Government off the record: the limits of transparency

By Stephen Easton

Monday March 16, 2015

The recent appearance of Attorney-General’s Department secretary Chris Moraitis before a Senate Estimates committee revealed a surprisingly casual attitude towards creating and retaining records of important discussions with other senior public officials.

Asked about a particular phone call with attorney-general George Brandis on February 2, and a meeting with Human Rights Commission president Gillian Triggs the following day, the obviously uncomfortable secretary said he took some notes of both but could not find them.

That those particular notes were misplaced is unfortunate, especially for the opposition and cross-bench senators hoping to investigate a serious discrepancy between the testimony of Triggs and Moraitis.

Chris Moraitis
Chris Moraitis

The importance of keeping notes was illustrated by the failure of Moraitis’ memory. He couldn’t recall what else was discussed in the hour-long meeting other than “a variety of issues”, even though it took place just weeks before the hearing. Triggs did not take notes either, and Moraitis did not ask her to endorse the accuracy of his.

Under further grilling, Moraitis’ testimony became convoluted. A notepad became a couple of pieces of paper to jot down some points. At one point he told Labor senator Sarah Hanson-Young:

“I had those notes for a while and unfortunately I have travelled to three countries in two weeks and I have lost those notes, losing my briefcase by mistake. I am sorry.”

He later said losing the briefcase was irrelevant; he took the notes out of it before going overseas and left them “somewhere where I have not been able to locate them”. Needless to say, it was not a good look.

“In every jurisdiction, public servants have an obligation not only to retain records, but to create records,” former departmental secretary Paul Barratt told The Mandarin. “Where you’re engaged in significant work or decision making … you’re supposed to make some sort of record of what’s been decided or why things were done.”

Back in 1983, he recalls a ministerial chief of staff accused him of “trying to force the minister’s hand” by writing something down. “The preferred procedure with this chief of staff was to clear what advice you were going to give orally, and then only give it once you’ve got permission to give it,” he explained. “And I never played that game.”

Ever since some politicians and public servants first began championing freedom of information (FOI) in the late 1970s, there has been significant resistance to the concept within both political parties and the public service, on the basis that too much transparency makes governing more difficult. The perverse result was a culture of unofficial secrecy designed to thwart FOI through over-classification, notes disappearing or not being taken at all, and public officials with surprisingly bad memories at times.

In a public speech last week, new Australian Public Service Commissioner John Lloyd made it clear he takes a dim view of FOI and suggested he might advise government to weaken the legislation. “FOI Laws are very pernicious,” he said. “I think they have gone beyond perhaps what they intended to do and I think they do make us a bit over cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”

Paul Barratt
Paul Barratt

According to Barratt: “When FOI first came in, I remember people wandering around muttering that they were never going to commit anything to paper again. It seems to me that in an FOI environment — and I said so at the time — it was all the more important to commit things to paper, because as I also said at the time, I was happy to be judged on what advice I had given in relation to what matter.

“I’d much prefer there to be an accurate record so I was judged on what advice I had given rather than on what advice I was assumed to have given or alleged to have given. So I felt it was an environment where a prudent public servant would actually commit more to writing so that the record was straight. But I guess, if you want to do dodgy deals, that doesn’t serve you very well.”

Former Commonwealth ombudsman, consumer advocate and FOI campaigner Allan Asher believes there has been a concerted pushback against the strengthened FOI framework that has been in place since 2011 from both Labor and Coalition governments. He believes their actions have demonstrated “disdain… bordering on contempt” for transparency, and “the signal given to dutiful public servants everywhere is: back to the old days where you don’t disclose”.

He says the shift to a pro-disclosure culture encouraged by the newly created Office of the Information Commissioner through the Principles on Open Public Sector Information has had some positive effects but also drew a “savage reaction” from the upper levels of the public service, based on his many dealings with departmental secretaries and ministers at the time.

Information commissioner John McMillan has been promoting the legal change whereby government information is now a national resource rather than restricted by Crown Copyright, and says the new principles have been picked up widely in the Commonwealth, citing the inclusion of the “Open Innovation” chapter in the latest State of the Service report. He told The Mandarin that while agencies support the options for wider engagement, consultation and online publishing afforded by digital technology, he has also noticed “much greater sensitivity across government about creating a record that may be FOI-able”.

“It’s often said to me anecdotally, and I believe it to be correct, that people are far more circumspect about what they put down on paper and that it is more common for policy briefings to occur orally,” McMillan said. “I’ve no doubt that is happening. To some extent there can be a good side to being wary about what is recorded and ensuring that the documentary record is properly thought through. But there is equally a risk that the public record will no longer be complete or accurate, or that people will circumvent accountability and integrity laws by not keeping proper records.”

Asher says the “pivotal event” was when Treasury released its incoming government brief in response to an FOI request shortly after the 2010 election. “I think that was seen throughout the public service as catastrophic, and probably was an excess of  liberalism, to hand over the ministerial brief from the Treasury without redaction,” he said. “But it just sent a signal throughout the government that, you know, nothing is safe, nothing is sacred, our jobs are on the line, let’s clam up, let’s hide, let’s obfuscate.”

Play a straight bat?

For the former ombudsman — who resigned in controversial circumstances — the issues raised by the Moraitis-Triggs affair cut close to the bone.

“Part of the documentary history of [my own resignation] are notes written at a meeting that I had with Ian Watt, the head of the Department of Prime Minister and Cabinet at the time, where his notes bore more or less no relationship to the content of our meeting,” Asher says. “And this is just what these people do, they often get legal advice, and the notes are probably drafted before meetings, or censored afterwards.”

His friend and former deputy ombudsman John Wood is also a committed FOI campaigner, counts McMillan as one of his oldest friends, and spent decades as a public servant. Like Asher, Wood sees the Australian Government’s introduction of FOI as bitterly disappointing, and gives two reasons: the level of resources assigned to administering the framework and attitudes within central government agencies. “It’s as though nothing had changed in the legislation, in terms of their attitudes,” he told The Mandarin.

Wood pursued documents relating to Asher’s resignation, because he believed Watt had pressured the embattled ombudsman to resign, much like the allegations against Moraitis. He felt the possibility of the central agency having pressured “the very organisation set up to investigate complaints about public administration” was a very serious matter and was dismayed at PM&C’s response to resist FOI disclosure at every turn, as was Asher.

Wood says efficiencies are gained by the departments and agencies that take FOI seriously and operate in the spirit of pro-disclosure, but contends that the central agencies, Treasury, PM&C and Finance, do not.

“The one thing that I used to say to my staff, as to others when I went around talking to other agencies about FOI, was if you were making a recommendation to your minister, you ought to be able to have the strength to sustain that recommendation as being reasonable, so you should never be concerned about it seeing the light of day,” said Wood.

Like many others, he finds it hard to believe Moraitis would have been so careless as to lose the notes of the meeting with Triggs by accident. “Otherwise how did he get to be the head of the department, for God’s sake?”

The affair raises the question of whether, at the highest levels, it is difficult to balance official responsibilities to diligently create and retain detailed and accurate records of all significant matters with the pressure to protect the minister and the government from embarrassment, or worse. Wood believes it is not. “There should be absolutely no conflict whatsoever,” he said. “I’m sure that there are people who second guess … what might happen to them, and unfortunately they take the path of resistance rather than the path of transparency.”

The FOI evangelist says that in 26 years in the public sector he always made it clear to 23 different ministers where he stood.

“I made it quite clear to them that you know, this was my job, and my job was to be open and honest, both in terms of my dealings with him and the government of the day, as well as being open and transparent in our behaviours towards the public,” he said. “There is no conflict in those roles, they are in fact, totally complementary. And I didn’t have a minister who disagreed. That was the interesting thing.”

Barratt, who paid the price for losing his minister’s confidence, has remarkably similar views. He says some senior executives probably find walking that line difficult, but “it ought not to be” in his opinion.

“People ought not to be in very senior jobs unless they’ve got the strength of character to behave in that way, and to remind ministers of what the law says — which may not be always what they want to hear, and also, not let people get away with the great oral culture,” he said. When the phone rings and a staffer relays a message from the minister, he advises the best response to that is to send an email confirming what was said orally, to get it all on the record:

“That’s what I did and I know other people I was close to had the same reaction. Always reduce it to writing and reduce it to writing in a way that it’s not just my word against yours.”

Barratt adds that clarification of oral discussions can be done in a non-confrontational way and points out that before email, it was far more difficult to make sure everyone involved in a conversation was happy with the way it was recorded.

“… email actually facilitates reducing oral instructions to writing, and the people who like to do heavy breathing over the phone hate it, of course, but there’s nothing much they can do about it,” he said. In the end, he says it’s best not to get involved in off-the-record government at all:

“You play a straight bat and what the minister does is up to him. You don’t go out of your way to embarrass the minister but you don’t fling yourself on the wire to let the minister run over the top of you either.”

On the other hand, recent history demonstrates that suspiciously lost notes, unconvincing testimony and surprising memory gaps at crucial moments do not necessarily do a mandarin’s career prospects any harm.

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