The Albanese government’s proposed reforms to the FOI laws will take us from “freedom of” to “freedom from” information, says legal columnist HUGH SELBY.

When politicians and bureaucrats can hide their dealings from those who elect them and pay their salaries we don’t have open government. We have disasters in the making. Think Robodebt. Think shiny red toys that are destroying the heart of Civic.

One imperfect means to pry aside the secrecy and call those responsible to account is Freedom of Information (FOI), sometimes known as Right to Information (RTI).

That’s a law that, at first glance, allows outsider access to written records about, by and for government. And so it does, for the day-to-day, the mundane, and the inconsequential.

However, when the going gets tough, when cover up is the preferred outcome, then there is a long list of legit reasons to refuse access. These are backed up by well-tried practical means to defeat nosy pests. These include repeated delays, claims of too much work, fees, requiring more specificity in the application, and lengthy expensive review processes. 

So successful has been the push back to being held to account that some of the wiser in power might say: “Don’t draw attention to what we’re doing. The freedom and the right are illusory. Let the public bask in ignorance”.

But just as Netanyahu won’t stop his genocide until he has achieved total victory over the innocents (Hamas is just a stalking horse), so our politicians and their bureaucratic creatures are intent on destroying any possibility that nosy pests might win something, ever. It’s overreach gone mad.

The last commitment to giving the nosy a chance was in 2009. In support of the Freedom of Information Amendment (Reform) Bill, Anthony Byrne MP, Parliamentary Secretary to Prime Minister Rudd, said in his second reading speech:

“We committed to driving a cultural shift across the bureaucracy to promote a pro-disclosure attitude… to restore trust and integrity in the handling of government information.”

One aspect of that commitment was, “arguments solely concerned with political sensitivity, will not be able to be argued as factors supporting non-disclosure of documents.” 

Albo’s 2025 proposal will wind that back. 

Retrograde disguised as reform

Winding back the accountability gains of the late ’70s and early ’80s is the vibe of the ’20s. Inquiries are set up, not to expose and solve problems, but to give governments the look of being responsive, even as they resolve to do little or nothing about whatever recommendations might result.

Anti-corruption bodies are set up with fanfare, but mission critical is to avoid embarrassing the government. When a body seems to be a tad too active then a former politician is the ideal head. Machiavelli would be proud. 

In that context, the Albo intention is to make “public interest” a factor against the disclosure of documents, if giving access to the requested material might “prejudice” the going-ons’ in discussions, giving advice, or the even broader “decision making process”.

“Prejudice” is an elastic concept. Here it means to interfere with, or cause criticism to be made of those taking part.

The intent is to keep the curtains well and truly closed, to keep the light of truth outside. The public interest has morphed into “their private interests”.

All of which is counter to Dr Allan Hawke’s advice in mid 2013:

“Officials should be happy to publicly defend any advice given to a minister and if they are not happy to do so then they should rethink the advice.”

Prioritising the private political and bureaucrat interest in keeping things hidden, over the public interest in open government, can be seen in two other proposed amendments.

First, attention has shifted from the information to the identity of the pesky requester.

Up to now, a person making a request does not need to provide their name. That’s because the focus is on open access.

Not any longer: reveal your true identity or bugger off. 

According to the attorney-general, speaking in the House of Reps on September 3:

“The ability for FOI requests to be lodged anonymously also risks undermining the integrity of the framework, and, in combination with new technology, creates risk vectors that could be exploited by offshore actors seeking government-held information for potentially nefarious purposes” 

The attorney is paid to utter this nonsense. Who is paid to write it? Are we now paying for various grades of spin doctoring to make this stuff up?

In place of those “reds under the bed” that worked so well for Ming the Merciless in the early ’50s, we now have external threats. I guess these are from China, Indonesia, Iran, even India. Let’s not forget the nutters from Donnie’s Empire who push weird ideas via the internet on to susceptible Aussie minds.

The attorney offered no evidence, none, to support her words. The law already has robust means to deny access – to anyone, friend or foe – when the material covers, for example, national security, cabinet deliberations, trade secrets and law enforcement.

Both the “mischief” and the “remedy” advanced are concocted.

Second, a new barrier is to be created to make an application easier to thwart. Here’s how. A request made now by electronic communication, such as an email, to a minister or an agency must be sent “to an electronic address specified by the agency or minister”. That’s simple and practical.

That will change to be sent “in a manner specified by the agency or minister”. This seems innocuous until you understand that prescribing the manner in which an application is made means that non-compliance allows the recipient agency or minister to ignore the request.

The Open Australia Foundation has a “Right to Know” platform, which allows any person to publicly lodge a freedom of information request with a government agency or minister. Documents released to access applicants are stored on the platform and made accessible to all Australians.

The website brings efficiency and time saving because anyone can see documents released to others in the community, thus obviating the need to apply to, or receive responses from those agencies or ministers for access to the same documents.

The proposed law change can exclude the Right to Know platform as a means to apply.

Allowing the minister or agency to prescribe the manner of an application is an invitation to subvert any access.

For example, a minister or an agency may dictate that an application may only be made using a digital form on the minister’s or agency’s website, or by logging into a dedicated portal.

The minister or agency head might also require photographic identification when making a request. This is in line with their spurious need for identity.

Repeating the shame

Albo excoriated Scomo and his government as, “a government operated in a cult of secrecy and a culture of cover up which arrogantly dismissed scrutiny from … the public as a mere inconvenience” and see also this from the ABC. 

It’s time, time for Albo and his government to look in the mirror. There is still time to contain and remove the spreading anti-openness warts.

Former barrister Hugh Selby is a CityNews columnist, principally focused on legal affairs. 

He acknowledges the assistance of an anonymous researcher in preparing this column.