Victoria receives the most Freedom of Information requests in Australia, and the system is buckling

Getting access to your own health and personal records might feel like it should be a straightforward process.

But in Victoria, people regularly have to wait weeks or months to get such documents, through arduous Freedom of Information (FOI) applications.

It's a process that is now taking longer than it should, as ballooning demand creates delays and backlogs.

Victoria's Information Commissioner Sean Morrison said the state's entire FOI system was "no longer fit for purpose" and was in urgent need of an overhaul.

"We need systemic change so that people can get access to their own information quicker, cheaper — potentially free — and with a much more streamlined process," Mr Morrison told the ABC.

Mr Morrison said wholesale reform was needed, including the introduction of punitive measures for agencies that did not release documents required under the law.

The calls come as the FOI system strains under the record number of requests it is receiving.

FOI requests at record highs

Victorian agencies and ministers receive more FOI requests than any other Australian jurisdiction, including the Commonwealth, and the number of applications is at an all-time high.

The Commonwealth, New South Wales and Queensland all have more proactive approach to releasing information, where FOIs are used as a last resort.

More than 50,000 requests were made in Victoria last year, representing a 10 per cent increase from the previous year and a 30 per cent increase since 2017.

"Anecdotally, through the number of reviews we're seeing this year, we would expect another record for the end of this financial year," Mr Morrison said.

OVIC said the figures showed the system was "unsustainable".

While getting information under FOI is often associated with politicians and the media, most applications are actually from individuals trying to access their own records, often from health services or police and justice systems.

The information commissioner said requests for personal documents should be "carved out of" the formal FOI process, and the information proactively released.

"That would require a fundamental change to the way information is stored in agencies," Mr Morrison said, to allow easier assessments of documents before release.

"But effectively, we'd like [it to be] a simple ask and, subject to some minimal exemptions if there's concerns about the person's health or safety receiving [the information], they should receive it in full."

The health sector dominates the list of agencies receiving the most applications, accounting for 22 of the top 30 agencies.

As the demand increases, OVIC said a growing number of agencies were experiencing backlogs.

There were 8,696 requests outstanding in 2024, up from 6,498 the year before.

Victoria Police received the highest number of FOI requests out of any agency in the state, and also had the highest number of outstanding requests.

In the 2014/15 financial year, 95 per cent of FOI decisions were made on time. By 2022/23 it had fallen to just over 20 per cent.

Over the same period, the number of complaints to OVIC increased by 167 per cent.

The ABC submitted dual FOIs to Victoria Police and the Justice Department in July 2023 about a controversial presentation that was described as "racist" by some attendees but is yet to receive a decision from police despite the justice department sending its documents almost a year ago.

In response to a complaint from the ABC about the delay, OVIC said the police had 2,960 overdue requests at the end of January.

Victoria Police told OVIC the volume of overdue requests had largely risen due to a backlog of files that had built up during the COVID-19 pandemic.

If someone is not satisfied, they can appeal further to the Victorian Civil and Administrative Tribunal (VCAT), but it is also experiencing delays due to extensive backlogs.

Calls for 'punitive' measures to hold agency heads to account

OVIC doesn't have the authority to compel an agency to decide on an FOI request by a certain date, it can only conduct investigations and "name and shame" if warranted.

Mr Morrison denied his office was a "toothless tiger", but said it was requesting more explicit powers.

He said a "punitive" mechanism, like sanctions or fines, to hold agency heads to account would help get outcomes for individuals.

"So if they've waited 180 days for a request to be processed, ordering that it needs to be processed, and within a certain time," Mr Morrison said.

But he said the FOI laws would need to be overhauled first, to make processing requests and delivering documents easier.

"Then punitive elements would only be used for the most abhorrent conduct where people are deliberately misleading or trying to undermine the purpose of the Act," Mr Morrison said.

There have been several high-profile FOI cases that have gone through extensive legal battles recently, including requests about secret energy modelling held by the state government, information about how the government made decisions on its level crossing removal program, and its briefings on lockdown laws during the COVID-19 pandemic.

But Mr Morrison doesn't think the Labor government is more secretive than previous administrations.

"I think it's just that FOI requests are becoming more complex, applicants are becoming savvier, and that's where the challenge lies," he said.

Government yet to respond to report

A parliamentary inquiry investigated the state's FOI laws and made more than 100 recommendations in a report tabled in October, including that the FOI Act be replaced with a "modern" access to information law that has a focus on "proactive and informal" releases.

The commissioner said while the system was not on "life support" yet, it could be in 10 years' time, saying it was "very unwell."

"There seems to be from the whole political spectrum, an acknowledgement that the system needs to be modernised," Mr Morrison said.

"I think that there is political will, it's just where does it sit in the order of priorities?"

The state government is yet to respond to the report, but a spokesperson told the ABC it is "determined to ensure our freedom of information laws are fit for purpose". 

"We are considering the recommendations made in the committee's report and will respond in due course," the spokesperson said.

Global trend of distrust in governments influencing demand

Trust in governments and institutions has been falling globally, according to multiple surveys, a factor Mr Morrison believes has played a role in the increasing number of FOI requests.

He said the rise in misinformation and interference in institutions that were meant to be separate from governments was also having "an impact on trust".

"With all of the noise now, sometimes going to the source and seeking the foundational documents or information is the only way to get to the truth of the matter," he said.

One factor adding to the people's concerns is the rise of artificial intelligence.

The Information Commissioner also has the responsibility of looking at the use of AI in the public sector, where personal information needs to be protected.

His office is currently reviewing the use of facial recognition technology and has previously investigated a worker in child protection using ChatGPT.

"People have the right to expect that the information they give to public sector agencies, if used with AI systems, that they're informed of that use, that the information that those systems produce is accurate if it's used in decision making, and it's going to be protected from misuse," Mr Morrison said.

Mr Morrison believes the rise of mistrust makes the transition to a modern FOI system even more important.

"[So that] governments can demonstrate to their citizens the robustness or practicalities of their decisions," he said.