The most stirring sentence I have read in a newspaper for ages appeared on page two of the Australian on September 24 at the end of a low-key, quietly displayed but bracingly sinister article by Michael McKinnon. The sentence read: “There are many more FOI requests coming your way, Mr Carmody.”
Mr Carmody is Michael Carmody, chief commissioner of the Australian Taxation Office. Michael McKinnon is his newspaper’s Freedom of Information editor, the first Australian journalist to hold such office. FOI is the Freedom of Information legislation introduced by the Fraser government in 1982. It established public ownership of information gathered by public officials and made all but a fraction of it available on request, at least in theory, to every citizen.
By dogged and artful use of FOI, McKinnon had prised loose a consultants’ report that revealed serious failure by the Tax Office to collect money due to it, lagging $5.49 billion behind in 2000-01 and probably doing worse in 2001-02, though the media had not, as I write, persuaded them to own up. McKinnon got the consultants’ report with a single, routine FOI application—after three months. But the report was sprung loose relatively easily because McKinnon had just spent a year in an almost identical case plodding through initial application, an internal review he called for after being refused access, and finally a successful appeal to the Administrative Appeals Tribunal. The Tax Office gave in on the uncollected taxes report because this precedent convinced them they couldn’t win.
To his astonishment, McKinnon learned during the course of his long uphill trudge that many senior tax officials, including a deputy commissioner, had not even heard of the consultant’s report until he lodged his FOI request.
To teach McKinnon a lesson, the Tax Office released the consultant’s report to the media generally. This is done quite frequently by our bureaucrats when they lose an FOI battle, less out of spite than to deliver a warning to media nosy parkers that they’re not going to get any scoops, so why go to all the trouble?
However, McKinnon’s promise to Commissioner Carmody of more to come is not just a journalist’s vainglorious bluster. The Australian’s editor-in-chief, Chris Mitchell, seems deeply committed to doing whatever it takes to remove official obstruction of FOI access and, grand vision, over time to change government philosophy of resistance to opening its records to public scrutiny. “What those blokes don’t realise,” Mitchell says, “is that they are breaking the law with some of their tactics for withholding information.” He speaks with the firmness of an editor who may have taken learned advice. Mitchell intends over the next few months to have McKinnon, who lives in Brisbane and is the Australian’s guided missile on FOI raids on the Commonwealth and Queensland governments, train—and subsequently oversee on FOI research—journalists in Sydney, Melbourne, Perth and Adelaide.
A concerted assault like this has the potential to make FOI law a near equivalent of America’s First Amendment, which has created a regime of substantially open government in the USA. Certainly opening up FOI would bring revolutionary change (and improvement) to the Australian media’s methods of reporting on government and politics. Editors, including me, have been aware for twenty-one years of the scope of FOI if its offered prizes were aggressively pursued. But we have been bluffed into retreat by Australian Sir Humphrey Applebys, who have displayed stamina and ingenuity undreamt of by most humans in order to preserve ownership, mostly usurped, of information.
Time alone gives Sir Humphrey an advantage over editors. He doesn’t have to respond to an FOI application for thirty days. On the thirtieth day he can point to errors in filing and ask for a revised application, allowing another thirty days of contemplation. An internal review of a rejected application? More delay. Who can focus, in newsrooms abuzz with today’s excitements, on last month’s story, which is not going to be exclusive anyway? “Forget it” was my usual response, at least implied, to those who had not followed my example of actually forgetting. Mea maxima culpa.
Although among McKinnon’s biggest stories since he became the Australian’s full-time FOI man eleven months ago (he has contributed information to other investigations), the tax non-collection wasn’t a world-beater. The main narrative was front-page marginal, further developments worth keeping an eye on. The principle was what mattered. McKinnon’s brief, calm page two account of his struggle to get the information, published with the headline, “Losing the Argument on Secrecy” was the real story. I suspect its strongest impact was on the Tax Office, its resistance crushed in an embarrassing way on an embarrassing issue and now being subjected to a barrage of carefully targeted FOI requests, as McKinnon promised.
The style of an internal review report on a refusal to release thirty-seven of forty documents requested by McKinnon, in connection with another aspect of taxation, bracket creep, reveals an odd mixture of ruffled complacency and habit-induced slovenliness. The mantra phrase “disclosure would confuse or mislead the public and encourage ill-informed speculation and unhelpful debate” is not only patronising but is repeated several times in situations different enough from one another to require specific explanation. “‘Bracket creep’ is a term having no settled, precise meaning,” writes the author, unable to suppress the smartarse within. Is he saying he can’t comply with McKinnon’s request because he doesn’t know what bracket creep is? Could anybody so thick get into the public service? No. But somebody likely to grow lazy through having it easy could. With such idle games playing, public servants indeed risk breaking the law on behalf of their departments or agencies.
Oddest of all in this bracket creep review:
When a document is advice and critical analysis provided in an atmosphere where the officer expresses a view expecting that it would not subsequently be subject to public disclosure it would or could reasonably be expected in the future to result in such advice and analysis being given orally and no longer recorded.
Does the author mean the Tax Office is being driven by McKinnon’s importuning to establish an oral tradition, with policy development managed in future by officials memorising what they are told? A bold strategy, minister.
In embarking on his mission to crash the FOI barricades, Mitchell has had the good fortune to find a reporter you might, if you were devout, believe God had created for the task. “I love an annual report,” McKinnon told me in almost lubricious tones. “He looks normal,” Mitchell observed in cordially assessing his godsend, “but don’t be deceived.”
McKinnon, forty-two, married with two children, is the grandson and son of senior civil servants. He worked briefly himself as a clerical assistant in the public service but began his student life pursuing qualifications as an electrical engineer. Following more natural inclinations, he eventually acquired a master’s degree in public policy from Melbourne University, working along the way as a nightclub bouncer and jackeroo. He was on horseback when it suddenly came to him, somewhat like Paul on the road to Damascus, that what he absolutely had to do was become a journalist.
His first job was on a throwaway weekly in Townsville, from which he graduated to the Townsville Bulletin and the Brisbane Courier-Mail. He was well-regarded as an investigative reporter at both papers and showed early adeptness at sorting his way through FOI mazes. When McKinnon returned from a stint in the parliamentary press gallery in Canberra in 2001, Mitchell, then the Courier-Mail’s editor, asked him what he would like to do. McKinnon said he would like to get on top of FOI. A perfect match was made. McKinnon recently started studies for a law degree to add to his skills at freeing information.
To say Michael McKinnon knows how the public service works would be crass. He loves how it works. He loves the labours it undertakes to assemble information on which to base advice to ministers, loves the daily throb of effort it generates in executing government decisions. He reveres the vast records it keeps, obliged by law to do so, in some cases, and by traditions of efficiency.
“It’s all there,” McKinnon marvels, to coin a verb. “Everything is there. Everything the government does.”
Beyond, I think, any journalist I have known, McKinnon seems to be happiest in archives and libraries, peering into microfiches and at computer screens. He venerates what is there in writing as an antidote to the lies and spins the spoken word permits. McKinnon doesn’t even care much who writes stories for which he provides information. “It means,” he says in a rare burst of swashbuckle, “that while somebody else dresses the meat, I’m back out hunting the quarry.”
Rick Snell, senior lecturer in law at the University of Tasmania and editor for the past ten years of the bimonthly Freedom of Information Review, which reports and comments on FOI developments and non-developments, believes that it is more than time for the media to put some weight into steering FOI law along a productive course. The media’s absence by and large has left FOI with a diminished constituency, consisting mainly of individuals seeking personal information about themselves stored by government agencies, lawyers seeking specific documents relating to their cases and academics not, for the most part, barging into sensitive areas of government business.
Enthusiasm for FOI was quite high among younger public servants when the law was first introduced, Snell recalls. He was himself, for a while, a keen FOI officer at the Tasmanian Health Department. But in the absence of consistent pressure for compliance, from the media in particular, no culture of openness developed. If anything, government indifference to FOI law’s intentions has grown. In 1996, the Australian Law Reform Commission made 106 recommendations for change to FOI procedures, some of them going to the essence of the legislation. The government has neither debated nor acted on any of them. In 1999, the Commonwealth Ombudsman recommended that the Attorney-General’s Department publish on line all judgments in appeals against decisions of FOI officers. The Attorney-General has not moved a muscle—but McKinnon has put in an FOI request for the lot.
Even in the department’s annual reports on the administration of FOI there are slippery surfaces. Requests for information are treated statistically as if they are all of equal weight—a request for one’s service record from the Department of Veterans Affairs, which gets more than 40 per cent of all FOI requests and grants 99 per cent of them, is presented in the same way as a request for information on, say, bracket creep from the Tax Office, an agency which grants in full less than a fifth of applications. The claimed average of 75 per cent of applications granted is thus entirely misleading. The emphasis each year on the cheapness of FOI services—$30 application fee, search charges that are waived more often than not—is also deceptive. Not mentioned are charges quoted, from which applicants, including the media, recoil aghast, leaving no statistical mark. In one instance, the Health Department opened bidding for a set of documents at $17,415, retreated to $10,965 and then to $1980.
Government expenses for FOI searches vary, of course, according to the explicitness of a request and how many documents have to be sorted through to find the required ones. The Attorney-General’s annual report sets the overall cost to governments of FOI around $35 million a year (of which it recoups only $500,000 or so from charges). Most of the expense comes from the hours, or parts of hours, spent on FOI matters by departmental officers. When this time is devoted to concocting, possibly illegally, reasons for non-compliance it is a wicked waste of public money. The savings to be made from assisting customers at the start to narrow their search would obviously be substantial.
Rick Snell and Michael McKinnon are in no doubt that a philosophy of resistance to FOI has taken hold in government The law requires, for example, that all contracts the Commonwealth makes with outside suppliers be published on line. But no search engine, as Michael McKinnon would call it, or index in civilian parlance, is provided. You’ve got to sort through thousands of contracts to find the one you want. Possibly. Constructing search engines is child’s work in hacker land. McKinnon’s shifty manner in this area indicates he is aware of that. But not everybody—hardly anybody—is McKinnon. The ever expanding use of outside consultants to give policy advice also provides recalcitrant departments with expanded opportunities for using the “commercial confidentiality” exemption in refusing FOI access. I believe on good authority that there have been instances when officials have claimed not to be in possession of requested documents because they have warehoused them with consultants.
The benefits to the media—and to their readers and viewers—of their relentlessly, and even moderately successfully, stalking governments on FOI are obvious. The present system of information being trickled out to journalists by politicians and officials as a favour, in return, over time, for reciprocal favours corrupts both participants and obfuscates the realities of government policy and administration. It has led to issues being presented, as often as not, as ping-pong games between rival politicians and has given grossly inflated influence to opinion polls—entirely understandable when the public has scant idea of what’s really going on. The benefit to the public service of a culture of openness through FOI is the intangible but desirable one of restoring the esteem it once held as an institution above politics.
The power (and joy) that comes from having control of information was flamboyantly demonstrated by Paul Keating as prime minister when, according to plausible legend, he told a newcomer to the press gallery: “Play along, mate, and we’ll put you on a good drip.” How restorative of self-esteem for the journalist to respond: “Bugger you, mate. I’ll stick with FOI.”
I hope the Australian continues to press against the barricades, and that other media join in. All media, in fact. I understand from Rick Snell that more than 100 countries will have introduced some form of FOI legislation by next year, compared with only thirteen when Australia signed on in 1982. The World Bank and other aid agencies are insisting on FOI regimes as at least a gesture at governmental transparency. India is the latest FOI participant. Maybe history is falling into step with Michael McKinnon.
Freedom: Confronting the Curse of Sir Humphrey
Frank Devine
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