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Federal

Aug 17, 2015

FOI rollback the latest round in the war on transparency

Public servants are boasting about how they evade Freedom of Information laws -- and want to roll them back. It's all part of a government war on transparency.

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Julian Assange calls it the “secrecy tax” — the reduction in efficiency within governments as politicians and bureaucrats, in terror of transparency, try to hide their deliberations from any medium that might be exposed to the public by due process, a whistleblower or hacker. And apparently senior public servants are eager to pay it.

Last week, our colleagues at The Mandarin reported the latest instalment of what is, in simple terms, a full-blown war on transparency being waged by both the government itself and the public service. Former Immigration and Agriculture Secretary (one of those sacked by Abbott for being perceived to have worked too hard for the government when Labor was in power) Andrew Metcalfe called for nothing less than a full-scale rollback of Freedom of Information legislation to allow more documents inside the public service to be exempt. The reason is that senior public servants were now having to put their advice on Post-it notes or deliver it orally to ministers and their staff, out of concern that someone might FOI their written advice.

As The Mandarin‘s David Donaldson reported, Metcalfe told a roomful of public servants “the quality of engagement, the quality of the policy formulation process between the senior levels of the public service and ministers and their advisers, has been adversely impacted by the potential of disclosure of deliberative material”.

Metcalfe’s complaint echoes that of Treasury Secretary John Fraser, who also complained that advice now had to be delivered orally, while the right-wing anti-unionist John Lloyd, appointed by Abbott to run what’s left of the Australian Public Service Commission, bluntly called FOI “pernicious”.

That senior public servants are seeking to evade the intent of the Freedom of Information Act — indeed, seem happy to boast about it — is bad enough. But the complaint that somehow a “pernicious” environment of openness is threatening the public service’s capacity to offer candid advice is demonstrably wrong. The Rudd government amended FOI to widen its application and John Faulkner, in his too-brief stint as Special Minister of State, ordered the public service to commit to a new era of greater transparency. But any momentum was lost under the Gillard government, and there has been a massive rollback of transparency under the current government. For reasons that have never been satisfactorily explained by agency heads, decisions to release at least redacted versions of incoming government briefs prepared for the 2007 and 2010 elections under FOI weren’t repeated after the 2013 election, meaning the advice to the Rudd and Gillard governments was made available but the advice to the Abbott government was not.

The government is seeking to abolish the position of Australian Information Commissioner, although it doesn’t have the fortitude to bring on legislation doing that; the role is now being filled by Privacy Commissioner Timothy Pilgrim, who is also filling the role of Freedom of Information Commissioner, after the departure of James Popple at the end of last year.

As lawyer and FOI expert Peter Timmins has tracked on his excellent FOI blog, the combination of roles has meant that, despite the sterling efforts of remaining staff, the caseload of FOI reviews is building up. Agencies are increasingly generously interpreting the excuses and exemptions within FOI to withhold documents, while the government simply appears to have given up on participating in the international Open Government Partnership. And all that’s before you get to the absurd imposition of secrecy regarding “on-water matters” as part of Operation Sovereign Borders and the Immigration Department’s attempts to cover up rape, child abuse and sexual exploitation at its detention facility on Nauru.

Why are public servants so terrified of transparency that they’ll put their advice on stickers? Metcalfe blames the media and NGOs for, well, using FOI laws as they’re intended to be used, and thus revealing when ministers have acted contrary to departmental advice or when ministers and departments have disagreed about a decision.

Now, it’s true that the media often doesn’t cover itself in glory in its use of FOI: ministers are not cyphers, they are not there to rubber-stamp bureaucratic decisions; a failure to act in accordance with advice isn’t evidence of some inappropriate behaviour; nor are differences of opinion within government invariably evidence of a government racked with division and ministers at each others’ throats. But, as I can relate from experience, the primary driver for public service resistance to FOI is that it is viewed as non-core business that only has potential downsides for bureaucrats and the government they serve.

Even without the possible embarrassment that a minister’s office ignored departmental advice, a sloppily drafted email, poorly expressed advice, a joke about stakeholders between bureaucrat and ministerial adviser, always look terrible on the front page of a newspaper. The best case scenario from any FOI application is that no story ever appears as a result; the worst, that the minister is embarrassed and forced to defend themselves. That, plus the fact that it can be a pain in the backside to go searching through files for the documents possibly subject to the application while “real work” goes undone, means all public servants are fundamentally FOI-averse.

The problem is that poor transparency leads to poor policy outcomes, exactly because public servants know that there is less accountability and less chance of public exposure. The classic example is “free trade agreements”, repeatedly criticised by the Productivity Commission, which has particularly savaged the process around the Trans-Pacific Partnership: these deals, negotiated by Foreign Affairs and Trade bureaucrats in secret, end up having few net benefits and often contain agreements that are damaging to Australia’s national interests, but no one has been able to assess them before they are signed. And look at behaviour that flourished on Nauru — not merely the abuse and exploitation of detainees but the stalking and filming of a senator by a security company.

As former departmental secretary Paul Barratt has argued, the best response to greater transparency — and it’s important to repeat, transparency is rolling back, not widening — is to write more down, not less. If a public servant — as Barratt was — is happy to be judged on the advice they have given, then they have nothing to fear from the revelation of that advice. The question should be — what are public servants, from secretaries on down, trying to hide by evading FOI and sticking advice on Post-It notes or insisting on delivering it orally? And if Ministers and their staff don’t want advice written down, what do they have to hide?

As Metcalfe demonstrates, however, the public service has taken its cue from the Abbott government, which prefers simply to try to legislate perceived problems away, rather than think innovatively about how to respond to them.

*Bernard Keane worked in the Australian Public Service from 1993-2008.

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