When free­dom is an il­lu­sion

It’s not only po­lice raids threat­en­ing the pub­lic’s right to know

The West Australian - - PAGE 13 -

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.


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