Closed Season for Open Government
In Yes Minister, Bernard Woolley once triggered a bureaucratic firestorm with his innocent query: “why shouldn’t the public know more about what’s going on?” — and his insistence that “surely the citizens of a democracy have a right to know.” Sir Humphrey Appleby, ever the maestro of obfuscation, dismissed him at once: “No. They have a right to be ignorant. Knowledge only means complicity and guilt. Ignorance has a certain dignity.”
From there, the hierarchy weighed in. Sir Arnold Robinson, the mandarin’s mandarin, coolly observed: “if people don’t know what you’re doing, they don’t know what you’re doing wrong.” And in another episode, when Minister James Hacker queried his party’s commitment to open government, Sir Arnold dryly announced: “this seems to be the closed season for open government.”
It was meant as satire, of course—but as with all good satire, it struck close to the truth. Decades later, across continents and political systems, the same irony endures: governments the world over continue to treat transparency not as a duty but as a danger.
Freedom of information (FOI) laws were designed to reverse that instinct—to tilt the scales from darkness toward daylight. The stated purpose and scope of the Freedom of Information Act 1982 (Cth) is “to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies”. Then follows lofty objectives such as Parliament’s intent to “promote Australia’s representative democracy by contributing towards…increasing scrutiny, discussion, comment and review of the Government’s activities”.
Yet despite their promise, they remain riddled with exemptions, delays and quiet obstruction.
This tension between accountability and control is not new. Since the first FOI law emerged in Sweden in 1776, and spread through Westminster-style democracies, parliaments have wrestled with how to reconcile accountability with control. The pattern has been remarkably consistent: lofty declarations of openness, followed by the slow reassertion of secrecy through process, protocol, and the catch-all phrases — “exemptions” and “public interest exemptions” in the case of Australia.
At its heart, the debate reveals an enduring flaw in how modern government understands itself. Ministers and officials often see information as their property, to be guarded, rationed, and sometimes withheld for the good of the public. Yet the truth is quite the opposite. The business of government, though carried out in the name of the Crown, is conducted on behalf of the people. It is their money, their consent and their trust that sustain the system.
In legal terms, the relationship is more agency than autocracy. The governors are the agents; the governed, oddly, the principals. And just as any principal in a commercial milieu is entitled to know how their agent conducts their affairs, so too should citizens expect to see what is done in their name. That is not a radical proposition—it is the essence of representative democracy.
Yet, somewhere along the way, the principle became blurred. Freedom of information has too often been treated as a nuisance for administrators, or worse, a threat to ministerial control. In practice, many agencies respond to requests with the reflexes of a litigant: defensive, procedural and intent on minimising disclosure. The result is an elaborate game of hide and seek—one that tests the patience of journalists, researchers and citizens alike.
Of course, there must be statutory carve-outs to openness, at least in the name of national security, personal privacy or safety and the like. Accounting for these necessary concessions, when every corner of public administration is fenced off by one exemption or another, the cumulative effect is opacity masquerading as prudence. It becomes, once again, a closed season on open government.
Periodically, the urge to recalibrate the balance between accountability and control prompts a flurry of promised reforms—each heralded as a new dawn—only for the light to fade as institutions quietly revert to the comforts of opacity.
In Attorney-General v Patrick, a 2024 Federal Court case, Attorney-General Mark Dreyfus sought to refuse access to a document because the question whether a document is an “official document of a Minister” is to be determined both at the time the request for access is made and at the time that a decision is made whether to grant access to the document. As such, the document was no longer an ‘official document of the Minister’ because the Minister had changed several times and there was a change in government since the request for access was made. The full Federal Court ruled that the “time for assessing whether a document is an “official document of a Minister” is the time the request for access is made (and only that time).” The Attorney-General’s argument demonstrates how an FOI request can be derailed simply because ministers change, or elections intervene.
In Victoria, the Ministerial Code of Conduct was updated in 2023 to require Ministers to “publish summaries from their diaries on a quarterly basis”. Only three of the state’s 22 ministers have complied.
Historical overseas trends are no different. In 2001, US President Bush signed an executive order allowing either the White House or former presidents to veto release of their presidential papers. In 2005, the New Zealand Ombudsman stated that “some Ministers’ offices remain unwilling or unable to meet official information requests in a timely fashion. Sometimes reasons for withholding information…seem to relate more to political or administrative convenience than to legitimate withholding grounds under the [Official Information Act].”
Then there are daring efforts to limit openness. Current Australian legislative proposals seek to extend the time for agencies to make FOI decisions, prohibit anonymous requests and broadening of the scope of the cabinet documents exemption, among others. A former public service commissioner castigated these reforms as going in “exactly the opposite direction” to the openness pursued by former Cabinet Secretary Senator John Faulkner in 2009.
In the end, these cycles are not failures of process but symptoms of a deeper truth: governments tolerate openness only in theory and will always find reasons—however artfully expressed—why too much sunlight is a danger rather than a democratic necessity.
Nilay B. Patel is a lawyer based in Melbourne.
