Fisse case shows "business as usual" in Canberra.

A couple of other comments on what to make of the Fisse case and on how the Freedom of Information Act is travelling in delivering those worthy objectives of increased accountability and improved democracy through access to information to inform debate on issues, and assist to better understand government processes. The short answer on this last point is not well, if this case is any guide.

The Administrative Appeals Tribunal decision showed smart lawyering can get a government agency by even when there is only the thinnest straw to hang on to, and the Federal Court decision illustrated the court is powerless in circumstances where the majority thinks the Tribunal’s findings of fact showed a desperate attempt to grasp at that strand of straw. It looks like a classic case of an agency, Treasury in this instance, starting from the position of wanting to refuse access, then coming up with reasons to support the decision. The agency then moved the goal posts (as the law unfairly permits) in the AAT when someone seems to have discovered ambiguous correspondence that gave new hope to argue an exemption (cabinet documents) that hadn't been argued previously.

You have to wonder what public servants and other members of the Tribunal take from the "generous” reading of the facts to favour non-disclosure by the deputy president of the Tribunal- I imagine there will be a fair bit of “wink-wink, nod-nod" around the water cooler in some Canberra circles this week, regardless of the fact that the public debate about criminal penalties for serious cartel conduct remains uninformed about the detail of what the Government's experts thought on the subject four years ago. The case will be seen as a victory in Treasury and other agencies, even a useful precedent, on reasons to knock back applications for documents put together by any working group of public officials where there is the slightest hint that what the officials discussed could have ended up on the cabinet table- even if it didn't.It all seems a far cry from the legitimate need for confidentiality of what is actually discussed in the cabinet room.

This case of course is a one-off but how many decisions like it by Treasury and other agencies pass unnoticed because the applicant, unlike Professor Fisse, chooses not to, or can't for financial or other reasons, seek external review? Or the matter never makes it into the media? No-one except the agency and the applicant in each of these instances knows what transpires.Is it a reasonable to assume it's more of the same of what we see in this case?

Even more significantly how many applications for documents concerning important aspects of public policy are not made by those discouraged by the message from this, and similar FOI exercises: “why bother?”

The answer isn’t a change in the law except for a provision in the act for a pro-disclosure bias in interpretation that public servants and the courts take seriously and apply. The problem is the cultural one of an attachment to excessive secrecy in some government agencies, long recognised at the heart of the problem. The Minister, Senator Faulkner has told us for a year now that this government is different and culture change is on the agenda, but it's so far still out there in the future. In the meantime, on the basis of silence from the top about cases like this, its business as usual. And an award of costs in the Federal Court against Professor Fisse for his trouble!

The original Treasury decision on this application was made in April 2007, and on internal review in June 2007- in the Howard government era so strongly criticised by the Rudd-led opposition.The AAT heard the review in February 2008, and handed down its decision in April 2008; the Federal Court hearing was in September 2008 and the decision in December 2008- all in the "new era" of open government.