes, the Robodebt Royal Commission recommended repealing the Cabinet exemption to improve accountability after finding that secrecy hindered public understanding of the scheme. But the bill expands the exemption, and broaden the range of documents that may be considered ineligible for release.

Something I find odd is that the government has partly justified the reforms because 'public servants spent more than a million hours processing FOI requests.' That sounds like an ungodly amount of work, and as someone who’s spent most of my professional career in an office, I sympathise. But mightn’t a more obvious solution, one more in keeping with the spirit of open governance, be to improve processing systems instead of restricting access? Law firms, for instance, have invested heavily in advanced, often AI-powered document management and discovery tools to streamline vast volumes of information. Perhaps the government could do something similar?