It is hard to disagree with Bernard Keane, Terry Moran or Peter Shergold that public interest is determined through the democratic process and that public servants exercise their non-partisan professionalism by serving loyally the elected government, offering frank, fearless and robust advice in confidence.
I was pleased to see Terry Moran’s additional points that the public service should be a professional and rational advocate of ideas that are in the long-term interests of the nation, and that it is in the area of long-term, transformational thinking that the service needs to lift its game.
These points clearly imply that the public service does play a major part in the determination of the public interest on policy issues, and exercises considerable independence in doing so, albeit that the democratic process settles the position.
What these advocates of confidentiality and allowing the political process to determine the public interest leave out is the direct responsibility of public servants to act in the public interest in the implementation of policies and in due process more generally, including with regard to the provision of information to the public.
Get Crikey FREE to your inbox every weekday morning with the Crikey Worm.
It is public servants who hold the delegations under the FOI Act. The Act requires them to release information unless it is not in the public interest to do so (or unless it comes under specific exemptions). They must judge when the confidentiality of advice to the government, or of information pertaining to that advice, is sufficiently in the public interest to justify non-release of the material. These judgments are not easy. Senator Faulkner, however, has been arguing forcefully that public servants should change their culture of secrecy and give more weight to the public interest in release of information.
I do not for a moment condone leaks by public servants or unauthorised discussions between senior public servants and members of the Opposition. But the limits to confidentiality need to be explored more openly within the public service as it is public servants who have the responsibility to determine the public interest on this issue under the law. Leaving aside responses to requests under the FOI Act, there is much more the public service can do pro-actively to release research and statistics, and give public speeches, and even to talk to the media from time to time, without undermining the public interest in confidentiality.
The proposed new FOI and Information Commissioners will have an interesting time helping the service to determine directions on these matters.