Record-keeping weaknesses limit accountability

The reference in the post yesterday to former PM&C Secretary Dr Peter Shergold alluding to the fact that the prospect of disclosure would lead to advice to ministers not being given in written form highlights a shortcoming in the legislative framework within which the Australian Public Service operates: the absence of a general legal obligation to ensure that full and accurate records are created in the conduct of government activities, and to document and retain records of decisions.

Not that Shergold's point is new, or just a possibility. Treasury Secretary Ken Henry told the Canberra Times in 2006, that "because of FOI," records of communication with the Treasurer were not always kept. On the general issue, the Australian Law Reform Commission, the Ombudsman and the Auditor General (most recently in this 2006 Report Recordkeeping including the Management of Electronic Records) have all referred on many occasions to the need to address shortcomings in record-keeping practices. The Audit Office and the Public Service Commission have put out plenty of guidance on good practice including the need for written briefings on key issues where practicable, and records of decisions on significant issues.

Some new information about what goes on behind the scenes is contained in the recently published e-book The Role of Departmental Secretaries by former Public Service Commissioner and Secretary of the Department of Health and current President of the Australian Institute of Public Administration, Andrew Podger. This from the chapter Fourth estate or fifth column? Working with the media about a strategy meeting on how to foil FOI applicants, while staying just inside the law, although "systematic arrangements to tie as much policy advice to cabinet papers as possible" in order to avoid disclosure might have gone close to an issue of interest to the Ombudsman at the time.

" A meeting of all departmental secretaries in 2004 discussed concerns about the media campaign, led by The Australian newspaper, to challenge decisions (including the issuing of ‘final certificates’) to exempt documents from FOI. Discussion focused first on the definition of ‘documents’ and then, when the meeting was advised by Rob Cornall (Secretary of the Attorney-General’s department) that the legislation implied a wide definition, discussion turned to ways of limiting the number of documents held that were not unequivocally exempt from public release. Keeping diaries was firmly discouraged, those with ‘day books’ or similar were advised to destroy them at the end of each week or fortnight and it was suggested that good practice was to systematically review document holdings to destroy draft papers that were no longer essential for future work. Where possible, policy documents were to be managed as cabinet papers, which were exempt. One secretary went so far as to boast that he never kept written records of conversations with the minister, but reported back to his departmental officers orally on decisions made and action to be taken. Cornall was asked to provide further legal advice on how to gain exemptions from FOI coverage.

I expressed concern that the conversation was so one-sided. I noted the Auditor-General had frequently criticised the lack of adequate record keeping and asked Cornall to give us legal advice also on the obligations of public servants to make and to keep records. Cornall agreed that this was a sensible request. (As I recall, the subsequent advice provided was that there was no explicit obligation to create records, though the Public Service Act and the Financial Management and Accountability Act arguably implied some such obligation—for example, through the value of ‘open accountability’; the Archives Act certainly constrained the destruction of records once created.) I also asked the secretary who claimed he did not keep records how he expected his staff to carry out the minister’s decisions, which he had relayed orally. Surely effective management, let alone the obligation of accountability, meant someone would make a record of the decisions.

A year later, when I was working in the Department of PM&C, I was intrigued by the systematic trawling of files, official and unofficial, to destroy ‘surplus’ copies of draft papers and other papers not essential for recording the decision-making process. There were also systematic arrangements to tie as much policy advice to cabinet papers as possible. The processes did not involve the destruction of any key documents, but were clearly aimed at limiting the risk of FOI (or parliamentary) requests for working papers being upheld."

I don't know whether Dr Shergold was at the meeting but he was Secretary of the Department of Prime Minister and Cabinet at the time.

On another aspect of FOI- the ticklish problem of dealing with the minister's office- Podger recounts this episode from his time as Secretary of the Department of Health to Minister Woolridge:

"I was accompanying Michael Wooldridge on a visit to the United States when, on the way to an important meeting one morning, he turned to me in the car blasting me about the department betraying him and lying to his office. I had no idea what he was on about until the adviser explained that it concerned an FOI request. The department overnight had released information requested about the minister’s personal expenses in the form of all the various receipts for expenditure. The media back home was having a field day about such things as champagne with the AMA president after settling some negotiated agreement. I contacted my office and sought the background.

The minister remained furious all day, convinced of the department’s disloyalty and unilateral action. Having finally obtained the full story, I went to the minister’s hotel room late in the evening, a bottle of red wine (bought with my own money) under my arm. The staffer was with him. I accepted responsibility for the department not forewarning the minister or his office of the precise time the information would be released, but advised that his office was aware of the request and the information to be released. I also noted that the FOI request followed the minister’s continued refusal to answer a related Question on Notice, a reply to which we had drafted on several occasions. The minister was not much mollified (given the continuing media fun and games), but said he appreciated my gesture and accepted it was my role to defend the department.

I bit my tongue, waiting until the staffer and I had left his room to hand the adviser copies of all the emails I had. These detailed the extent of communication between the department and the office over several weeks, including the collation and verification of documents by the office, consideration of what had to be released under the law and the deadlines under the law for release. I told the staffer: ‘You now know what I did not tell the minister: I could have nailed you and the office on this. There was no lying by the department or any disloyalty to the minister. You guys clearly did not keep the minister informed.’ Perhaps I should have been more forceful with the minister, but this way I won important credit with the office and greater cooperation from then on. I doubt the minister forgave us, however."