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Transparency is at the heart of modern democracy. Transparency in relation to how government makes decisions and develops policy is particularly important. It underpins accountability, combats corruption and enhances the ability of the public to participate in democratic processes. In Australia one way to access this information is by making a request under the Freedom of Information Act 1982. However, this right of access is not unlimited, and the effectiveness of Freedom of Information (FOI) law depends in key ways on public servants, who are responsible both for creating much of the material upon which FOI law ‘bites’ and for deciding whether it should be disclosed according to the legal framework. Little is known about how public servants approach these tasks. This thesis, therefore, explores how Australian Government public servants respond to freedom of information (FOI) requests for documents showing the ‘thinking process’ of government. This thesis uses doctrinal analysis, an FOI case study and interviews with public servants and other key figures to examine the factors that influence FOI practice and decision-making. Through the lens of organisational theory, it recognises that FOI decisions are not made in a vacuum and may be influenced by the context in which they are made as well as by the law. This thesis concludes that the way that public servants interpret and apply FOI law is influenced by a combination of factors, including the legislative framework, cultural norms and values and the principles of Public Value Management. This thesis finds that in some cases, the legal obligation to disclose thinking process material is viewed as ‘out of step’ with the values, norms and working practices of public servants. In such cases, public servants have found ways to work around the legislation. This thesis concludes, therefore, that current FOI law is a ‘myth’. It is symbolically important as a way of representing the Government’s commitment to transparency, but is in practice an ineffective tool for promoting the disclosure of thinking process material.

The elevation of access to government-held information to the status of a human right has driven a pro-disclosure discourse around freedom of information law. However, rights of access do not exist in a vacuum and must be balanced against the need to protect competing rights and interests. The true purpose of Freedom of Information law, therefore, is not to promote disclosure but to promote the greatest possible disclosure that is consistent with the protection of competing rights and interests. Taking this as a starting point, this thesis examines a number of amendments that were made to the Freedom of Information Act 1982 in 2009-10 and considers their impact upon the disclosure of deliberative documents. It concludes that in some areas - the addition of a new objects clause and some changes to the public interest test - the legislation promotes disclosure to a greater extent than is consistent with the protection of competing rights and interests. However, in other areas - the abolition of conclusive certificates and the reduction of fees and other procedural barriers to access - it is not clear that the changes to the legislation promote disclosure to the greatest extent possible consistent with the protection of other rights and interests.