Labours in the ministry of truth

WHEN does Penny Wong sleep?

According to her Climate Change Department, there are 210,507 documents to help inform or brief her on the government's emissions trading scheme. Perhaps she hasn't read them all. Either way, voters are entitled to ask whether they are getting value for money from the bureaucracy's work on a scheme they mostly still don't understand and which the government cannot get through parliament.

The story so far: last March then special minister of state John Faulkner released draft legislation for a wholesale overhaul of freedom of information legislation. The aim, he said, was to introduce a culture of openness into the government and the public service. Many of the existing exemptions for the release of information are abolished under the legislation.

To show he meant it, Faulkner told heads of department to instruct officials handling FOI requests that, even before the legislation came into force, they should "embrace a disposition towards disclosure". Faulkner wanted the new act in force by the start of this year but Kevin Rudd called him up for higher duties as Defence Minister. Under his successor, Joe Ludwig, the legislation finally was introduced into the lower house on the last sitting day last year.

Still, Ludwig continues to talk the talk: the government, he says, will restore trust and integrity in the use of government information. "The future won't be about concealment but disclosure," he adds. "I remain strongly committed to getting these critical bills passed through the Senate."

You have to wonder whether anyone in the bureaucracy takes this seriously and whether anything flowed from Faulkner's talk to departmental heads. In November, I reported in this space on the efforts of The Australia Institute's Richard Denniss to extract information from the Climate Change Department on its assessment of the proposed ETS.

Even though the department rang Denniss to confirm that he wanted advice to the minister, and the department's lawyers said this was covered by the request, it was excluded on the instruction of departmental head Martin Parkinson and his deputy Blair Comley.

Not easily deterred, Denniss fired in another request asking for documents prepared to help inform Wong and her advisers of the details, merits, limitations and criticisms of the ETS. The response: : he may be able to get what he wants if he hands over $256,586.98, although, catch-22, if he proceeds with his request, the department may decide it involves an unreasonable diversion of resources.

Denniss since has had preliminary discussions with the department about narrowing the terms of his request but the officials won't tell him the areas less relevant to his request or the most expensive.

This second instalment of the saga confirms that, by hook or by crook, the department is intent on shielding Wong. On Denniss's first application, it decided against the evidence to exclude information involving the minister. Only if it is a cabinet document does such a request fall outside the existing legislation. It charged him $815 for a pile of uninformative documents.

Now that Denniss has broadened a request that it said was too narrow, the department says it is too broad.

The department's preliminary (but very specific) estimate of costs comprises $73,102.58 for search and retrieval, based on a statutory charge of $15 an hour for 4873.505 hours, $141,383 for 7069.15 hours of "decision making" at $20 an hour and $42,101.40 for the possible release of 210,507 documents of an average two pages at 10c a copy. Even though Denniss's initial request last year was in similar terms, an official estimated it would require just five days' work to search for the information in one branch.

With five branches involved, that would mean 185 hours, or one-26th of the time the department is now estimating. And that is despite the department already having identified many of the documents last year.

It has included charges for photocopying each document, even though Denniss said he would be happy to receive them in electronic form. And if it costs more than $140,000 just to decide whether to release documents, imagine the cost of reaching decisions on the ETS.

The department's response to questions from Inquirer on these points takes us into the world of farce. It says it may be more efficient to treat a request that includes documents that have been asked for previously as a fresh request rather than trying to fill in the gaps.

"The department is conscious that by relying on processes carried out under a previous FOI it is difficult to ensure that the fresh FOI is treated appropriately and that the search and retrieval process is as comprehensive as possible." It does not add that this is particularly the case when it is trying to scare the applicant witless by loading up the costs.

As for the photocopying charges, "not all documents held by the department are necessarily available in electronic form". That must be those written with quill and ink. Has the public service heard of scanners?

That bureaucrats can spout such nonsense -- cleared for release by the minister's office, by the way -- and that they are prepared to go to such lengths to intimidate Denniss, raises the question of what they have to hide on Wong's behalf.

It also demonstrates that the culture of openness, despite Faulkner's efforts, is no more than a nice idea.

Yes, the department assures Inquirer, it has taken into account the provisions and the spirit of the new legislation, even though it is not yet in force and it is mindful of the obligations placed on it by the proposed reforms.

But apparently not enough to change its business-as-usual approach of treating any FOI request as a test of just how much information it can withhold.

It makes a mockery of the sentiments expressed by parliamentary secretary Anthony Byrne when introducing the legislation into parliament in November, including that political sensitivity would not be a ground for withholding documents and that "cost should not deter reasonable requests for access to information".

New Zealand's Official Secrets Act was passed as long ago as 1982 and it is framed very broadly. Cabinet documents that would be exempt under the old and new legislation in Australia are released regularly in Wellington.

A review of the legislation in 2005 found that the average time to process requests was 13 days. In only 4 per cent of cases were charges for the release of information imposed or even proposed (in which case they often ended up not being levied).

According to New Zealand Privacy Commissioner and former cabinet secretary Marie Shroff, the legislation has improved not only access to information but the quality of bureaucratic advice.

"If I as a civil servant write a cabinet paper which I expect to be sought for public release, I am going to be extraordinarily careful to get my facts right, to avoid trespassing into politics, to give comprehensive reasons for and against a proposal and to think very carefully about my recommendations," she said in 2005.

Despite that, there are regular claims it is easy for governments intent on withholding information to circumvent the act.

Without a huge shift in the bureaucratic culture, the new Australian legislation will be little more than a political ornament, providing more ammunition for Tony Abbott to claim that the Rudd government is all talk and no action.