A powerful and independent freedom of information scheme must be a central feature of a functional democracy, an essential step toward enhancing transparency and accountability.

The existing basis of FOI legislation laid down in the 1980s is sound – yet over the last decade the culture has become one of secrecy and obstruction.  Statutory time limits are commonly breached and redactions are the norm.

Applications for even routine documents face delaying tactics and excessive and unjustifiable expense.

To overcome delay, an information commissioner was appointed but even longer delays are now the norm with FOI applications taking two years or more to resolve.


  1. Governments and agencies must adopt the principle and culture of the public ‘Right to Information’, thus making redundant the onerous rules, procedures and common practice of denying release of information.
  2. All government information relating to policy decision-making should be in the public domain. Transparency requires them  to be published expeditiously and 

accessible to all within a short set time.

3. Exceptions to publication should also be in the public domain, and be narrowly defined, clearly determined and justified. A reasonable but limited time should be set by which rules for exceptions must be published, FOI matters in conflict with them resolved and the public given explanations and justifications for the reasoning.

4. Failure to comply with the time frame for a decision to exempt information should be deemed approval.

The Accountability Round Table takes a strong position to reverse the decline, including making submissions and appearing before the 28 Aug 2023 public hearing of the Senate inquiry into the Operation of the Freedom of Information Laws  by the Senate Legal And Constitutional Affairs References Committee, seeking a fundamental reformation of the scheme. 

In the spirit of the FOI Act which takes the position that the public is entitled to transparency on all information about government decision-making, [1] but which allows for a few explicit exceptions, we call for:

Narrowing the scope of protected information.

The emphasis should be changed, as currently in Queensland, to a “Right to Information” Act [2] that requires all information pertaining to policy to be published unless there is a good reason why not. [3]

This removes the need for an FOI application and inverts the onus of proof from at present, arguing the merit of an application, instead to a Ministerial or departmental defence justifying not releasing the information. [4]

Exceptions that can be used to protect information include;

  • Discussions on the way to a final decision. (See caveat 1, below)
  • Legal professional privilege. (See caveat 2, below)
  • Commercial in confidence. (See caveat 3, below)
  • Matters of national security and personal security. (See caveat 4, below)

Caveats on exceptions and accepted practice

  1. The claim that a decision is still being debated should not be used for decisions that have been forwarded to the Minister, even if they have not been finalised. Final or near final decisions should be open.
  2. In normal litigation, reference to legal advice will void confidentiality. The same approach should be taken to advice to government. We suggest that those providing advice should have practising certificates so that they are subject to ultimate court control.
  3. It is a misuse of Commercial in Confidence for Ministers or governments to use Commercial in Confidence to suppress information on their own activities. Commercial in confidence protection should be limited to protection of trade secrets. There is no sound basis for withholding tender details, provided that all tenders are treated similarly, except trade secrets included in tenders.
  4. It should be assumed that all decision making documents including Minister’s diaries are the property of the Ministry not the Minister. There should be no scope for using the cover of personal ownership of documents to avoid scrutiny of decisions.
  5. “Cabinet confidentiality” should not be extended by calling other decision-making bodies a “cabinet”, [5] or by defining documents created for other purposes as Cabinet documents. In the spirit of the FOI Act noted above, Cabinet should take the position that the public is entitled to information on its government decision-making with a few explicit exceptions.
  6. Non Disclosure Agreements and other settlements should not be used to prevent the public knowing about governmental negligence, mistakes or wrongdoing.
  7. Withholding information from the public to protect a minister from being found out for lying or other ethical breaches is a form of corruption.
  8. FOI refusals and any redactions of information where documents are produced should be accompanied by an explanation for the refusal or redaction that shows why it is a valid exception.

1.1. Rules for exceptions to a Right to Know approach should be made in advance of exception decisions and must also be in the public domain.  A time frame should be set by which rules for exceptions, once decided, must be published.

2. Timely decisions on FOI matters within statutory time limit requirements. 

2.1. If the onus of proof is reversed using a “Right to Information” approach, this will in itself speed up the decision-making process as no justifications for “clearly in” decisions need be made.

2.2. Within a “Right to Information” approach, exemption decisions can also be sped up.

  • FOI exemption decisions should be set a specific time frame.
  • Failure to comply with the time frame for a decision to exempt information should be deemed approval.
  • Departments would then become the applicant to the Information Commissioner or the Administrative Review Tribunal (former AAT) to have the approval reversed.

2.3. Failing the adoption of the reversed onus of a “Right to Information” approach, the present system can also be considerably sped up.

This can be expedited by;

  • Moving straight to yes/no decisions on FOI requests without “procedural fairness” hearings.
  • Dropping the practice of giving reasons for FOI decisions. The courts have never recognised that there is an obligation to give reasons, as this is dealt with by appeal to AAT.
  • Requiring FOI granting decisions to be made within a defined specific time frame. If this period elapses with no decision made, the request is deemed granted. The granting should be held over for a week to allow sufficient time for an affected party to obtain a court order to stay the release of information.
  • Adjusting the number of FOI staff employed by the Commission so they are commensurate with the number of applications they receive and ensuring there are the funds to the office to support this.

2.4 Equality of access should be improved by lowering FOI fees. High fees contribute to inequality of access to justice, particularly for people who rely on legal aid. Costs can also be aggravated by the need to serially remake FOI requests because of time delays.

3. Improving the culture of the Office of the Information Commissioner.

  • If this cannot be done by internal reform of the office towards a more proactive release of information, then the intermediary position of Information Commissioner should be abolished in favour of return to the previous system of direct application to AAT.

[1] On the principle that the information developed with the peoples’ money and the power they have delegated to the government, is rightly the property of the people.

[2] Queensland Government. Right to Information Act 2009 (2009).

[3] Justice Michael Kirby argued to the British section of the International Commission of Jurists in 1997, in a lecture entitled “Freedom of Information: The Seven Deadly Sins, that the true culture of FOI was ” a culture which asks not why should the individual have the information sought, but rather why the individual should not – at least where the information concerns the government of that individual’s country or documents in some way relating to the individual personally.”

[4] The parallel is with the arguments for open court.

[5] Twomey, Anne. ‘Nowhere to Hide: The Significance of National Cabinet Not Being a Cabinet’. The Conversation, 6 August 2021.

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