In a recent decision that may concern freedom of information (FOI) advocates, the Full Court of the Federal Court has upheld a ruling that a nearly three-year delay in processing an FOI request does not constitute "unreasonable delay" under Australian law.

The case, Patrick v Australian Information Commissioner, involved former Senator Rex Patrick, who waited almost three years for the commencement of a review of his FOI decision. Despite the lengthy wait, the court determined that the delay was "unfortunate" but not "unreasonable" within the legal context.

This ruling highlights significant challenges faced by individuals and organizations seeking government information:

Lengthy wait times: FOI applicants may face delays spanning years without legal recourse.

Resource constraints: The court accepted lack of resources as a valid explanation for delays, suggesting systemic underfunding of FOI processes.

High legal threshold: Proving "unreasonable delay" in court appears to be difficult, even in cases of multi-year waits.

Limited oversight: The decision emphasizes the court's reluctance to interfere with administrative resourcing, potentially leaving FOI applicants with few options to expedite their requests.

Varying standards: The court suggested that the reasonableness of delays might be assessed differently depending on the type of information requested, with matters affecting personal liberty potentially held to a higher standard.

While the court acknowledged these delays as "unfortunate," the ruling underscores the ongoing challenges in Australia's FOI system. Critics argue that such extensive wait times may undermine the effectiveness of FOI laws in promoting government transparency.

As the backlog of FOI requests continues to grow, this decision raises questions about the balance between administrative realities and the public's right to timely access to government information.

Lawyers Alistair Bridges and Emily Schilling of Moulis Legal, noted that “FOI is based on the simple proposition that everyone has a right to obtain access to documents held by a government agency or a Minister; some have described it as a “marvel” of Australia’s public law system.

“That right is caveated, heavily by subjective standards, but it does allow a certain degree of transparency into otherwise arcane government processes. The Information and Freedom of Information Commissioners significantly boosts this transparency by offering a venue for independent review of decisions made by agencies whose sensitivities may result in the overzealous denial of access to documents – but continued, and well-reported, underfunding hampers that critical role.

“The delays in Patrick may not have amounted to legal errors, but they do illustrate ongoing systemic issues that remain to be addressed.”