Government’s thin excuse for FOI changes gives win to eSafety Commission foes

In their eagerness to make the case for changing freedom of information (FOI) laws, Labor MPs have made sensational claims: the Government was “being inundated by anonymous requests”, “many of them we’re sure are AI bot generated requests” that “may be linked to foreign actors, foreign powers, criminal gangs”. 

The evidence base for these claims is flimsy. As Skye Predavec explains in this fact check there is no evidence of foreign agents and criminal gangs abusing the FOI system, nor can “bots” be blamed for an increase in FOI requests (and as the Australia Institute has shown, the number of FOI decisions actually being made is well down on earlier years.)  

Even worse is the Government justifying its changes on the grounds that the eSafety Commission is supposed unable to deal with FOI requests. Attorney-General Michelle Rowland warned:  

“we’ve had cases where FOI requests have been generated, sometimes around 600 of them in one instance, going to a small agency [the eSafety Commission], which tied up the services of that agency for over two months.” 

600 FOI requests supposedly tied up a “small agency” (albeit one with a $42.5 million a year budget) for two months?  

It’s scary stuff. 

Unless your intention is to bring down the eSafety Commission, of course.  

Then it’s a triumph.  

Most of those 600 requests supposedly came from an FOI web form on the site “END eSAFETY”, organised by the Free Speech Union.  

The Government has handed them a major PR victory. Their mission is to bring down the eSafety Commission, and here is the Attorney-General of Australia telling them that, for two months, they succeeded. The next attempt will surely quote the “evidence” that their approach is working.  

Somehow, these 600 requests (just 2% of the federal total) provoked an attempt to put fees on 10,000 FOI applicants; to reverse reforms made under the previous Labor Government; to trash Prime Minister Anthony Albanese’s promise of open government; and to work against the recommendations of the Robodebt Royal Commission.  

There was no need to turn these minor irritants into a serious threat. 

The Government’s own data proves that, far from being “tied up” for two months, the eSafety Commission was not overly burdened:  

• The vast majority of the form requests were either withdrawn or simply refused, using the existing laws.  
• 99% of FOI requests were dealt with within the statutory timeframe. The Commission was not overwhelmed. 
• The OAIC lists 18 agencies with particularly high FOI processing costs in 2023-24 (over $10,000 per request decided). The eSafety Commission is not on the list. 

The system worked. The eSafety Commission dealt with requests quickly and at no great expense, using the existing laws.  

The Albanese Government has done the eSafety Commission no favours by making it the face of secrecy, panic and government overreach.  

Someone in the eSafety Commission was concerned that the FOI applications, arriving as emails at a pace of just one every five minutes, “may jam something”.  

Of course, one can be a very good FOI officer, including at a tech regulator, without knowing a lot about email technology. It is an ironic discovery, not a damning one. But it is only because of the Albanese Government’s anti-FOI push that the exchange ever became public.  

The faltering case for FOI restrictions is part of a broader pattern. The Albanese Government lacks confidence to develop and prosecute a reform agenda.  

The Government has had more luck with legislative blitzkrieg, that is to say: announcing a change and then pushing it through Parliament with Liberal support before there is much is much public involvement or scrutiny. That’s how the unfair and undemocratic changes to electoral law got through in February, and the Nauru deportation deal in August. But if they don’t get the win quickly, ministers seem to lose puff. That’s true for reforms I’m sympathetic to – like the Misinformation Bill and environmental law reform that were both dropped at the end of last year – as well as ones I object to.  

Detailed policy work and public persuasion are not this Government’s strong suit.  

Imagine if the Government took reform seriously: brought the public along with it, consulted with FOI applicants and showed some curiosity about why the public might use AI to help with requests or get frustrated by delays.  

Australians could be looking at a reform package that lowered FOI processing costs, allowed agencies to deal with vexatious applicants, proactively disclosed material instead of waiting for a request and fulfilled the promise of the Robodebt Royal Commission.  

Instead, the Government has used the eSafety Commission as a flimsy excuse for more government secrecy, making the agency look weak and ridiculous and emboldening those who, in their own words, want to “END eSAFETY”.