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