Philip Dorling on leaks, whistleblowing, archives, access to information and the behaviour of governments

Transcript of talk by Dr Philip Dorling from the Freedom of information? panel discussion held in Sydney on February 29  2012.

Just as I was walking across the very wet car park this evening I was reminded of just how fragile information can be, because I dropped my notebook in a puddle and drenched all of my notes for my talk – which have been consigned to the bin. But, perhaps they weren’t that insightful anyway. So, I might try to follow the track I was going to take, but I’ll probably improvise as I go.

As Cassie indicated, I’ve had a somewhat varied career; I’m a journalist these days, but I’m a newcomer to the business – I’ve been doing journalism since 2008. Prior to that I’d been doing all sorts of things, basically, but the odd thing is that throughout the course of my career questions of access to information, freedom of information, archives, leaks, police investigations and the like seem to have been a continuing theme of my somewhat wayward career path. So I thought to illustrate my perspective on these things, I might do it slightly biographically.

About 20 years ago I started out, having been a very junior academic, to join the Department of Foreign Affairs and Trade in Canberra. I did so as an historian. I had a background in history and in archival research, and indeed history remains my great love. There’s actually nothing I like better, apart from being with my family,  than to take myself off to the National Archives in Canberra, sit down on a quiet afternoon where it’s immensely peaceful, and open up some dusty old mouldering files (laughter), and find secrets from long ago. It’s curiosity killed the cat, and I’m a sucker for that.

So I got offered a job by Foreign Affairs to rummage around in their archives – they paid me good money to do so, and I did that for several years. Having free range over the Foreign Service’s secrets over the last 50 or so years was an eye opener – even to someone who had been poking around in history for a number of years. At a very early stage it brought home to me the huge gap between public knowledge of the business of government policy broadly and perhaps intelligence, diplomacy and foreign policy in particular, and the reality behind the scenes. And that so often what might appear in public statements  of Ministers and elected officials is but the tip of the iceberg, and that there’s a vast amount of activity – some of it highly significant, with very considerable consequences that year in and year out just washes past the electorate and that the community at large are quite unaware of. So early in my career I got an introduction, if you like, to the secret world, both in the historical sense, but then I moved into the business of diplomacy, and was, at lest briefly, a practitioner in the area.

I then got another insight a few years later when I worked up at Parliament House in Canberra and was an adviser to Laurie Brereton, the Shadow Minister for Foreign Affairs, and I was in that role for about 5 1/2 years. That was another eye opener, because it introduced me to the secret world of politics, which was another quite different world, conducted by different rules, but once again characterised by the fact that the public, by and large, only saw 10% above the waterline, and missed so often the real reasons and mechanisms for decision making. And in some cases those reasons are, in the political realm, less easily transparent and less accountable than the actions of bureaucrats, which can be subject to FOI or eventual archival release or the like. So that too was an eye opener, as an appreciation again of just how much is off the radar in our day to day political life. It’s unusual in this past week that the lid has been lifted – at least on the Labor Government side, and I must admit – having worked for the Labor Party for a number of years – I found very few of the observations and comments made by folk in the last week at all revelatory (laughter). But, for the broad public, and for the vast majority of people in a democratic system, this was sort of shock horror stuff and everyone suddenly pulled the curtains back and said ‘oh, it’s all ok now we’ll just move on – nothing happened here’.

While I was working for Laurie Brereton in the foreign policy advisory role I also saw some examples of the power of information if it’s released against the wishes of policy makers. Probably the most significant incidence of that related to events concerning East Timor in the mid ’90s. To cut a long story short, in the events leading up to East Timor’s independence in 1999, the Australian Government played something of a double game. While publicly professing support for a process of self determination, privately they were very keen for East Timor to remain part of Indonesia. The prevailing view for the last 30 odd years had been that an independent East Timor would be an inconvenience and a problem in relations with Jakarta. The then Howard Government sought to square the circle between public expectations, the realities of its preferences and also the realities on the ground, where the Indonesian military were orchestrating violence in East Timor, and the militias and the like. Basically Ministers, and in particular the Foreign Minister Downer and Mr Howard the Prime Minister squared the circle by lying and by obfuscation and evasion. In  particular the Foreign MInister declared that there really wasn’t a big problem there; they gathered that there were just some rogue elements causing trouble, The Indonesian military could be relied on to safeguard the ballot in East Timor. Now it happened that there was a series of leaks from deep within the Australian diplomatic and intelligence community of highly classified documents that revealed the truth of the Government’s knowledge: that the Government was aware what the Indonesian military were doing. They also revealed that the then Government was not merely reluctant to support the idea of sending peacekeepers to East Timor, but was actually out there arguing against it in discussions with the United States and other countries – quite at odds with their public position. There was a whole series of leaks, that I think had a significant impact on forcing the Government’s hand and also reinforcing public opinion in its support for the East Timorese process of self determination and independence.

So I think that the leaks that took place, which were of a very highly classified nature, more so – but not in volume – than things that have come through WikiLeaks in the last year. The classifications were Top Secret, and so called ‘codeword’ material; signals intelligence; very highly classified material. But it did have an impact on Government policy; you had a case where a government had been doing something essentially in secret; a whistleblower or whistleblowers revealed a whole lot of information, and it had an impact on policy. And it illustrated to me at the time that revelations of material – uncontrolled revelations of material – could have a very significant impact.

Those events also showed to me that governments hate that, absolutely hate that, and can be determined to spend very large sums of money and inordinate amounts of time pursuing those who have broken ranks – who have split from the program, and indeed who may well have breached the law in terms of making their own unilateral decisions about what should be public and what what should not be public. In that case of those particular instances, (it was) the largest leak investigation the Australian Government had ever run, for nearly two years, costing about one and a half million dollars, and eventually brought the Federal Police to my doorstep one morning, seeking what they thought was a treasure trove of highly classified documents that were somewhere in my house. But they went away empty handed, I guess they must have ill advised the Canberra Magistrate who they said should sign off on the warrant and find all these things. But it did illustrate that whistleblowers can have an impact.

The – if you like – unauthorised release of information can have a very significant impact, and that governments are exceptionally determined to put a stop to that. Both on the grounds that it causes trouble, it causes inconvenience, political problems, and also, fundamentally, because it’s against the law and because it involved individuals taking matters into their own hands. And we might all applaud leakers and whistleblowers – the terminology itself tells you where you’re standing – on the basis of what they leak. And you might well look at something, and with your own politics say ‘ah, that’s excellent, that’s really going to help’ – but sometimes people leak stuff for all sorts of reasons. My experience over the years as a political staffer tells me their motivations can be as varied as anything in human or social interaction. Some are high minded, principled, some have done it because they hated their boss.

The best leak, in some respects, that I was involved, in was when I worked for the Labor opposition and was the one involving travel rorts. Laurie Oakes had a spectacular leak – which I can say was facilitated by Brereton’s office – which went to the fact that John Sharp, the Transport Minister, had year in and year out been rorting his travel allowances. Every week at Parliament he had been taking an extra $300 or so and putting it in his pocket. And a person stepped forward and revealed the paperwork on that, and showed that he’d been caught out, had secretly paid back some of the money and there had been a big cover up on it. Laurie Oakes got a big hit; it was a bit like an Exocet going into the Government at the time; John Sharp resigned, the Minister for Administrative Services resigned, the Prime Minister’s Chief of Staff resigned. The whole Department of Administrative Services was abolished – the Secretary and Deputy Secretary lost their jobs – there were bodies everywhere. The funny thing was that although the source was actually quite high minded, they also did it because they hated their boss. And they really hoped that they’d take them out through all the damage that was caused. The funny thing was that when all the rubble settled and the dust blew away, their boss was still standing, and went on to a long public service career. And now, 20 years later, is Deputy Secretary; did quite well.

Motivations are interesting, because they’re highly varied. An example of a couple of years ago; WikiLeaks published the membership lists of the British Nationalist Party – the BNP – a right wing anti Muslim, anti Asian fascist party, basically, but one that competes democratically at elections, has people elected to local council in the UK, in the European Parliament, is a registered and legitimate political party.  Depending on your perspective you may or may not like it, but it was an interesting question about the public interest arguments for publishing their membership lists. It would be an interesting question on whether or not the membership lists of the Labor Party should be published, or the Liberal Party. So it’s often the motivations of people who are involved in the unauthorised disclosure of information, or leaking, or acquiring and publishing it, and what the information is that is significant, and can’t be forgotten.

My own career has taken me on other angles to this. After I worked for the Opposition for a few years, and having been set upon by the Australian Federal Police, I was quite unemployable in Canberra. I eventually decided to leave the service of the Labor Party and do something different, but I could not get a job for love or money. Eventually I had to go all the way to Tasmania, where the only place that would employ me was the Premier’s Department down there – where I moved back into the world of secrets; of Cabinet Government and Cabinet secrecy. I was working on a range of issues; security issues and other things – suddenly I was back in the secret world, so to speak, having been an outsider. I then came back to the ACT, and for a number of years I was the Director of the Cabinet Office in the ACT Government.

The ACT Government has a small five Minister Cabinet. Every Monday I’d come along to the Cabinet meeting, having organised the agenda and the submissions and so forth, and the Minsters would come, and I would sit there as the Director of the Cabinet Office and take the Cabinet notes – which would remain secret for 30 years – do the Cabinet decisions afterwards, get those signed off. I was also a senior FOI decision maker in that period, and I ended up – as an historian for the past 15 years having been an FOI and archives applicant, and having pursued matters to the Administrative Appeals Tribunal  arguing for exemptions and redactions to be turned over – back in the Administrative Appeals Tribunal, arguing for things to be kept secret.  And for Cabinet secrecy to be preserved and for things to be withheld. It was an interesting exercise to be interrogated by barristers as to my justifications for withholding information. I must say, I didn’t lose on a single word.

It was also in that period of being a custodian of Cabinet secrecy that we had some leaks – and we had to call in the police. And I had to brief up the Federal Police, to go and hunt down the leakers (laughter). I did my research, I looked at the article in the Canberra Times, and we looked at the Cabinet papers, and we worked out that it wasn’t the final draft Cabinet submission, it was a draft that had been leaked, because we could look at the text. We looked at the distribution of who had access to it, and then we reflected upon a particular individual who had just had his contract terminated and was probably quite disgruntled. So we said to the coppers: well, there’s a wide range of suspects there, but this fellow’s probably the one you need to go for. So the coppers dutifully turned up and knocked on his door, looking for secrets.

So I have been on all perspectives of this. That was in 2007/8, and the following year I became bored with public service, and through happenchance was lured into journalism, to work with the Canberra Times. I think in about week two of my journalistic career I had quite a nice little scoop – a story about the Defence Intelligence Organisation, Australia’s military intelligence organisation. About three months later that resulted in a second visit by the Australian Federal Police, on my door, once again looking for the source of a leak. On both occasions the observations I would make are, one; if someone knocks on your door  early in the morning, at about quarter to six, it’s probably trouble. They don’t tear your house apart – they just search through meticulously – so if you have a large library of research material and books, you’ll find that at the end of the day, after they’ve been there for about six to eight hours, everything will still be in neat piles – but everything will be in reverse order. It’s like your house has been in a blender. An unpleasant exercise. My other, whimsical observation on that would be that in retrospect – not that I availed myself of the opportunity – if you do have to hide anything, put it in the cat litter tray (laughter). They don’t seem to go there. And they’re usually pretty thorough, but on both occasions they curiously omitted to search my briefcase (laughter). Which is inexplicable, but there you go.

Having been turned over to the coppers a second time, it’s lead me to reflect at length about these issues about access to information. I should also reflect – subsequently in journalism I’ve gone on to do a few other things. I have been fortunate to have developed an association with WikiLeaks. I’ve been the beneficiary of some of their material, particularly the CableGate material, the US cables, and more recently the Stratfor material. I might say something briefly about Stratfor in a sec.

All these things, there’s balance involved. And I’ve sat on both sides of the fence. I’m not a believer in total transparency, I don’t think that’s a world we would particularly wish to live in, either on a personal level, nor do I see it as functional for governments and large organisations. It’s an interesting question; I’m a great believer in freedom of information, and in the last couple of years we’ve had some modest steps forward in this country in FOI, both at a Federal level and in the States and Territories, under the reforms to the FOI Acts. On balance, even though they haven’t gone anywhere near as far as I’d like, they’re a force for good in improving transparency for government, although only slightly .

But it’s interesting what happens when you enhance transparency. For example in the Cabinet process – in the Westminster style Cabinet government that we have in this country – the confidentiality of the Cabinet is a key thing. That Ministers will be able to sit down around the table, talk frankly to each other, arrive at their decisions, but what goes on inside the Cabinet room stays secret – or at least is secret for a very long time. It used to always stay secret, then we had a 50 year rule, and eventually we got to a 30 year rule. Federally – there’s two things, there’s Cabinet minutes which are the formal records of decisions, then you have the scribbled notes – the Cabinet notes. Progressively, as things have opened up, you can see that decision making can shift to other places. Indeed I’ve seen examples of this.

There have been some departures from Cabinet secrecy. In the ACT there’s only a 10 year rule, Cabinet papers are released after 10 years in the ACT. Sure, it’s a little government, sort of State and Local Government mixed in together, but it still makes significant decisions. It’s a 10 year rule, so in recent times you’ve had Ministers in the ACT who were Ministers making decisions that are now being released. But in the ACT they’ve even gone further, like a jurisdiction in Wales in the United Kingdom, they’re now publishing, in the interest of open government, summaries of Cabinet decisions on the web, within a matter of weeks – maybe 2, 3 weeks of actual decisions being taken. And I applaud this, I think it’s a good thing, in that it shows you what government is actually doing. What the highest levels of government are doing, the broad decisions – there’s not a lot of detail – being taken. But of course what happens then is that the decision making then goes elsewhere. Once the Cabinet Ministers realise that the room in which they were talking confidentially is no longer absolutely confidential, they step away from that process and make their decisions in another room, where the public servants and others are not present, and then the decisions get pushed through the formalities of the process. Indeed, I think it’s the nature of governments, the nature of private institutions, the nature of individuals, the desire for space in which to make decisions privately. I can see that is an intrinsic good – most people have an intrinsic value of privacy to some degree, although I think it’s less so in recent times.

But there’s always a balance involved here. My perspective, as a journalist, an historian, a public servant, has been that greater openness, in a broad sense, is good. And I can see that, in a broad sense, in the disclosures that WikiLeaks has made, most notably the CableGate release. Has it changed the world? No, not really. Has it given a lot of people a more informed sense about how the world works? About how governments, in the case of the United States, how it conducts its diplomacy, how it conducts its relations, indeed how many governments the US interacts with – does it give people a better sense of that? I think it does. Is that a good thing? I think it is. Greater openness, in an authorised way, if you like, through FOI, is a good thing.

Also the risk of openness that comes from whistleblowers and leakers is something that is also a good thing, in a broad sense. Decision makers have the possibility, if they think their security is not 100%, if they think there’s a risk that something they are doing will be held up to public scrutiny, just maybe, I think it’s a useful check. That risk element. I’m not in criminology but I have read certain theories about preventing criminal behaviour. The risk of being caught is actually a greater deterrent than actual penalties. It comes with the nature of decision making in institutions that it’s not that people think that what they’re doing will be exposed, because if they know that, they’ll go and do it somewhere else. But if they think there’s a risk, it’s a moderating impact – and by and large in environments where you don’t have public scrutiny of any dimension is where you’re most likely to get corrupt, ill-considered, basically bad behaviour from badly motivated individuals who think that they can get away with it because no-one’s looking.  It’s one of the reasons I have a fundamental objection that in this country our intelligence agencies are exempted from the FOI Act – completely exempted – no appeals, no buts. At least in the United States you can actually go to the CIA and apply for stuff, and you might even get a few snippets. Maybe not much, but something. In this country, absolutely blanket exemption.

So my overall perspective is that more knowledge is a good thing, measured in enhanced transparency. In recent times we’ve had some modest progress. And the thing that I should probably wrap up with in what has been a wayward biographical tour, in the things that I’ve been involved in over the years in terms of FOI, digging stuff out of archives, is the whole business of things that are in the secret domain coming into the public domain. It strikes me that in the last couple of years – in part thanks to WikiLeaks, in part thanks to the campaign for FOI reform that was run by media but also quite a few academics and activists, and a growing sense among a lot of people, at least who are politically engaged, that access to information is important as a key part of pursuing their agendas – be it an environmental NGO or a community group. Often when people are confronted with problems with government one of the things they’ll say is ‘let’s do an FOI on that’ and dig out what are the real reasons for the decisions that have been taken. I find that these sorts of issues, and the whole question of openness of government and of private institutions and business – either by accident or by leaking or hacking or whatever, that this broad cluster of issues is up so prominently in public debate in a way that I haven’t seen in 25 years. I think that’s a profound thing for the good. Just where it will all lead.. It’s not without its costs, I touched upon those, and for the good that may have come from the WikiLeaks revelations there’s a fellow sitting in a gaol cell who is alleged to have some responsibility for that. If that is the case, it illustrates that for whistleblowers and the like the risks are very considerable. If people decide to take matters into their own hands, which is what’s involved with leakers or whistleblowers, the costs can be quite important. The underlying thing is that information is about power, and control of information and access to it is one of the fundamentals in how political systems work. So therefore while there’s a great interest in greater openness, there’s also some very heavy forces that have a very strong vested interest in going the other way, and pursuing those that might reveal things, or clamping down on processes that people might use to extract information.

And on that, I’ll leave you with one anecdote that comes from something I was doing only the other week. Under the new FOI procedures, you don’t have to pay an up front fee for FOI anymore, which is a good thing. And there’s an Information Commissioner that can review things, streamline process, in theory. But about a year ago I put in an application to the Department of Foreign Affairs for various diplomatic cables relating to WikiLeaks. You are supposed to get a response in 30 days. They came back to me after 30 days saying we need another 30 days. I was quite agreeable, I said, I’m a former FOI decision maker, I understand these things take time. Then they came back and said, it’s very difficult, we’ve got to consult with various other agencies, we need another 30 days. So we went through that. Then they came back and said no, sorry, it’s going to take much longer, we’re going to have to apply to the Information Commissioner for more time, and we’re going to charge you $5000 for access to the information. But you can appeal on public interest grounds to have that fee waived. So of course, being a journalist I wrote a long, carefully constructed letter that said it’s public interest to put this out.  They then waited the mandatory 30 days, and then replied on the 30th day to say no. I then applied for an internal review. They then waited another 30 days and then said no. I then had to go off to the Information Commissioner. The Information Commissioner is overwhelmed with applications, there is a huge backlog that was then considerable – now I think it’s running to about 4 months before you get a response from the Information Commissioner on whether or not they’re going to consider your issue. At any rate, that went to the Information Commission, they argued it out, they eventually dropped the fees down to about $800. They then said they needed more time. The Information Commissioner reluctantly gave them more time. They then ran over that deadline. They then wrote to me and said we’ve run over the deadline, we’re not going to charge you the $800, but we still need more time.

And then eventually, I think it was about 10 months after the original application, they coughed up a large amount of material, about 2000 folios. Of course, there was a lot of black. A lot of excised out parts. But there was still some useful information and I got quite a nice story out of it, which showed that they had a very good knowledge that Julian Assange was the subject of a very substantial criminal investigation in the United States and that there was most likely a secret Grand Jury process going on to pursue him. The Australian Government asked about that, but the Americans said we won’t tell you, and the Foreign Minister, then Mr Rudd, phrased an answer in Parliament that they had no ‘formal advice’ that he was being pursued.  And then in the last week we find that the director of Stratfor, who has pretty good connections to the Justice Department, saying ‘oh no, secret indictment, we hope to bang him away for so many years’. All this little episode shows is that governments are extremely reluctant to release information that has any embarrassment or difficulty, extremely quick to come down hard on those that might cause some trouble, but on the other hand, a reasonable amount of progress has been made and maybe there’ll be more in the future.

About Cassie Findlay

Digital recordkeeping, archives and privacy professional, co-founder of the Recordkeeping Roundtable. @CassPF on Twitter.
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