Bureaucratic efforts to undermine Freedom of Information laws by insisting it prevents “frank and fearless advice” hurts democracy and further estranges the governing class from the electorate. Bernard Keane reports.
Attempts by the Public Service to resist the limited transparency provided by the Commonwealth’s already restrictive Freedom of Information laws has reached systemic levels. And the argument that making documents available under FOI would undermine the capacity of public servants to offer the cliched “frank and fearless advice” is becoming the go-t0 excuse for bureaucrats to refuse to reveal documents that are eminently in the public interest and fall outside more substantive FOI exemptions.
Recent efforts by Treasury to prevent the release of documents relating to its assessment of Labor’s negative gearing policy to the ABC because they would compromise its “ability to provide candid and confidential advice to ministers in the future” is only the latest of a growing list of examples of attempts by bureaucrats to claim virtually nothing should be allowed into the public domain.
— Ray Marx & Robyn Deane (RKD) (@marxdeane) January 13, 2018
Defence tried the same excuse last year, as did the AFP in Canberra. NSW police have also deployed the excuse recently. The tactic was given imprimatur from the very top in 2016, when Public Service head Martin Parkinson — backed by a number of his colleagues — demanded changes to FOI laws to curtail transparency in the name of protecting “frank and fearless” advice.
Something is seriously wrong with our public service culture if Treasury officials threaten to abandon ‘frank and fearless’ advice to Minister because documents can reach public domain through FOI. https://t.co/1vCDumlw0l
— Quentin Dempster (@QuentinDempster) January 7, 2018
Parkinson insisted such an attack on transparency was not intended to shield public servants from scrutiny of their bungles, which is probably correct: we are given a constant stream of evidence of bureaucratic bungling by the Australian National Audit Office, which in recent years has revealed widespread and serious incompetence across a range of departments in what used to be regarded as one of the world’s finest public services.
But what Parkinson wouldn’t admit is that FOI tends to be embarrassing for governments more than public servants — as the Treasury negative gearing documents showed. And that makes ministers more wary of bureaucratic advice — and makes ministerial staff lean on bureaucrats not to send over in written form potentially embarrassing advice. That is, FOI is a danger to the provision of frank advice only if public service leaders don’t have the intestinal fortitude to insist on providing quality advice in the face of what one outgoing Public Service head called the “meretricious cameo-players” who populate ministerial offices.
Indeed, the words seven years ago of Ken Matthews — venting his frustration on the way out the door after years at the top level of the Public Service — ring truer than ever, especially his warning about a “docile and unassertive” service.
Other former mandarins have lashed what might be called the Parkinson Doctrine of Non-transparency more recently. Former Secretary Bill Blick hit back at Parkinson in 2016, saying there was no evidence FOI has any impact on the provision of frank advice and that those who wanted to roll FOI back should produce evidence it had. Otherwise, he said, it was “self-serving comments from the usual suspects.”
The attempts to roll back FOI and game existing laws comes at a time when the government is ever-more obsessed with collecting personal information about citizens, through mass surveillance laws, a radical expansion of the census into a lifelong monitoring document, releases of badly-anonymised personal data, releasing personal information about its critics and using the Australian Federal Police to track down whistleblowers who have embarrassed it. The more government wants to know about us, it seems, the less it wants us to know anything about it.
While undermining transparency undermines democracy in an era when the latter is already under stress, the Parkinson Doctrine also affronts democracy in another important way. When convenient, public servants like to hide behind the argument that they don’t determine what the public interest is, governments do. But when it comes to FOI, suddenly the Public Service, from its very top down, argues it has an understanding of the public interest, and how it should be served, much better than what the rest of us have — and what our current Freedom of Information laws say it is. Relentless efforts by bureaucrats to game and change the FOI system to the advantage of themselves and their political masters will only further estrange the community from an out-of-touch governing class.
Bernard Keane is Crikey’s political editor. Before that he was Crikey’s Canberra press gallery correspondent, covering politics, national security and economics.