It got no media coverage but last week the ANAO produced a superb insight into how the culture of Public Service secrecy dies hard.
The “Murray Motion” is a Senate requirement — put in place by Democrat Senator Andrew Murray in 2001 — that public service agencies put on their websites details of all contracts valued at over $100,000. Part of the requirement is that agencies must identify if the contract requires parties to maintain confidentiality of any part of the contract. In essence, it is designed to give the public an insight into who is receiving public money and what they’re receiving it for.
The confidentiality requirement was partly a response to the tendency of public servants, when quizzed in fora like Senate Estimates about the details of contracts, to claim that they were in some way confidential and could not be discussed publicly.
Every year since then, the ANAO has been conducting spot audits of individual agencies to see if what they’re saying about contract confidentiality is correct. They go into departments, sample some of the contracts, and assess whether they have met the criteria for warranting confidentiality.
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The results have been woeful. Between 2002 and 2004, only 26% of contracts sampled by the ANAO were correctly identified. Sometimes the problem was that contracts that should have been confidential weren’t identified as such. But more often, the problem was public servants labelling contracts confidential when they were nothing of the sort. In 2006, only one contract out of 45 sampled was correctly identified by departments like Treasury, Foreign Affairs and Environment. In 2007, only 6 out of 116 contracts were correctly identified, and none of the 72 confidential contracts look at by the ANAO at Defence.
So last week the ANAO produced its effort for 2008. Any chance that the arrival of the Rudd Government, with its commitment to greater openness and better process, has yielded a changed approach from bureaucrats?
Well, not really. The ANAO looked at 115 contracts listed by Departments as part of their compliance with the Murray Motion that were supposedly “confidential”. 59 of them didn’t have anything confidential in them at all. Another 33 had incorrect confidentiality provisions in the, Only 20% of the contracts sampled were actually correctly identified. The Departments who were audited this time were Julia Gillard’s Education, Employment and Workplace Relations, Kim Carr’s Innovation/Industry department, the ABS, the Commonwealth Ombudsman – who commendably did the right thing 63% of the time – and the insolvency agency ITSA.
At 20%, in nearly 10 years of the Murray Motion, the Public Service has actually gone backward in its compliance on the confidentiality issue.
Mis-identification of contracts as “confidential” when they’re not is part of a broader bureaucratic habit of over-classification. It’s an old trick, perhaps first devised by the Greek slaves staffing the Roman Empire. It is designed to ensure as little information as possible leaks out through mechanisms like nosey senators demanding information at Estimates, or Opposition MPs seeking information via Questions on Notice, or even through Freedom of Information requests. Is something sensitive, embarrassing or just plain difficult to explain? Slap a Confidential classification on it. Anything involving the private sector can be declared “Commercial-in-Confidence”. Anything involving individuals could — quelle horreur — lead to a breach of the Privacy Act. Anything that might be considered by Cabinet at some point can be “Cabinet-in-Confidence”.
The real trick — I know, because I’ve done it — is to create a file for such a document, which has to be appropriately classified, and then put everything else related to it on that file whether sensitive, confidential or Cabinet-related or not, thereby over-classifying everything in the file and, hopefully, locking it away from prying eyes. It’s part-subterfuge, and part-laziness. It’s much easier to deal with requests for information by saying “that’s confidential”.
Doing it for the Murray Motion lists can discourage Senators or members of the public who might want to find out about a Government contract. You’re less likely to ask if you see that a contract has confidentiality provisions — and you don’t know to what they specifically relate.
But nearly a decade of ANAO assessments suggests that it’s best simply to assume that no contract is confidential, until you’re presented with hard evidence that it is. On average, you’ve got three chances in four of being right that there’s nothing confidential about it at all.