Why do bureaucracies love to keep things secret? The intention of the Government Information (Public Access) Act of 2009 was to give members of the public a legally enforceable right to access government information. Yet, following City of Newcastle's (CN) refusal to release information relating to the Pinnacle Investigation, the public may be justified in thinking that secrecy is necessary to protect the political deal makers currently controlling our elected council.
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Newcastle East Residents Group (NERG) is very familiar with the role of secrecy in political deal making. In trying to get to the bottom of the deals that brought Supercars to Newcastle, NERG hit the wall of secrecy many times. The difficulty in unearthing information about the arrival of Supercars in Newcastle showed members how networks of power and influence thrive in a democracy through the government's ability to withhold information and replace truth with spin. Here are just a few tactics used by governments to avoid the spirit of the GIPA Act.
There is the seasoned use of delaying tactics. A lot of time can be wasted negotiating limits to the search if a request is not tightly focused. If a private corporation is involved, further delays will be caused by the need to consult the third party, who will inevitably object. Further delays can happen if the appropriate people in the corporation are on leave, followed by more delays if the relevant government staff member is away. If eventually successful, major deals may have already taken place so it will be too late to protest or influence parliamentary representatives.
If the information eventually received is highly redacted, nothing useful might be learned. If so, or if the request has been denied outright, the government agency must give the applicant valid reasons for the decision that can then be appealed in court. There are two main reasons for governments withholding information. The first is the well known commercial-in-confidence. Third parties are within their legal right to refuse a request if the information is commercially sensitive, thus putting the third party at a commercial disadvantage. If the decision has been taken by cabinet, governments can also argue cabinet-in-confidence.
Less well known is the fact that governments also have a right to reject information on the grounds that the information requested will undermine the functions and activity of the government department involved. This has become a more prominent tactic since councils have become increasingly focused on marketing and branding the city. For example, CN has argued that they themselves are in a competitive market when attracting events to the city. This was used against NERG to reject crucial agreements signed with Supercars.
But the reason given by the executive director of corporate services, David Clarke, for rejecting the Herald's request for information seems so far outside what ought to be acceptable or appropriate that it borders on the scandalous. The Herald's GIPA application was tightly defined, focusing not only on the cost but on critical, well identified information that would have revealed the reason why City of Newcastle culled the investigation from the 18 letters written under Scott Neylon's name to only two, both referencing Bob Cook. The public might also have learned why the only allegation investigated was whether Mr Bath passed on confidential information to his friend. Perhaps the public might also have learned who decided it wasn't in Pinnacle's brief to interview the Herald or find out the letter writer's IP address? The public interest considerations given by Mr Clarke against disclosure did not refer to the usual guidelines. Instead, they appear to be based on his opinion as to the motives of the Herald in requesting this information. In Mr Clarke's view, the Herald had been guilty of publishing material that has "encouraged an incorrect false narrative in the public domain".
In other words, it is not the information itself that is the problem, it's the public discussion that would probably follow, no doubt as an antidote to CN's spin. CN's decision to refuse this information has taken the public's fight for greater transparency to a whole new level.
