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Tuesday, March 08, 2011

Victoria-breaking the culture of secrecy, not, well not yet anyway

Victorian Premier Ted Baillieu has defended himself from charges he moved too slowly on reform in the first 100 days in office but it's true little has been said or done publicly regarding integrity issues in that time. Meanwhile on transparency it's business as usual in some agencies at least. As reported in The Age:

Days after the election of the Baillieu government last November, the Department of Business and Innovation received an application for access to its so-called blue books - the briefings prepared for incoming ministers. It took the department two months to respond, and when it did, the reasons it gave for rejecting the application point to deep cultural flaws in the administration of Victoria's FOI laws. The department's FOI manager said one of the blue books contained information on proposed projects ''which are still at feasibility phase and may or may not proceed''. ''If this information were disclosed, it could create a false expectation that these projects had received approval to proceed … This would jeopardise the public's perception of the government's ability to administer public moneys in a fiscally responsible manner should these projects not proceed.'' That raises concerns on at least two levels: it underestimates the intelligence of the Victorian public, and it suggests that potential damage to a government's standing is a factor in determining whether to release information.
The reasons a second blue book, on the state economy, was deemed exempt from disclosure were still more disturbing. ''The release of this information is contrary to the public interest because it would put into the public domain information which is based on estimates, assumptions and options that do not necessarily reflect the views of the government about the state of the Victorian economy,'' the FOI manager ruled. ''The content of this document may mislead the public and cause unnecessary confusion and debate on the government's views on the economy.'' Unnecessary debate about the government's views on the economy? As University of Tasmania law lecturer and FOI authority Rick Snell told The Age yesterday, that response is straight out of the British TV political satire Yes Minister.
A well connected friend in Victoria asked me in December for suggestions regarding the Baillieu commitment to FOI reform. I don't know if they were passed on or where they went, but there's no sign of them in the first 100 days. A couple  of suggestions were directed at avoiding the Blue Book knockback and reasons for refusal on patently silly "unnecessary confusion and debate" grounds mentioned above. Here's a summary:

Ensure transparency, accountability and more open government are mentioned early and often as part of the good governance mantra.

Accord change and improvement in these and related areas ( lobbying, political advertising, party donations, an anticorruption body, whistleblower protection) visibility at ministerial and government level ideally with clear responsibility accepted by the Premier or assigned to someone close to the centre of power not way out in the outer ministry.
Link FOI reform and the Gov 2.0 Action Plan.
An early statement by the Premier designed to send a message to public servants and ministerial staff in particular that new standards of transparency are expected. As one first step an instruction for immediate review by each agency of any FOI matters  before the Ombudsman or in VCAT or the courts with a view to resolution . The guiding principle is to be disclosure unless essential public interest considerations (privacy of others, sensitive commercial  information, or effective operations of government) justify non disclosure. Instruct agencies to discontinue  the practice that FOI responses need to be submitted to the minister’s office five days before applicants are notified of a decision. Announce the intention to put payments to or on behalf of parliamentarians on line. Announce some immediate changes regarding contract and grant disclosures.

Ask ministers/ agencies to release and publish on the web the incoming government briefs with as little redacted as possible. Look at other proactive publication possiblities for an early visible indicator that things are to be different.

Announce a review of the FOI act but commit to some quick legislative changes that don’t need a long drawn out review. Base these on emerging best Australian practice standards drawing on Commonwealth, Queensland, NSW and Tasmanian reforms of the last 18 months. An FOI Commissioner. New objects for the act. New proactive disclosure obligations. No charge for any application not answered within statutory time limits. Bring cabinet exemption into line with provisions elsewhere. Preclude by legislation some hoary old public interest factors against disclosure that still get a run in the Victorian courts and tribunals- disclosure would reveal communications between senior officers, public servants won’t commit advice to paper, disclosure would lead to confusion and unnecessary public debate. Introduce offence provisions for improper interference with an FOI decision maker, making a decision that the decision maker knows is wrong, or for withholding or destroying records subject to an FOI application. Ensure these measures are seen as just a start not the end-by indicating how performance will be measured.
Maybe in the next 100 days?  But time passes quickly, and culture change needs leadership from the top early and often. And of course the longer in office, the less the appetite for these sort of changes.

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