When freedom is an illusion
It’s not only police raids threatening the public’s right to know
People might get upset about police raids on the media but there are other less dramatic ways that governments protect their secrets from public exposure.
In November, I put in a Freedom of Information request to the Department of Transport seeking details of a generous increase to a subsidy paid to businesses sending containers by rail from Fremantle port.
On January 1 last year, the McGowan Government increased the rail subsidy paid by taxpayers from $30 to $50 for each container known as a Twenty-foot Equivalent Unit (TEU) — worth an estimated extra $10 million to the beneficiaries.
My interest was simple. It appeared to me that in trying to increase the proportion of freight going on to rail rather than road, the Government was giving businesses that had already made the move an extra $20 per unit for doing nothing.
This issue is inextricably connected to the new outer harbour debate, the axing of the Perth Freight Link and Roe 8 and the increasing congestion on major roads south of the river.
I will get into the complicated details of this subsidy in a later column. This one is about the process of trying to extract sensitive information from the Government.
On June 7, I received the final decision on my application for documents — some seven months after applying.
That is not the timely fashion in which the legislation was meant to work.
While some documents were made available — 33 in February and 42 in March — they were mainly administrative emails and not the sensitive reports into the efficiency of the subsidy that I was specifically seeking.
The department accepts that it was obliged under the FoI Act
to give me a decision by January 10 and that I originally agreed to an extension of time to the end of that month. When it asked for a further extension, I declined.
I also rejected this proposal: “Rather than redacting 90 per cent of documents and providing you with a couple of dot points relating to the subsidy increase, I propose that I create a new document and provide excerpts (copy and paste) from each of the documents with the relevant matter.”
I responded: “The approach you outline is not acceptable. It would involve a level of trust in that exercise that I don’t think was envisaged in the legislation.”
So last week the department said I would get another three unredacted documents, 59 documents that have been edited — to what extent I am still unaware because they haven’t arrived — and that four had been refused.
But the reasons for the censoring of the final instalment illustrates why FoI doesn’t operate as it should.
A series of documents containing cost estimates had details removed on the basis they were exempt because they were “required to be considered and approved by the Expenditure Review Committee” and therefore fell under Cabinet paper exclusions.
They are hardly State secrets. Others were redacted for commercial confidentiality, but in peculiar circumstances:
“Release of this information would adversely impact the relation between the Fremantle Port Authority and the Department of Transport on commercial matters.
“The department does not believe it would, on balance, be in the public interest to disclose this information. Disclosure of the documents would be contrary to industry expectations.”
Really? Confidentiality is required between two arms of government?
Further documents containing “forecast commercial data provided by the rail operator in confidence” — which I regarded as fundamental to seeing how the subsidy would work — were refused release as “not in the public interest”.
Others were redacted because their release would show funding sources for the subsidy and that, apparently, is also not in the public interest. Honestly.
Four were completely banned from release for Cabinet and commercial confidentiality reasons.
In its publications about governance of the policy, the department says it “regularly reports to Treasury on the performance of the subsidy.”
So I specifically asked for those reports from January 2017 as a crucial measure of taxpayer accountability. There is no sign of any reports since the subsidy increase in the department’s responses.
The default setting for FoI should be a presumption of maximum disclosure to keep the public informed. In practice, what is demonstrated is the routine use of multiple exemptions from release — and that is not in the public interest. Six separate exemption clauses were used in this case.
This is why the media struggles to prise government secrets through what was well-meaning FoI legislation.
And not a police raid in sight.
The default setting for FoI should be a presumption of maximum disclosure to keep the public informed.