Department of the Prime Minister

Costello claimed freedom of information laws were conceived so that citizens could know what the government knew about them and so they could correct any misinformation in there personal files. He then went on to say, "that is their use," and lamented that some meddling newspaper editors had developed a practice of using FOI laws to seek documents relating to public policy matters. xxv Then to Alexander Costello's view of FOI when he was a Minister. "Freedom of information always seems a good idea when you are in Opposition but less so when you are in Government. "xxvi

Now consider the view of this senior bureaucrat, secretary to the Treasurer, Dr Ken Henry. He said that as a result of FOI requests which he believed were motivated by a desire to either embarrass the Government and the Treasurer or the Department. Therefore communication on sensitive policy issues is likely to be verbal rather than written. xxvii So if a senior bureaucrat has that belief, it's feasible to believe that this sort of attitude is reflected with other public servants. So this leads to the question what impact did the McKinnon's case have on media's effectives when working with the FOI Act.

I would say that the impact is minimal. Up until McKinnon's case conclusive certificates were issued before and after the case, right up until the end of the Howard government they were still being issued. At the last week of the federal election in November 2007, a case was brought before the AAT. The secretary of the Department of the Prime Minister and Cabinet issued a conclusive certificate preventing access to workplace law reform documents. The AAT upheld the certificates that there was reasonable ground for them.

xxviii They were being issued to suppress sensitive information. Howard's government did it; Keating's government did it as well. So it that sense, nothing changed on the media's effectiveness. All the case proved was the once a conclusive certificate is slapped on, that's it. It is game over. The media is inefficient when it comes to freedom of information laws. Besides the conclusive certificate smackdown, there is also the issue of the high costs involved to access information, and the long delays involved.

All of these three things, conclusive certificates, high cost, and long delays break the intent of the legislation. So instead of having access to information, you have access to incomplete or crappy information after paying ridiculous prices and waiting a very long time. However this may change though because there was a change of government in November 2007. Labor was elected to government and the Liberal party was thrown out of office ignobly. Labor had made a promise to abolish conclusive certificates once elected and introduce a FOI commissioner. xxix

On the 26th of November 2008, Special Minister for State, John Faulkner introduced the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 in the Senate. It was given a first and second reading and then sent to the Senate Finance and Public Administration Committee. Their report is due back on the 10th of March 2009. xxx The explanatory memorandum explained that the purpose of the bill is to repeal the power to issue conclusive certificates in the FOI act and the archives act for all exemptions provisions where certificates may be issued.

The effect of the repeal of conclusive certificates is that the AAT will undertake full merits review of all exemption claims. Existing conclusive certificates will be revoked when a new request for access is made to a record previously exempted by a certificate. It also instructs how the AAT on how to consider evidence brought before it. xxxi So if this bill is passed and becomes legislation, McKinnon's case may have actually made the media slightly more effective because the conclusive certificates will be abolished.

Exemptions still exist for national security for example. The thing is though so far that no conclusive certificates have been issued so far during the Rudd term. xxxii So it's safe to say for the time being that the Rudd Government is serious about abolishing conclusive certificates. McKinnon while losing the battle in 2006, may end up winning the war. Conclusive certificates, which effectively were not able to be overturned, will be removed. The AAT without having to review the conclusive certificates will review normal exemptions only.

However until the issue of the long delays and the high costs to access information have been dealt with, freedom of information access will still remain dysfunctional. High cost affects the media effectiveness because the story might be too costly to pursue. Long delays may make the story not current, obtaining the information you need two years later will effectively kill a story. But this is all speculation because in reality, legally nothing has changed yet except that the Rudd government isn't issuing conclusive certificate.

So until the Bill is legislated, lower costs for access and lower delays for access are legislated, and the public service re-educated to comply with FOI and not frustrate it, the media will be ineffective when dealing with FOI. 1 Mckinnon v Secretary, Department of Treasury [2006] HCA 45 2 Bracket creep refers to the effect of inflation leading to an increase in the nominal incomes of taxpayers, which makes them move over from one taxation bracket to another. This leads to them paying more taxes while there income hasn't moved in real value. 3 The first home scheme was one that provided grants to people buying their very first home.

4 (a) Officers of the Government should be able to communicate directly, freely and confidentially with a responsible Minster and members of the minister's office on issues which are considered to have ongoing sensitivity and are controversial and which affect the minster's portfolio. (b) Officers should be able to freely to do in written form what they could do otherwise do orally, in circumstances where any oral communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account.

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 these processes and the public record. (c) The release of a document that discusses options that were not settled at the time the document was drafted and that recommends or outlines courses of action that were not ultimately taken has the potential to lead to confusion and to mislead the public.

The release of such potentially misleading or confusion material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government's decision making process by not fairly disclosing reasons for the final position reached. Decision-making processes are multi-layered and the documents reflect partially considered matters and tentative conclusions.

(d) The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position and ultimately may not have been used or have been overtaken by subsequent events or further drafts. (e) The release of documents that contain a different version of estimates, projections, costings and other numerical analysis that cannot be put into context because of the absence of any explanation of the variables used or assumptions relied upon has the potential to lead to confusion and to mislead the public.

The release of such potential misleading or confusing material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government's decision making process by not fairly disclosing reasons for the final position reaching. (f) The preparation of possible responses to questions in Parliament is a very sensitive aspect of the work of departmental officers and it is appropriate that briefing and other material produced on a confidential basis in the preparation of those responses, remain undisclosed.

The release of such documents would threaten the protection of the Westminster-based system of Government. (g) The release of documents that are intended for a specific audience familiar with the technical terms and jargon used, has the potential for public misunderstanding in that the contents of the documents could be misinterpreted. These documents were not intended for publication and publication would be misleading as the documents do not contain sufficient information for an uninformed audience to interpret them correctly and reasonably.