A series of developments send a message inconsistent with sentiments expressed by Senator Brandis in 2009 that Freedom of Information is vital to ensure that government remains open,
responsible and accountable for its decisions.
As the senator said at the time "the true measure of the openness and transparency of a government is
found in its attitudes and actions when it comes to freedom of
information."
Attitudes and actions worth noting include:
Item
The Federal government sticks with its plan announced
by Attorney General Brandis in May 2014 to abolish the Office of
Australian Information Commissioner. In proposing a reallocation of
functions the government makes no mention of the fact that FOI related roles such as
oversight of freedom of information implementation and ongoing
leadership of cultural change to encourage more open government are not
re-assigned anywhere.
The
bill has been on the Senate list since October and not brought
forward for a vote apparently because of the absence of a majority in
favour.
With
the axe hanging in the air since May 2014, funds allocated only to
December 2014 in last year's budget and 'transitional funding' of $1.7
million for FOI this year, the OAIC continues to carry out FOI functions
at a reduced level - for an unspecified period.
(The bill also abolishes the
non-litigious free external merits review process for review of agency
and ministerial FOI decisions, and moves this function exclusively to
lawyers' territory at the AAT where the application fee for those who do
not qualify for a concession is $861 at present and to rise in line
with the CPI from 1 July; fractures the synergies established only four
years ago between FOI, privacy and broader policy on information
management in the digital age; and places the attorney general in the
position of government wide influence on decision making through the issue of guidelines in
the stead of the independent commissioner.)
Item
Public
Service Commissioner John Lloyd claims FOI laws are "very pernicious",
have gone beyond what was intended, and hopes government will do
something about it.
(The Mandarin)
Item
Secretary
of the Treasury John Fraser laments Freedom of Information has led the
public service to greater reliance on oral communication in order to be
candid. It's 'sad' he said, acknowledging "writing things down is a
great discipline." (The Mandarin. Source here.)
Item
Secretary of Attorney General's Department Chris Moraitis revealed:
"a
surprisingly casual attitude towards creating and retaining records of
important discussions with other senior public officials. Asked about a particular phone call with attorney-general
George Brandis on February 2, and a meeting with Human Rights Commission
president Gillian Triggs the following day, the obviously uncomfortable
secretary said he took some notes of both but could not find them....He couldn’t recall what else was discussed
in the hour-long meeting other than “a variety of issues”, even though
it took place just weeks before the hearing. Triggs did not take notes
either, and Moraitis did not ask her to endorse the accuracy of his. Under further grilling, Moraitis’ testimony became
convoluted. A notepad became a couple of pieces of paper to jot down
some points. At one point he told Labor senator Sarah Hanson-Young:
“I had those notes for a while and unfortunately I have
travelled to three countries in two weeks and I have lost those notes,
losing my briefcase by mistake. I am sorry.” He later said losing the briefcase was irrelevant; he took
the notes out of it before going overseas and left them “somewhere where
I have not been able to locate them”. Needless to say, it was not a
good look.
(The Mandarin.)
Item
Anecdotal of course but agencies seem to be retreating on the transparency front. One indication is that some ( Finance, Veteran's Affairs, Health
for example) are dragging out old favourites 'Frank and Candid' to argue that release of
deliberative material will inhibit or compromise provision of advice in
future, impact negatively on relations with the minister, or similar
foreboding. Attorney General's
in this example managed to soak up sixteen months with this line of
argument before releasing most of the document when challenged. By that time it was three years
old. They then opened up a new front - that attachments to the document were not part of the document they were willing to release- and alas, won.
It seems a far cry from the High Court 35 years ago in Commonwealth v Fairfax (1980) 147 CLR 39 per Mason J [51]:
it
can scarcely be a relevant detriment to the government that
publication of material concerning its actions will merely expose it to
public discussion and criticism. It is unacceptable in our democratic
society that there should be a restraint on the publication of
information relating to government when the only vice of that
information is that it enables the public to discuss, review and
criticise government action.
And the comprehensive work-out Frank and Candid received in Deputy President Forgie's monumental decision (in pre 2010 reform days) McKinnon v Secretary Prime Minister and Cabinet [2007] AATA 1969.
Almost six years ago,
Senator Brandis said:
The coalition’s commitment to open, responsible government is well
known. It was the Liberal Party which pioneered freedom of information
legislation in Australia. The Freedom of Information Act.. is the act of a Liberal government—the Fraser government.
It is a vital measure to ensure that government remains open,
responsible and accountable for its decisions.....The true measure of the openness and transparency of a government is
found in its attitudes and actions when it comes to freedom of
information. Legislative amendments, when there is need for them, are
fine, but governments with their control over the information in their
possession can always find ways to work the legislation to slow or
control disclosure. That is the practice we are seeing now under the
Rudd government, whose heroic proclamations of commitment to freedom of
information are falsified by the objective evidence of their practice.
Ministers in the Liberal government
and senior public servants who read the message including between the lines and then contribute to
the tone themselves, appear to have lost their voice on this topic.
They've also lost touch with:
The Freedom of Information Act
The
Parliament intends, by these objects, to promote Australia's
representative democracy by contributing towards the following: (a)
increasing public participation in Government processes, with a view
to promoting better-informed decision-making; (b) increasing scrutiny,
discussion, comment and review of the
Government's activities.
The Public Service Act and APS values
The APS is open and accountable to the Australian community under
the law and within the framework of Ministerial responsibility.
The APS is apolitical and provides the Government with advice that
is frank, honest, timely and based on the best available evidence.
The Australian Public Service Commissioner's Directions:
Upholding the first mentioned value includes:
(b) being open to scrutiny and being
transparent in decision making;
(c) being able to demonstrate that
actions and decisions have been made with appropriate consideration;
(f) being able to demonstrate clearly
that resources have been used efficiently, effectively, economically and
ethically;
Upholding the second includes
(d)
understanding the needs of the Government and providing it with the
best objective, non‑partisan advice based on the best evidence
available;
(e) providing advice that is relevant and comprehensive,
is not affected by fear of consequences, and does not withhold
important facts or bad news;
The Australian Public Service Commission elaboration in APS Values and Code in Practice:
Good advice from the APS is unbiased, evidence-based and objective. It
is politically neutral but not naïve, and is developed and offered with
an understanding of its implications and of the broader policy
directions set by government.....
Good recordkeeping is also essential to accountability. All significant
decisions or actions need to be documented to a standard that would
withstand independent scrutiny. Proper recordkeeping allows others to
understand the reasons why a decision was made or an action taken and
can guide future decision makers....
Building and maintaining a constructive relationship with Ministers
and their offices is a key responsibility of APS employees. Consistently
working to the APS Values is crucial to such relationships, as are a
sound appreciation of the respective roles and a spirit of cooperation
and good communication....
Although not all communication needs to be written, it is good
practice to provide advice on key issues in writing, addressed to the
Minister. File notes on significant decisions should also be created and
retained.
The Australian National Audit Office Better Practice Guide Public Sector Governance (Chapter 4)
Good records management ensures that decisions and the processes that
lead to them can stand up to scrutiny. It is particularly important that
accurate and relevant records are accessed and used when making
decisions. An entity's records also reinforce the transparency and
accountability of its activities, strengthening stakeholders' confidence
in the entity. Effective records management practices can also
strengthen an entity's ability to comply with obligations to respond to
requests for information under the Freedom of Information Act 1982 and to manage personal information in accordance with the Privacy Act 1988.
To meet transparency and accountability obligations under the Public Service Act 1999,
officials need to create records that document key decisions and
actions in support of their entity's legal and business needs. For most
Australian Government entities, requirements for the retention of public
records are established under the Archives Act 1983. Each entity should establish robust systems and procedures to support good records management practices.
The Australian Archives Managing Your Agency Records
When you create
a record you are documenting your business. A record can be a range of
different things: a map, written report, email, film or sound recording.
The format of the record you create doesn't matter. What is important
is that evidence of your activities is recorded in a way that supports
your agency's business needs.
FOI needs positive words from the top
For example stamping all over the suggestion the FOI act is 'very pernicious.' No one in government has said a word since Lloyd's remarks in March.
As well as deeds consistent with the message:
An independent statutory office charged with oversight and leadership of the open transparent, accountable government cause.
And for the benefit of the Secretary of The Treasury and others, a public reminder that important aspects of the decision making process must be recorded, not communicated in whispers, chinese or otherwise.
Accompanied by a clarion call that Frank and Candid are not optional extras dependent on continuing secrecy but an expected element in communicating 'truth to power.'
There may be compelling public interest considerations against FOI disclosure of certain documents at a particular time for example during the 'thinking space' before decisions are made.
However the prospect of scrutiny after the event and the reality that citizens
exercise their right to know under the FOI act is not to be an impediment to providing
advice of the requisite standard: frank, candid, relevant, comprehensive, not affected by
fear of consequences, covering important facts and even bad news.
