The new Public Service Commissioner, John Lloyd, is unafraid to speak his mind publicly. He appears to have little taste for cautious and convoluted mandarin-speak but says what he thinks in plain and direct language. Predictably, reactions to this unusually frank mode of talking depend on whether people agree with him. When what he says strikes a chord with listeners, he is welcomed for his refreshing willingness to call a spade a spade. For example, his recent statement that a CV is sufficient for a job application will have been greeted with cheers throughout the public service (except among HR branches anxious to maintain their workload). Unmasking the mind-numbing irrelevance of most application statements was an "emperor-has-no-clothes" moment, which could yield major service-wide efficiencies.
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On the other hand, when Lloyd expresses an opinion to which people take exception, he is accused of being unprofessional and of speaking out of turn. His criticisms of freedom of information legislation is a case in point. In March, he reportedly told the Institute of Public Administration Australia's ACT division that FOI laws were "very pernicious" in their effect. His particular concern was that FOI had discouraged public servants from expressing strong opinions in writing.
Lloyd's remarks raised the ire of non-government senators, who subjected him to severe cross-examination at a recent Senate estimates hearing. They objected to his open criticism of current government policy. They also accused him of encouraging public servants to drag their feet on FOI.
In response, Lloyd was prepared to reconsider his choice of words ("less than ideal") and admitted he was not a legal expert on the details of FOI legislation. FOI, he acknowledged, was within the jurisdiction of the Attorney-General's Department, not his own. But he asserted his general right as Public Service Commissioner to comment on an issue of such importance to the public service. His remarks were a personal observation, which he was happy to share. He reiterated his original view that FOI had had a dampening effect on the extent of written documentation in the Australian Public Service.
Lloyd also said FOI legislation had moved beyond its original intent of providing individual citizens with access to personal information about decisions made by departments such as Human Services. It was now used "for various purposes, often involved in the controversy of the day". In this respect, at least, his argument needs correction. From its beginning, like similar schemes in other jurisdictions, FOI has covered two types of document: not only personal information relating to individuals but also general documents concerning government policy. FOI requests for documents relating to controversial policies are not a new development but are part of the original rationale.
Whatever one's view of its merits, Lloyd's willingness to defend his opinion in public is welcome. It helps to stimulate debate on the future of FOI and information policy in general, an issue which is now at a dangerous juncture. Pressure is building for another review of the FOI Act. The government's decision to abolish the Office of the Australian Information Commissioner remains blocked in the Senate but the office has been starved of funds. The position of Information Commissioner, the act's constitutional champion, continues in limbo, performed on an acting basis by the Privacy Commissioner, Timothy Pilgrim, on a series of three-month appointments. In such a confused situation, there is a risk that important decisions will be made on the basis of ill-informed and short-sighted advice. If Lloyd helps to spur thoughtful comment on the future of FOI, he will have performed a useful service.
Lloyd's complaint about the effects of FOI on public servants' willingness to commit themselves in writing has been expressed by others, notably Treasury secretary John Fraser, and by a number of respected former secretaries. We may assume it is widely shared within the APS' senior ranks. It is part of a more fundamental concern about the quality and effectiveness of public service advice to ministers and should be taken seriously.
Most expert observers of the APS agree that such advice needs to be better argued and better documented if it is to win the battle for ministerial attention. Moreover, effective administration and management of risk require extensive note-taking and record-keeping, as highlighted by the ill-fated home insulation program (an example cited by Lloyd). Broadly speaking, good government depends on accurate, comprehensive advice and record-keeping from officials. When these falter, so too does the effectiveness of government.
If the quality and impact of written advice have declined in recent decades, as critics say, FOI is unlikely to be the only cause. Other familiar factors have been at work, including the greater speed of government decision-making forced by the 24-hour media cycle and the increased pressure on public servants to give advice that the minister's office finds congenial and which can be used as part of the political justification for decisions. Nonetheless, FOI must surely have had a role if it makes officials more cautious about recording important information or advice. In this case, FOI can be reasonably blamed for contributing to a general decline in the quality of government.
For senior officials, the solution is to wind back the scope of FOI to give greater protection to frank advice that could be used to fuel political controversy. For FOI advocates, on the other hand, the problem lies with governments, both ministers and public servants, who confuse their own political self-interest with the public interest. Information held by governments belongs ultimately to the public, who have a right to access such information unless there are good reasons to the contrary. Current FOI legislation provides ample protection for sensitive matters, on grounds such as national security, privacy, cabinet deliberation, harm to commercial interests and so on. On this view, ministers and officials should simply learn to be more transparent and accept the value of more open debate.
The issues are not straightforward. FOI champions are right to be suspicious of government resistance to open government. Officials do tend to be overcautious and to underestimate the role of robust debate in improving policy. At the same time, FOI advocates often overlook the importance of loyalty to the government of the day as a core value in a Westminster-style career public service.
For example, insistence that "embarrassment to the government" is not a valid reason for withholding documents, which was added in the 2010 amendments to the act, reflects a naive view of the relationships between public servants and ministers. It is hard enough to persuade risk-averse public servants to send frank appraisals of policy proposals to the minister's office, even if confidentiality is assured. If disclosure is even a remote possibility, it is unsurprising if officials pull their punches or confine their criticism to oral comments. When ministers and their advisers seek to control the terms of public debate by suppressing all evidence of internal disagreement, who can blame public servants for not committing dissident ideas to writing?
Any honest assessment of FOI must acknowledge these unintended (but not unpredicted) consequences of the current disclosure regime. Legal experts on FOI have been reluctant to admit that the possibility of disclosure must inevitably affect the practice of official writing. The underlying assumption appears to have been that FOI would allow access to information that would be in exactly the same form as if it were written in confidence. In other words, officials were to prepare their documents as if no member of the public would ever see them. Then, on request, individual citizens would be able to gain access to official's unvarnished, confidential opinions. It is as if the 30-year rule, which does allow access to genuinely confidential documents, were to be compressed into a 30-day rule.
Once articulated in this form, the assumption of revealed confidentiality appears hopelessly unrealistic. If officials know that documents can be published, they will write accordingly. They might not record false information, but they may play down or suppress uncomfortable truths. They will also apply a level of spin to make any information more publicly digestible and politically palatable. Experience with post-election briefings supports this conclusion. When briefings were confidential to incoming ministers, they contained frank assessments of issues the new government needed to face. When the practice of publishing them online was introduced, ministers complained they had become more bland and less informative.
On the other hand, politically sanitised versions of the briefings, even if lacking some of the franker advice, still have their uses. For example, they can inform the wider policy community about what issues the department sees as most critical. They can also reveal less controversial evidence that the department considers relevant. In the same way, Treasury documents, such as the budget papers, are consciously prepared for publication and avoid controversial comments on policy, but are still of great value to policy analysts and journalists.
New Zealand, which has a more open information regime than the Australian Commonwealth (as do many state governments), provides similar examples. There is no blanket protection of cabinet documents under the official information act and many such documents are released proactively by ministers and departments. Experienced observers report a general reduction in the frankness of written advice, with politically sensitive comment now usually delivered orally. However, they also note an improvement in the quality of departmental analysis because it is exposed to public comment. Members of the policy community also welcome the chance to view some of the evidence and arguments underlying government decisions. In other words, official analysis and advice written with publication in mind make a useful contribution to political debate.
A concern for good government and robust advice can therefore point in contrary directions. It can justify strengthening confidentiality to encourage more frankness in written advice. On the other hand, it can lead to more open disclosure of information to improve public understanding of government thinking and raise the quality of public debate.
Prevailing attitudes in the APS are skewed in favour of confidentiality. Users of FOI in the media reinforce this caution. The media's main focus is on "gotcha" disclosures that will provide newsworthy stories. Indeed, as the number and experience of journalists declines, newspapers are relying increasingly on FOI requests to get the public service to conduct their investigations for them.
A more positive approach, however, would be to embrace the value of openness by increasing online access to documents and information now kept under wraps. The cost of publication is virtually zero, thanks to the internet. Instead of waiting for an FOI request, departments could, in theory, proactively publish everything that is FOI-disclosable. The media would be unhappy because it would lose the benefit of exclusivity. But the quality of government would benefit, provided that secure methods were established to communicate politically sensitive advice. Public servants would begin to see that educating the public and contributing to policy debate are integral parts of their duties.
The value of proactive disclosure and of turning FOI into a process of last, rather than first, resort was at the heart of the culture change urged by the previous information commissioner, Professor John McMillan. If Lloyd and Fraser want to win points for being fashionably agile and innovative (as well as tech-savvy), they could take up this cause themselves. In the interests of good government, they could lead the public service in the direction of more openness, alongside the necessary safeguards for the confidential aspects of advice. They could begin by urging the full restoration of the Office of the Australian Information Commissioner as a necessary element in this campaign.
Richard Mulgan is an emeritus professor at the ANU's Crawford School of Public Policy. richard.mulgan@anu.edu.au