Open government: Such, such were the joys

A quick placeholder for something more substantial hopefully soon.

Have a look at this ridiculous letter in response to a request to see a copy of the independent scoping study into future ownership options for the ASIC Registry. Judging by other experiences I’m aware of – at the State level in NSW – this is becoming fairly standard. Lucky we’ve finally got a Prime Minister who cares about these things. …

 

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11 Responses to Open government: Such, such were the joys

  1. paul frijters says:

    they want to charge for 120 hours of ‘decision making’? Wow. 3 weeks deliberation to decide whether to release a scoping study? Kafkaesque.
    Paul

    • john Walker says:

      ‘my brain hurts’

    • Dave Also says:

      To play devil’s advocate it’s not 120 hours of decision making. No one in Finance that can make decisions relating to their work gets paid $20 per hour. An El1 i probably around $50 and an SES B1 is around $100 per hour. Now get everyone in a meeting room, add in that they’re meant to read the documents before this meeting and it’s pretty easy to see how it costs what it does.

      I’m not suggesting it’s fair, but realistically they are using prices to ration. Imagine how many nutjobs would file FoI requests if it were free and the Department of Finance or whatever isn’t free to do what a business would do, which is tell the nutjobs to suck it up!

      • derrida derider says:

        Dave’s right about one thing – if you ever deal with public correspondence you get to learn just how many malicious, ignorant or just plain crazy people are out there. Sometimes they’re all three – and they’re the ones who’ll insist on taking up all your time.

        In a past job I drafted many a response which I put in the desk drawer before providing a much blander, albeit suitably evasive, official answer.

        I learnt a lot – they should have given me the job of drafting that Finance letter. The writer still would never get to see the report, but I fancy there’s reasonable odds I’d have him convinced that the Department was really, really trying to help him see it …

  2. kenparish says:

    A clear and serious (and regrettably very common) abuse of power. He can seek internal and then external AAT review, and I expect it would probably succeed given the outrageous time assertion. But of course they rely on the fact that lots of applicants don’t have the time or patience to pursue it.

    There seems to be a current pushback by the bureaucracy and its cheer squad (eg Peter Shergold) to have FOI wound back so that “internal deliberations” are not disclosable (harking back to Paul Keating’s notorious claim that disclosure would inhibit “frank and candid” advice from bureaucrats to Minister).

  3. paul walter says:

    Sorry, If I said what I really thought I would be Godwinned.

    Arrogance, brutality, duplicity.. we reach the point where openness and accountability, rationality and honesty are anathema.

    The blind man, having gouged out his own eyes lest he see things as they are, now lurches, raving, toward the cliff edge.

  4. derrida derider says:

    I’d not justify what Finance did, but Peter Shergold’s broader point about the public costs and benefits of FOI is unfortunately simply true. I wouldn’t go as far as Sir Humphrey on this (“open government is a contradiction in terms – one can be open, or one can have government”) but there is a real tradeoff here. You can either have honest written advice or you can make that advice public, not both. And it’s not just a matter of public servant timidity – its the politicians who’ll enforce the behaviours.

    I was once a fervent advocate of wider FOI (look at some of my old comments here) but firsthand observation has changed my mind. This is a genuinely difficult issue.

    • Nicholas Gruen says:

      I’ve never been simple minded about it either and acknowledge your points about advice, but here is a report and it can be released non?

    • Ken Parish says:

      It’s worth noting that documents which are part of “internal deliberations” are not wide-open to FOI disclosure under current legislation. Quite apart from agencies using artificially high supposed cost-recovery charges as a barrier to disclosure (which in my view is clearly improper), documents in this category are “conditionally exempt” from disclosure in any event. This means that the department/agency, and on review the Information Commissioner or AAT, is required to undertake a balancing exercise between the public interest factors which militate in favour of disclosure and those which militate against. By charging outrageous “cost-recovery” imposts the agency is improperly evading the oversight and accountability that Parliament has legislated for the Executive.

      You need to read section 11B to see how the mandated balancing exercise for conditionally exempt documents is supposed to work. It should also be noted that the section does NOT render irrelevant/impermissible an argument by the agency that disclosure is on balance against the public interest because it might inhibit public servants’ “frankness and candour” in providing fearless and independent advice to the Minister. The question is usefully discussed here in a 2012 article by Simon Murray.

      Lastly, it’s worth pointing out that the FOI test for disclosure of “conditionally exempt” documents is very similar to the test for “public interest immunity” for discoverability of government documents in court proceedings (where the judge is required to undertake a similar balancing exercise). Thus a litigant or prospective litigant is likely to be able to compel discovery of relevant internal deliberative documents from an agency without being required to pay any exorbitant access charges up-front.

      The only real access-blocking effect of high “cost-recovery” imposts is to inhibit access by people like academic researchers, media and Opposition politicians. Moreover, at least Big Media organisations are able to pay even the sorts of rip-off charges levied in this case, if the story is sufficiently important for them to decide to do so. Of course, the problem with both media and Opposition politicians is that their motivations for seeking access are likely to be mischievous at least from the perspective of the government of the day. Moreover, it is not unlikely that they will make tendentious and objectively unfair/partial/selective use of documents for cheap opportunistic “gotcha” purposes.

      One would think it should be possible to devise a regime whereby persons seeking access are required to publish stories flowing from document disclosure in a manner that is reasonably fair and balanced and not misleading. After all, that is essentially what a court must decide in defamation proceedings where a defendant seeks to rely on a defence of fair comment. Such an evaluation would have to be made by an independent, impartial body (eg the Information Commissioner) prior to publication of stories based on conditionally exempt documents. Perhaps this is the sort of amendment that Peter Shergold has in mind?? Amendments of that sort would need to be carefully drafted to avoid running foul of the implied freedom of political communication in the Australian Constitution, but IMO it would be possible to create an effective regime that would survive constitutional challenge. In my view this would accommodate the sorts of entirely reasonable practical concerns mentioned by DD (and people like Shergold).

      • derrida derider says:

        Well, yes – as I said I wouldn’t try and justify Finance’s actions.

        My point is simply that for a public servant genuinely keen to further the public interest while complying with the law the questions are not at all simple.

  5. Lauriesienna says:

    Not just 128 hours BUT 128.05 Hours.

    They have got it down to the last 3 Minutes.

    They will get the Public Service ‘finger’ award for service to the public , this year !

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