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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.

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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13 comments

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13 thoughts on “FOI rollback the latest round in the war on transparency

  1. Sue Miills

    If you give your best advice, why not willing to stand by it? Corruption flourishes with secrecy and non-accountability

  2. Norman Hanscombe

    Sue Miills, whatever will you do if Crikey raises its intellectual levels to that of Cereal Promos or even, and this might be too demanding, Flo’s Pumpkin Scones Recipe?

  3. Sue Miills

    Norman Hascombe, you often imply you are intellectually superior, but when losing an argument you just get nasty. I’ve never been able to respect the tactic. I look forward to your use of “fervent” when responding

  4. Norman Hanscombe

    Sue, do you actually think the word “imply” is the most apt you might have used? As for “losing an argument”, if ever you have the courage to participate in a face to face debate, make my day by requesting one.
    I can assure you though that I’d not entertain wanting to be seen as your superior because setting the bar low has never provided me with any satisfaction.
    I shall try to avoid using the word “fervent” with you until there’s evidence you understand its meanings.
    Try to have a good day, even if it’s only in your daydreams.

  5. ken svay

    Crikey Norman, take your hand off it. Just being contrary is very boring, why dont you just fuck off if you have nothing to contribute.

  6. Duncan Gilbey

    I have clearly not attained the loftiness of your intellect Norman, but I find your snide remarks belittling other posters tiresome.

  7. Norman Hanscombe

    ken svay, of course it could be boring for those who for whatever reason, emotive, limited background or anything else, find it difficult to analyse available evidence, but surely you might feel it worthwhile to at least try to express your displeasure better?
    You might also ask yourself whether Posters whom you feel have been treated harshly on Crikey treads first made even harsher attacks, often without any substantiation at all, on whichever Public Figures they disliked.
    Duncan, never mind any shortcomings you may feel you have and it’s something that you don’t see the comments as inaccurate isn’t it.
    I’m sure you’ve heard about Free Speech. I know it takes more effort than what you now do, but why not use it to point out where you genuinely believe Posters are wrong on substantive assertions? Doing this has been known to sharpen people’s analytical skills no matter what else isn’t one of their fortes.
    Have a better day.

  8. drsmithy

    Norman Hascombe, you often imply you are intellectually superior, but when losing an argument you just get nasty.

    For Norman to lose an argument he would first have to actually enter into one – something he “fervently” avoids – rather than just lobbing fallacies from the sidelines.

  9. Sue Miills

    ps Bernard – thought your article was good- well written, considered & fair. Cheers all, I usually enjoy reading posters’ comments as most are by thoughtful, interested, informed readers. Norman – seriously – get a life

  10. Norman Hanscombe

    Sue, for you complimenting people for mediocre articles is no doubt a satisfying life, but others have been fortunate enough to have worked with friends and colleagues who held senior academic positions at times when standards at all levels of education hadn’t been watered down to ensure pieces of paper meant little more here than they did for example in many educational institutions in North America.
    Those who would have to struggle were they to be placed back in those times can’t be expected to do much more than tell others to get a life can they.
    drsmithy, still not willing to contemplate a debate?

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