Freedom from information?

A newspaper's appeal against the federal Treasurer's attempts to stop the release of potentially embarrassing material under Freedom of Information highlights the flaws in FoI. JACK R HERMAN looks at some implications.

Among the main objectives of the Freedom of Information Act, in addition to its focus on providing access to personal information (and thus ensuring that it is accurate), is the facilitation of public scrutiny of government actions and subsequently an increase in government accountability. Consequently the information made available should lead to an increase in public input into policy making. These laudable objectives predate the High Court's finding of an implication in the Constitution of a freedom of communication in political matters. That implication and the Court's reasoning for its existence, that such a freedom is necessary in a representative democracy, because the voting public needs to be informed on political matters in order to make a reasoned choice at elections, lends more weight to the idea that, through freedom of information (FoI) processes, there should be available detailed analyses of government actions in a wide range of areas.

One of the main avenues through which such scrutiny and analysis will be conducted is the press. One of its main objectives is to keep their readers informed on matters of public interest and concern. Thus, the press has in the past tried to, and, on occasions, continues to, use FoI processes to discover matter of public interest related to the performance of government and on the development of public policy. In other words, its use of FoI can relate to maintenance of the accountability of governments.

Blocking

Yet experience has demonstrated that, increasingly, governments and the public service have become more sophisticated in their ability to frustrate attempts by the press (and by individuals) to use FoI. Methods used include a large number of blanket exemptions to the process (Cabinet documents, Commercial-in-confidence, privacy, security etc), time delays built in, the charging of excessive fees for the service and, in some cases, unrealistic requirements for identification of documents required. More recently we've seen federal ministers use 'conclusive certificates' to block access to documents sought by The Australian in a number of areas which, a priori, would appear to be quintessentially matters of public interest and concern. The Minister for Foreign Affairs and Trade blocked access to the government's legal advice on the incarceration of Australian citizens in Guantanamo Bay because release of the advice might damage the security of Australia and international relations, and reveal information communicated in confidence by a foreign government. And the Treasurer stymied attempts to glean information on the first home-owners' scheme and on the impact of rising incomes on the 2003 tax cuts, and other material related to the effects of 'bracket creep' on taxpayers.

Appeal

Last month, The Australian's FoI editor, Michael McKinnon, was before the Administrative Appeals Tribunal seeking to have the Treasurer's conclusive certificates reversed. (An article co-authored by McKinnon on problems with FoI law was published in the News in August 2003.) The evidence in the case was interesting enough; as were the moves made by the Treasurer's lawyers at the start of the hearing, trying to keep the public, the press and lawyers out of the Tribunal, as a way of suppressing the information that might emerge during the hearing. Even more surprising was the lack of coverage of the appeal (and the associated legal moves) outside McKinnon's own newspaper and its company.

During the hearing, it was revealed that documents which the Treasury thought too sensitive for release to the newspaper were available on the website of the body which had sent the material to the government. Other material related to the home-owners' scheme was released to the newspaper, so heavily censored that it provided little useful material on the subjects it covered (see right for first four pages of this material).

Late last year, the Treasurer had blocked material related to taxes on the grounds that the release of the estimates might be "misleading or confusing". He also said that release of the documents would interfere with the ability of public servants to speak freely with ministers and their advisers. "If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of processes and the public record." He added that the material might be reported unfairly. He also argued in the case of the first home-owners' scheme that release of the documents might mislead or confuse the voting public who may not understand the material or the reporting of it.

Commercial value

At the appeal, Treasury lawyers argued that the papers from industry lobbyists, such as those connected with the first home-owners' scheme, should not be released because there were commercially valuable. The lobby groups themselves argued that the lobbying would be more difficult if advice from them to the government were made public. It was also argued that the papers sought were internal working documents and should thus be protected.

McKinnon argued that the release would be in the public interest. His witnesses included an expert in economic modelling who argued that the information on the costs of bracket creep would contain information that would enable economists to improve their own modelling of government tax cuts. A former senior bureaucrat noted that the information could influence voters at a coming election.

That is perhaps something that both sides can agree on. It worries the government that such influence might arise from a 'misinterpretation' of the material or the 'unfair' reporting of them. But, under the implied freedom of communication for political matters found by the High Court, such matters are ones which the voters are entitled to be aware of in order to make the sorts of decisions envisaged as part of the representative democratic process detailed in the Constitution. Such matters should not be left simply to the courts and tribunals to manage. Freedom of information laws around Australia need to be reformed to make the suppression of material of public interest and concern much harder. Material should be available, unless it fits narrow and specific categories of exclusion and such exclusions should not be for classes of documents. And those who administer FoI need to justify their exclusions, rather than the current situation where the onus seems to be on those seeking to have suppressed material released.

In perhaps the most delicious irony of the case, the precedent upon which the Treasury relied to keep the certificates in place arose from an earlier attempt by an opposition politician to use FoI law to pry loose information from an earlier Treasurer. The politician seeking to use FoI processes, and seeking a ruling that the Treasurer's refusal was wrong, was John Winston Howard. The Treasurer at the time was Paul Keating. In the period since 1985, Mr Howard has obviously changed his view on the use of FoI to frustrate attempts to shine a light on government practices and to increase government accountability.

JACK R HERMAN

see also
2002-2003 developments in freedom of information.

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