Freedom of Information

Today’s column from the Fin. 

The High Court once declared that governments had only limited powers to withhold information from voters. But a recent judgement effectively means that ministers face no constitutional impediment to keeping government documents from the public eye. Weak Freedom of Information laws add further protection for ministers. Even the Rudd government, which once supported freedom of information, has postponed some plans and forsaken others which would make governments accountable.

It is thus heartening that the Public Service Commissioner, Lynelle Briggs, gave a speech last month supporting the release of as much government information as possible. She said this will improve ethical and administrative standards. But latter in her speech, Briggs enthusiasm for freedom of information got waylaid.

The Commissioner says that the FOI regime suffers because departments are wary about releasing information because of the way it is misused and interpreted, and how this can in turn damage and constrain the free conduct of policy development and advice. Briggs uses what she calls a hypothetical example of advice given to a minister on the need to cleanse sewage water into drinking water as part of a national water initiative. When this is released, she said, the material could turn into a sensational article about secret plans to make us all drink wee. Briggs forgets that it was NSW ministers who defended their unpopular desalination plant by describing calls for a metropolitan water recycling facility as a plan to make voters drink wee.

Sure, media can and will sensationalise, but more often the media is merely reporting the expressions used by opposition politicians; thats the job of the news media. Briggs should also recognise that voters are generally smart enough to recognise a beat-up whether by the media or, as occurs much more often, by government. And governments always have the capacity to rebut any sensationalism they have free access to the media.

Briggs also pointed to the cost of the recent leak of co-ordination comments from four departments in a Cabinet submission on FuelWatch. These departments recommended against the Rudd governments adoption of FuelWatch. Briggs argued that this disclosure embarrassed the government. But how embarrassed were they? Ministers were able to mount a respectable argument that advice from the Australian Competition and Consumer Commission which supported FuelWatch was more persuasive.

The leak did cause the Prime Minister, Kevin Rudd, to instruct his department not to include its comments in future Cabinet submissions. This melodramatic reaction suggests Rudd does not wish to, or cannot defend decisions which over-ride departmental advice. That bodes ill for the promised reform of FOI.

The absence of strong FOI laws has its own costs which Briggs underplays. Indeed, government reluctance to accept the spirit of the FOI legislation may have base motives. Departments can and do provide advice without adequate supporting evidence. Ministers can and have acted against the advice of departments with little or no evidence. If the publication of Cabinet submissions means that departments will take care about their advice, that is a welcomed additional benefit from FOI. If publication of submissions means that ministers will have to justify why government over-rule departmental advice, that is also a welcome achievement of FOI.

The absence of a strong FOI regime means that ministers are able and tempted to spin. It is also obvious that – like Oscar Wilde – they frequently succumb to temptation. That cannot be Briggs preference.

Another problem with Briggs argument is that the departmental concerns she discusses can be applied to all FOI requests concerning any government document or research which contains bad news for the government. The former Treasurer, Peter Costello, refused to release the full range of cameos depicting the implication of his tax reductions only because their publication would have been embarrassing. If that is the criterion which Briggs supports, the criterion which is still in force, nothing will be done to improve the FOI regime.

It is a pity that we do not have the amendments to the FOI Act unsuccessfully introduced in 2006 by the then Opposition. It said that government embarrassment was no reason to deny access to documents. But the Rudd Opposition seemingly supported principles which were only applicable to the Howard government.

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