The media demanded Freedom of Information reform — and John Faulkner gave it to them. In spades.

A series of articles by the Herald Sun’s Ben Packham yesterday has given an insight into what FOI will look like in the future when the the Government abolishes conclusive certificates, drops access charges, and establishes an agency within the bureaucracy to police departments’ willingness to operate in the new spirit of openness.

But the new era of transparency and openness sought by the media (and most prominently by the News Ltd dominated Right To Know Coalition) comes with an unexpected complication: now everyone can play. Faulkner has changed the rules of the FOI game by removing the exclusivity that is part and parcel of the way the media currently reports the few documents it squeezes out of the existing system. Anything anyone FOIs will — under the new regime — be made available to everyone else.

Packham’s two-page spread, under the title “Our Immigration Secrets”, was based on an FOI request for the Department’s “Over The Horizon” documents, which are a sort of dot-point heads-up for the Minister on significant issues. Many Departments have variations of them, in which each division regularly identifies current and emerging issues, sometimes for Monday morning executive “prayers” meetings, or for Ministers, or both. Much of the time they are bureaucratic filler, particularly if division heads feel the need to advertise their importance by packing in as many issues as possible regardless of their triviality. But they will include major areas of concern and even references to forthcoming Cabinet submissions. Packham cleverly FOId all of them since the Rudd Government came into office.

The old Freedom of Information Act still applies, but while the reforms initiated by John Faulkner work through Parliament, the Government determined not to use conclusive certificates any more and Faulkner, who has since moved to Defence, also wrote to Department heads at the end of April. He asked “secretaries and agency heads to take a lead role in facilitating the Government’s policy objective of enhancing a culture of disclosure across agencies. This includes making it clear to FOI decision makers in your department or agency that the starting point for considering FOI requests should be a presumption in favour of giving access to documents.”

As a consequence, some agencies are now applying the Government’s FOI reform measures even though they are yet to be passed.

In the old days, Packham’s request may have been vetoed using a conclusive certificate, or the documents heavily edited. Under the new spirit of openness, he was given a truckload of documents.

The Herald Sun is claiming victory. “The Herald-Sun Right To Know campaign has brought about an unprecedented release of information from the Rudd Government,” an editorial accompanying Packham’s articles said. That might be a little unfair on other members of the Coalition, including other News Ltd publications, but anyway.

Faulkner’s Freedom of Information Amendment (Reform) Bill 2009 however has a little catch. There’s a new section, 11C, to be added to the FOI Act that requires agencies that have provided material under FOI applications to release the material publicly within 10 days of giving it to the applicant, or provide information as to how it can be obtained.

Which means successful applicants will have no exclusivity for the documents they have obtained. Anyone else will be able to get the same documents the moment they are given to the applicant or the moment an article appears based on them.

Crikey understands that The Australian took advantage of this to immediately obtain copies of all the documents obtained by the Herald-Sun. Watch out for Immigration stories in The Oz in days to come.

There’s a sound public policy rationale for allowing universal access to documents. By making documents available to everyone, it will undermine the “gotcha” approach to FOI, in which the media uses perfectly ordinary debates within Government, or varying advice to Ministers, as evidence of a Government rent with division or Ministers acting contrary to advice. But it also looks like John Faulkner insisted on taking the Right To Know Coalition at their word, and ensuring that the bill requires that everyone has a right to the same information.

For any journalists thinking the FOI reforms would lead to an Aladdin’s Cave of government secrets, the penny will now be dropping that everyone else has got simultaneous access as well.

One journalist with some experience of FOI suggested that successful applicants would argue to Departments to keep the documents in-house for a limited period short of the 10 days so that they could consider them properly and talk to the Ministers concerned. It would be in the interests of Ministers and agencies to ensure journalists can have the time to prepare more considered analysis, the journalist said.

The new openness is likely to have a snowball effect as released documents point the way to other documents and FOI requests multiply. The Herald Sun documents, for example, would point to any number of other FOI-able material. The resource implications of this for the bureaucracy are potentially significant. Some agencies may find a single FOI officer is no longer sufficient to handle the volume of requests that will start to flow.

And then there is the requirement in the reform Bill that, separate from FOI, Departments start releasing a lot more information about their activities, and have a plan to do so. Government agencies already produce reams of material every year via annual reports and compliance with a variety of reporting obligations. That is set to expand considerably under the FOI reform bill.

Departments will have to either adjust to the idea of seeing most of their advice to their Ministers out in public, or find an alternative, less-documented means of briefing Ministers. The Department of Immigration is unlikely to still be including anything sensitive in its “Over The Horizon” briefing to Chris Evans. Other Departments are probably reconsidering their own, similar documents, right now. Even in the new era of openness, old habits die hard, and there is much that both Ministers and the bureaucracy would prefer never see the light of day.