Frank advice remains confidential in Victoria

Access to some advice documents under the Victorian Freedom of Information Act is being determined on grounds that disclosure would inhibit the provision of frank advice in future, an argument questioned or rejected elsewhere.

In a recent Victorian Civil and Administrative Tribunal decision the effect of disclosure of some documents was found to be contrary to the public interest because of the nature of the information and the consequential impact on ongoing government interests; others because they related to the preparation of a cabinet submission. However the decision of the President Justice Bell in McIntosh v Department of Premier and Cabinet [2009] VCAT 1528 includes statements and findings concerning a policy brief and a possible Parliamentary Question that rely on the broader point that advice to ministers should remain confidential regardless of content. For example: "(t)he Premier and ministers are entitled to receive frank, independent and confidential advice about how to answer possible parliamentary questions if asked, and be judged on their answers, especially in relation to issues of high policy importance. PPQs represent an adviser’s views about the matters at possible issue, not those of the Premier or minister. The Premier and ministers should not be judged on their adviser’s views. Releasing PPQs on matters of high policy importance may inhibit access by the Premier and ministers to frank and independent advice of that kind in the future" [70]; and "(r)eleasing advice given to the Premier and ministers would breach the confidentiality of the advice. It would also inhibit the capacity of officers to give such advice independently and frankly in the future ..."[92].

There might be other arguments to support the exemption claims but these reasons are in marked contrast to comments by Federal Special Minister of State Joe Ludwig on the same subject in Canberra two weeks ago, admittedly talking about reforms that are yet to come to pass:

"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."

Almost two years ago Deputy President Forgie of the Administrative Appeals Tribunal in McKinnon and Secretary Department of Prime Minister and Cabinet said [176] the claim that senior APS officers have a reasonable expectation that the documents would remain confidential and that their release would tend to inhibit frank and objective analysis and evaluation of issues and policy options in the future could be fairly restated: " If the work that they did as APS officers were revealed, they would not in future do the work required of them as APS officers holding senior positions, which required them to give policy advice and to do so in a way that promotes the APS Values." She continued:

177. Whichever way the claim is stated, it cannot be said to have a rational basis. Senior APS officers may well have an expectation that their advice will remain confidential and, for the most part, that it is often the case. To suggest that they would be inhibited in the performance of their duties if their advice were released would require clear evidence. I do not have that evidence. Without it, I struggle to understand how, in an APS that is committed to being apolitical and accountable to what the literature describes as its “stakeholders” and which has a statutory as well as ethical duty to perform its duties would be inhibited. Its stakeholders must include the Australian community. My struggle is such that I have concluded that there are no reasonable grounds in this case for the claim that disclosure of documents 1 to 13D would be contrary to the public interest on the basis of any inhibition of frank and objective analysis and evaluation of issues and policy options in the future."

In a unanimous decision of the NSW Court of Appeal three years ago, the Court stated that after decisions have been made within government, public interest arguments for non disclosure of “thinking process” documents cannot be based on formulaic, theoretical propositions developed in an era of closed government.

The new acts in place in Queensland and soon NSW, and the Federal Government's Exposure draft make such broad arguments even harder to sustain.

The applicant in the VCAT case, Andrew McIntosh is a member of the Victorian Parliament and applied to the Department of Premier and Cabinet for access to all documents relating to the controversial Record of Commitments dated 6 November 2006, made by the then Premier and The Police Association prior to, but not mentioned publicly until after, the state election.The public interest in access received an acknowledgment from Justice Bell but didn't cut the mustard. He may have felt bound by Victorian court precedents to accept the arguments and to find as he did. But the line of reasoning is looking dated, circa 1985 and Re Howard, another factor pointing to the need for a fresh look at FOI in Victoria in the light of current thinking about transparency and accountability.