Australian governments have a history of paying lip-service to the public's right to know

IN 2003 the NSW Auditor General wrote a report about how three NSW Government departments responded to freedom of information requests from the public.

The departments chosen were Transport, Premier and Cabinet and Education.

Auditor General Robert Sendt based his report on an assessment of 84 freedom of information requests for non-personal information over the previous year “to see if agencies met with the spirit” of legislation passed in 1989. The short answer, in 2003, was that they probably did not.

Cut to this week.

Nearly 15 years after Sendt’s report – one of a number to raise concerns about how keen governments are to release information to the public at all levels and across all Australian states – came a Fairfax Media report about the NSW Government refusing to disclose information. And not just any information. The Department of Finance refused to disclose the names of 10 companies benefiting from the bulk of $1.8 billion in tax breaks announced in 2016.

When corporations don’t pay reasonable levels of tax average taxpayers – particularly pay as you earn taxpayers with very little opportunity to do anything but pay tax at scheduled rates – are harsh, and critical, often at the same time.

The NSW Department of Finance refused to name the 10 companies receiving big fat sums of taxpayer funds because “harsh public criticism ... is afforded to corporations when it is publicly revealed that they paid a level of tax that is not in line with community expectations”.

To which the only answer would be, yep.

When corporations don’t pay reasonable levels of tax average taxpayers – particularly pay as you earn taxpayers with very little opportunity to do anything but pay tax at scheduled rates – are harsh, and critical, often at the same time.

The department’s reason for the decision is offensive, ridiculous and shows why we should all be concerned about the lack of transparency routinely displayed by Australian governments at all levels, and the cultures that allow it.

But it gets worse. The department wasn’t just worried about citizens calling the corporations names, it was worried about reputational damage affecting the companies’ future business.  

“I am satisfied that if this type of criticism is levelled against any of the corporations mentioned in the document, then this would have the potential to prejudice their legitimate business, commercial or financial interests,” the department said.

It’s worth going back to Sendt’s report at this point, to see why this kind of thing matters and how things have changed, and not changed, in 15 years.

Back in 2003 Sendt acknowledged that dealing with freedom of information requests could be difficult for governments, their departments and other public agencies.

“They may believe that information they provide could be taken ‘out of context’ and give an unfair view of their operations. Releasing information about sensitive decisions they have made may be embarrassing,” Sendt said.

Note that in 2003 the Auditor General recognised that government departments might fail to disclose information to the public because of a risk to the department’s or the government’s reputation. About the closest he went to a consideration of third party impacts was to note that “senior staff may also be well aware that certain information they release could be used in a political context and create difficulties for their Minister”.

Sendt noted that the then NSW Freedom of Information Act – changed to the Government Information (Public Access) Act in 2009 – “recognises that agencies might be tempted to avoid these potential difficulties, by using the discretions set out in the Act to limit the information released”.

But refusing to disclose or limiting the release of information “would frustrate the spirit of the Act, so it specifically requires agencies to apply freedom of information laws in a way that favors disclosure of information,” Sendt said.

Events this week show that for one Australian government, at least, the message is a little slow to sink in.

Sendt’s report showed that only one third of documents were released in full by the three departments in 2003. Between 25 and 30 per cent of requests were refused outright. The majority of requests were made by the media or politicians.

Sendt noted that half the freedom of information officers in two of the three departments reported ministerial or senior departmental involvement before a final decision whether to release information. In a small number of cases that involvement affected the outcome.

Sendt’s report was not welcomed by at least one clearly outraged senior NSW Government department official, who advised the Auditor General that “I remain firmly of the view that your report as it is written may be misinterpreted, mischievously or otherwise”.

The letter disclosed that the senior department head had written to the Auditor General’s office several times during the inquiry seeking an “explanation of the potential benefits of this audit”.

I can give an easy answer to that one – the public’s right to know. We have a right to know how the people we elect to represent us and the public service we pay for are using our funds and conducting their operations, even to the point of showing how open they’ve been with us.   

These things matter in a democracy. The minister this week absolved himself of responsibility, saying it was a department decision. But public servants these days tend to reflect the ideologies of the governments they serve, while politicians have another responsibility. Freedom of information is “recognised as a fundamental element of government accountability and modern democracy”, said Sendt all those years ago. Too right it is.

This story Why all the secrecy? first appeared on Newcastle Herald.