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Wednesday, June 03, 2009

More disclosure might break "gotcha " reporting

Markus Mannheim Editor of the Canberra Times Public Service Informant supplement in this month's edition (no link available) says the "gotcha" element in media reporting on government is the result of overmanaged media relations and excessive secrecy:

"Only disclosure can end this cycle. Departments that publish their work be it advice, research or financial statements allow the public to better scrutinise not only the executive but also the media that reports on it. Journalists too often enjoy exclusive access to government information, aided by political advisers who provide vetted excerpts to favoured reporters. But the media is far more likely to analyse such information maturely and rigorously if it knows its audience is equipped to uncover flaws in its coverage.

If government agencies published all of their work online an almost costless process they would encourage responsible journalism, informed debate and, ultimately, greater community engagement. Instead, the default approach is to provide limited information or deny access altogether. The royal commission into Victoria's bushfires revealed last week that Australia's governments suppressed for (three and a half) years a joint report on their capacity to deal with natural disasters. The patronising justification was that the document "could engender fear in the community if they didn't understand the context of the report".

While attitudes like this prevail, open government will remain beyond Australia's grasp. The fourth estate has mostly put cynicism aside and lauded Special Minister of State John Faulkner's proposed revamp of the FoI Act. The reforms include appointing an independent commissioner to oversee the Act, which will be extended to contractors and stripped of some of the more contentious powers to deny access. Importantly, it will also demand agencies publish more information proactively. Improvements, but hardly a revolution.

Faulkner's quest to improve accountability is undoubtedly genuine. But the limits of his efforts are highlighted in a letter he sent to departmental secretaries in April, which urges them to heed the new objects clause in the draft Bill. The new clause is almost identical to the current one, which senior public servants have happily defied for years: that the Act "shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information".

If Parliament approves Faulkner's FoI Bill, Australia's information regime will be very similar to the laws that many Britons now argue are inadequate. Britain, too, has an independent information commissioner, Richard Thomas. It's noteworthy that he argued against publishing MPs' expenses claims. The Westminster scandal is not perfectly analogous to Australia, but its lesson is: the spirit in which Britain's FoI Act was written failed to overcome the habits of a secretive and politicised bureaucracy.

There are alternatives. Federal agencies in the United States regard most of their documents as "public domain", and face stiff penalties if they hinder requests for information. Most northern Europeans have a constitutional right to access government documents, while the right of Estonians extends to all information produced by people performing public duties. Sweden's 240-year-old Freedom of the Press Act, the world's oldest, ensures all documents are public unless explicitly exempted by regulation. Swedish law takes transparency so seriously it is a criminal offence to investigate a public servant suspected of leaking.

It's hard to imagine the APS adopting such practices. Faulkner has demanded agency heads encourage "a culture of disclosure", emphasising that "the starting point for considering FoI requests should be a presumption in favour of giving access to documents". But his Bill lacks the ambition required to radically alter the way the government interacts with the public. As (Treasury Secretary) Henry admitted in 2006, the bureaucracy has means of avoiding disclosure irrespective of the law: agencies had already stopped producing some documents, he said, opting instead to discuss sensitive policy issues verbally.Perhaps Henry and the bureaucracy suffer the media they deserve."

Mannheim is right about the benefits that would flow from greater transparency, and the culture change process is still all ahead of us. Unfortunately the details of what we might expect from the new era of pro-active publication, on-line, of information about government processes are still to be revealed having been largely left to the Information Commissioner, when established. But Mannheim"s comment about "lack of ambition" doesn't give enough credit for proposed changes, many of which will have some impact, for example in areas that involve consideration of the public interest. This from a post here in March, with emphasis on what will make a difference:

"Up to now the courts have been prepared to interpret the Act as not requiring a pro-disclosure bias because the objects in Section 3 include a reference to a right of access subject to the exemption provisions. Thus "no leaning" in favour of disclosure. However in the new objects there is no mention of exemptions, simply this:

"(2) 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.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The reference to Parliament's intention in the last sub-clause is not new but the rest is. Read in conjunction with the legislative demise of most of those silly "Howard" factors that favoured non disclosure since 1985, the duty to take into account the following when weighing the public interest (quibble- only relevant to some not all exemptions) will move things strongly in the direction we were trying to go in way back in 1982:
"(3) Factors favouring access to the document in the public interest include whether giving access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure;"

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