Lonely voice challenges top mandarins over ‘open by default’

By Stephen Easton

Wednesday April 13, 2016

Federal mandarins are in furious agreement with former mandarin Peter Shergold’s views that more of their advice should be exempt from public disclosure via the Freedom of Information Act.

But a question from the floor challenged that dominant view during a panel discussion on Monday, featuring Shergold, Australian public service commissioner John Lloyd, and Department of the Environment secretary Gordon de Brouwer.

Marianne Cullen, a first assistant secretary with the Department of Human Services, asked why a radical shift to “open by default” advice was not possible if openness and transparency are necessary for ensuring accountability and stimulating innovation, as current discourse suggests:

“Accepting that there would likely be a disruptive transition period, surely moving to a basis where our advice is open by default would make public servants more accountable for providing fulsome, robust, innovative and evidence-based policy advice.

“It would also ensure that ministers remain accountable to the public for decisions they make and for clearly explaining those decisions. And the question of trust shouldn’t come into it, as the rules of engagement would be clearly known upfront.”

” … public servants, worried that the documents may become public, will tend to write anodyne advice … ”

All on the stage (and no doubt many of the audience) agreed that the FOI Act harmed the processes of government by making public servants overly careful about what advice to ministerial offices they put in writing. They were joined by Department of Industry, Innovation and Science secretary Glenys Beauchamp, chairing the panel as president of the local Institute of Public Administration Australia branch.

Shergold admitted his view that “we need to rethink the FOI Act in order to ensure that deliberative documents are protected” was controversial with the public. “I do so only because I am absolutely convinced that it is the foundation of good public administration and good public outcomes,” he said.

Conversely, Cullen’s view could be described as controversial in the senior ranks of the APS. Backed by the secretaries and the commissioner, Shergold said he was convinced the current law lets out too much of the back-and-forth deliberations of government.

“I suppose the epiphany for me where I thought ‘this is going wrong’ was once I had left the public service and I saw the fact the incoming government briefs that had been prepared for governments and oppositions were now being made public,” the former mandarin said.

“In my view that is not helpful, and my guess is if that continues, the form in which those incoming government briefs will be written in the future will change. One of the dangers is not just that ministers will prefer oral advice on sensitive issues, it’s that public servants, worried that the documents may become public, will tend to write anodyne advice.”

Underused exemptions

Only de Brouwer stopped short of outright advocacy for changes to the FOI Act, saying he agreed it would be “a really useful public discussion” but that the first step was learning how to apply the existing exemptions, which do provide significant protection already.

“My own sense is that we haven’t made proper use of those exemptions from Freedom of Information,” he said. “They really do relate to the sensitivity of deliberative material and deliberative processes of government.”

He also prefaced his answer by saying “it’s extremely important that the secretaries and departments meet the law fully and properly” in its current form.

Lloyd reiterated his long-held view that the FOI scheme could reach too far into the inner workings of government, and should be reigned in, and Beauchamp also supported legislative reform to get some “balance back” to the system.

“I think with the media cycle as it is, 24-7, the hint of something happening [means] it becomes automatically [seen as] public policy, whereas early in the public policy process, of course there should be a contest of ideas and those ideas should be tossed around within government, across government with politicians and the like,” she said.

Beauchamp thinks all APS agencies “would be in a much better position” if the shadow cast by FOI exemptions was widened, reducing the administrative burden.

“I’d be in a much better position to manage that process — whereas when I look at some of the FOI requests at the moment, most of them are from journalists looking for a story, which I think is not misusing the FOI act, but is that its original intent?”

Her remarks may well ring true to many of her colleagues — Lloyd has made the same suggestion in the past — but a large number of frivolous or dead-end applications, from journalists or otherwise, are an inevitable consequence of the act. And any alternative that seeks to block time-wasters would undermine the “original intent” of the legislation to a much greater degree.

Later, Parkinson joined the chorus — taking the place of his predecessor Michael Thawley — saying he “couldn’t agree more” with Shergold’s take on the situation:

“As leaders we need, as Gordon said, to use exemptions appropriately, but I would support going further and advocating for changes to FOI laws to protect the deliberative process.

“Not to reduce our accountability, not to protect us from stuff-ups we may have made, but to enhance the capacity to give the truly frank and fearless advice that good policy design needs.”

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