Freedom of information request delays 'striking': Judge

An increase in Australia's freedom of information requests has resulted in a backlog with an average delay of up to six months, the Federal Court has been told.

Former independent senator Rex Patrick says the delays, some exceeding three years, are shielding the federal government from scrutiny.  

Mr Patrick, a self-proclaimed "transparency warrior", wants the court to review how long it takes the Australian Information Commissioner to make decisions and outline what is an "unreasonable delay".

There is currently no legal obligation for the commissioner to reach a decision within a specific period of time.

Lawyers for Mr Patrick say he has more than 20 FOI applications under review, with some in the queue for as long as three years.

"The delays are striking, striking - they really are," Justice Michael Wheelahan said in Melbourne on Tuesday.

"A large majority of persons on the Swanston Street tram would think that's the case."

Acting on behalf of the Australian Information Commissioner, barrister Zoe Maud said it was up to the court to decide whether the delays were unreasonable in a legal sense. 

She said an increase in FOI requests - more than the predicted 15 per cent growth - coupled with resourcing issues meant that a growing backlog was happening, but an average delay of three to six months was not unreasonable. 

"What the act seeks to do is to strike a balance between a right to access and protection of confidentiality of information held by the government," Ms Maud told the court.

"It is a complex process and time consuming."

Speaking outside court before the hearing on Monday, Mr Patrick described the FOI system as broken.

"There's something like 1500 FOI requests that have not been reviewed over the last four or five years - this is a failure in terms of democracy. We have to do something to fix it," Mr Patrick told reporters.

Issues within the office of the Information Commissioner were highlighted earlier in March, when commissioner Leo Hardiman KC quit less than a year into a five-year appointment.

He said his powers weren't enough to overhaul a chronically delayed system.

Mr Hardiman was the first permanent FOI commissioner in nearly eight years after the Abbott government tried to abolish the office and subsequent governments ignored calls to fill the role.

The Centre for Public Integrity in September said FOI requests responded to outside the statutory 30-day period had increased from 11.5 per cent in 2011/12 to 22.5 per cent in 2021/22.

Requests over 90 days late have increased more than 10-fold, now making up one in every eight requests.

The hearing continues.