Raising Hell: Cracking COVIDSafe: The Rumsfeld Conundrum
In which we ask a lawyer: what the hell?
Having spent some considerable time using Freedom of Information (FOI) to dig into how the COVIDSafe contact tracing app was built, I couldn’t help but notice that when it came to open government, there was some distance between ideals and reality. Wanting to know more about how governments use and misuse FOI laws, I sought out an expert who could explain it for those without a law degree.
I first met David while working on my original story about the COVIDSafe app for The Saturday Paper. Though he is currently a Professor of Information Law and Policy at LaTrobe University, David has had a storied career that is hard to neatly summarise. He has served as the Victorian Commissioner for Privacy and Data Protection, advised the UN, consulted for organisations like the World Bank and helped draft whole Freedom of Information codes. He is, how you might say, a guy who knows what he’s talking about.
Below is an edited interview between David and myself talking about Freedom of Information and how the drive to outsource everything is making it harder to find out how decisions are being made.
Royce Kurmelovs: I was hoping we could begin on something of an idealistic note with a basic sketch of why Freedom of Information (FOI) laws exist and why they should matter?
David Watts: The common law didn’t — and mainly still doesn’t — include any right for an individual to obtain information from government about the workings of government — except when you are engaged in litigation against the government, in which case you are entitled to see the documents relevant to the dispute. Historically, many governments had passed legislation that made it a criminal offence to publish government information. Many jurisdictions had their own version of the Official Secrets Act. In Australia there was Sections 70 and 79 of The Crimes Act 1914.
FOI came from what is known as the ‘open government movement.’ It began in the USA following the Second World War. It’s generally traced back to a 1957 article that Wallace Parks wrote called ‘The Open Government Principle: Applying the Right to Know Under the Constitution.’
FOI started in the US in 1966 when they passed federal FOI legislation. It then spread to other common law jurisdictions. In Australia, The Commonwealth enacted FOI legislation in 1982, as did Victoria. Other States followed. As an aside, I was responsible for helping to draft the last new FOI law in Australia — the Northern Territory Information Act 2002.
The rationale for FOI is that citizens have the right to obtain government information to promote transparency and accountability. But it’s pretty clear that this rationale has to be balanced with other countervailing arguments. You don’t want criminals to have access to police files that relate to investigations about them. You don’t want foreign spies to know that they have been discovered.
So FOI is not an absolute right to all government information. The public interest requires that some categories of information be kept secret. These are known as exemptions. There are many.
The real question here is: where does the balance lie?
RK: If I should in principle be able to apply to read Scott Morrison’s emails, why does it often seem the process is so hard?
DW: Because a lot of the time he’s emailing about things that are exempt. A lot of the time he’s not emailing at all — it’s his staff doing it.
RK: Right, so being able to apply is different to knowing what to ask for or how to ask it. Which is another thing, I wanted to ask. As someone who relies FOI laws to help bring information into the public domain, I’ve noticed a certain information asymmetry at play. On the one hand, you get told you don’t have to have a legal background to apply, but if you don’t talk like a lawyer you get turned away or stonewalled because of something you don’t know. What’s your assessment of this situation?
DW: This is a version of the Donald Rumsfeld ‘unknown unknowns’ problem. How do you know what to ask when you don’t know what you need to ask to uncover an issue? How do you know what documents there are when you don’t know what documents there are?
There is no real answer to this. There are no real obligations on government departments to publish a list of the documents they usually hold and when they do these are often at such a high level of abstraction that they are not helpful. It’s like mining. You keep digging, excavating, dynamiting until you find what the geologists tell you is there.
RK: Ministers and department heads are talking a lot about transparency right now. There was Stuart Robert’s speech at the National Press Club and Rachel Noble’s speech to the Australian Signals Directorate (ASD) at the National Security College. How much is this actually being embraced in the public service?
DW: There is a lot of material about transparency and accountability around at present.
These speeches are nonsense. They serve several purposes. First, if you talk a lot about being accountable and transparent, in an era where everyone has the attention span of an ant and serious journalism is in decline, then everyone will tend to think you are being transparent and accountable. That you talk the talk.
It’s certainly not in ASD’s interests to be completely transparent. They do so many secret things that we don’t want our enemies — or allies — to know exactly what they are up to. We also don’t want our citizens to know because they might be upset.
RK: Back in 2017 the Australian National Audit Office (ANAO) found $47 billion had been spent outsourcing government functions. An update from ANAO in March this year found that another $64.5 billion in contracts had been outsourced to the private sector. While this is often talked about as a problem of public waste — which it is — what does it also mean for FOI law or other processes for accountability of government?
DW: FOI laws were written before widespread outsourcing of government services became popular. FOI is premised on government doing things, rather than governments contracting out the doing of things.
“If you talk a lot about being accountable and transparent, in an era where everyone has the attention span of an ant and serious journalism is in decline, then everyone will tend to think you are being transparent and accountable. That you talk the talk.
Its fairly easy to find an exemption where outsourcing occurs. Every FOI law that I know has an exemption for information provided in confidence. This is a proper exemption rationale. If you didn’t have it, no one would provide confidential information to government. But it is misused for outsourcing, the assumption being that the deal itself and the information associated with it are confidential. Often there are clauses to that effect in the outsourcing agreement.
RK: When I recently applied under FOI law to find out more about a decision to award and extend a particular commercial contract, I was told there the noticed published to AusTender was enough. How satisfied should we be with answers such as these?
DW: Not satisfied at all. You were asking a question — I assume — about why the contract was awarded, not about the fact that it had been awarded. So the answer did not respond to your inquiry.
RK: If we think about outsourcing as it relates to FOI, what does this mean for democracy?
DW: Perhaps a different way of looking at this is in terms of responsibility and accountability. One of the real problems with outsourcing is that it blurs both of these concepts. Usually in the public sector, when something is outsourced, you don’t have to worry about it anymore — the ball is in the outsourced service provider’s court.
This is what happened in the Victorian hotel quarantine fiasco, although the problem there went deeper: no one could remember who decided to inappropriately outsource security to unqualified people.
The key issue with outsourcing is that it invariably reduces costs and gets staff numbers off a government department’s books, which is really important with government rhetoric about reducing waste and improving public sector efficiency.
Outsourcing does neither — it just makes it seem that it does.
Cracking COVIDSafe is a feature series made in association with Electronic Frontiers Australia. It aims to highlight the importance of Freedom of Information as an essential tool for holding government to account while helping to teach people about the process so they can do it themselves.
The journalism published by Raising Hell will always be free and open to the public, but feature series like these are only made possible by the generous subscribers who pay to support my work. Your money goes towards helping me pay my bills and covering the cost of FOI applications, books and other research materials. If you like what you see share, retweet or tell a friend. Every little bit helps.