Thursday, January 10, 2013

Time to Deliver on FOI

Time to Deliver on FOI
published in Public Administration Today Edition 33 Jan-Mar 2013, 16-18.

The APS has a long track record of being unable to manage the appropriate balance between secrecy, providing information as a service to citizens, and the public’s right to know.

Arguably, this stems from a reluctance to embrace access to government information as a right with limited protections. Moreover, there seems little motivation for the APS to give high priority to ensure the provision of reliable and timely information as an elementary service to citizens.

The general attitude, and particularly at the highest echelons, seems to be a continuation of an outmoded attitude of excessive caution and fear of the ‘chilling effect’ of FOI. Furthermore, the primary objective in managing FOI is to avoid the potential sensitivities that could be touched on by disclosure of some information.

Cornall in his report on FOI practices in the Department of Immigration and Citizenship wrote “ the Department presently seems to have more of an attitude of resistance to disclosure.” Timmins wrote in relation to the release of documents concerning car subsidies “Excessive secrecy and an abundance of caution still mark the response to some requests for access to information…” (Peter Timmins, “It’s clear FOI simply isn’t working properly.” (Australian Financial Review, 27 September 2012).

The 1983 FOI reforms ended in what then opposition leader Rudd described as a sclerotic information system. The cautious 2010 reforms have made improvements on the margins but were always going to be problematic if there was no political leadership to counter the APS’s inclinations and preference for high levels of secrecy.

Whilst it is a struggle to find Departmental Secretaries speaking favourably about FOI it is not too difficult to find the reverse. Former Treasury Secretary Ted Evans noted how Treasury had not been happy with the introduction of FOI because it might undermine fearless and frank advice. (Sid Maher and David Crowe, “Treasury ‘tainted’ by Swan leak,” The Australian 7 November 2012). Whilst he was Treasury secretary Dr Ken Henry continually warned of the adverse impact of FOI and the threat to good public policy and frank advice from the bureaucracy. (Brett Clegg and Jennifer Hewett, “Treasury Swamped by Demands: Ken Henry” The Australian 9 December 2010)

The shortness of John Faulkner’s tenure overseeing the 2010 FOI reforms was a major blow. Australian Information Commissioner, John McMillan decision to opt for a low key incremental approach to achieving the necessary cultural change in the APS underestimated the potency of the elements that drive the APS’s resistance to the idea of a more open government. These elements include:

·      The role of blame avoidance
·      Increasing and problematic impact of ministerial offices
·      The comfort offered by a veil of secrecy
·      Absence of any value adding by FOI in an era of extreme budget restrictions

 A review announced at the end of October, led by former senior bureaucrat Dr Allan Hawke, promises to continue a program of cautious change that will fail to offset the APS’s lukewarm response, at best, to FOI and the more common hostility and distaste shown by areas like Treasury and Immigration interestingly other areas like the Department of Defence have a good track record with FOI.

The Cornall review into the FOI practices of the Department of Immigration and Citizenship, in September 2012, concluded that there was a lack of a whole-of-department approach to effective FOI management.

Two years after the 2010 FOI reforms, the Cornall review is a damning indictment.
Yet, in reality there is a whole of APS approach to FOI management - to treat it as an unwanted imposition and subservient to protecting Ministers from embarrassment.

Strong, unstinting political leadership on FOI is rare in the annals of Australian history.

 John Cain and Anna Bligh both had to lead from the front and alone in delivering on FOI reform. There is little doubt that John Faulkner was probably a lone voice in Cabinet after the 2007 election in supporting the translation of the ALP’s commitment to open government in opposition into effective practice and legislation.

 Since Faulkner, the Rudd and Gillard ministers responsible for FOI have been noticeable for their lack of FOI leadership.

In part outsiders to the APS are to blame for underestimating and not understanding the factors contributing to the APS’s lethargic response to the 1983 FOI reforms and the small and begrudging improvements since 2010.

In his 2010 book The Blame Game: Spin, Bureaucracy and Self-preservation in Government UK author Christopher Hood argues that the major operating principle in Ministerial offices and at all levels of the bureaucracy is to avoid blame.

Hood argues that risk management is primarily geared towards the management of blame risk and that this “so often shapes the organization and operation of modern executive government, producing its own curious logic of administrative architecture and policy operation.”

If Hood’s thesis has any degree of accuracy, then FOI is a counter-intuitive and highly threatening government policy let alone legal requirement for the APS. As an accountability tool FOI, is the most problematic for blame avoiders because it restricts the options for blame avoidance, and even more troublesome, it increases the risk of direct blame attribution.

In the absence of the strongest and clearest leadership FOI will therefore be worked around, sidelined or avoided.

The rise of the influence, interference and shaping of public policy by ministerial advisers exacerbates the adverse impact of blame avoidance in the area of FOI. Terry Moran, former Secretary of the Department of the Prime Minister and Cabinet,  describes this new and growing layer of Australian government as an “accountability black hole”. (Terry Moran, “Political Staffers an accountability black hole” Australian Financial Review 26 September 2012)

Ministerial advisers now play an increasing role in how advice and policies are formulated by the APS and how they are communicated, managed and recorded.  Particularly, however, the decisions of advisers are primarily filtered through the lens of political opportunity or outcomes in contrast to the values and requirements of an apolitical APS.

FOI is anathema to these relatively new kids of Australian public policy and explains why in many areas of the APS there is now a requirement or practice to channel FOI requests, at some stage, through  ministerial advisers as revealed in the Cornall review.

APS staff working on policy development or briefing Ministers will often be constructing that advice to minimise potential future blame on them, from ministerial advisors and to their Ministers.  A more effective FOI regime would shatter the comforting veil of secrecy now utilised by the APS and exploited for political opportunism by ministerial staffers.

Justice Michael Kirby, during the hearing of the 2006 McKinnon case in the High Court, argued that there should be small but necessary zones of secrecy for the APS. However as an outsider, and idealist, Justice Kirby failed to realise that the APS operates with small, narrow and limited zones of openness that are always on the verge of potential closure.

Most policy development begins in a zone of secrecy and the possibility of that policy entering an ‘open’ zone is a rare and unexpected phenomenon. The default state of play is a zone of secrecy. In the APS it is openness that needs to be justified and fought hard for on most occasions.

As former senior bureaucrat and Public Service Commissioner Andrew Podger has acknowledged, the primary motivation of many in the APS is not ensuring legal rights of access and high levels of information service delivery but to avoid embarrassing their Minister. (Marcus Priest and Alex Boxsell “Combet ‘not involved’, Australian Financial Review, 25 September 2012, 7)

Instead of being information stewards ensuring the best and most timely use of information the senior echelons of the APS loom like sullen non-trusting guardians of an unwanted  legal responsibility. Finding APS champions for FOI is difficult, finding less than enthusiastic implementers is relatively easy.

Many outsider advocates for FOI fail to understand the need for the APS to have space to develop policy in-house and to engage in full and frank exchange of ideas and information. However, for too long the general threat to frankness and candour of higher levels of openness has been used by the senior echelons of the APS to justify excessive levels of secrecy.

The APS needs to identify what needs to be protected, and for how long, in the public interest and for good governance and to clearly demonstrate that the motivation is not simply to protect the Minister from embarrassment or political discomfort or curry favour with ministerial staffers.

The onus needs to be on the APS to demonstrate how and to what extent their implementation and management of the 2010 FOI reforms have resulted in an increase in the availability on a timely basis of better quality information that has informed public debate and policy discussion.

The 2010 Declaration of Open Government , as minimalist and low in aspirations as it was, has been left as one of the few concrete achievements in this area.

Most critiques of the FOI performance are largely citizen-centric. There is a good reason.  FOI legislation, whether or not it is accepted by the powers that be in the APS or ministerial staffers, grants legal rights of access to information and allows a few limited exceptions.

However the citizen-centric approach to a large extent has driven government information handling to institute measures and processes to counter this ‘threat’ of transparency. FOI is seen as an imposed process that value adds little to the decisionmaking processes of the APS, and in times of fiscal austerity, is an unnecessary luxury or burden.

There are benefits to the APS of more open government but the dividends will not be harvested overnight.  A fuller and more timely sharing of information will allow greater collaboration and cooperation on policy development between citizens and the APS. Greater openness will lessen the interference and decrease the role of political opportunism but not eradicate it entirely, because of the dwellers in Terry Moran’s ‘black hole of government accountability’.

Furthermore it will allow trust and creditability in the APS’s capacity to provide government with frank and candid advice. This creditability will accrue by not allowing uncontested claims of confidentiality to protect Ministers and others from embarrassment but by continual demonstration of the quality and strength of that advice.

Andrea Di Maio, a member of the Gartner Blog Network, has argued, in the area of open data, that too strong a citizen-centric approach downplays the vital role of government employees in open government. A government employee-centric approach does not have to equate to excessive secrecy.

The APS needs to demonstrate it can deliver an open government policy as effectively as any other program and legal responsibility. It needs to demonstrate that its claims for confidentiality are valid, limited and serve the public interest.

The Australian Information Commissioner has continued to promise that culture change in the APS is possible.

The APS needs to deliver.