A former senior public servant has been in touch with Crikey over yesterday’s story on the Government’s FOI follies, “conclusive certificates” and the High Court bid by the Australian’s Michael McKinnon to prise papers from the grip of our tight-fisted Treasurer.

“Conclusive certificates have been part of the Federal FOI setup since it began,” our source says. “I thought we all knew that there was no way you could avoid releasing embarrassing material. A conclusive certificate is conclusive evidence in itself of a cover-up. A minister is pretty stupid to issue one.”

“Of course, these days there are crowds of advisers in ministerial offices who have little experience of government. They see FOI as a political threat. Their efforts at delay and whatnot invariably make things worse. I still recall John Stone’s description of these people – ‘meretricious‘.”

Our source has some good advice for young players:

I always took the approach that anything I wrote was in the public domain. So, I always ensured that what I wrote would stand scrutiny by anyone. In other words, I ensured that my stuff was always high standard – and likewise the output of my staff. Anything less bespeaks incompetence.

Of course, some of the Canberra duck-shovers (cf David Marr’s Dark Victory) probably do fall into that category – and rightly fear FOI exposure. Well, tough.

I recall once being phoned by a journo who quoted a minute I had written in which I described an activist group as ‘ratbags’. I said I had. There were expressions of disbelief that a bureaucrat could write assertive remarks, followed by a “We’ll be publishing…”. I simply said “Go ahead” and put the phone down. No headlines or scandals ensued.

I’ve argued against the release of “commercially confidential” information. I even introduced a number of businessmen as witnesses to teach them a lesson on what commercial confidence means in practice. The bottom line? Demonstrated “public interest” can be trumped by a countervailing demonstrated public interest in protection of sensitive private material whose release would materially assist business competitors.

Public interest, though, easily trumps non-release of Treasury working papers on a matter that has been decided by the Government – especially if the “public interest” argument against the release of the documents in the McKinnon case is little more than that the figures in the papers in question would be “confusing” to readers.

Our source’s final words? “I am totally amazed that this case has got to the High Court. Frankly, people – press especially and these days ministerial offices – get too worked up about FOI. It’s a non-event, really.”

Peter Fray

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Peter Fray
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