If the federal government is committed to reforming freedom of information laws, will it run into a culture of secrecy within the public service?

A few days after the 2007 election Kevin Rudd told Kerry O’Brien on the 7.30 Report that he was “determined to do something about freedom of information. This is notoriously seen as something that executive governments don’t like because it causes information to go out which might be embarrassing. I’d like to, by contrast, encourage a culture of disclosure within government departments.”

My experience over the past year suggests that, culturally, there’s a long way to go – within the Australian Electoral Commission at least.

To recap: last March I applied to the AEC for details of any advice it had given the federal government in relation to two elements of the contentious Electoral Integrity bill. I wanted to find out whether the AEC had stuck to its longstanding policy and opposed the Coalition’s plans to close the electoral roll on the day the writs are issued and to significantly lift the threshold for disclosure of political donations.

After a mysteriously protracted delay, the AEC informed me, just a few days before the election on 24 November last year, that it refused to release any of the three relevant documents. It cited legal client confidentiality and the fact that some of the material was contained in “internal working documents”, which can only be released where there is a public interest argument for doing so.

Any fear I had that the AEC might not have given the government any advice whatsoever was allayed by the fact that the response to my request concluded by saying that the Commission also based its refusal on the potential for the material to “embroil the AEC in political controversy…”

Responding to my appeal against that decision, the AEC has now released 16 pages of documents with what appear to be the key passages blacked out. Once again, the AEC invokes the “internal working document” and “legal advice” exemptions. The legal advice exemption clearly does not apply in this case – as an Attorney General’s Legal Briefing states, “Legal professional privilege does not apply to a communication for the purpose of giving policy advice.”

The AEC has also shifted ground, adding a new argument that it in entitled to withhold material that is “misleading in the context of the development of the bill”. This new argument probably gives me grounds for a further internal appeal before I spend $639 lodging an appeal with the Administrative Appeals Tribunal.

The delays and obstacles put up by the AEC hint at the size of the task facing the Rudd government if it’s committed to reform. No concrete proposals have been released yet by the Special Minister of State, John Fawkner, but a spokesman told me this morning that “there will be legislation” once the government had looked at the “nuts and bolts”. He couldn’t provide details of any consultative process leading up to a Bill, however.

As part of the process, the government will no doubt be combing through David Solomon’s report on state FOI laws for the Queensland government, released late last week. Solomon, a distinguished former journalist, was appointed last year to canvass options for change. He’s joined on a three-person panel by Simone Webbe, the former Deputy Director-General of the Queensland Department of the Premier and Cabinet, and Dominic McGann, a partner in McCullough Robertson Lawyers. Although the focus is on Queensland, the panel’s discussion paper contains useful material on FOI in general, and an illuminating discussion of the differences between FOI laws in Australian and New Zealand.

Meanwhile, a series of recent cases shows that even flawed freedom of information processes can produce results.

Today, for example, News Ltd papers reported details of 114 complaints made to the aviation whistleblower hotline, REPCON, and The Age reported that “passenger numbers on Melbourne’s public transport system will exceed forecasts for the third year in a row…” Both articles were based on FOI releases.

A few days ago Channel Seven obtained the “red book” provided to the new government by Treasury, which warned that Australia is at a “pivotal economic juncture” – although there might have been political reasons for the government to let this information become public as part of the background to a tight budget in May.

Last month, The Age obtained “warm and familiar” correspondence between the Exclusive Brethren and the former prime minister, John Howard. And a few days earlier, again on the basis of an FOI release, the Australian reported that “high-income suburbs – including Kirribilli in Sydney, central Melbourne, and New Farm in Brisbane – are among the suburbs showing the fastest growth in claims for the baby bonus” despite the fact that “the Australian Bureau of Statistics found the fertility rate in those areas remained largely static between 2001 and 2006”.

Peter Fray

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