FOI laws: fixing the chilling effect on frank advice

By Stephen Easton

Thursday June 18, 2015

While freedom of information laws are designed to promote transparency and accountability, they also turn full and accurate record-keeping from a standard responsibility into a frightening risk.

The path to workable compromise on FOI might be found in surveying public servants about their attitudes and concerns about disclosure laws, one former government lawyer has suggested, or taking responsibility away from agencies’ legal divisions.

Peter Timmins
Peter Timmins

Freedom of information and privacy law specialist Peter Timmins welcomes the Tasmanian government’s recent directive that documents released under its Right to Information law be published online within 48 hours, but he says it’s “dark days” at the Commonwealth level.

Uploading documents to disclosure logs for all the world to see, not just the applicant, gives the appearance of greater transparency. Tasmania is now the fifth Australian jurisdiction to do so following in the steps of ACT, New South Wales, Queensland, and the Commonwealth.

The practice can also severely reduce the news value of the documents for hyper-competitive political reporters, and therefore how many people will realistically hear about them. Undoubtedly, there are many ministers and senior public servants who see that as a good thing.

Timmins, who has worked as a diplomat and advised various state and federal agencies, says that while a lot of top bureaucrats see freedom of information as a nuisance, it is still the law and public servants should respect it as such.

“No prizes or honours being awarded for efficiently and effectively administering the FOI Act”

But he and many others notice a distinct air of secrecy around the current federal government — more so than past governments — and Timmins says top public servants are getting the message to play along.

“There’s no prizes or honours being awarded for [public servants] who efficiently and effectively administer the FOI Act, I don’t think,” he noted.

It’s not clear how many public servants — at any level — believe in the principles behind the legislation and support it. Perhaps they could be asked about their attitudes to FOI and experience of its effects in the regular surveys run by the Australian Public Service Commission, suggests Timmins.

“I’m sure there are many public servants who do understand the importance of something like this in a democratic system of government, but it’s interesting to me that for over 30 years, the main carriage of FOI in many government departments is with the legal section,” he pointed out.

“It’s not with people who might take a broad, democratic view about citizen rights. It tends to be overseen in so many areas of government by the legal division or legal branch and I think that brings to it a sort of ‘black-letter’ legal perspective, and I think that’s flavoured FOI in many organisations throughout the public service.”

‘Great oral culture’

“They’ve come into these top public service roles and now they’re saying it’s too hard? What a whinge!”

What former Defence secretary Paul Barratt has called “the great oral culture” has developed inside the Australian Public Service in fear of FOI, as the framework has grown stronger over the past 30 years. That oral culture is in full effect under the current administration and that’s a pity, according to Treasury secretary John Fraser.

Critics have disagreed on where Fraser stands — he’s no side’s warrior — but his comments appear in favour of a renaissance of writing, if not necessarily an overly robust FOI:

“Freedom of information has made people extremely careful in the public service about what they put on paper, and that’s sad.

“Freedom of information is not a bad thing in itself. But open policy debate means people have got to be candid. And at the moment a lot of it is done orally, which is a pity. It’s a pity for history and it’s a pity because I’m not smart enough to think quickly on my feet. And writing something down is a great discipline.”

Fraser is not alone in the assessment, with another Abbott government appointee two months earlier remarking on the “pernicious” nature of the laws set up under the previous government. APS commissioner John Lloyd left no doubt he thought the laws should be watered down:

“FOI laws are very pernicious. 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.”

Fraser’s and Lloyd’s comments moved Labor senator Joe Ludwig, a former attorney-general, to introduce an entirely symbolic private members bill last month that would amend the FOI Act to make the system even easier for the public to navigate.

Ludwig told The Mandarin he found it “extraordinary” that two recently hired top public servants felt comfortable saying publicly that the laws were a constraint on them:

“They’ve come into these top public service roles and now they’re saying it’s too hard? What a whinge!”

There are two issues for agencies created by FOI. One is the amount of time and resources spent responding to information requests, which could be solved through resourcing that matches the legislated requirements. The other is simply fear of disclosure, and the opposition senator has little sympathy for public servants in this regard. “Why did you make the decision in the first place if you weren’t happy to have it exposed to the light of day? It comes back to: ‘What have you got to hide?'”

Timmins, who blogs regularly about the issue, also believes the “tone at the top” has taken a turn for the worse and thought it was “a hell of a pity” that Ludwig and other senators didn’t question Lloyd or Fraser on their remarks in recent Senate Estimates hearings.

“It was a bit of an opportunity to ask [Fraser] about the culture in Treasury, and how he squares his comments that because of FOI, oral communication is now favoured … with a whole range of ground rules and good practice guidelines about the way government is supposed to operate,” he told The Mandarin, referring to advice promulgated by the auditor-general, National Archives and Lloyd’s own fiefdom.

The APSC and the management advisory committee have long maintained APS values require solid record-keeping for decisions and actions, accessible to independent scrutiny, for accountability, corporate memory and also to guide future decision makers. However, “not all communication needs to be written” the commission once advised.

Politics in the way

Ludwig said he felt the Abbott government had “cloaked itself in secrecy” in comparison to its predecessors. “It’s wound back some of the legislation. If you go right back, it didn’t want to release any of its incoming government briefs; we did.”

Timmins thinks it is “quite reasonable” for the public service’s assessments of pre-election promises contained in those briefs to be kept hush-hush, at least until the government announces whether it will keep them or break them. “But parts of the briefs that go to the state of the nation or of particular sectors of the economy and the social wellbeing of the nation, I think that those should be released,” he said.

Other FOI advocates have suggested that in government, Labor ministers were also far less supportive of transparency than in their rhetoric. The self-described FOI guru (it’s his Twitter handle) gives credit to Labor and particularly Ludwig’s former Senate colleague John Faulkner for the FOI reforms the party pushed through in 2010, and the groundwork for them going back to 2008:

“Was it all that was needed? No. Was it a step in the right direction? Yes,” said Timmins.

“Was it a search for best practice in bringing Australia into line with the best system we could devise from international experience? No … but it was a useful step forward.”

The current Commonwealth government’s transparency track record on the other hand has been “very poor” in his view, particularly in contrast to this 2013 pre-election promise:

“We will restore accountability and improve transparency measures to be more accountable to you.”

Timmins also recalls George Brandis admonishing Labor way back in 2009 with the old adage that actions speak louder than words, and he now uses the same standard to judge the Coalition, pointing particularly to its ongoing battle against the Office of the Australian Information Commissioner, and the government’s refusal to answer simple factual questions, particularly around immigration and border protection.

“Getting access to something 12 months after you ask for it [isn’t helpful] … the story is probably gone by then.”

Since there is not enough Senate support to do away with the office, the government is trying to achieve its aim by stealth. The FOI commissioner role has been vacant since December and now that information commissioner John McMillan, whose term was due to end soon, has gone to work for the NSW government, it is possible he won’t be replaced anytime soon either. Only privacy commissioner Timothy Pilgrim remains.

“The claim is that they’ll save $10 million over the four-year period [by abolishing the OAIC and] that it would help FOI applicants by removing complexity,” Timmins said. “Well, I’m afraid that claim was not evidence based. I think the claim of how much money it would save is a bit questionable, and the claim that it would simplify the system is without evidence.”

Timmins suggests some public servants dealing with FOI requests are now “gaming” the system because they know that even if they reject a request on spurious grounds, it will take a very long time for the OAIC to review the decision. That was the impression he got from the responses to two requests he put in with the Attorney-General’s Department recently.

“As journalists will point out, getting access to something 12 months after you ask for it [isn’t helpful because] the story is probably gone by then, and it’s only the most dedicated or the journalists with the longest lead times who can effectively use the act in that context,” he added.

“So I think it’s pretty dark days myself, about FOI generally, and we’re yet to see a penny drop with the government that this is a cause of real concern.”

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