FOI problems are media’s fault, PS chief says

You might think the head of the Public Service Commission would take some responsibility for a decade of failed federal government FOI and whistleblowing systems – but not Lynelle Briggs. She’s happy to blame the media, lobbyists, the Opposition!

PS Commissioner blames media for FOI problems

Coverage shows ‘media misunderstands Australia’s system of government’

By Bill Rowlings*

Public Service Commissioner (PSC) Lynelle Briggs has blamed the media, lobbyists and the parliamentary Opposition for the lack of more open debate on government policies.

And she blames the media – at the same time as saying it is not smart for governments to criticise the media – for the “current state of FOI” in Australia.

The media has ”flooded” government with “deliberate fishing expeditions”, Ms Briggs said.  The media “has contributed significantly to the current impasse” over Freedom Of Information (FOI).

However, some other people have an entirely different take on the FOI problems in Australia.  “In my opinion, Ms Briggs has contributed more to the impasse over FOI than any media outlet, or all media outlets combined,” Civil Liberties Australia’s President, Dr Kristine Klugman, said.

“As well, her tenure as PSC has coincided with a brick wall approach to improving whistleblowing protections in the Public Service. Most of the advances now happening in FOI and whistleblowing are occuring around Ms Briggs, not at her instigation. It has required Minister Faulkner to take a personal interest, or a parliamentary committee to get involved, for matters to move forward in the areas for which Ms Briggs has had major responsibility for the entire time she has been PSC.”

Dr Klugman pointed out that Ms Briggs was about the last statutory office holder reappointed in the dying hours of the Howard Government in late-2007. “Given how different her approach appears to have been under the Howard Government, it is hard to understand how she can comfortably continue in her position without enormous personal contortion.” 

Ms Briggs extraordinary outburst blaming and criticising the media was contained in a speech delivered for her in December 2008**. Here is some of what she had to say:

Ms Briggs’ speech…here’s some of what she said:

“We gained an insight into how classified information might be used if releasable under FOI with the recent media coverage of confidential communications between the Secretary of the Treasury and the Governor of the Reserve Bank.

  1. The media reported that the Governor of the Reserve Bank had raised concerns over the bank deposit guarantee scheme in a letter to the Secretary of the Treasury. This letter was leaked to a national newspaper; the reported implication being that this was a matter where there was disagreement between the main economic players in a time of great uncertainty.
  2. The reports were raised at a Senate Estimates hearing and resulted in further, significant media coverage.
  3. During the Senate Estimates hearing, questions were raised over whether it was in the public interest to reveal the details of the advice given to Federal Cabinet. This information was subsequently released, creating what might be considered a potentially risky precedent.

 

“The nature and extent of coverage that this matter received reflected a misunderstanding about our system of government, the role departments play in providing advice to the Government, and the Cabinet system. 

“I would like very much to see more open debate on policies. However, this requires more responsible behaviour on the part of the media, lobbyists and opposition political parties.

FOI reform

“On 22 July (2008), Senator John Faulkner announced the first step in broad ranging reform of Freedom of Information law, representing the most significant overhaul of the FOI Act since its inception in 1982. Senator Faulkner confirmed the Government’s commitment to reforming the Commonwealth FOI Act and to promoting a pro-disclosure culture across the Government.

“Cabinet has agreed to the first step in the process, to abolish conclusive certificates. This will remove the power of Ministers to use conclusive certificates to refuse access to documents despite a decision by the Administrative Appeals Tribunal that the documents should be released.

“Applicants who are dissatisfied with an agency’s decisions under the current legislation can seek a review of those decisions. The AAT can review most decisions of agencies under the FOI Act, including the decision to issue a conclusive certificate.

“Once conclusive certificates are abolished, the AAT will be able to undertake full merit reviews of a decision to claim an exemption. The legislation abolishing conclusive certificates was introduced into Parliament last week and has been referred to the Senate Standing Committee on Finance and Public Administration, which is due to report by 10 March 2009.

“Following consultation with external stakeholders and Portfolio Departments, the Government also plans to release an exposure draft of FOI reform legislation for public comment and consultation by early 2009, with a view to introducing the bill in 2009.

“The sorts of things that the Government could consider as it explores its options include:

  1. Queensland’s recent FOI review recommends that Cabinet papers should be released after 10 rather than 30 years, while New Zealand releases Cabinet papers immediately. It’s important to understand that New Zealand exempts advice to Ministers and Queensland’s review recommends introducing specific exemptions for Ministers‚ briefs, possible parliamentary questions and estimates briefs for three years to ensure that the information flow between the Minister and the public service is protected
  2. the status of our exemptions is a key issue for public servants and the media alike. Internal working documents, confidential communications between officials and Ministers, and advice to Ministers are currently exempt, subject to a public interest test. We need to consider carefully whether policy advice to Ministers and other such confidential material should be exempt or not and, if so, for how long? Alternatively, perhaps the public service could prepare more options papers that could be released so the pros and cons and factual analysis were made public as a matter of course, leaving exempt the handling and directional briefs to Ministers that build on that advice
  3. moving beyond FOI Act processes, the Government might consider simply making more information automatically available on the web. It could be that statistics, survey reports, focus group outcomes and factual research work could be released immediately, with evaluations and discussion papers released after a period, giving Ministers and officials time to consider their implications first, and with Cabinet papers being released after 10 years
  4. there might also be value in a system of nationally uniform FOI and release laws across all jurisdictions in Australia, rather than the current hotch potch of different regimes
  5. in the latest State of the Service Report employee survey, a number of staff identified the need for more consistency in the application of FOI within and across agencies; for agencies to be more willing to give people information under FOI; and for a more open exchange of information with the public through websites and online discussion forums 
  6. consideration could be given to making information that has been released following an FOI request publicly available to all by publishing it on the internet. This way the benefits of information released to one party would be provided at the same time for everyone in the wider community who has an interest, which might encourage a more balanced coverage of the issues
  7. building on the Australian Government’s desire for a much more open disclosure environment, it could encourage officials to move beyond administration of the FOI legislation along “black letter law” lines towards the spirit of the original legislation which was about access to information. I note in this regard that the Queensland review found that it has become commonplace that if a document is classified as falling within an exemption, this provides a prima facie case against disclosure, and the review proposed that access should always be granted unless disclosure, on balance, is contrary to the public interest
  8. much could be gained by encouraging open dialogue between public servants and those making FOI requests so that the requests can be narrowed down to what is actually required, thereby avoiding the collection and review of numerous documents, draft papers and emails, and thus ensuring that the person’s enquiry gets answered at least cost to us and to the enquirer
  9. for obvious reasons, it isn’t smart for governments to criticise the media, but as a public servant, I can say that the media should accept some responsibility for the current state of FOI. The extensive use of FOI editors has contributed significantly to the current impasse by their flooding of government with deliberate fishing expeditions and requests designed specifically to embarrass Ministers. I’d like to see more sensible (and less sensationalised) reporting of the information released within an accurate context, with the not unreasonable intention of informing the public, consistent with the principles under which most journalists operate.”

 

*Bill Rowlings is CEO of Civil Liberties Australia

**  Address by Karin Fisher, Group Manager Corporate, on behalf of Lynelle Briggs, Australian Public Service Commissioner, to the Records Management Association of Australasia & Australian Library and Information Association, 4 December 2008.  Full speech: http://www.apsc.gov.au/media/fisher041208.htm

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