Rex Patrick leads FOI challenge to hold ex-ministers to account

The case will appear before the Federal Court in Adelaide on Monday, with Mr Patrick represented by Maurice Blackburn Lawyers in partnership with the Grata Fund.

Mr Patrick, an advocate for government transparency, told The Canberra Times he wants to stop governments from being able to "sweep dirt under the carpet just by changing out the minister".

"If you FOI a minister for documents [that] might be a little bit controversial and may actually be the reason that the minister gets moved on ... there's a pathway there where the government simply never has to hand over the documents," Mr Patrick said.

Mr Patrick's case relates to an FOI request he lodged with then-attorney-general Christian Porter's office over documents connected with the Coalition government's "sports rorts" affair.

When his request was refused, Mr Patrick appealed the decision to the Information Commissioner. The review wasn't finalised until this year, after Mr Porter had been replaced by Coalition senator Michaelia Cash and, following the federal election, Labor's Mark Dreyfus.

The Commissioner decided the documents were no longer in the possession of the then attorney-general and thus not subject to release under FOI.

Mr Patrick likened the loophole to someone being charged with drug possession telling the court that proceedings couldn't continue because they have moved house.

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Jacinta Lewin, Principal Lawyer at Maurice Blackburn, said the case was about "ensuring that a change of job can't be used as a basis to deny access to information and undermine the FOI process".

The former senator said he hopes the case could also create an implied duty on the departing minister to pass documents on to their successors.

Mr Patrick said the way FOI law is currently interpreted means a minister could "simply take the document [in question] and shred it" while the Information Commissioner is reviewing an FOI decision, in order to prevent the request from being successfully appealed.

"What I'm saying is the question of possession is a question of fact [which] must be determined on the date of the FOI application. And from that point on there is an implied duty to hold onto the document, until such time the matter is finally decided," he said.

Mr Patrick's legal bid comes a month after he lost his Federal Court challenge to lengthy freedom-of-information request delays.

The former senator took the Office of the Australian Information Commissioner (OAIC) to court over delayed reviews of FOI decisions, seeking a judicial declaration on what constitutes a "reasonable" timeframe for such reviews.

The court found on Friday while there are "very significant delays" in processing FOI reviews at the OAIC, these delays were not legally unreasonable given the Commissioner's "unquestionable shortage of resources".

But Mr Patrick told The Canberra Times that he has "many [legal challenges] on foot all of the time".

He currently has a bid before the AAT requesting the schedule and project reports for the government's failed French submarine project.

Up against Commonwealth and naval group lawyers, Mr Patrick hopes he can set a precedent to allow anyone to access a baseline schedule, project management report or value measurement report for any government project.