Search This Blog

Monday, December 13, 2010

FOI "burden" the price of democracy in Ken Henry's awful year

Treasury Secretary Ken Henry was reported in The Australian last week talking to a "private audience" about his department under stress and the awful year 2010 had been. He returned to a familiar theme, the downside of FOI:
The growing burden of the Freedom of Information process had only compounded the stresses on the department, Dr Henry told the gathering. He expressed concern that the exposure of documents under the FOI laws undermined the prospects for good public policy and frank advice from the bureaucracy. Dr Henry acknowledged that the Red Book drafted by Treasury for the incoming government had been prepared on the basis that it could be subject to FOI requests.But he said that Treasury had made the decision not to waste more resources by appealing to the Freedom of Information Commissioner. 
The last bit is rich (as well as confused but that might not be Dr Henry's doing) given Treasury's willingness to spend plenty over the years arguing against FOI disclosure to applicants, and defending decisions in the courts and tribunals that might have been arguable on technical grounds but seemed to run counter to spirit and intent.

Treasury has a knack of looking on the gloomy side when it comes to FOI. Its incoming government brief in 2010 (special commendation for publishing at least in part and informing public debate) advised the minister that the Department provides 'advice and management of risks associated with Freedom of Information (FOI) ... in accordance with legislative requirements."

The "growing burden" referred to in the speech might be an increase in use of the act over the last six weeks as a result of the government's public commitment to more open government and the abolition of application fees and some charges. Or Dr Henry might be suggesting that "the prospects for good public policy and frank advice" are even bleaker because the act since 1 November is a little more pro-disclosure. It now includes provisions that recognise explicitly and give some weight to the public interest in disclosure  that would increase discussion and review of the Government's activities, or inform debate on a matter of public importance. Except in respect of a cabinet document, or release of a document that could be expected to harm international relations or national security, or a raft of other absolute exemptions that have no public interest element.

More use of the act and more disclosure of Treasury's views might be a 'burden" that Treasury has to carry in the interests of a more vibrant democracy.

But maybe its not the recent changes that prompted these comments. It may simply be the continuation of a long running argument by Dr Henry and others that the confidentiality of public service advice should be sacrosanct, although there have been exceptions.

Looking back, in October 2008 Dr Henry seemed to suggest government decision making was best left to insiders and would be improved if pesky people didn't ask questions about it later. He told a parliamentary committee exploring after the event decision making on the elements of the fiscal stimulus package:
“In my view, it would be better if we had not had any media reporting on this issue. [This would] allow the officials the opportunity to reflect soberly and deeply upon the implications of the various options ”
In the incoming government brief in 2007 Treasury warned the government that abolition of conclusive certificates, particularly for deliberative documents would impact on the provision of 'frank and fearless' advice. The government went ahead anyway and abolished such certificates altogether going beyond an Australian Law Reform Commission recommendation of 1995 that certificates for deliberative documents be abolished.

Dr. Henry told the Canberra Times in January 2006, that FOI requests which he judged were "motivated by desire to either embarrass the Government and Treasurer or the Department" meant that communication on sensitive policy issues was likely to be verbal rather than committed to paper.

There has been no guarantee that public service advice will remain confidential since the FOI act commenced in 1982, but this still sits uncomfortably with some who seem to argue we need to go back to those dark days. The law states that access to documents containing advice, opinion and recommendation is to be withheld only where disclosure would be contrary to the public interest. It's well established law that a document containing "policy advice" doesn't automatically belong to this category. It all depends on context and content. In the usual case in external review processes, pre-decisional information has been well protected until a decision is taken, and often well beyond that stage. In every case any claim for confidentiality needs to be considered and weighed against the public interest in disclosure.

The provision of 'frank, honest, comprehensive, accurate and timely advice' is enshrined in the Australian Public Service Values. The Values and the associated code are part of the Public Service Act. All public servants have a duty to comply. Heads of agencies have a responsibility to encourage a culture that respects these values.

As to written records, the Australian Public Service Commission offers this advice:

  • All significant decisions or actions need to be documented to a standard that would withstand independent scrutiny. Briefings and records maintained need not be lengthy, but should be fit for their purpose.
  • The Australian National Audit Office has provided guidance on good record keeping.
  • This is available at: The National Archives of Australia has also provided advice for all APS employees on good record keeping. This is available at:
  • It is good practice to maintain a record of oral briefing provided to Ministers and their advisers of significant issues and any resulting discussions and decisions.
  • On key issues, and where sufficient time is available, Ministers should be provided with written briefings to give assurance that the issues and options have been clearly presented and that any decisions taken by the Minister are understood and recorded.
  • Employees should be aware that any email, and not just those that have been formally put on the record, can be the subject of a freedom of information request.
High quality advice, open government principles, and good record keeping are not incompatible.


  1. Chris1:11 pm

    There's an interesting reflection about FOI reform in the Tony Blair bio that you might be interested in.

    Also, I see reference to the AG's Red Book - have you sourced a link to this (it's comments on FOI and privacy would be illuminating!)

  2. Chris, I'm not aware that AG's red book has appeared but six others are out there.See

  3. As to Tony Blair, I haven't read the book but picked up his comments about what a dill he had been to embrace FOI when the biography first appeared. True colours and all that..