‘Like an episode of Utopia’: Why uncovering the truth has become harder than ever

Good quality journalism is a dogged pursuit. I don’t say that to pump up my own tyres – I’m not a journalist – I say it because I see it every day, first hand. And one source of regular frustration in public interest journalism is the operation of the Freedom of Information (FOI) Act.

FOIs are an important tool for journalists to bring government information to the public. The regime was introduced to promote the idea that government-held information should (largely) be public and is essential to the health of a democracy. When the system works, FOIs can allow reporters to scrutinise climate change policy, to track how much a major project costs, to see how many ambulances have been delayed by ramping.

Police suppressed information about a leak involving Ben Roberts-Smith, and the anti-corruption probe that followed.Credit: Jay Cronan, Michael Zavros. Digitally altered image.

But journalists and members of the public alike are often frustrated by technical, nitpicking processes that deny access to this important information.

Recently, a journalist colleague of mine vented her frustration over an FOI rejection by the Australian Competition and Consumer Commission (ACCC). The rejection wasn’t the problem – it is often par for the course to have FOI applications outright denied.

The more galling aspect of this denial was that the wording of the doomed FOI request had actually been suggested by the ACCC – meaning they ultimately denied the request they had drafted. Having followed the ACCC’s drafting advice, the journalist was understandably miffed to have her request flatly rejected after wasting several weeks in “consultation”.

Why would the ACCC waste everyone’s time by tweaking the wording if they were always going to reject the request? It was the FOI equivalent of being strung along on a few dates and then ghosted.

Last month, I was in the Victorian Civil and Administrative Tribunal, appearing on behalf of a reporter who was appealing against an FOI decision concerning the budgeting of a Victorian Big Build project.

The remarkable part of the VCAT hearing was not that this FOI request was first made in November 2023 (we’ve become accustomed to months or years-long delays), but rather a comment made by the VCAT member who said that in “almost all” FOI appeals, due to resourcing issues, VCAT had no choice but to indefinitely pause the appeal, with no indication as to when it might be heard.

This was gobsmacking to me. Government information is oftentimes only valuable if it is up-to-date and sheds light on an issue of the day. It’s of no use to a journalist or the public if information is released many years after an issue has passed. So, an indefinite halt to an FOI request will, in most cases, render the whole exercise completely pointless.

A cynic could imagine government agencies using this knowledge to their advantage if they don’t want embarrassing information seeing the light of day by grinding the FOI process to a halt. It means there is no real downside to an agency claiming spurious exemptions to stonewall an urgent request because it knows the tribunal tasked with reviewing the agency’s decision might not get to it for a long time. I can’t help thinking this is all like an episode of Utopia.

I should say I am in no way critical of VCAT for this sorry state of affairs – the tribunal is, of course, beholden to resourcing that ultimately comes from the state government. I know VCAT members and staff work tirelessly and efficiently to manage an extraordinary volume of disputes, which includes much more than FOIs. This is clearly a resourcing issue.

Despite these cases, it’s not all bad news for the public’s right to know. This week, the full court of the Federal Court of Australia ruled that the Administrative Appeals Tribunal (now the Administrative Review Tribunal) had wrongly upheld the Australian Federal Police’s refusal to release details of an anti-corruption investigation that went to the very top of the peak policing body. The court found that the AAT should not have concluded that releasing the report would reveal a “confidential source”. The case will now be sent back to the tribunal to decide it all again.

As Associate Professor Johan Lidberg, a Monash University researcher, noted following the ruling: “I find it deeply disturbing that an FOI request that clearly was in the highest public interest had to go all the way to the Federal Court to finally be upheld … four refusals before it was granted. That is not the hallmark of a well-functioning access-to-information system.”

So, what is to be done? Last year, the Victorian parliament held an inquiry into the operation of the FOI Act. I appeared with a colleague as a witness in a public hearing, airing some of our grievances to the Integrity and Oversight Committee. One idea we discussed was for the state government to shift from a “pull” model to a “push” model, which would mean government information is periodically released without the need for tedious FOI requests.

We’re yet to see any real changes flow from the FOI inquiry, and so, for the time being, our journalists will need to remain patient, persistent and dogged as they navigate this complex board game that seems to have more than a few missing pieces.

Sam White is a media lawyer at Nine.

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