Frank and candid or same old secrecy obsession?

The Labor government’s 2010 reforms to the Freedom of Information Act 1982 (Cth) , originally sponsored by former Special Minister of State John Faulkner have received a mixed reception from media and legal experts, both before and since their introduction.  This is an updated version of an article I originally wrote for Introduction to Public Law students back in 2009, before the reforms were actually introduced.

The Sydney Morning Herald was almost rapturous with praise while The Australian was rather more equivocal, and positively scathing about related reform proposals on whistleblower legislation (which currently doesn’t exist at Commonwealth level) and “shield” laws for journalists who protect their sources (as journalistic ethics require).

Blogger and FOI legal expert Peter Timmins also damned Faulkner’s reforms with faint praise:

To the outsider, the bulk of available time to date on FOI reform appears to have been spent by Minister Faulkner, his office and the public service engaging in a 16 month, largely private internal seminar on drafting legislation to enable the Government to tick the box on another election commitment. It could have been different if there had been a serious attempt to reach out to engage the community on the subject of government transparency and accountability, not now after 16 months, but way back when minds first turned to the subject. That didn’t occur. Overall, however its way better than what was on offer-nothing- from the last lot.

I think Timmins is being a little unfair. Similarly with Tristan Robinson, whose (password-protected) article was set as additional reading on the FOI topic for students.

The Australian Law Reform Commission’s 1996 Open Government report essentially identified 7 significant deficiencies in the current operations of Commonwealth FOI legislation:

  1. There are far too many categories of exemption from disclosure;
  2. “Ministerial certificates” allow the executive government to put some categories of document almost completely beyond disclosure or effective independent review of non-disclosure decisions;
  3. Court interpretations of FOI have meant that it is interpreted conservatively and technically, with no bias in favour of disclosure;
  4. Even though the Act allows/requires balancing between public interest factors favouring disclosure versus public interest factors favouring maintaining secrecy in respect of some exemption categories, the courts have tended to accept weak and even spurious arguments for maintaining secrecy;
  5. There is no Information Commissioner under the Federal FOI legislation, and therefore no independent agency to assist the citizen in fighting for disclosure against a powerful bureaucracy with an entrenched culture of secrecy;
  6. Application fees and charges by agencies for time taken in locating documents the subject of an FOI application and perusing them to ensure they do not contain exempt material, are often prohibitively high;
  7. There is no obligation on departments or agencies to store documents efficiently so as to minimise the cost and inconvenience of document search and retrieval following the making of an FOI application.

Timmins demonstrated fairly persuasively in a longer post that the Faulkner reforms do little or nothing to address deficiency 1.  They’re just tinkering around the edges. But arguably the sheer number of exemptions isn’t the central reason why FOI has failed to live up to its original aims. The Faulkner reforms specifically and effectively address the bulk of the deficiencies identified by the ALRC:

  • on deficiency 2. by abolishing “Ministerial Certificates” (an express election promise);
  • on deficiency 3. by legislating for a clear bias or presumption in favour of disclosure;
  • on deficiency 4. by abolishing the most egregious weak excuses for non-disclosure (see below for more detail);
  • on deficiency 5. by establishing an office of Information Commissioner;
  • on deficiency 6. at least in part, by abolishing FOI application fees.

4.5 out of 7 isn’t bad on most scales. On CDU Law School’s marking scale it’s a mid-range Credit grade which, if maintained, would entitle Senator Faulkner to enter the Honours stream in his final semester of study. A creditable effort but a little more application will yield even better results.

Finally, it may be worth explaining my comment above about ALRC deficiency 4. At one time there was a trend for the Administrative Appeals Tribunal to accept arguments to the effect that the public interest in disclosure was outweighed by considerations that administrators would be inhibited in the effectiveness of their deliberations and assessments if they were unable to express themselves with “frankness and candour” in internal communications, for fear that their words might later be disclosed. Apocryphal stories were recounted about public servants communicating by yellow “post-it” labels attached to documents, which could be removed and discarded thereby circumventing public disclosure!

Approval of this argument against disclosure reached its high water mark in Re Howard and Treasurer of the Commonwealth (John Howard as Opposition Leader versus Paul Keating as Treasurer). The case dealt with high level policy documents (not being Cabinet or Executive Council documents, which are exempt from disclosure without scope for any weighing of public interest in disclosure). In Re Howard the AAT accepted Keating’s arguments to the effect that the public interest in disclosure was outweighed and exemption might be justified because of:

  1. the seniority of the person who created, annotated or considered the information;
  2. the possibility that the threat of later disclosure might inhibit the “frankness and candour” of public servants’ deliberations; and
  3. the possibility that the public may not readily understand any tentative or optional quality of the information.

Argument 1. hasn’t subsequently won much respect from courts or State-based merits review bodies, but arguments 2. and 3. have continued to win the support of judges, most recently by several High Court Justices in McKinnon v Secretary, Department of Treasury in 2006. Senator Faulkner’s original reform proposal included legislative abolition of both 2. and 3. as legitimate factors in weighing the balance for disclosure.  However, the “frankness and candour”  excuse ended up surviving in the version ultimately passed by Parliament.  As it turned out, excuses 1. and 3. were expressly abolished but “frankness and candour”  aren’t mentioned.  See section 11B(4) of the Act.

However, whether preservation of the “frankness and candour” excuse/factor should be regarded as an unforgivable deficiency is another question.  A reasonable argument can be made that government can’t sensibly take place in a goldfish bowl. Internal deliberations may at least sometimes need to remain confidential precisely so officials and Ministers can communicate frankly, candidly and in private.  The results of their deliberations must certainly always be subject to public scrutiny, but whether the entire decision-making project needs to be public is far more dubious.

Much has recently been made of the Wikileaks disclosures apparently flowing from the activities of Corporal Bradley Manning. However many of those documents were just private (and often embarrassing) observations by US officials about foreign governments and their leaders.  The public interest in disclosure of that sort of material is not immediately obvious, however entertaining it might be for a sensationalist tabloid media.  The AAT in Re Howard quoted an apposite passage from Lord Reid in Conway v Rimmer:

I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. And that must, in my view, also apply to all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies. Further it may be that deliberations about a particular case require protection as much as deliberations about policy. I do not think that it is possible to limit such documents by any definition.

In fact, the only aspect on which I’m really disappointed in Faulkner lies in his failure to address ALRC criticism 7. Requiring all departments and agencies to invest in and maintain “state-of-the-art” document management systems would reduce the cost and time involved in processing FOI applications, even ones where the application criteria are broad enough to encompass thousands of documents. If all government documents (inwards and outwards) were digitised and indexed by a Google-like searchbot, and also indexed on creation by humans against obvious basic non-disclosure criteria (created for dominant purpose of legal proceedings; Cabinet document; obtained in express situation of confidentiality etc.), then the time for retrieving and assessing even very large FOI applications, and therefore the costs charged to applicants, would be reduced. Moreover, such systems would deliver numerous other efficiencies and cost savings to government entirely unrelated to FOI.

Clearly Faulkner’s reforms aren’t “best practice” in these latter respects, but you seldom get that in the real world of politics. In the non-utopian world where most of us live these proposals are a lot better than I expected. However, even here the omission of provisions mandating universal electronic document management may not be as egregious as it seems.  When I wrote about this at Club Troppo last year, federal government IT consultant Stephen Bounds commented:

Having been involved in the implementation of a few of these “state of the art” document management systems (or EDMS) I can say that I’ve never seen one work as advertised in the glossy brochure.

It’s much harder than you think to ensure that “all government documents [are] digitised and indexed … and also indexed on creation by humans against obvious basic non-disclosure criteria”.

Firstly: Start with email. The average government employee probably sends and receives a minimum of 20 emails per day. For even a medium-sized agency (say 500 employees), that’s 2.4 million documents a year, each of which authors would need to catalog, and ensure that at least one person catalogs and indexes incoming emails. And then for emails with attachments, multiply that time by X.

Secondly: The whole concept of a “document” is becoming increasingly slippery. If an agency runs a customer relationship management (CRM) system, they are likely storing tens of thousand of records with hundreds of updates every day, but in a multi-dimensional format that doesn’t neatly correlate to a “document store”. And once you add legacy and ad-hoc systems, the problem becomes much worse.

Thirdly: Mandating use of a particular system is never as easy as it looks. Even something as simple as emailing a document contained in an EDMS or saving a document from an email requires relatively complex import/export process. And if your EDMS gets too much in the way of people doing their work they’ll simply go off system and use thumb drives, GMail, personal laptops, whatever it takes.

The “traditional” recordkeeping model of putting your memos into the out-tray and having them processed and managed by dedicated recordkeeping staff is long gone. But the implicit replacement of having everyone do all their own electronic filing isn’t working either outside of well-defined processes. Busy staff cut corners; that’s the reality. My current project is to get a working implementation of recordkeeping from zero pieces of metadata captured from users for this very reason.

Are these problems insurmountable? Of course not. There are big pieces of technology you can throw at your systems and get them to index everything. But these are really just speeding the first part of a legal “discovery” process — there’s no shortcut to having to manually review the results and cull personal emails, redact non-related data and so on.

I would estimate to do the job properly you would need to mandate it as a core responsibility and factor in an additional 5% or so to all department and agency budgets. But is this level of expenditure seen as a priority in an era of continual efficiency dividends? Nope! And I can’t see that changing in a hurry.

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2 thoughts on “Frank and candid or same old secrecy obsession?”

  1. Sorry Ken, I have no sympathy for this lot. I have worked in many legal firms as a PA for more than one Partner and everyone one of us (one for each Partner in most firms) had to electronically file ALL incoming and outgoing documentation, post minutes and time manage ourselves and the Partners, compile Briefs for counsel and manage each Partner to the point where we knew more about their lives than our own. I have also worked for Government and frankly it was the most laid back job I ever had. I have witnessed Government staff member’s waste a full 5 hours doing their nails and chatting about what they did on the weekend and what they will do next weekend and I have watched staff fail to complete their work diligently and in accordance with contractor agreements – because they “couldn’t be bothered because its boring”.

    No, its not hard to do the work, its hard to get the people they employed to do work.

  2. I completely agree Rhiannon, I have work in government and it was a breeze, there was no pressure to do any work, everyone took long lunch breaks and wasted copious amounts of time with no consequence. Then on the other side of the fence I am now working in a law firm as a PA and paralegal to 3 very busy lawyers and I agree that you end up remembering more about their lives than you do your own! There is no excuse for the laziness of some government departments. If they worked in a law firm they would not be able to get away with that kind of behaviour and recklessness with files. I have to maintian an electronic file and a hard copy file for one whole department within the firm I work and manage just fine. Its all about being proactive and efficient … also wanting to actually work helps.

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