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Monday, May 23, 2016

Public service leaders maintain the FOI rage setting 'tone at the top"

Thirty three years ago, four years after government began considering FOI and five years before legislation passed, in notes to Prime Minister Fraser, then Secretary Department of Prime Minister and Cabinet, Sir Geoffrey Yeend in May 1977 wrote:
"Freedom of Information legislation would result in administrative chaos.. departments keeping dual filing cabinets...It is a can of worms, political commitments notwithstanding. The heads of Defence and Treasury are opposed to the legislation. Broader and in some cases blanket exemptions are necessary.
It has been a consistent theme pursued by the leadership of the public service since, with few public expressions of the contrary view.
The most recent public comments came in April from current Secretary of the Department of Prime Minister and Cabinet Dr Martin Parkinson and head of the Public Service Commission John Lloyd as reported in The Canberra Times

Both spoke at a forum, picking up on the report by another of Parkinson's predecessors Dr Peter Shergold (Learning from Failure) in which Shergold recommended changes to the FOI act to better protect 'frank and fearless advice.'
"The FOI act does not afford sufficient protection to public servants," Dr Parkinson said. "As leaders we need to use exemptions appropriately, but I would support going further and advocating for changes to FOI laws to protect the deliberative process." "[This is] not to reduce our accountability, nor to protect us from stuff ups we may have made, but to enhance the capacity to give truly frank and fearless advice that good policy design needs."
His comments 
"were supported by Public Service Commissioner John Lloyd, who said the bureaucracy was subject to sufficient scrutiny and accountability beyond FOI laws. "We have a high level of accountability in the public service with at least three senate hearings a year, an auditor general, ombudsman, privacy commissioner, information commissioner, and a public service commission just to name some," he said. He continued to say he was "dismayed" by how many times he had heard public servants say "don't put it in writing" to deliberately avoid any chance of a mention in FOI documents."
(More on the Shergold report and 'frank and candid' in a post to follow.)

The Australian Public Service Commission acting on behalf of the Commissioner in response an FOI application has just confirmed the views expressed by Lloyd "are his own."

(The Department of Prime Minister and Cabinet is yet to respond to a similar request.asking about the status of Dr Parkinson's public comments. Update: PM&C "Dr Parkinson was asked to provide some closing remarks and commentary on the implications of the Shergold report for the Australian Public Service going forward. He did this in his role as Secretary of the Department of the Prime Minister and Cabinet.")

The Commission's APS Values and Code of Conduct exhorts public servants in senior ranks (Section 6) to "consider the impact of public comments they might make particularly carefully" and in exercising the right to speak personally, to be mindful of the potential conflict between those views "and the ability to fulfil current and potential duties in an apolitical, impartial and professional manner."
(Section 4 contains plenty of guidance also on records and the importance of maintaining "in an accessible form decisions by Ministers, and the basis for them, including advice on options and risks; program decisions, including decisions affecting individuals or individual businesses that may be subject to administrative review, together with the basis for the decisions and the authority for making the decision; and significant events, including meetings and discussions with Ministers or stakeholders or members of the public which may be significant in terms of policy or program decision-making.)

As perceptions are everything we can only guess what the public might think of the impartiality Lloyd, Parkinson and Treasury Secretary Fraser (also on the record that important things don't get written down these days because of FOI) bring to information access issues.

However the message from leaders to the public servants they lead is clear, to paraphrase:
"FOI is an unfair challenge to public service professionalism. We've been trying to talk sense to government about this for years. So we understand if you can't do your job properly, particularly when it comes to writing down the sort of frank, honest and timely advice you might offer orally. Wink, wink, nod, nod."
Lloyd in April returned to a topic first explored last year when he said "FOI is very pernicious."
He subsequently explained at a Senate Estimates hearing that his remark was prompted by the fact FOI had departed from the original purpose of providing individuals with access to personal information held by government, and seemed unaware FOI was a foundation stone from the time it was laid in 1982 to underpin government transparency, accountability and the public right to know.

As to why he spoke:
"I think that, as Public Service Commissioner, I have a responsibility to at times comment on matters which go to the administration and management of the Public Service."
Lloyd told the committee he hadn't raised the issue with the minister for public service because responsibility rested with the Attorney General, and hadn't raised it there either - "They would have been aware of my comment. I did not see the need to actually take it further." Except of course to give it another run in April 2016 as a personal view.

Tone at the top
While public service leaders speak on FOI on some occasions because they see this as a responsibility, on others expressing a personal view, I can't recall a single positive statement from the Attorney General or other minister reinforcing the importance of FOI and why the law of the land should be implemented fully and fairly in accordance with the spirit and intent of the Parliament.

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