Federal Treasury says: quality of advice at risk from FOI reform

The release of parts of the Federal Treasury's briefing book for the Treasurer, in response to a Freedom of Information application by Channel 7 (FOI Editor Michael McKinnon), was big news last week. Treasury's concern about the economy and the significance of climate change was consistent with the message that ministers have been telling all and sundry since the election.

Some of the document released was posted on the 7 News website. FOI Treasury documents

It's worth a look as a perfect example of the neat use of the black pen and what has been claimed exempt (almost entirely as internal working documents) seems to exceed what was released. Try page 18 on the Budget process and transparency: everything after the sentence -

"An effective budget process will need to be established almost immediately to ensure budget-decision making remains consistent with your Government's priorities and your medium-term fiscal framework".

has been deleted. You can imagine the calamity that would follow disclosure of anything more about making the budget process more transparent! Michael McKinnon says that this FOI experience shows that Treasury "is unreconstructed" when it comes to decisions about disclosure of documents of this kind. He detected no sign of any movement in their thinking about these issues.

Some parts of the document released were not published on the Channel 7 website. They include comments about matters that go beyond the Treasury portfolio, including the Government's election commitment to Freedom of Information reform, particularly the proposal to abolish conclusive certificates. What was released on this issue is here on page 51-a fair chunk was claimed to be exempt.

Treasury, consistent with views previously expressed by the Secretary Ken Henry, is again raising the flag that abolition of certificates, particularly for deliberative documents will impact on the provision of 'frank and fearless advice. This ignores the fact that provision of 'frank, honest, comprehensive, accurate and timely advice' is enshrined in the Australian Public Service Values. The Values and the associated code are part of the Public Service Act. All public servants have a duty to comply. Heads of agencies have a responsibility to encourage a culture that respects these values.

While some federal agencies have tried (with limited success) to argue this issue over the years, few courts and tribunals buy it, even when wrapped up recently in an associated claim that disclosure of a document will mean that public servants won't in future commit advice to paper. The Australian Law Reform Commission, after considering this and associated issues for two years, recommended 12 years ago that conclusive certificates for deliberative documents be abolished. Some in the public service clearly resist this as certificates are subject to limited review and will be upheld if one 'reasonable' ground can be cited to justify refusal on public interest grounds.

Treasury is wrong in its note to the Treasurer that access to information under the Act needs to strike a balance "between ensuring public interest in political debate and ministerial accountability, and .............promoting frank and fearless advice". The balance is between the public interest in disclosure, and the efficient and effective performance of government functions. Some documents including advice will be sensitive because of the content or circumstances but such claims need to be considered and weighed against the public interest in disclosure. Blanket claims that documents cannot be released in the interests of promoting frank and fearless advice just don't wash. Nor does the present system of limited review of certificates sit comfortably with the objects of the Act.

Over to you Senator Faulkner.