SECTION 2. ACCOUNTABILITY MECHANISMS – PROBLEMS & OPPORTUNITIES FOR REFORM
12. FREEDOM OF INFORMATION, THE RIGHT TO KNOW AND THE AUSTRALIAN INFORMATION COMMISSIONER
There has been an important conceptual shift from ‘Freedom of Information’ to the more assertive ‘Right to Know.’[i] There have been very significant developments here – especially the shift from discussing Freedom of Information (FOI) to right to information (RTI) or Right to Know (RTK). However, we would add a strong property argument to the rights argument.
- Information produced by the government for the purposes of making and recording decisions is the property of the people;
- One needs a good argument to deny access by the people to their property;
- There are some good arguments to deny access but it is important that they are applicable and applied by an independent authority;
- There are some very bad arguments for withholding information such as preventing public discovery that a minister or senior public servant was wrong, foolish, or unethical. The worst case of all is where information is withheld because it would prove that a minister misled parliament, electorate (deliberately or otherwise), or failed to correct a statement;
- To use a power to withhold information for that purpose seems to be a very clear abuse of power for personal or party political ends and seems to fall within Transparency International’s definition of corruption;
- ART suggests that we move towards a system of publishing government gathered information on public websites as a rule and withholding as an exception (the reverse of the traditional approach).
There are some restrictions that are frequently touted but rarely justified: –
- Professional advice. governments often claim to be following, or supported by expert professional advice – frequently by lawyers and more recently medical experts. Governments assert that they are the client and insist on client confidentiality especially in legal advice. Lord Bingham sees no problem with this in normal tort and contract actions. However, if the issue concerns the legality of government action, the client might be parliament or the people and, in going to war, those whose lives are on the line. More importantly, in normal litigation, reference to legal advice will void confidentiality. The same approach should be taken to advice to government. We suggest that those providing advice should have practising certificates so that they are subject to ultimate court control (this was not the case for the two lawyers providing public advice to the PM in 2003[ii]).
- International Open Contracting Data Standard. The Government should fully comply with the international Open Contracting Data Standard[iii] as it undertook to do as part of Australia’s first Open Government Partnership National Action Plan, and complete due diligence, and publish AusTender contracting data in an OCDS-compliant schema. All contracts should be the product of a tender process except in exceptional circumstances where they are fully disclosed and subject to parliamentary scrutiny.[iv]
- Commercial in confidence. Commercial in confidence should not be used by Government to prevent public access to a contract except to protect the privacy of individuals or where the information Commissioner has determined that it would be contrary to the public interest or to the extent necessary to protect the contractor’s intellectual property. Procurement rules should require that contractual information be made available to integrity agencies and parliamentary committees.
- Cabinet in confidence. In recent years there has been a regrettable tendency within government to afford Cabinet documents exemption in the Freedom of Information Act far too widely, and then to attempt to defend indefensible claims as to the application of the exemption in legal proceedings. In ART’s view, there are only three circumstances in which the Cabinet documents exemption can apply: first, where a document has been prepared by a Minister for the explicit purpose of submission for consideration by Cabinet and secondly, where a document’s disclosure would have the effect of revealing the deliberations or decisions of the Cabinet.Thirdly, where disclosure could jeopardise national security, criminal investigation or prosecution, or personal privacy. Pre-existing documents attached to Cabinet documents should not be classified as Cabinet documents. Purely factual documents such as scientific and technical reports should not be regarded as Cabinet documents because, by definition, they cannot disclose the deliberations or decisions of the Cabinet. Attempts by the Government to throw a cloak of secrecy over a diverse array of governmental documents that do not fall within these exceptions should be strongly resisted. Recent attempts to make ‘national cabinet’ a sub-committee of ‘cabinet’ to prevent scrutiny is a move in entirely the wrong direction.[v]
In all cases Integrity agencies should have access to any information they require to exercise their powers (e.g. the Ombudsman investigating potential maladministration, the Commonwealth Integrity Commission investigating potential, courts for judicial review, the AAT for merits review and parliamentary committees for oversight). In all cases, they would be required to keep the information confidential unless the Information Commissioner determined that it is in the public interest that the information were released.
Non-Disclosure Agreements (NDAs) and other settlements should not be used to prevent the public knowing about governmental negligence, mistakes or wrongdoing. Government may be willing to pay up considerable sums of taxpayer money to prevent such revelations. This would be a serious abuse of entrusted power. An instance in our view is there should be a royal commission into the waterfront dispute and its settlement. Ten of the 11 judges in three courts who considered the matter (a single Federal Court judge at first instance, all three judges in the Federal Court of Appeal and six of the seven judges in the High Court) decided that there was sufficient evidence of a conspiracy to grant interim injunctive relief.
A good deal of evidence was collected for the trial and a good deal of documentation would have been discovered by the parties. Had the trial proceeded, more documents would have been discovered. Even more evidence uncovered in testimony and cross-examination. The settlement (which included significant government funding) meant that this evidence was not available to the public in the period leading up to the early election that was called later that year.
[i] See Solomon, D, S Webbe and D McGann, ‘The Right to Information: Reviewing Queensland’s Freedom of Information Act ‘, FOI Independent Review Panel, (June 2008).
[ii] See Sampford, Charles, ‘Get New Lawyers!’ (2003) 6(1) Legal Ethics 85-105.
[iii] Open Contracting Data Standard https://www.open-contracting.org/
[iv] 5 procurement strategies for navigating the COVID-19 crisis from around the world. https://www.open-contracting.org/2020/04/08/5-procurement-strategies-for-navigating-the-covid-19-crisis-from-around-the-world/
[v] See Zifcak, S. When is a Cabinet not the Cabinet? When the Prime Minister says that it is Pearls and Irritations, 3.9.2021
Right to Know: Information produced by the government for the purposes of making and recording decisions is the property of the people. One needs a good argument to deny access by the people to their property. There are some good arguments for such denial but they are overused and should be subject to veto by the Information Commissioner. Withholding information to prevent public discovery that a minister or senior public servant was wrong, foolish, unethical or, especially, lying is a serious abuse of power and therefore corrupt.