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FOI, frankness & formulating policy under the cone of silence

A greater range of deliberative documents should be covered by protections similar to cabinet-in-confidence classification, says former departmental secretary Andrew Metcalfe, to restore the trust and frankness between officials and ministers.

Policy formation “has been adversely impacted by the potential of disclosure of deliberative material” argued the former Immigration secretary at last week’s Australia and New Zealand School of Government (ANZSOG) conference.

Andrew Metcalfe
Andrew Metcalfe

In a talk entitled “Policy advice by post-it note”, Metcalfe added to previous comments from Treasury secretary John Fraser and Australian Public Service Commissioner John Lloyd that the possibility of advice to ministers being publicly exposed had led to much politically sensitive material never being written down, or scrawled on non-disclosable post-it notes.

So widespread is the practice that “there have been suspicions that material put in writing has been motivated improperly to set up a minister in circumstances where the materials will subsequently be disclosed under FOI,” he said.

Metcalfe, who has previously headed the Department of Agriculture, Fisheries and Forestry and the Department of Immigration and Citizenship, said he had recently spoken to “a significant number” of former colleagues working for Commonwealth departments and agencies about the issue.

“To a person, all of my interlocutors had the same experience as me and broadly shared my views,” he said.

Indeed, an impromptu straw poll on the conference floor, in which Metcafe asked all those who had been told by a minister or adviser not to write something down, or who had self-censored in written comments, left only three people of around 150 with hands raised.

“In my view, and that of many of my peers, 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.

“Speaking generally, there is less candour and rigour in the system, there is less trust in what should be the most trusted of relationships.”

Metcalfe was clear that the target of his criticism was policy advice to ministers — that is, documents from before a decision is made — being available for public release, rather than the whole freedom of information system.

“Very properly, FOI legislation has fulfilled its intentions of opening our government … in particular it’s helped people better understand the rules applicable to them, and decisions that personally affect them. It’s thus, in my view, improved our overall decision making arrangements,” he said.

FOI undermining trust

But it is too easy for public servants’ advice on particular policy areas to become drawn into public debate, undermining trust between the minister and the department.

“Imagine the approach I had to take in 2007 writing the incoming government brief for the incoming Labor government as to our candid views in relation to their policy formation on asylum seekers and whether or not dismantling the Pacific strategy and undertaking various other actions would in fact be a good public policy development or whatever. I found ways to ensure that that was not provided in a way that would be disclosable. I simply referred in the incoming government brief that these are serious matters that would require cabinet consideration and the minister will brief you and your cabinet colleagues in due course,” he said.

Post-it notes, famously, have become ubiquitous. “There’ve been requests and directives that key issues either not be put in writing or be provided in handwriting. Indeed the use of the ubiquitous post-it notes has been the stuff of jokes, but is real,” he continued. One departmental secretary even confided they kept no fewer than four post-it pads on their desk of varying sizes, for use depending on how much needed to be written.

“That secretary, who has extensive experience in government, used to make frank, written comments directly on submissions and briefings, they now put those comments on the actual post-it notes. They are far more circumspect than in the past on their writing on the formal document itself. There is only one reason why they put their [comments] on disposable notes,” said Metcalfe.

There has been pressure to classify materials as being cabinet-in-confidence “when their association with cabinet processes is slim”, he argued.

Metcalfe blamed the media and political groups for focusing too much on conflict rather than policy decisions themselves.

“We’re now seeing a practice where routinely journalists, advocacy groups, and non-government political parties using FOI to seek access to deliberative documents. There are fees applicable to such applications but in my view the true cost of this activity is much greater than is recovered by fees,” he said.

This was also part of a “fashion” for portraying public servants as political operators, he said.

“These FOI applications are having the effect that there seems to be much more interest in the process than the outcome, as far as government decision making is concerned.”

He said he did not agree that access to deliberative documents “is essential to the proper functioning of our democracy in order to shed a spotlight on government decision making,” arguing instead that “there are many other ways to seek accountability. We have an auditor-general, an ombudsman, a human rights commission, parliament and parliamentary committees and the courts.”

Ministers not as brave as they pretend

While ministers have reacted differently to this challenge, he said he thought it was “a confident and strong minister” who was able to roll with the punches.

“I’ve certainly seen from experience where some [ministers] don’t care, where they say ‘I’m not interested in a debate with the media or journalists, just put it out there.’ I think that probably requires a confident and strong minister to be in that position, someone who says I’ll just get out there and talk about the decision and the fact that I took a position different departmental advisers, that was part of the process and I’m happy to explain why.

“I’ve certainly seen other ministers who don’t want to get caught up in the debate that inevitably occurs in the media cycle that they went against departmental advice … and that I think is a result of the sorts of behaviours we’ve seen.”

Many, particularly outside the public service, will be sceptical of an argument in favour of rolling back transparency measures. But Metcalfe was clear he saw this as being in the public interest: “there’s a greater public interest in a strong, candid policy formation environment than there is in the potential disclosure of documents associated with that policy formulation.

“A robust policy environment requires debate and the means of valuing differences of views. But while ministers and their offices and senior officials believe that that can be politically damaging, some have become intolerant of communicating and countenancing in a way that would promote such debate. We as a community are thus receiving less than optimal policy outcomes,” he argued.

Instead of settling for a “second-rate, partially-broken model”, thinks Metcalfe, it should be considered whether the principle and protections of cabinet-in-confidence should be extended to a wider range of deliberative documents.

The government announced in February this year that Peter Shergold would lead an independent review of government processes for the development and implementation of large public sector programs and projects, including the roles of ministers and public servants, following a recommendation by the Royal Commission into the pink batts scheme. The review is due to be completed soon.

“It will indeed be interesting what Peter has to say in relation to this issue of disclosure and candour,” said Metcalfe.

Author Bio

David Donaldson

David Donaldson is a journalist at The Mandarin based in Melbourne. He's previously written for The Guardian and Crikey and holds a masters in international relations.