‘Outrageous’ refusals, redactions, delays: inside the fight for FOI

This piece is part of a series. Read the introduction and find the full series here.

Delays to freedom of information requests beyond three months have grown tenfold over the past decade, while the number of requests returned to applicants in full has fallen by nearly a third. According to journalists, the explanations given for refusals have only grown more absurd. 

Slow response times across the FOI system will be the primary focus of a Senate inquiry into the FOI system later this year. In the lead-up, Crikey has published the REDACTED series, showing readers how FOI requests are used, by whom, and why they matter. 

Multiple journalists and politicians who spoke to Crikey, either on the record or on the condition of anonymity, expressed sheer exasperation at the obstructionist tactics often deployed against them, described invariably as administrative torture so unfathomable as to be undemocratic. 

Many journalists describe lodging FOI requests only to have them rejected outright, delayed, accepted at a prohibitive cost no news outlet could justify, or returned to them so heavily redacted that the endeavour was rendered pointless.

“The most outrageous was a request to the Digital Transformation Agency for documents I asked for about the creation of the COVIDSafe app,” Royce Kurmelovs, a journalist based in South Australia, told Crikey.

“Basically, I started looking at it mostly out of curiosity, particularly given the heavy role of consultants in the process — something which has become a bit of an issue lately. [The documents] were mostly innocuous, but they initially tried to charge me $750 for the application, which was absurd since they ended up giving me three documents — a handful of innocuous emails.”

Being overcharged for what appears to be a “simple” request is a bugbear most journalists are familiar with. The tactic is known particularly well by the coterie of journalists currently on the hunt for the Albanese government’s full suite of ministerial diaries. 

The effort, led in large part by Australian Financial Review reporter Ronald Mizen, has already delivered diaries for the first 100 days spent in office by Treasurer Jim Chalmers, Attorney-General Mark Dreyfus and Workplace Relations Minister Tony Burke. Their release was followed by those of Climate Change and Energy Minister Chris Bowen and Communications Minister Michelle Rowland, whose diaries were released to Crikey under FOI. 

But it’s the reluctance of the prime minister’s office to play ball that stands out as an example of the extraordinary lengths department decision-makers will go to in order to prevent the release of information.

Various other parties have joined Mizen in his efforts to get ahold of Prime Minister Anthony Albanese’s diary. Among them is former senator Rex Patrick, whose request for the diary of Albanese’s first 197 days in office was met with a charge of $1344. The justification, made by the PM’s top legal adviser, was that the request would “unreasonably” divert staff resources and even interfere with Albanese’s job. 

The Prime Minister’s Office (PMO) eventually backflipped on releasing the documents altogether, prompting an outcry from members of the opposition and Senate crossbench, as well as the condemnation of transparency advocates and legal experts. 

Leader of the opposition in the Senate, Simon Birmingham, told Crikey at the time that Albanese’s decision to withhold his diary, even as his senior colleagues disclosed theirs, was “embarrassing” given that “Labor loudly beat its drum on transparency before the election”. Greens Senator David Shoebridge said that using the power of the Senate to force the diary’s disclosure was the “logical next step”.

In 2014, Labor was on the other side of a near-identical fight. At the time, it was Mark Dreyfus, then opposition spokesperson for the attorney-general’s office, who was seeking the ministerial diary of his Coalition counterpart, then-attorney-general George Brandis, who used the same excuse Albanese used earlier this year to deny access. It wasn’t until 2017 that the 34 pages of Brandis’ diary sought were finally released.

“Now, the bizarre thing is it was Mark Dreyfus who led the fight on this back in 2015. It was his case against George Brandis, which was seminal, that went all the way to the Federal Court. He fought for access, he fought for a very similar request to me, which was a weekly format,” Patrick told Crikey.

Refusals and delays such as those deployed throughout the ministerial diary saga only make up a fraction of the tactics deployed by departmental FOI delegates in their efforts to prevent information from entering the public domain. Often, it’s a heavy redaction, or the mystery that precedes it, that can offer cause for confusion.

An FOI request sent by Guardian Australia to the Department of Home Affairs, for example, sought “copies of WhatsApp messages sent by or received by the deputy commissioner, Neil Gaughan” over the days the Australian Federal Police executed raids on ABC Sydney headquarters and the home of Annika Smethurst, then a journalist at News Corp. The documents received included a message from then-Home Affairs minister Peter Dutton. An emoji was redacted.

In another interaction with the AFP, the ABC’s Ariel Bogle sought documents from the agency related to its use of the surveillance technology Clearview AI, but the request was refused based on a claim the AFP wasn’t using the technology. Documents released in a subsequent effort revealed officers joking about the deception.

“Maybe we should tell the media we are using it!” one officer wrote. “Or should we stop using it since everyone is raising the issue of approval,” another wrote, with a smiley-face emoji.

Most reporters would consider themselves lucky to have documents returned to them at all, redacted or not. In late April, Crikey’s Cam Wilson sought correspondence and documents created in response to a review of national security risks posed by climate change, prepared by the Office of National Intelligence, referenced in news reports.

The request was eventually knocked back on the basis that the news report offered to the decision maker as source material was paywalled.