Secrecy, public health and FOI

By Binoy Kampmark

Wednesday July 14, 2021

Independent Senator Rex Patrick has threatened to take information commissioner Angelene Falk to court over 'significant delays' in FOI reviews.
Independent Senator Rex Patrick has threatened to take information commissioner Angelene Falk to court over ‘significant delays’ in FOI reviews. (AAP Image/Lukas Coch)

Two recent examples show how Australia’s FOI laws and administration are used to frustrate rather than advance the objective of informing the public, writes Binoy Kampmark.

Freedom of Information laws were designed to shed a light upon the murky, opaque functions of government decision-making. As the Freedom of Information Act 1982 (Cth) acknowledges, in passing the act parliament intended “to increase recognition that information held by the government is to be managed for public purposes, and as a national resource.”

But FOI laws, notably in Australia, tend to lack bite, granting government officials vast discretion in refusing requests for a range of reasons. Too often, the same excuses are used to conceal what would essentially be an embarrassment to the decision maker in question. In 2019, Guardian Australia found that FOI refusals were “at their highest number since records began in 2010-11”. Requests were being delayed; FOI teams had shrunk in number across 20 government departments or agencies.

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Two recent examples serve to show how Australia’s FOI laws, and their administration, are used to frustrate rather than advance the objective of informing the public, while imposing obstacles to transparency and informed discussion. Both deal with public health and the threats of a global pandemic; both suggest how the FOI regime is more an impediment than an avenue for those seeking government information.

The first deals with vaccine-supply arrangements stemming from the government’s agreement with AstraZeneca. On April 12, the ABC’s 7.30 program, using FOI, sought access to the entire vaccine-supply agreement with the pharmaceutical giant. The request would not have surprised the Morrison government: its vaccination program has been a stuttering affair. The initial targets of 4 million people vaccinated by March, and the rest of the country by October, were soon revised.

Since then, targets have become increasingly flexible, leaving Australia distantly placed in the vaccination tables; to date, a less than impressive 10% have been completely vaccinated. Outbreaks such as that unfolding in Sydney risk becoming regular features of the public health landscape.

 In all this time, public information on the rollout and supply has been lacking. But even more startling is the purposeful secrecy surrounding the entire program. This prompted the ABC’s Casey Briggs to ask in April how many vaccine doses were actually being made at the Melbourne CSL factory each week, and when that number would reach a million. There was also the question about how many more Australia could expect from overseas suppliers.

At the time, Prime Minister Scott Morrison took a leaf out of the late Donald Rumsfeld’s book of inscrutability: Australia faced a range of “unknown unknowns”. There were “a lot of variables in this process. Supply chains get disrupted. Medical evidence comes forth which requires us to address it, and may cause us to make changes to the program in the interests of public health.”

Publishing the AstraZeneca deal might have provided an antidote to such “unknowns”. Instead, the response to the 7.30 program’s request from Allison Jones, assistant secretary to the COVID-19 Vaccine Taskforce in the Department of Health, was one of curt refusal. A scant concession was made: last year’s letter of intent between the government and the pharmaceutical giant, which is shorn of detail.

The reasoning behind the decision pointed to “real and substantial grounds for expecting that [its disclosure] would, or could reasonably be expected to, cause damage to the security of the commonwealth.” The answer draws upon various definitions of “security” and the “security of the Commonwealth” in a range of statutes, all of them of questionable applicability to public health.

Jones pounces upon the broad definition of “security of the commonwealth” in the FOI legislation, which is “taken to extend to: (a) matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the commonwealth or any other country allied or associated with the commonwealth”.

The definition of “security” from the Australian Security and Intelligence Act 1979 (Cth) is also cited. These include everything from espionage to “acts of foreign interference” and “the protection of Australia’s territorial and border integrity from serious threats”.

The answer is short on exactitude in identifying any damage that could arise from making the agreement public. “I consider the particular damage to the security of the commonwealth to be the fact that disclosure of the information could provide insight into the unique arrangements for the manufacture and supply of the COVID-19 vaccine.” Releasing the details of the contract would signal “to other countries the terms agreed between the commonwealth and AstraZeneca.”

As with many such FOI refusals, the public interest is turned inside out to prevent embarrassment, the exposure of incompetence or sketchy planning. This is a poor state of affairs, as public health specialist Bill Bowtell explains. “The advice, proceedings and participants of all AZ meetings should be published.” He makes the salient point that the deal has actually compromised national security. And no government wishes their citizens to know that.”

Executive director of global advocacy group Open Contracting Gavin Hayman echoes the view. Using national security to conceal the vaccine contract was hardly a credible justification. “In fact, national security is best served by building public trust in the entire vaccination program. We think that publishing the contract with a clear explanation of its key terms can contribute that.”

The second instance of FOI stonewalling comes from the Northern Territory government, which has refused to release documents pertaining to the Chief Health Officer’s decision to quarantine 300 international defence officials and their families at the Travelodge motel in Darwin in January. The approval stunned medical groups at the time, given the availability of the qualitatively superior Howard Springs facility. John Boffa, of the Aboriginal Medical Services Alliance Northern Territory (AMSANT), called the decision “ludicrous, it makes no sense that this exemption is given.” They had reasons to be concerned, given that three of those quarantined tested positive for COVID-19.

In its dismissive response to the ABC, the NT health department cited numerous grounds for the blanket rejection. Some of the documents were exempted under the Act, as they comprised correspondence between senior officials that was generated for a cabinet sub-committee. The letter also argued that the nature of much of the correspondence, “being informal and primarily internal” meant that it would be “inherently susceptible to mischievous interpretation.” (The nature of such mischief is left to the imagination.) The public were not entitled to know of such material given the risk of “incorrect” interpretations that might engender “mistrust in the department’s decision-making process” on issues regarding public health. “This is overwhelmingly not in the public interest, given the potential public health and community safety consequences arising from the response to COVID-19.” Ignorance of such processes, in other words, was in the public interest.

Such rejections serve to show the upending of FOI goals, notably in the field of public health. Information might well be celebrated as a national resource, but is heavily filtered through a range of processes and mediums before reaching public consumption. Given that misinformation and miscommunication on government policies pertaining to health remain problematic, such decisions serve to complicate things further and impair such trust. Bowtell has a point in remarking that, “[p]ublic health cannot be secret health.”


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