Information commissioner spends more than $560,000 in legal fees to defend FOI delays
A federal government agency has spent more than $560,000 in legal fees in preparation for a court case defending delays in releasing sensitive documents.
The legal costs, which have continued to mount under the new government and include nearly $100,000 in the past month, come as the information commissioner prepares to defend the handling of freedom of information (FOI) reviews.
The federal court action was initiated last year by the former independent senator Rex Patrick, who said the legal battle has become “a Goliath v David situation, with Goliath armed to the teeth at taxpayers’ expense”.
“It’s unfair, because the government has clearly decided to fight this public interest case with a troop of expensive lawyers in circumstances where I’ve only got a single instructing lawyer and a single barrister working on the case, pro bono,” Patrick said.
Australia’s FOI laws give people the right to apply for government documents, but if unhappy with a department’s initial decision they can ask for a review by the Office of the Australian Information Commissioner (OAIC).
Patrick’s federal court application seeks a ruling that the OAIC has taken too long to decide on eight FOI reviews, arguing the “unreasonable delays” had affected his ability as a then senator to hold the government to account.
The documents he is asking for include briefings from the Department of Foreign Affairs and Trade about the Greater Sunrise oil and gas fields between Australia and Timor-Leste.
Information Patrick sought from other departments would reveal how a site for a new national radioactive waste facility was selected, the legal advice surrounding the “sports rorts” affair, and Covid-related economic modelling and health advice.
A two-day court hearing may be held in Melbourne in November.
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The attorney general, Mark Dreyfus, revealed that the OAIC had been invoiced $466,631 in external legal fees in connection with the case to 24 August.
There was a further $97,349 of work in progress in the month to 26 September, Dreyfus disclosed, in response to a parliamentary question on notice from Greens senator David Shoebridge.
Shoebridge said public funds should have been spent deciding on the release of documents rather than “feeding a private law firm”.
“No wonder there are 667 FOI reviews more than a year old when the information commissioner, with the backing of the new attorney general, is spending hundreds of thousands in court defending the indefensible,” he said.
“It is astonishing that this government has spent more than half a million dollars defending itself against a case that its own attorney general swore an affidavit in support of.”
A year ago, when he was an opposition frontbencher, Dreyfus provided an affidavit saying he had also experienced delays when seeking reviews of FOI decisions. Dreyfus wrote that those delays had hindered him in his role as a federal MP scrutinising government activities.
Guardian Australia asked Dreyfus to explain his current stance on the case and his previous affidavit. The attorney-general’s spokesperson said on Monday: “This litigation is a matter for the OAIC.”
The OAIC, an independent agency within the attorney general’s portfolio, said it would not comment on the specific issues “as the matter brought by Mr Patrick against the information commissioner is currently before the court”.
The agency acted in accordance with model litigant obligations including “cooperating with the court to facilitate the just resolution of disputes according to law”, an OAIC spokesperson said.
The OAIC sought to resolve all FOI reviews “as efficiently and effectively as possible”. Last financial year it finalised 37% more reviews than the year before “but we also received 63% more” applications, the spokesperson said.
They said reviews were “often complex” because many documents were sensitive “including documents that may be confidential or legally privileged or related to cabinet, national security, defence and international relations, and law enforcement”.
The information commissioner, Angelene Falk, has asked the government for more resources.
Falk told Dreyfus in a letter shortly after the election that the OAIC’s “most critical budget pressure relates to its FOI functions” and efficiencies “cannot keep pace with the continuing rise in the volume and complexity of the work”.