How non-government politicians use the FOI system to hold the government accountable

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

For many non-government members of Parliament, the freedom of information system is a crucial tool to help hold the government accountable. At its most fruitful, the information gleaned from government departments can inform public policy debate with the chance of delivering beneficial outcomes for constituents around the country.

At its most basic level, it can be used to call out broken election promises, and turn the screw on run-of-the-mill political humbug. And more often than not, that’s how it’s exploited.

A recent example came in the form of a press release blasted out to the media in mid-May by teal independent Sophie Scamps, who wielded information extracted via an FOI request to level criticism at the Albanese government for creating a job for Kathryn Campbell. Campbell, who served as the former head of the Department of Human Services during the robodebt scheme, was offered a $900,000-a-year AUKUS advisory role, documents revealed.

The discovery was quickly branded a “jobs for mates” scandal, and forced Foreign Affairs Minister Penny Wong to uncomfortably defend the move through a round of Senate estimates hearings last week. Exposing hypocrisy of this sort, however inconsequential, can offer serious utility to the opposition and members of the crossbench in both houses looking for political cut-through, and has the added benefit of building out an archive of public evidence, too.

Over the past decade, however, delays across the FOI system have increased tenfold. The delays will be the primary focus of a Senate inquiry into the FOI system later this year, despite Labor’s opposition to the motion, which got up 43 votes to 19. In the lead-up to the inquiry, Crikey brings you REDACTED, a series showing readers how FOI requests are used, by whom, and why they matter. 

Labor’s use of FOI in opposition

During their time in opposition, senior Labor figures turned to the freedom of information system with gusto. Often, their efforts would produce damning political leverage against a languishing Morrison government, particularly at the height of the COVID-19 pandemic.

Among Labor’s most notable pandemic-era hits was the revelation that former federal health minister Greg Hunt did not accept an invitation from senior executives at Pfizer to meet formally about progress on a vaccine. Labor obtained a small trove of documents, including emails, which were dropped to The Sydney Morning Herald and The Age, along with other newspapers, where it was reported that Australia snubbed the vaccine producer while other countries were procuring millions of doses.

Since coming into government, Labor has been accused of hypocrisy on the issue, given its fervent use of the FOI system in opposition. At a press conference following his first meeting of national cabinet in June last year, Prime Minister Anthony Albanese backflipped on calls to release documents related to the meetings, after accusing former prime minister Scott Morrison of being “obsessed with secrecy” in opposition. 

Even still, Labor says it’s as committed as ever to freedom of information laws, which a spokesperson for Attorney-General Mark Dreyfus told Crikey is evidenced by the $53.5 million funding injection given to the Office of the Australian Information Commissioner (OAIC) in its most recent budget. 

The importance of response times

The FOI system in recent years has plunged into a state of decay, as response times to FOI requests have dragged, and the periods of time they’ve come to sit before the information commissioner for review have extended. Coalition Senator Paul Scarr said the release of information in a timely manner is crucial to transparency and integrity in government. 

“The FOI process is a great check and balance on the system, just like Senate estimates is. Each of these processes, which promote transparency and integrity, buttress each other,” Scarr told Crikey. “You have the Senate, where you can ask questions, you’ve got FOI documents, you’ve got Crikey and the rest of the media — one buttresses the other. In their totality, they actually assist to create greater integrity in civic society, in my view.

“Getting timely responses is really important.”

FOI and the crossbench

In the face of years-long delays, engaging with the FOI system comes at a heavy cost, particularly for those members of the crossbench who, under the Albanese government, have been left to reckon with dwindling staff resources. Greens Senator David Shoebridge, an avid user of the FOI system, said he would like to see the FOI Act undergo a “complete rewrite” to force government departments into releasing information more proactively.

“It’s freedom of information only for the bloody-minded, the well-resourced, or the fixated,” Shoebridge told Crikey. 

“There’s a clear political advantage to the government in greatly restricting our resources and seeing crossbenchers’ time soaked up by bureaucratic wrangling over the release of documents. It’s an intentional part of the system and it works against transparency and democracy.”

As a result, some independent politicians have turned to former independent senator Rex Patrick for pro-bono FOI services, as staff allowance cuts leave them short on the support required to extract documents from Labor and play a “proactive” role in Parliament. The self-described “transparency warrior” has cut an indispensable figure since leaving Parliament at the last election, becoming the go-to for high-volume freedom of information requests in the policy areas of interest to several independent members and their staff. 

So far, Patrick says he has had discussions with most independents and has developed close working relationships with those who, like him, have made transparency central to their political platforms. Senator Jacqui Lambie and independent MP Zali Steggall have shown a keen interest, he said, and Ryan was one of the earliest beneficiaries; Scamps, among the most recent.

Independent MP Rebekha Sharkie said the services are crucial to the crossbench’s ability to hold the government accountable.

“It’s the sort of work that I think the Australian community expects the crossbench to do,” she said. “I don’t have the capacity or resources to do that work, so it’s really helpful to me, particularly in relation to the Murray-Darling Basin plan — it’s such a complex and opaque system.”

In March, the Senate voted in favour of focusing the powers of an inquiry around what’s causing the delays to the commissioner’s review decisions, the resourcing allocated to responding to FOI applications, along with the circumstances that led to the swift departure of the first FOI commissioner appointed to the role in seven years.

The inquiry will open for public consultation in June, and is expected to field submissions from a swarm of current and former politicians, non-government organisations and media companies, including Crikey.

When its committee forms later this year, Steggall said she hopes its recommendations lay the ground for solutions dismantling the “obstructionist” approach to the system taken by government departments. Among the most difficult, Shoebridge says, are those in the Department of Defence, which is protected by a smattering of carve-outs and exclusions. 

“Defence have made it an art form of refusing to give information on FOI, but they are also empowered by excessive exclusions in the Act,” Shoebridge said. 

“For example, we have been chasing the costs of a long-running saga for former senator Rex Patrick to obtain four redacted sentences — that was years of delay and obfuscation, close to $20,000 in legal costs to keep from the public what ended up being four fairly banal sentences, none of which had the capacity of bringing the government down.”