A central argument for the government’s proposed widening of exemptions under the FOI Act is the claim that the current provisions constrain the provision of “frank and fearless advice” by the public service.

In its submission to the Senate Finance and Public Administration Legislation Committee’s inquiry into the FOI Amendment Bill 2025, the APS Commission states that, “There have been significant observations that the operation of the FOI framework since the (2010) reforms … has had unintended negative consequences on actual transparency, integrity and record keeping.”

The question is whether those “significant observations” merely reflect a culture within the APS or are based on real evidence.

The APSC quotes the 2019 Thodey Review which, in turn, quotes Peter Shergold’s 2015 report, Learning from Failure. Neither contains firm evidence.

The submission from the Attorney-General’s Department reveals that in 2024-25, 25% of requests were refused, drawing on existing exemptions to avoid harms that might result from disclosure. Six percent of these exemptions related to the provision (section 47C) regarding deliberative processes and 1% to Cabinet exemptions (section 34). That seems to suggest that the current exemptions are working. The AGD also presents some data on reviews of decisions by the Information Commissioner and the AAT. Eighty-nine percent of the latter affirmed decisions by agencies and ministers. No mention is made of any of the 11% varied or set aside being ones relating to exemptions agencies sought under sections 47C or 34.

Former information commissioner, John McMillan, for example, supported the exemption of Incoming Government Briefs on public interest grounds, accepting concerns that release would set hares running when a new minister needed to receive frank advice on all the key issues in the portfolio and time to consider them.

When I was asked by the Robodebt Royal Commission about record keeping, I referred to Shergold’s recommendation to widen FOI Act exemption of deliberative processes documents but highlighted the lack of evidence to support his concerns (as I had previously highlighted to the Thodey Review). I, therefore, recommended “an independent review of how, according to judgments by the courts, significant advice provided to support the deliberative processes of government is currently treated under the FOI Act, and whether it would be in the public interest to extend current exemptions to include such advice”.

In the event, the Royal Commission not only failed to take up Shergold’s recommendation about FOI exemptions or my suggestion of an evidence-based review, but recommended limiting exemptions under the Act by removing the provision concerning Cabinet documents.

The Royal Commission did however take up my main recommendation about recordkeeping: ‘that requirements to create written records be made explicit either in Directions or guidance from the APS Commissioner’. This was in turn agreed by the Government. Guidance has since been provided by the APSC, but sadly not in the form of a firm legal direction.

Despite the Royal Commission recommending a shift in the opposite direction on FOI than now proposed, the APSC submission cites the Robodebt Royal Commission Report in referring to the consequences of avoiding written advice.

The Royal Commission was certainly damning about record-keeping practices, but even more damning about careerism and cowardice amongst senior public servants.

The failure to provide frank and fearless advice was evident in documents that were never accessible under FOI. Where was the advice in the original Cabinet submission, or in Cabinet coordination comments? It took the Royal Commission to reveal these and other failures to provide advice on the legality of Robodebt: earlier FOI and Parliamentary Committee requests had been rejected.

This evidence shows that other factors than FOI are contributing to failures to provide frank and fearless advice. One clearly accepted by the Royal Commission is the process for appointing (and terminating) departmental secretaries and the role and appointment process of the APS Commissioner. It explicitly endorsed the relevant changes proposed by the Thodey Report, but we have heard no more of that from the government for two years now.

Shergold claimed years ago that frank and fearless advice is a function of character, not tenure. I have always said it is about both, and that was clearly confirmed in the Robodebt case. The FOI Act may be contributing as Shergold also claimed, but the evidence is far from clear. More likely is pressure from ministers and ministerial advisers exaggerating the political dangers, and a public service overly responsive to the government and failing to meet their obligations also to serve the Parliament and the Australian public.

By all means, review the FOI Act, but do so properly, with evidence and by engaging with users not just senior public servants.

Republished from The Mandarin, 16 October 2025

The views expressed in this article may or may not reflect those of Pearls and Irritations.