Mckinnon, Michael --- "FOI Reform And Maintaining The Momentum" [2010] AIAdminLawF 9; (2010) 62 AIAL Forum 8

FOI REFORM AND MAINTAINING THE MOMENTUM

Michael McKinnon ^[*]

After decades of deliberate neglect, Freedom of Information (FOI) reform is now firmly on the agenda. This is not simply political window dressing but a serious attempt to improve the operation of our information access laws in NSW, Queensland and the Commonwealth.

Underpinning this reform are questions as old as democracy itself. Does secrecy have a cost? How much does the public need know about the operations of their governments? What real damage can occur to the public interest from release of government documents?

The answer to the last question is clear – secrecy allows poor policy and corruption to flourish. The children overboard affair, the Australian Wheat Board (AWB) scandal and the weapons of mass destruction claims used to justify the invasion of Iraq, all show that secrecy is crucial if flawed reasoning and policies are to survive. Ignoring the affront to democracy of voters unable to make informed decisions because of secrecy, the work of Nobel prize winner Joseph Stiglitz, even if couched in economic terms, reveals that secrecy is a poor investment by any government.

A further example can be found with the so-called Dr Death inquiry in Queensland, in which respected lawyer Geoff Davies QC found that the Queensland Cabinet, including Peter Beattie and former health minister Gordon Nuttall, had a "culture of concealment'' in which hospital waiting lists and other material were hidden.

Davies found that the conduct of the present Cabinet and its Coalition predecessor, in hiding documents relevant to the health of thousands of Queenslanders, was "inexcusable and an abuse of the Freedom of Information Act''.

He also found that successive state governments had followed a practice of concealment and suppression of elective surgery waiting lists and measured quality reports. "This, in turn, encouraged a similar practice by Queensland Health staff'' he said. "In my view, it is an irresistible conclusion that there is a history of a culture of concealment within and pertaining to Queensland Health."

Secretive government not only permits poor policy to flourish and flawed allocation of taxpayer resources but, logically, given the findings of Commissioner Davies, can be directly responsible for appalling and life-threatening failures by government.

The present wave of FOI reform, even if flawed, recognises not only the cost of secrecy to good government but also its negative cost to citizen support and involvement in the political process. However, those hoping to improve FOI should be aware that some politicians and senior public servants remain deeply opposed to improvement. That opposition will not diminish over time.

The judiciary and the legal profession also err on the side of caution regarding government transparency on the basis of unspecified and often absurd fears of the sky falling in. The price of improved FOI, therefore, must be unrelenting vigilance and continued close engagement in reform by the media and like groups that have been instrumental in lobbying for improved transparency. Sadly, apart from a number of individuals, the legal profession, through its professional associations, has offered little to assist in the FOI reform process where its expertise has been sorely needed.

When I addressed the AIAL Forum in July 2004, I spoke with some optimism. As The Australian’s FOI Editor, at the time, I had recently authored a submission to the Australian Labor Party (ALP) on FOI reform on behalf of News Ltd, the nation’s largest media organisation employing about 2,500 journalists and publishing 145 national, metropolitan, Sunday, regional and suburban newspapers.

I also spoke with optimism, misguided in hindsight, of the prospect of FOI reform through the courts. A case that eventually found its way to the High Court, McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 229 ALR 187, was seen as the basis for challenging not only the issuing of conclusive certificates but also the public interest arguments used to thwart FOI applications from almost day one of the Commonwealth FOI Act’s existence.

These arguments arise from the mid 1980s case of Howard re Treasurer (Re Howard and Treasurer (Cth) [1985] AATA 100; 3 AAR 169), in which a contention of public interest factors against disclosure included claims that the public would be confused by policy documents and that public servants would give oral advice rather than write things down if documents are released.

The case arose from FOI applications lodged in October 2002, relating to ‘bracket creep’ in the income tax system and possible fraud in the First Home Buyers Scheme.

At the time, I was systematically challenging the lack of compliance with the spirit of the FOI legislation. Over four or five years, I eventually lodged more than 50 appeals to the Administrative Appeals Tribunal (AAT); the majority of these were successful. Government agencies have often folded at the tribunal doorstep given the universally poor legal justification for secrecy.

I argued then, though without specific knowledge, that the Commonwealth Government was systematically and actively seeking to ignore FOI laws to protect the Howard Government’s political standing. In hindsight, this view was entirely correct.

I refer to a book entitled The Role of Departmental Secretaries by former Public Service Commissioner and Secretary of the Department of Health and current President of the Australian Institute of Public Administration, Andrew Podger. Mr Podger writes:

A meeting of all departmental secretaries in 2004 discussed concerns about the media campaign, led by The Australian newspaper, to challenge decisions (including the issuing of ‘final certificates’) to exempt documents from FOI. Discussion focused first on the definition of ‘documents’ and then, when the meeting was advised by Rob Cornall (Secretary of the Attorney-General’s department) that the legislation implied a wide definition, discussion turned to ways of limiting the number of documents held that were not unequivocally exempt from public release. Keeping diaries was firmly discouraged, those with ‘day books’ or similar were advised to destroy them at the end of each week or fortnight and it was suggested that good practice was to systematically review document holdings to destroy draft papers that were no longer essential for future work. Where possible, policy documents were to be managed as cabinet papers, which were exempt. One secretary went so far as to boast that he never kept written records of conversations with the minister, but reported back to his departmental officers orally on decisions made and action to be taken. Cornall was asked to provide further legal advice on how to gain exemptions from FOI coverage.

I expressed concern that the conversation was so one-sided. I noted the Auditor-General had frequently criticised the lack of adequate record keeping and asked Cornall to give us legal advice also on the obligations of public servants to make and to keep records. Cornall agreed that this was a sensible request. (As I recall, the subsequent advice provided was that there was no explicit obligation to create records, though the Public Service Act and the Financial Management and Accountability Act arguably implied some such obligation—for example, through the value of ‘open accountability’; the Archives Act certainly constrained the destruction of records once created.) I also asked the secretary who claimed he did not keep records how he expected his staff to carry out the minister’s decisions, which he had relayed orally. Surely effective management, let alone the obligation of accountability, meant someone would make a record of the decisions.

A year later, when I was working in the Department of PM&C, I was intrigued by the systematic trawling of files, official and unofficial, to destroy ‘surplus’ copies of draft papers and other papers not essential for recording the decision-making process. There were also systematic arrangements to tie as much policy advice to cabinet papers as possible. The processes did not involve the destruction of any key documents, but were clearly aimed at limiting the risk of FOI (or parliamentary) requests for working papers being upheld.

This commitment of the bureaucracy to secrecy using extraordinarily flawed management processes is a disgrace in any democracy. Public servants ought not to protect the political interests of their long-term masters rather than accept the public’s right to know but, given the continued politicisation of senior bureaucrats across the Australian public sector and uncertainties of tenure, a sentiment of secrecy will not die a willing death.

It is also extraordinary that this cynical contempt for transparency flies in the face of a judgment from a Tribunal direct to these issues.

I refer to what was, hopefully, the last conclusive certificate case to be heard by any Australian tribunal. A certificate was, effectively, a vehicle for a minister to determine that the public interest was against any release of documents, with an almost impossibly high bar set as part of the appeal process. The Howard Government issued certificates against my applications on documents about industrial relations reform, the legality of David Hick’s incarceration, Reserve Bank board minutes and Treasury policy documents.

In the case, McKinnon and Secretary, Department of Prime Minister and Cabinet (2007) AATA1969, claims by the nation’s then top public servant, Dr Shergold, that documents concerning government deliberations should not be disclosed, were rejected by the Deputy President of the Tribunal. The claim that disclosure would reveal deliberations of senior public servants, which would mean that proper records would not be created and that frank and candid advice would not be offered, were not only wrong in evidence but failed when measured under legal obligations under the Public Service Act and the department’s own information management guidelines. Perhaps it is my flawed legal understanding but basically public servants would be breaking law if they failed to properly make records and, therefore, any claims of public interest against release on this basis are doomed.

Irrespective of the outcome of the present wave of FOI reforms, public servants will still attempt to remain secretive even to the extent that reforms are in fact backward steps.

While the Bligh Government, ably led by the Premier Anna Bligh, has embraced FOI reform, at the 11^th hour, a significant flaw was discovered and, amazingly, fixed showing the value of a politician with a real commitment to improvement.

Under the Right to Information Bill 2009 (Qld), a little known Schedule 4 was a time bomb. Working on behalf of Australia’s RTK – a peak media lobby group for freedom of speech established after the High Court case in McKinnon – I noted that an application for deliberative documents would be treated in a new way.

Under the old Act, a document was judged on public interest factors for and against release. However, under the Bill as it stood, any deliberative document would automatically attract a “greater weight of harm’’ provision when balancing interest. Given the object of the Act itself had merely been cited as a factor favouring release when considering public interest, this change would have dramatically narrowed access. The greater weight of harm schedule was subsequently removed from the Act.

The new Act in Queensland will also ensure that question time briefs (QTBs) are never released. Last week, the Commonwealth Department of Employment released a swag of QTBs in response to one of my applications. Funnily enough, the briefs painted a universally glowing picture of government policies, making the reasons for secrecy in Queensland, about the same type of subject matter, ridiculous. In NSW, the information access reform agenda has been handed over to an Attorney General known for secrecy. Without the political authority of a Premier, or even more importantly, a Senator Faulkner, there are grave fears that the NSW reform process will falter.

The difficulty of FOI reform makes the role of the media and others, in fighting for improvement, crucial. In October 2006, after the loss in the High Court, Commonwealth Ombudsman Professor John McMillan made a typically insightful speech.

Professor McMillan argued that the “history of the McKinnon litigation illustrates that a conclusive certificate will be hard to overturn’’.

However, he went on to note that the decision had sparked universal condemnation by the media and claims that FOI laws were broken.

“Rightly or wrongly, many people looked to the High Court to become a champion of FOI in opposition to government…(and)…the debate has had to move elsewhere.

Professor McMillan also pointed out that the McKinnon decision had triggered renewed interest in legislative reform of the FOI Act. Shortly after the decision, the Labor Shadow Attorney-General, Nicola Roxon, introduced a Private Members Bill to abolish conclusive certificates.

“The proposed amendment would constitute a more substantial change to the FOI Act than any decision the High Court could have given. In effect, the FOI cause will have been advanced more through a defeat in the courtroom than by a success.’’

Professor McMillan cited the changes to Australian electoral laws after the High Court declined to read a ‘one vote, one value’ principle into the Constitution in Attorney-General (Cth); Ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1, the McKinlay case. He noted that path-breaking native title legislation was enacted in Australia after the initial loss in Milirrpum v Nabalco Pty. Ltd and the Commonwealth (1971) 17 FLR 141, the Gove Land Rights case.

The lesson for the media and others interested in open accountable government is that real change can be won but only after organisation, the development of public support and in a climate in which politicians are continually forced to justify secrecy or offer improvement prior to and during election campaigns. FOI reform is a continuing battle.

Reforming and improving information access is a difficult job for any politician. There is little if any public credit and reform occurs in the face of entrenched opposition from at least some ministers and most of the public service.

Despite these obstacles, FOI reform is happening in Australia. The challenge for the media, lawyers and anyone supporting better access to government information will be to maintain momentum in the future. Even as new Acts are passed and new disclosure cultures embraced, meetings of public servants, political advisers and politicians will be discussing how best to stop new transparency.

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Endnotes

[*] Michael McKinnon is FOI Editor, Seven Network. This paper was presented at the 2009 AIAL National Administrative Law Forum, Canberra, 6 August 2009.