SECRET STATE

IT STARTED with such a grand vision: "A Government that is open to public scrutiny is more accountable to the people who elect it," premier John Cain told Parliament in 1982. "The Freedom of Information Bill is tangible proof of my Government's commitment to open government."

Victoria was the first state to introduce freedom of information laws and the man who championed them was very clear on their importance. "People must have information to enable them to make choices about who will govern them and what policies the individuals or political parties that they choose to govern shall implement," he explained.

But 27 years on, Victoria's freedom of information laws are a mess. The state's Ombudsman, the Opposition, media, advocacy groups, even the Government itself believe the laws are outdated and should be changed. Critics argue that the existing FOI laws are being interpreted in a way that makes them almost meaningless and renders the term "freedom of information" an oxymoron.

More than two decades since he rose in Parliament to introduce the laws, Cain says the legislation hasn't kept pace and a culture of denying information pervades. (It is a theme that has particular resonance this week with the State Government signing $9 billion train and tram contracts, the details of which have been withheld from the public.)

"Decisions in government are made around streams of advice, and the advice from the bureaucracy and the private office is 'tell them nothing'," he says. From the outset, the bureaucracy argued it needed secrecy over information to provide ministers with frank, fearless advice, Cain says. "That still prevails."

FOI applications fall into two broad categories; requests for access to personal information, such as medical records, and requests for public policy information, such as documents and reports, which are mostly made by MPs and the media.

While the State Government trumpets the fact that almost 80 per cent of the more than 25,000 applications for information lodged last year were granted in full, the figures belie the reality of how the laws are being applied. The most recent Ombudsman's investigation into FOI noted that only 36 per cent of requests to Government departments are given full access. The 2006 report also found that the 45-day time limit for processing requests was regularly exceeded, with only 56 per cent of FOI decision made by Government departments occurring within the required time.

The FOI Act includes 14 pages of exemptions on documents being released, such as information disclosing cabinet deliberations or the release of information being contrary to the public interest. And the Government and its agencies have shown a keen willingness to use those exemptions to their fullest, particularly if the request is made by Opposition MPs or the media. Indeed, the Ombudsman, George Brouwer, noted in his report that FOI officers often give media and political requests the narrowest meaning possible. He raised particular concern about delays in waiting for information while requests are "noted" by a minister's office, with many delays stretching beyond the five days of noting provided for in the Attorney-General's guidelines.

"I consider that undue delay for noting by a minister . . . may lead to the perception that decisions are being delayed for political reasons," the Ombudsman found.

University of Canberra journalism professor Matthew Ricketson believes a "culture of obstructionism" has developed around FOI. No one should be surprised that governments have a phalanx of ministerial staffers and public relations advisers to manage the flow of information, the former Age journalist says.

For Cain, the problem in the control of information is not ministers themselves but the relationships between government and businesses that are seeking to protect their competitive advantage, as well as the rise of the bureaucracy and the private office, which have developed a "siege mentality". "Some of the stuff held back is nonsense. You hear them at some meetings saying this agency has got to realise that this information will embarrass the minister," he says.

The Government's annual FOI report also shows the frequent use of the broad exemption of "internal working documents containing opinions, advice or recommendations of officials or ministers where it would not be in the public interest for those documents to be released". It was used in almost 1100 cases last year.

Of 85 requests made to the Premier's Department last year only nine received full access to documents. Of the 61 requests sent to the Department of Planning and Community Development, three were granted full access to documents.

The Government has also outsourced some of its FOI responsibilities to for-profit private companies. Over 18 months the Department of Planning paid $215,000 for two companies, FOI Assist and FOI Solutions, to handle information requests.

Earlier this year, lawyer Mick Batskos of FOI Solutions, contracted by Melbourne Water, threatened a Nationals staff member with legal action over an FOI request about the controversial north-south pipeline.

In May, the Rudd Government released draft legislation narrowing the grounds of federal FOI exemptions and proposing a freedom of information commissioner.

Recognising the connection between open government, accountability and freedom of information laws, John Brumby made reforming FOI one of his top priorities when he was catapulted into the premiership in mid-2007. In a virtual concession that cabinet confidentiality was being used too much in rejecting requests, he promised that only "real" cabinet documents will be exempt from FOI laws, meaning "more information not less information will be available".

The Government's proposed changes would have removed the FOI application fee now $23.40 but extended the time allowed for a response to 75 days and introduce a "vexatious applicant" procedure. But in February 2008, the Opposition parties defeated the changes, saying aspects of the bill were sinister. That drew the ire of the Government, which said the Liberals and Nationals would be remembered for denying easier and cheaper access to FOI.

Fiona Macrae, a spokeswoman for the Premier, says more than 28,000 FOI requests were received across government in 2008-09 a 12 per cent increase on the previous year. She says applicants are provided with full or partial access to documents in more than 97 per cent of decisions.

"FOI is Labor policy. It was introduced by the Labor Party, watered down by the Kennett government and has been strengthened once again by this Government, including the narrowing the definition of cabinet documents and FOI guidelines." she says.

Opposition Leader Ted Baillieu says he will overhaul Victoria's FOI laws, including reducing exemptions and streamlining appeals, if the Liberals win the next election.

Baillieu and his party are using the obfuscation and denial of information to attack the Premier's openness and transparency in government in much the same way as all oppositions have done.

In the meantime, it's the public that is not getting the information it needs to judge a government's performance. The grand vision has become decidedly opaque.

CASE STUDY 1

The Treasurer's office and Crown Casino deal

After learning that Treasurer John Lenders had negotiated a lucrative tax deal with Crown Casino, The Age requested in May "all correspondence written or received by his office" on the deal. A little over a month later the Treasurer's office responded: "The decision is that the Treasurer does not have any official documents of a Minister that are relevant to your request." The letter added, "you have the right to complain to the Ombudsman in relation to this decision".

Surprised that the office of the minister in charge of negotiations over a $100-million-plus deal did not have any documents related to it, The Age wrote a complaint to the Ombudsman. The Ombudsman's office replied it did not have the power to investigate the minister's office.

The following month the Treasurer held a media conference and released 13 documents related to the Crown deal. Documents included:

A letter from Crown boss James Packer to Lenders dated April 23, 2009 (a document attached to Packer's letter was not released).

A letter from Lenders to the Victorian Commission for Gambling Regulation, dated May 4, 2009.

A letter from the commission to Lenders regarding the new agreement, dated May 5, 2009.

All of these documents fell within the parameters of the FoI request.

A spokesman for the Treasurer said the documents were not released because the FoI request was not sent to the Department of Treasury and Finance.

CASE STUDY 2

The Black Saturday Bushfires

Just days after the devastating February 7 bushfires, Premier John Brumby announced a royal commission into the blazes. He declared that every issue was on the table so "everything in relation to the horrific fires on Saturday is investigated and uncovered".

The Age lodged an FoI request with the Department of Premier and Cabinet in early April seeking information on bushfire warning systems, planning regulations, evacuation policies and safety bunkers dating back to 1999. In consultation with the department, the request was amended to consider the issues of warning systems and forced evacuations.

On July 27, the department responded that it had identified 83 documents relevant to the request. But the FoI officer ruled that all of the documents were fully exempt from release. In early August, The Age sought an internal review of the decision on the grounds the information was in the public interest. The review request noted the Premier had publicly commented on cabinet decisions after the fires as well as past and current federal-state negotiations over early warning systems.

The department's review, dated August 28, located a further 27 documents considered relevant to the FoI request and found additional exemptions on 77 documents originally identified. It denied access to all

110 documents on grounds including revealing cabinet decisions and that federal-state relations would be prejudiced contrary to the public interest.