The Ballad of Frank and Candour: Trying to Shake the Secrecy Blues from the Heart of Government
Edited copy of this paper appeared in the FoI Review.
The public interest consideration has been noted against relevant documents where applicable. These considerations are based on a view that good government requires that departmental advice to Ministers be frank, open, honest, complete and professional. If that advice is to be subsequently made available to third parties, officers will be reluctant to provide advice and offer opinions in a complete and frank way. This also applies to advice from departments on Cabinet submissions. The quality of the advice will accordingly be of a lower standard than if it remained entirely between the Department and Ministers. The quality of the decision making based on that advice and consequently the quality of the government will be lower than otherwise would be the case. This is not in the public interest.
Letter dated 5 October 1994 from Department of Treasury and Finance (Tas.) to the author in relation to an FoI request.
When Re Eccleston was decided it was perceived as heralding the demise of 'candour and frankness' as an argument against the release of internal working documents in the public interest. The credibility given to an unsupported claim of a threat to 'candour and frankness' by Re Howard had plagued FoI applicants since 1985. A major concern for FoI activists was that the introduction of FoI to States like Queensland, Western Australia, South Australia and Tasmania would be seriously affected by secrecy obsessed State bureaucrats taking to the 'candour and frankness' defence with unrestrained relish. Therefore the early pre-emptive strike by the Queensland Information Commissioner was an unexpected, and early, dispelling of a potential access nightmare.
The potential of this nightmare should not be underestimated in jurisdictions like Tasmania. In an appearance before the Tasmanian Legislative Council Select Committee on Freedom of Information, long-term Tasmanian journalist Wayne Crawford stated:
Generations of Tasmanian Ministers and bureaucrats have preferred to go about their tasks hidden from public gaze, revealing only what suits their purposes Ö We would add that the more secretive a government is allowed to be the more powerful and repressive it will become. Conversely the more open it is and the more its information is freely available the more democratic and accountable the government.1
Revisiting the assault on frankness and candour
The Queensland Information Commissioner produced a foundation statement on public interest in the case of Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs.2 In effect the decision in Re Eccleston outlawed non-disclosure on the solo operation of 'frankness and candour' without an accompanying band of strong supporting evidence. The Information Commissioner stated that the general rule should be, that unless there is a very strong factual basis for the claim indicating disclosure will harm candour and frankness, no exemption should apply. Furthermore, even if it can be demonstrated that candour and frankness has been inhibited, this is only a ground for exemption if the inhibition directly causes the quality of the deliberative process to suffer.
Meanwhile, in Tasmania, the frankness and candour argument was summarily dismissed: 'ÖI do not accept that senior officers would refuse to carry out their functions or that the quality of their work would deteriorate because of Freedom of Information'.3 The view taken was that public servants ought to be able to stand by any comments they make despite public scrutiny. Responsible government depended on professional and independent public servants.
The impact of Eccleston: the right noises but no one is listening?
The key concern about evaluating the effectiveness of FoI is that most attention is focused, naturally enough, on the reported external review cases. There is a great degree of uncertainty about whether, in the grand scheme of things, a pro-open-government decision like Re Eccleston will have a strong ripple effect which can reach the far flung edges of decision making. The paradox is that a decision, which encourages a return to secrecy, like Re Howard has no trouble taking root almost instantaneously.
Without some empirical research it will be difficult to assess how far the principles and critique of Re Eccleston have penetrated into the day to day decision making on FoI. Schuck and Elliot have made the observation that there is very little empirical evidence to support the proposition that a mechanism like FoI actually produces a causal impact on agencies.4 The authors lamented:
We began with a puzzling fact. Although the study of administrative law started in earnest more than fifty years ago, we still know little about what is perhaps the central question in that field; how does judicial review actually affect agency decision making? This question goes to the fundamental nature and quality of the modern administrative state, yet academic specialists have largely neglected it: the subject remains a matter for uninformed speculation.
Despite (or perhaps because of) the lack of data, strong opinions on this question are common. Our conversations and our reading persuade us that every self-respecting administrative lawyer has firm, if not always articulate or even consistent, convictions about the effect of judicial review upon agencies. Proof for this assertion abounds. Lawyers and their clients devote vast resources to challenging agency actions in the courts. With Talmudic intensity, legions of legal scholars analyze the language and logic of judicial opinions in administrative law cases in their classrooms and professional journals. Agencies themselves exhibit much concern about how reviewing courts respond to their handiwork. Manifestly, the 'experts' act as if judicial review of agency action was worth fighting, writing, and worrying about. They believe, in short, that what courts say to agencies matters, and matters deeply.
'Thinking in private' a necessity for Westminster Government in Tasmania
Recent experience in Tasmania suggests candour and frankness may have a greater durability than many would have anticipated. The opening quote to this article, rather than being taken from a 'Yes Minister' script or a pre Eccleston decision, came from an initial decision on a recent FoI application. The Agency, with no other supporting evidence, simply argued that frankness and candour considerations demanded that the release of internal working information was not in the public interest. At issue in this particular application was whether details of the handling of the Subordinate Legislation Act 1992 and the Subordinate Legislation Amendment Act 1994 should be released in the public interest.
My interest in this legislation began when hints started to surface that the Groom Government was toying with possible moves to curtail the Freedom of Information Act (Tas.). One of the easiest and most effective changes the Government could make was simply to increase the charging regimes under the Freedom of Information (Fees) Regulations 1992. At the time I was unconcerned because the Subordinate Legislation Act 1992 would have required the Government to undertake an extensive and public study into the impact of such changes to the FoI regulations. The President of the Tasmanian Legislative Council introduced into the Tasmanian Upper House a private members Bill in early 1992. This Bill was passed by both Houses (and all parties) and given Royal Assent in December 1992. The Subordinate Legislation Act 1992 was welcomed as a long overdue reform in this area by all parties and both Houses of the Tasmanian Parliament. The Act contained a number of significant initiatives including the requirement for regulatory impact statements for all future subordinate legislation.
Needless to say all was not well in the State of Tasmania. I discovered that despite the passage of 15 months the Subordinate Legislation Act 1992 had not been proclaimed. A series of enquires suggested the possibility that the Act would never be proclaimed in its original form. The smooth progress of a private member's Bill, on subordinate legislation, unamended through both Houses of Parliament was regarded by many as a regrettable lapse in bureaucratic vigilance. A successful private members Bill initiated from the Upper House and passed without alteration by Parliament is rare. Unable to get official confirmation and intrigued as to how such legislation, with widespread support, could languish in limbo I made a series of FoI requests.
Eventually a range of information was released under FoI. A series of documents claimed to be exempt internal working documents were exempted on the grounds outlined in the opening quote. The released documents revealed that a number of state agencies had lobbied behind the scenes to postpone the proclamation of the 1992 Act and at some stage the idea had evolved to draw up the Subordinate Legislation Amendment Act 1994 which would substantially alter the operations of the 1992 Act.
The Tasmanian Ombudsman refused to completely and automatically endorse the Queensland Information Commissioner's rejection of the Howard criteria in general and the frankness and candour argument in particular.5 The Ombudsman seemed prepared to accept, to a certain degree, the justifications used for non-release. In relation to the opening quote for this article he argued:
The Queensland Information Commissioner said that the tribunal in Howard appeared to have mis-applied certain cases under a differently worded provision in the US Freedom of Information legislation (paragraph 110). I would not wish to repeat such a 'mis-application' (if that is what it was) by unquestioningly applying the principles in Eccleston to the differently worded Tasmanian context. Section 27(4) of the Tasmanian Act states:
The disclosure of information is not contrary to the public interest for the purpose of subsection (1)(b) merely because of -
(a) the seniority of the person who created, annotated or considered the information; or
(b) the possibility that the public may not readily understand any tentative or optional quality of the information.
This appears to have in contemplation 'Howard criteria' (a) and (d). If Parliament had intended also to exclude criterion (c) (frankness and candour) then it could be argued that it would have been made a part of this sub-section. The wording is quite different to that of s.41(2) and s.41(3) of the Queensland legislation. I am therefore not prepared to dismiss the 'frankness and candour' argument in an appropriate case.
The Ombudsman then outlined that Tasmanian agencies would need to be able to directly relate 'frankness and candour' arguments to a further argument. For example, the release of information would not be in the public interest because the loss of frankness and candour posed a risk of impairment to the integrity of future decision making processes. Several documents were released because other than a general 'frankness and candour' argument there was nothing contrary to the public interest preventing release. Twelve other documents were exempt because they satisfied all of the Howard criteria and 'even when subjected to the criticisms of those criteria in Eccleston and other cases, disclosure of these documents would be likely to impair the future integrity of the decision-making process'.
At first glance, the decision in Re Snell and Treasury and Finance - Subordinate Legislation appears to be a highly refined step, albeit retrograde, away from a complete rejection of permitting exemption claims purely on the basis of frankness and candour. At least agencies would be required to show a threat to future decision-making processes.
Two months later the Tasmanian Ombudsman in Re Patmore and Department of Treasury and Finance returned to a position very close to that taken by the Information Commissioners of Western Australia and Queensland.6 In that case the applicant, the Shadow Minister for Health, was seeking access to a series of ministerial briefing papers. The Department claimed exemption for 24 out of 36 specific minutes requested by Mr Patmore. The Department relied on the internal working document exemption and argued:
Ö we believe that the operations of Government would be seriously damaged if the advice given to Ministers was subject to external scrutiny.
The decision making process on many issues of importance requires that a range of options be provided to assist Ministers in their deliberations. This giving of frank and open advice is a key element to ensure that decision making is of a high order and in the best interests of the community. Whilst it could be argued that the community has a right to access this decision making process, we believe that it is part of the deliberative process of Government.
There is a serious risk that if these deliberative processes were subject to external review, advice given by the bureaucracy would not be frank and open and this would lead to a reduction in the quality of decision making. This would not be in the overall public interest.7
The Tasmanian Ombudsman returned to, and expanded upon, the earlier comments set down in FoI Decision No. 23. In short, the Ombudsman completely rejected the reasoning used by Treasury:
Any argument that disclosure of all advice given to Ministers is against the public interest solely on the grounds that officers would not otherwise be 'frank and open' is untenable on a number of grounds. Firstly, it fails to recognise the possibility of any countervailing public interest in favour of disclosure. Secondly, it implies that officers do not give advice which will withstand scrutiny beyond the Minister. Thirdly, the concept that documents falling within a particular class may be exempt on public interest grounds is coming to be seen by the courts as having a relatively small place as a basis for immunity, since it will generally be the contents of documents, rather than their category, which will determine whether or not disclosure would be contrary to the public interest. Fourthly, and perhaps most importantly, it is difficult to see how the objects of the FoI Act (as set out in s.3) could be achieved if such a position were taken.
The position the Ombudsman had recently adopted in Re Snell was clarified:
In Re Snell I also considered the so-called 'frankness and candour' argument as a public interest consideration against the disclosure of information and concluded that 'I am therefore not prepared to dismiss the 'frankness and candour' argument in an appropriate case'. In other words I left open the possibility that the argument could be given its proper weighting in an appropriate case against any argument which might be raised in favour of disclosure. The onus, however, remains a very real one on the agency to provide satisfactory argument that disclosure would be detrimental to the public interest taking all such possible interests into account including the public interest (when applicable) implied by the Object section (s.3) of the Act. The same point was perhaps better phrased by the Queensland Information Commissioner in Re Eccleston and Department of Family Services (1993) 1 QAR 60. When referring to the exemption (s.41) in the Queensland Freedom of Information Act for 'Matter relating to Deliberative Processes' the Commissioner said:
'Unless the exemption provisions, and s.41 in particular, are applied in a manner which accords appropriate weight to the public interest objects sought to be achieved by the FoI Act, the traditions of government secrecy are likely to continue unchanged'.
Meanwhile, as the Ombudsman was releasing his decision in Re Patmore, the Tasmanian Government was making an extensive submission to the Tasmanian Legislative Council Select Committee on Freedom of Information. One of the key planks in that submission was that the Government's removal in the Freedom of Information Amendment Bill 1994 of a public interest test for s.27 (internal working documents) was justified on the basis that the deliberative processes of government needed to be protected. (See box for detail on this particular point.)
In its submission the Tasmanian Government did concede that 'officials who make administrative or statutory decisions in their own right must be subjected to a level of scrutiny consistent with that required of elected representatives'.8
Without fear or favour
The Public is the government's raison d'etre. Perhaps that line should be repeated ten times aloud before every session as a constant reminder to us all. Strong freedom of information legislation enshrines that principle and gives it legal binding.
Bob Brown, Tasmanian House of Assembly 19909
In my opinion, freedom of information sets the scene for a real and meaningful level of accountability. Without information about the processes that govern them, members of the community cannot fully participate in government and exercise their rights as citizens. The passage of FoI legislation gives decision makers no option but to perform their duties in a manner that is consistent with the objects of FoI legislation. Withholding advice, failing to maintain a corporate memory, inadequate canvassing of options etc., cannot be justified on the grounds that FoI establishes too harsh a level of scrutiny.
The perplexing aspect of the agency position (supported by the Ombudsman) adopted in Re Snell was that the communications, which were in issue occurred in relation to an Act of the Tasmanian Parliament which had been passed by both Houses and received Royal Assent in 1992. The handling of the proclamation and implementation of this Act by Ministers of the Crown and their senior officials was a matter of the highest public concern and interest. The handling of an Act of Parliament should rank far higher in the operations of a Westminster system in comparision to concerns about candour in an implementation process designed to radically transform the ultimate form of that legislation.
It will be intriguing to see how the Tasmanian Legislative Council Select Committee on Freedom of Information will respond to the recommendations of the NSW Ombudsman in his Special Report 'Freedom of Information: the way ahead'. In Re Snell all the documents granted exemption were in relation to a case where a final decision had been made several months previously. The NSW Ombudsman has argued in relation to internal working documents that:
In my opinion, once a final decision is made, the public interest would generally assert that documents are no longer exempt from disclosure.
The recent submission to the Western Australia Discussion Paper No. 1 on 'The Secrecy Laws of the State and Cabinet Secrecy' (as set out in more detail in the accompanying article on FoI in WA) by the Information Commissioner has made a number of important recommendations that would help minimise the operations of frankness and candour in FoI matters. These recommendations included:
Conclusion
FoI has the ability to function as an accountability mechanism in its own right rather than as an adjunct to other devices such as Parliament, Ombudsman or the investigative efforts of a small section of the media. The persistence of 'frankness and candour' within certain jurisdictions, as a trump card against disclosure, needs to be remedied as it threatens FoI's accountability function. Reforms suggested by the WA Information Commissioner and NSW Ombudsman need to be heeded and adopted without delay. If the bureaucracy has to contemplate in private so be it - but let all of us judge the final quality of the product.
Geoffrey Palmer has argued 'the notion that one can read documents obtained under the Official Information Act 1982 and understand the dynamics of the development of government policy is flawed. The Ministers decide the policy but they hardly ever write the documents'.10 This may be the case. Nevertheless armed with the documents I can be seriously mis-informed and the onus is on the decision makers to correct my errors by a full and accurate account of the actual deliberations. The rearguard action against the public interest test for internal working documents by the Tasmanian Government threatens even that right to be extensively mis-informed about the dynamics of a particular policy process. Meanwhile, unelected Tasmanian officials spearheaded a complete make over on an attempt at increasing effective accountability by the Parliament. The lamp of scrutiny has been blinkered by the shutters designed to protect candour and frankness. The case study I have used is indeed an isolated example from Tasmania. Nevertheless I believe in many instances that it comes closer to standard practice than does the norm prescribed in Re Eccleston.
Rick Snell
Rick Snell teaches administrative law at the University of Tasmania.
References
1. Dally, Steven, 'Castrate Bid on FoI Act Attacked', The Mercury, 11 May 1995.
2. Section 15 of 1993 (Decision No. 93002).
3. FoI Decision No. 23, 29 September 1993, 5.
4. Schuck, Peter and Donald Elliot, E., 'Studying Administrative Law: A Methodology For, and Report on, New Empirical Research,' (1990) 42 Administrative Law Review 519-543.
5. Re Snell and Treasury and Finance - Subordinate Legislation, unreported decision Ombudsman (Tas.) 1.2.95.
6. Unreported decision Ombudsman (Tas.) 10.4.95.
7. Re Patmore, 1-2.
8. Submission by Tasmanian Government to Legislative Council Select Committee on Freedom of Information April 1995, 27.
9. Second reading speech on the introduction of FoI legislation, Parliamentary Debates, House of Assembly Nov 1990, 41st Parliament 2nd Session Vol XII No 5 28 5522.
10. Palmer, Geoffrey, New Zealand's Constitution in Crisis: Reforming Our Political System, McIndode, Dunedin, New Zealand 1992, fn 47, 95.