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“Climate of Disclosure: The Public Service and the Right to Know”
The Commissioner
Lynelle Briggs
Lynelle Briggs is the Public Service Commissioner. She has held this position since November 2004.
See also:
Lynelle Briggs,
Public Service Commissioner
Panel Discussion Presentation
Walkley Foundation of Public Affairs Convention - 19 August 2008
For reasons of accountability and integrity, I start from the position that as much information as possible about government decisions and actions should be in the public domain. In other words, the more transparent the actions of governments are:
- the cleaner they tend to be—the higher their ethical and administrative standards; and
- the more comfortable the public will be that they are getting value for money, that policy challenges are being dealt with effectively, and that their personal information is open to scrutiny by them.
We know that Australians regularly and routinely get access to their personal information held by the Government, and that more general government information is available today via the internet than ever before. So, why all the fuss about FOI?
The fuss is about effective government decision making in the context of the media’s desire to get a story on the one hand, and about defensive government reactions to information requests and associated administrative imposts on the other hand.
The issue for public servants is that there is a category of information that is in the ‘grey’ area. This includes advice the public service provides its Ministers and information related to the development of that advice. It’s not so much that this information if made public is a risk in itself, but the way it is used and interpreted, and how this can in turn damage and constrain the free conduct of policy development and advice, which is the risk.
Let’s take a hypothetical example. I send a minute to my Minister advising her on the need to cleanse sewage water into drinking water as part of a national water initiative, and she takes a decision to write in support to the PM. This is released under FOI to a media FOI editor who writes a sensational article about secret plans to make us all drink wee which selectively quotes the material and lampoons the Minister. The PM hits the roof. The Minister gets cross with me for releasing information which is embarrassing to her, even though she has behaved entirely properly in recognising a policy issue that needed to be addressed. She loses confidence in my agency and loses all interest in dealing with the issue. I’m back to square one.
What’s not hypothetical is that this risk of exposure and loss of a sensible change in policy has been played out many times over the years, and people wonder why we clam up over FOI. Let’s look at a related situation.
When the public service and Ministers develop policy, it is common and good practice to look at all options. These options will necessarily include ones that in the public eye are unpalatable and controversial, and ones that disadvantage interest groups. But in coming to recommendations about the ‘best option’ and helping Ministers make decisions, it is important and sensible to go through a range of options. It is especially important that the seemingly radical options which involve major change are not excluded for fear of early public release because they may be the options which best address the problem over the longer term.
What happens if the papers developed as part of this process are made public? As is necessary in meeting the need for provocative sound-bites, the media reports the information in a way that will generate the most interest and response: it looks for “the story” and a great headline. This makes for “good” news but can make the public service and the Government look incompetent or incoherent or just ridiculous when select pieces of this information are taken out of context, or it can cause Ministers to ask that nothing be committed to paper.
We gained an insight into how the media might report Cabinet papers if releasable under FOI with the recent petrol price-watch policy. The media reported that four key departments had recommended against the Government’s policy; the reported implication being that the Government had acted – foolishly – against the advice of the public service, and that there was disconnect between the new government and its public service advisors.
This reflects a misunderstanding about our system of government, the role departments play in providing advice to the Government, and the Cabinet system. There are very few policy proposals that go to Cabinet with which all Departments agree, or agree without qualification. This difference of views serves to keep us sharp, stimulates debate, and ensures without prejudice that all the pros and cons are fully explored and understood by Ministers. Ultimately it is the decision of the Government about what decision to take, and the Cabinet process ensures it makes an informed decision. However, if this process becomes publicly accessible, the risk is that both public servants and the Government won’t have the confidence to be so open and frank in the debate and to explore important new policy directions.
Public servants would not like a situation to develop where they are asked by their Ministers not to conduct research, not to give them ‘bad news’, not to present the full range of options or pressure them to give softer advice that is closer to the Minister’s known political position, and not to write anything down for fear of its release. Ministers would feel equally annoyed if public servants self-censored their advice or refused to advise them in writing about the pros and cons of what may subsequently be revealed as a rather silly idea once implemented.
Of course, it is equally important for there to be public debate. And there are times within the policy process when this is appropriate and necessary. The best public policy is informed by the widest spectrum of public views. Even an unpalatable but ‘good’ policy is made better by understanding why it is unpalatable and how best to ameliorate this.
I would like very much to see more open debate on policies. But, this requires more responsible behaviour on the part of the media, lobbyists and Opposition political parties. And it requires public servants to ensure that they continue to provide comprehensive advice in writing, and for Ministers to accept that that advice should properly be made public as a true test of government accountability processes.
I also agree that we have to be realistic about today’s information age and public expectations. We need to make sure we’re keeping up with the technology and media available and use it for the public good.
Increasingly, we have a more educated Australian public who demand accountability in government decisions, would like to be more engaged in how those decisions are made, and who expect to be kept well informed. They expect governments to behave accordingly—to release information at will and to engage in on-line policy discussions, new ideas summits and community cabinets. These expectations are being replicated in the Courts, where material that would have once been withheld is now being released. I have no doubt that the public’s trust in government would increase if more information was released, and released willingly, not begrudgingly.
The Rudd Government came to power with a very clear policy to make government decisions and practices more open and transparent and to reform FOI arrangements. As part of those considerations, I expect they will review what is happening overseas and in the States and Territories to try to find a way to both protect confidences between the public service and Ministers, and to provide more information in a timely and less process-driven and costly way.
The sorts of things that the Government could consider as it explores its options are:
- Queensland’s 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
- 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.
- 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.
- 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.
- in my 2008 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 on-line discussion forums
- 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 journalist would be provided at the same time to all journalists and the wider community who have an interest, which might encourage a more balanced coverage of the issues
- 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
- 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
- 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 flooding 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 most journalists operate under.
In essence, I think it is important that we continue to encourage a more open (and effective) information disclosure environment, which hopefully will facilitate a more open culture within government. I am also urging the media to think more about their role and how it can be better used for good policy debate.
I don’t profess to have the answers, and I certainly don’t agree that there should be open slather with all material released immediately, but I do want to see a pro-disclosure culture within the public service.
It’s important that we strike the right balance or we risk having a Government and public service that makes policy based only on the prevailing public opinion, rather than what is best for all Australians in the long-term.
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