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Appeal over ‘significant’ FOI delays rejected
Former senator Rex Patrick’s bid to hold the Australian information commissioner accountable for a 1,400-day delay on a freedom of information (FOI) request was knocked back by a court for the second time.
Naomi Neilson
Patrick, the self-proclaimed “transparency warrior”, took the Office of the Australian Information Commissioner (OAIC) to the Federal Court over the alleged 1,399 days he said he had been made to wait to learn if he could be granted access to certain documents.
Back in May 2023, Justice Francis Wheelahan said Patrick had not established there had been an unreasonable delay.
Justice Wheelahan added that because there were others who were “waiting longer”, there was no evidence Patrick was “singled out for delay” or treated in any way differently from other applicants.
On appeal, Patrick claimed Justice Wheelahan erred in concluding the delay was not unreasonable and pressed for declarations to be made to “vindicate his contention that the legal limits on the OAIC’s authority have been exceeded …[and the] review unlawfully delayed”.
Justices Robert Bromwich, Wendy Abraham, and Timothy McEvoy said Patrick failed to establish the delay was unreasonable.
“Recognising the delay is very lengthy, we nonetheless are not satisfied that that this delay, although unfortunate, is unreasonable.
“The usually high threshold for a conclusion of unreasonableness of that kind has not been met,” the appeal bench said.
To determine whether the delay was unreasonable, the Federal Court examined Justice Wheelahan’s judgment and found he had made a “detailed analysis” of Patrick’s reviews and “considered each delay in the context in which it occurred”.
Justices Bromwich, Abraham, and McEvoy said this approach illustrated Justice Wheelahan “undertook a more nuanced consideration” of the resources than that alleged by Patrick.
“His Honour did not merely identify that the OAIC was inadequately resourced and hold it out as the justification in turn.
“His approach … was careful and considered, meeting the practical demands of assessing whether the delay was unreasonable in all of the circumstances,” the appeal bench said.
Following the judgment, Patrick posted on X that he was “devastated” by the decision.
“One FOI review it considered was lodged by me in 2019, and is still sitting with [the OAIC],” he said.
“One of the FOI Act’s objectives is to facilitate ‘prompt’ access to info.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
