A former senator will continue his fight to end multi-year delays to freedom of information requests after an initial legal challenge was thrown out.

Transparency advocate Rex Patrick lodged an appeal with the Federal Court on Tuesday after his case against the Australian Information Commissioner over “unreasonable” FOI delays, some of which he claimed exceeded three years, was dismissed.

“It just can’t be right that a transparency right granted to citizens by the parliament can be stripped away by a government that chooses to squeeze funding to the very office that helps facilitate the transparency right,” Mr Patrick said.

“Delay is the enemy of FOI. There’s no point getting access to government documents several years after they lose their relevance, unless you’re an historian.

“Governments know that, and the current Labor government have adopted the same funding squeeze approach to the Information Commissioner as past Liberal governments.”

In a Senate inquiry in August, former FOI Commissioner Leo Hardiman said his attempts to address delays in the system were repeatedly undermined by senior leadership, who refused requests to provide adequate funding.

‘Unquestionable shortage of resources’

Justice Michael Wheelahan rejected Mr Patrick’s bid in May, finding his case would involve “inappropriate judicial interference with the decisional freedom of an executive body”.

He found the commissioner had limited resources to undertake the volume of reviews before her and delays in Mr Patrick’s application were due to “an unquestionable shortage of resources”.

But he said it would be inappropriate for the court to evaluate the commissioner’s workload, assess her priorities or determine how she should best manage those limited resources.

“Whether that situation is acceptable is not a question for the court to decide,” Judge Wheelahan wrote in his decision.

In a document filed to the Federal Court, Mr Patrick alleges Judge Wheelahan failed to give proper regard to requirements in the FOI Act that access to information be made in a prompt or timely manner, and consequently wrongly determined that delays faced were “reasonable”.

If successful, the appeal could lead the way for requirements that delays in revealing information be slashed.

-AAP