Now what do you do? To whom do you turn? And should it be this way?
In Victoria, and most other Australian jurisdictions, the freedom of information process is overwhelmingly (in about two-thirds of cases) used by individuals seeking information about themselves.
Journalists chasing stories, politicians trying to dig up dirt on their rivals or community groups fighting developments make up a tiny percentage of applicants.
There were almost 39,000 FOI requests to Victorian government agencies and ministers in the 2018-19 financial year, according to the recently-released annual report from the Office of the Victorian Information Commissioner.
Documents were released to the applicant in full 65 per cent of the time, in part in around 30 per cent of cases while about 4 per cent of applications were denied.
More than 82 per cent of requests were processed on time (the FOI Act requires agencies to notify applicants within 30 days of its decision on access. They can request extensions of 15 or 30 days).
Victoria Police received more FOI requests (almost 4000) than any other agency, almost two-thirds submitted by individuals.
Of the top 10 organisations ranked by number of requests, almost all the remainder were health-related: Alfred Health, Melbourne Health, Ambulance Victoria, Monash Health, the Department of Health and Human Services, Transport Accident Commission and the Victorian WorkCover Authority.
People can ask the Information Commissioner to conduct a review if an agency has refused or deferred their request for access to a document.
There were 607 applications to commissioner in 2018-19 year for a review of FOI decisions, 92 per cent of them were made by members of the public.
Of the reviews conducted by the office, commissioners ruled right down the middle – in almost half the cases they upheld the agency’s decision to refuse access to documents, while half of applications were granted full or partial access.
In the national Information Access Study 2019, the results of which were released last month, 3 per cent of Victorians ranked the right to access government information as “very important”, more than citizens of any other state or territory and above the national average.
Of the Victorians surveyed, three quarters said they had been successful in attempting to access such information (compared to 91 per cent in WA and 80 per cent in NSW).
Victorian Information Commissioner Sven Bluemmel, who was appointed in 2017, held a similar position in WA for a decade before moving to Melbourne.
Mr Bluemmel has introduced a raft of measures in his first two years that are intended to encourage transparency and accountability by government agencies.
They include publishing the outcome of reviews by him and OVIC’s two other commissioners of FOI refusals, partly to make government organisations more accountable (the applicant’s name and identifying details are not published to protect their privacy).
Mr Bluemmel has also encouraged government agencies to disclose information up front where possible and only to resort to the FOI process when it really is necessary.
“One of my key messages in 10 years in this business is wherever possible to release as much information without an FOI request. Let’s leave FOIs for the hard ones, where there’s a real reason.
“That’s something I’m definitely trying to change.”
That was especially important for cases in which people are appealing for documents relating to their own files, be they medical, police, prison or otherwise.
“The dynamic is very different where people are seeking information about themselves,” Mr Bluemmel said.
“I think in most cases I think it should be available without an FOI request, and that’s what I’m trying to work with agencies in achieving more and more.
“Where a formal process like FOI may be appropriate is in those tricky situations; you might have two separated parents of a child, there might be history or possibility of violence. In a case like that you wouldn’t want the hospital giving the medical records of a mother to an abusive former partner.”
Melbourne barrister and Liberty Victoria committee member Julie Zhou says the first instinct of many FOI officers is to refuse information because they can, rather than assess whether they should.
“The FOI act was initially enacted to give agencies the discretion to redact, but it’s been treated as a mandatory requirement to redact,” Ms Zhou said.
“If it fits under an exemption it’s redacted, but that doesn’t necessarily fit with the law … The response you get is that this sits under this exemption and we’re not disclosing it. You may be entitled to that discretion but the reasoning is missing.”
In her experience, FOI officers working in government departments and agencies are swamped.
“I worked when I was a solicitor with FOI officers and often they’re junior or paralegal staff dealing with a lot of requests. They’re looking through a list of exemptions and they go ‘Tick, tick, tick’. That tends to be the way it’s run at the moment.
“And it’s only when there’s a response to a dispute that an external lawyer or someone more senior comes in and asks how much is defensible, how much do we want to disclose?”
Moira Paterson, a Professor of law resources at Monash University, has welcomed Mr Bluemmel’s efforts to increase transparency in Victoria but says they’re long overdue.
“There’s a problem more broadly in Victoria,” Professor Paterson said. “We were the first state to have FOI, we were real leaders back in the early ’80s, but a number of the other acts have been far more pro-disclosure in their emphases, and … there’s not been political will to substantially update the act.
“We didn’t have an FOI commissioner for many years, when many other states did, [and] you develop a culture that was resistant. WA is a similar first-generation act but there was some research done that the culture in WA was quite good, and that was because of FOI commissioners such as Sven.
“Now we have him in Victoria, and he’s doing a great job, but the fact it was so long means there was such a culture [that developed]. It was seen as a nuisance … “
The fact that health records, for example, had to be sought via FOI rather than through privacy legislation, as had since been introduced in other states and at a Commonwealth level, meant it could be harder for Victorians to access their own information.
“There’s a universal right of access to information, so you treat every request in the same way no matter who is making it. The problem with the act is that where it is the individual themselves who is requesting information, you should add more weight to it than when you’re judging individual information.”
Debbie Cuthbertson is a senior writer and Saturday chief of staff at The Age.