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Tuesday, June 14, 2011

FOI reforms an overhyped fashionable agenda says Canberra academic

Richard Mulgan, now emeritus professor at the ANU's Crawford School of Economics and Government, writing in The Canberra Times last week ("Learning to trust the sunlight will take time" 7 June-no link available) covered the Gov 2.0 and FOI reform landscape, and returned to a familiar theme-that public servants have a duty to "protect" the government. Expectations that Freedom of Information laws can change this are misplaced. Five years ago he was saying much the same thing in a Canberra Times opinion piece "The dangers of too much FOI". Now it's that some of the claims about an expanded FOI regime are "politically naive and, arguably, constitutionally unsound." The constitutional issue will remain a mystery until the professor elaborates.

As to political naivety, the problem for Professor Mulgan and ministers and public servants who might in their quieter moments share this view is that the law as passed by parliament over close to 30 years has never and doesn't now protect documents from disclosure on the basis of the political consequences that might follow. Maybe parliamentarians are the naive ones, but its not for ministers and public servants to quibble with the law as it stands.  APS Values don't accommodate public service conduct contrary to the law.

If Professor Mulgan is right when he says says "public servants still appear willing to use every possible legal device and subterfuge to avoid disclosing material that may damage their ministers politically" perhaps the answer is real leadership on more open government from ministers, and a law that reduces scope for devices and subterfuge and arms the Australian Information Commissioner with more stick to make it work. Not the status quo or a retreat to pre 1982/FOI days.

Professor Mulgan says the FOI reforms and greater emphasis on publication of government information have been overhyped. Australian Information Commissioner Professor John McMillan and others "singing the praises of transparency and internet-based dialogue with citizens" are according to him, pursuing a "fashionable agenda" but "whether it will succeed remains an open question."

I agree what constitutes success, even progress on this journey are still open questions that require definition, oversight and public reporting, but don't agree if he is suggesting we mightn't even be heading in the right direction.

Some of its aims appear overly optimistic. The attempt to overturn bureaucratic caution in the application of FOI overlooks deep-seated conventions of public service loyalty to the government of the day. The revised FOI Act removed the vexed conclusive certificate as a mechanism preventing disclosure and reduced the grounds for exemption to a single "public interest" test. The intention was to rule out claims of confidentiality on purely political grounds, such as potential loss of confidence in the government or potential embarrassment in partisan debate with the opposition. Nonetheless, public servants still appear willing to use every possible legal device and subterfuge to avoid disclosing material that may damage their ministers politically. And who can blame them? Public loyalty to ministers is the cornerstone of our system of a professional public service. Without it, public servants cannot be trusted to serve alternative governments with equal commitment. Senior public servants operate within a context of relentlessly adversarial politics, where oppositions and the media are constantly at the throats of government ministers. They cannot retain the confidence of ministers if they are willing to disclose documents and information regardless of the political consequences. Some of the claims made for a greatly expanded FoI regime are politically naive and, arguably, constitutionally unsound.
Professor Mulgan acknowledges that the great bulk of policy-related data and documents held by government agencies do not have any immediate political sensitivity and could and should be automatically published, but suggests more information won't change the power relationships in favour of the citizenry. My five cents worth is that we are seeing some signs of interest in more participative democracy than the dumbed down representative democracy package our political leaders have preferred in recent years. Improvements in access to information helps.
Ambitious claims are also being made about governments "engaging the community" and about citizens coming to play a much more active role in policy design and service delivery. But, so far, governments still control the policy agenda and the purse-strings. User-friendly government portals and citizens' blogs on government websites do not necessarily alter governments' capacity to determine their policies and how these polices are delivered..The internet certainly provides new and expanded opportunities for them to hear from the public they serve (or at least from the more tech-savvy sections of that public). But any notion that the policy initiative has been transferred or that citizens have become significantly empowered seems premature, at least in a mature liberal democracy such as Australia..
As to why the article didn't make it online at The Canberra Times???


  1. Markus Mannheim11:34 am

    Hi Peter. Richard Mulgan's article was in this month's Public Sector Informant, which sadly lacks an online presence (despite my many arguments that it needs one!).

  2. Dear Editor Canberra Times,
    Markus is right-there is an audience outside the ACT interested in issues of the kind covered in articles published in the Public Sector Informant and rarely in the mainstream media elsewhere. Richard Mulgan's recent opinion piece was just one. Just about everything Jack Waterford writes and what you cover most months are others. Listen to Markus, help Fairfax boost it's serious quality game and do the rest of us a favour by giving him online space.