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Monday, May 25, 2015

FOI and citizen rights suffer as tone at the top sends closed shop message

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:

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.)

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)

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.)

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.)

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.

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