Ill wind in Canberra on the transparency front

21 February 2014

By Peter Timmins

This article appeared Feb. 20 in Timmins’ Open and Shut blog.

It’s still summer, it is not completely dark and gloomy (this Freedom of Information disclosure by Defence to Sean Parnell of The Australian is one to keep hope alive) but these straws plucked from the mist are telling:

Tone at the top – public servants (and the rest of us) are yet to hear an Abbott government minister on the public record about the importance attached to transparent, open government. Au contraire, the impossible to miss messages from Minister Morrison. Leadership along the transparency and accountability path is crucial. It stopped coming from Labor after a good start in 2007 and Prime Minister Gillard’s ‘let the sun shine in’ proclamation in 2010. Prime Minister Abbott and Attorney General Brandis, their interest in “Freedom wars” to one side, have not put T&A up in lights in five months in office. Silence during this period also on the previous government’s commitment in May last year to join the Open Government Partnership. As Attorney General Dreyfus said at the time

The Open Government Partnership is a multilateral organisation that promotes transparency in government, encourages citizen participation and tackles corruption. ”Australia shares the values of the Open Government Partnership and we have a wealth of knowledge and experience to share with other nations in the partnership,” Mr Dreyfus said. “We believe that greater openness and accountability in government promotes public participation in government processes and leads to better informed decision-making.The Open Government Partnership provides an international forum for countries, civil society and the private sector to stand together to address the challenges of governance in the 21st century…..

Hard to imagine that this could be seen as anything but a bi-partisan cause. Of comfort to the Abbott government should be that similarly disposed conservative governments including the UK, Canada and NZ are among the 63 members or intending members. The OGP has Australia down to formally complete preparations to join in April 2014 when the Steering Committee meets in, ahem, Indonesia, the current lead co-chair. An intending member needs to endorse the Open Government Declaration and submit a national action plan developed through a government-civil society partnership.

We appear to have no chance now to meet this deadline as any work undertaken within government in preparation of a draft has not been shared with those interested on the outside. An about face and withdrawal from the OGP would see Australia join Russia as the only countries to do so.

The impediment to ‘prompt access’ to documents – one of the objects of the Freedom of Information Act – occasioned by the usual agency runarounds, compounded now by long delays in external review at the OAIC extending beyond a year in many cases and two in some.   .

Refusal of access to the incoming minister briefs – a complete uniform turn around by all agencies from  2010. That turning point (Treasury (pdf) led the way) has seen renewed public service take up of the argument that ‘frank and fearless’ advice depends on confidentiality, drawing on words used in two decisions from the Office of Australian Information Commissioner (Crowe and  Cornerstone). The Treasury model has been sharpened as in this internal review decision (pdf)  (thanks Delimiter) by the Department of Communications.

A class claim is in the making here: in effect disclosure of anything in advice documents such as the brief  (now six months old) would endanger the development of a trust relationship with the minister, mean public servants in future will offer limited bland rather than frank honest advice, and operations of the department will suffer substantial adverse effect. The countervailing public interests for example in transparent accountable government, in all of us knowing what the experts within government know about the real state of the game, and the contribution disclosure of information of this kind would make to informed public discussion of the issues don’t get much of a run.

Non-compliance with Senate orders to produce documents, not just in relation to Operation Sovereign Borders but in nine of ten instances to date.

Some always doubtful exemption claims only exposed after the applicant waited 12 months or more in the queue for a decision from the OAIC, and the Australian Information Commissioner’s admission that some agencies are gaming the system. The extent of this is unknown to any of us on the outside. Apparently because of resource constraints the OAIC has undertaken only one Own Motion Investigation since it commenced at the end of 2010.

Inventive, creative reasoning. As in NBN Co’s claim in response to the Sydney Morning Herald that releasing the names of directors who attended a board meeting last September could “damage a given director’s personal reputation and ability to sit on other boards” and “negatively impact on NBN Co’s ability to attract top-level directors” which could in turn affect NBN Co’s commercial activities.. and as such put the names of the directors outside the scope of the FOI act. For good measure, so too the names of staff and third parties who attended because disclosure might enable someone to work out agenda items for the meeting. The article cites other recent knockbacks: to the Foreign Investment Review Board’s 37-page report on the proposed takeover of GrainCorp, and Airservices Australia’s refusal of access to the flight records of a private jet which “has in the past been a routine matter.”

(Minister for Communications Malcolm Turnbull for one won’t be surprised at the NBN Co decision. During debate in Parliament in 2011 on amendments designed to bring NBN Co partially under the FOI act he said The Greens Adam Bandt, who moved the amendment with ALP government support had been conned. Mr Turnbull said because NBN Co is a business, all of its activities are conducted on a commercial basis and it would remain “exempt in respect of documents right across its entire business.” NBN Co may be proving the minister right. An experienced FOI user told me last week “since the Coalition came on board it’s been a shocker with FOI. Everything is locked up as tight as possible. NBN Co is the worst…. To my mind, unless you’re after very basic, non-sensitive materials, the FOI Act is basically useless at this point…Truly a New World Order.”)

‘New world order’, wither the spirit? A query prompted by countless overly bureaucratic agency responses on display at Righttoknow. And by this Department of Health refusal of a request from Delimiter for a report reviewing the Federal Government’s Personally Controlled Electronic Health Records project, claiming on 31 January that it did not have a copy of the document on 5 January when the FOI application was received. Some head scratching given the fact that Health Minister Peter Dutton issued a Media Release on 20 December on receiving the report. Maybe the minister hadn’t passed on a copy by the fifth; yes relevant documents are those held at the time an application is received not those that are created or received at a later date, so if it was received in the department on the sixth or any time before the thirty first, technically access could be refused on “not held’ grounds. But the decision letter (pdf) is as curt, short, sharp and unhelpful as they come.

Autumn, a brilliant time of the year in Canberra, is near at hand. May it prove somewhat kinder to the cause.

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