Red book questions, FOI answers

 During Senate Estimates hearings on Monday (Finance and Public Administration), Opposition Senator Cormann asked officers from the Department of Prime Minister and Cabinet (F&PA 38) about Freedom of Information requests received for the incoming government brief. The issue was taken up later by Senator Abetz (F&PA 52).

Applications have been received from the Seven Network and the West Australian, the first two months ago, but no decision on release has been taken. Each applicant has been told the important news first, that access would cost them $3740.80, and no splitting the cost between them should they each proceed. No one appears to have raised with the PM the question of publication of parts of the brief in line with the Treasury and Finance precedents, or pointed out how this might usefully contribute to public debate on matters of public interest-even on the topic of open government. Officials and the minister at the table were strongly attached to the idea that precedents set by others mattered not a jot, and that a departmental officer independently would make a decision on the applications free from ministerial direction. Sounds good, except the questioners were right to point out that the Prime Minister could simply direct that parts of the brief be published thus providing access at no cost and presumably to anyone interested.

That would be in line with her stated commitment to a new style of openness in government. And send a message to help with that transformation from 1 November that Australian Information Commissioner Designate McMillan spoke about earlier in the week.

Some of you just love your FOI and the cut and thrust of Estimates as well. For you, extracts follow:

Senator CORMANN—Thank you, Mr Chairman. Just by way of an opening question, have you received an FOI request for the Prime Minister and Cabinet department’s incoming government brief 2010?

Dr Southern—Yes, Senator, we have.

Senator CORMANN—So can you tell us from whom?

Dr Southern—We have received two requests, one from the Seven Network and one from the West Australian newspaper.

Senator CORMANN—And when were those requests received?

Dr Southern—We received the request from the Seven Network on 25 August and the request from the West Australian on 21 September.

Senator CORMANN—Have you made a decision on either application?

Dr Southern—No, we have not.

Senator CORMANN—So have you gone through a preliminary consideration?

Dr Southern—Yes, we have.

Senator CORMANN—And what was your preliminary consideration?

Dr Southern—Our preliminary consideration has been in relation to charges in relation to the request. So we have done a preliminary assessment of how long we believe it will take us to reach the decision on these FOI requests and have advised the applicants of those charges.

Senator CORMANN—So how long would that be, and what would the charges be?

Dr Southern—In relation to the charges, we have written to both applicants advising charges of around $3,700.

Senator CORMANN—That is $3,740.80.

Dr Southern—Correct.

Senator CORMANN—For both of them, the same?

Dr Southern—For both of them.

Senator CORMANN—And so is that half the cost that it takes to process it, given that there are two of them that are chasing the information, or is that the cost for the whole process, twice over?

Dr Southern—Could you just let me get that detail for you, Senator. I am hoping it is half each. I am advised that it is the whole cost for each of them, and it is on the basis that one or other of them might withdraw at any time.

Senator CORMANN—So I assume that you are aware that, following an FOI request, both the Treasury department and the Department of Finance and Deregulation released the incoming government brief 2010 without charge?

Dr Southern—Correct.

Senator CORMANN—So what is the reason for a different approach?

Dr Southern—It is entirely a matter for individual decision-makers under the FOI Act as to whether or not they will impose charges.

Senator CORMANN—But this is the Prime Minister’s department, and the Prime Minister has asserted on a number of occasions since the election that this is a new era of openness and transparency. How does that fit with that assertion—the fact that her department takes a much less open and transparent approach to these things than the Treasury and the finance department?

Dr Southern—I do not believe it goes to questions of openness and transparency. It is simply applying the FOI Act as it stands and deciding in these particular circumstances that we will impose charges for processing the requests.

Senator CORMANN—But you could waive them, couldn’t you?

Dr Southern—We could waive them and, indeed, the applicants have recently come back to us seeking a decision on whether the charges will be waived, and that is under consideration at the moment.

Senator CORMANN—So are you aware that the finance department returned the $30 cheque which went with the FOI request from the West Australian to them?

Dr Southern—I did not know that, no.

Senator CORMANN—It seems to be somewhat inconsistent. Has this been raised with the Prime Minister or anybody in her office?

Dr Southern—We talk broadly with the Prime Minister’s office about requests that come to the department, but it is a matter for the department to decide. The decision maker is in the department.

Senator CORMANN—I have to say that this does not sound like openness and transparency to me, Minister, and if I were you I would take some steps and talk to the Prime Minister and get the Prime Minister to direct her department to lead by example, quite frankly. This is 25 August. It is now nearly two months since the request was made, and it has not been provided yet. Treasury and Finance have acted quicker and have also waived the cost, which, of course, is an inhibiter in terms of getting access to this information. Minister, I think that you should raise this with the Prime Minister and seek the Prime Minister’s direction to

her department to get this information released as soon as possible.

Senator Chris Evans—Senator, you are right: you are not me. While I appreciate your gratuitous advice, I will not be taking it. The point is, as the department made clear, that they will operate under the FOI Act. They will respond in the normal way. It is the role of the delegate inside the department to make those decisions. You asked about how that is proceeding. You have been advised how the—

Senator CORMANN—The buck stops with the Prime Minister.

Senator Chris Evans—Senator, you ought to go and read the FOI Act, then, if you think that is the case. But all I can say to you is that, as the officer advised you, they will be following through on the normal procedures in dealing with FOI requests. That is operating without political interference, as it should do. What the individual departments decide to do is obviously up to those individual departments and, as I understand, there has been a variance in terms of responses. But, in terms of the Department of the Prime Minister and Cabinet, they are applying the act and following the normal procedures and in due course, no doubt, the delegate will make the decision.

Senator CORMANN—Minister, how can you justify that the Prime Minister’s department charges $3,740.80 and takes nearly two months now to make a decision on the substance of it when both the Department of the Treasury and the finance department released these things promptly and without cost? Surely the Prime Minister, given all the lectures we have had about a new era of openness and transparency, would take a very close interest in this. Surely the Prime Minister, who would have an opportunity here to lead by example, would ask her department to follow the lead of Dr Ken Henry and the secretary of the finance

department.

Mr Lewis—Senator, if I might, I just want to clarify the point and ensure that it is understood that the decision with regard to the recovery of costs is entirely a matter for the decision-maker and that individual, an official, must operate with complete freedom. I am not saying that it is necessarily the right outcome, but it would not surprise me that we would have different decisions made by different individual decision-makers. But that is in accordance with the way the act operates.

Senator CORMANN—If the Prime Minister were to give an indication to the department in a general sense—or in fact to the government as a whole, because I am sure that the same issue will arise with other departments—and expressed a view that, as far as incoming government briefs 2010 are concerned, they are consistent with the practice adopted by Treasury and Finance that there should not be a charge and they should be released promptly, would you as a department take note of that or would you just ignore it and still make your own separate decision irrespective of what the Prime Minister’s wishes might be?

Mr Lewis—Currently that would not be in accordance with the provisions of the act.

Senator CORMANN—No, that was not my question. If the Prime Minister made it known that she was not only comfortable—

Mr Lewis—That is speculation. I am just trying to clarify what the act—

Senator CORMANN—But that is my point, though. I want to assist you, because I think that you are left here holding the baby as a department, quite frankly. If the Prime Minister were to advise your department and the government as a whole that she wants these applications to be dealt with promptly and costs to be waived, I am sure that the government would take notice of that and individual departments would take notice of that.

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Senator ABETZ—Chair, may I quickly backtrack to the FOI request that Senator Cormann raised. Whilst there is the FOI process to be gone through, the FOI process is in no way

prejudiced or diminished if the Prime Minister herself were to exercise a judgment and say, ‘This documentation can be made available free of charge to those requesting it.’ That is correct, isn’t it?

Senator Chris Evans—We traversed this ground. The question is in relation to the FOI applications. Those decisions are made by individual decision-makers in the department on a case-by-case basis, not by politicians. The process is proceeding. The question of whether or not they are charged the 3½ thousand dollars or so is being considered by the department. Those decisions will be made in due course and the documents will be considered in the light of the act, and that is the way it should be.

Senator ABETZ—Thank you for all that, but it does not answer the question as to whether the Prime Minister could, of her own volition, make available the document sought under FOI without in any way subverting the FOI process.

Senator Chris Evans—Consideration would have to be given to all the issues. For instance, in a portfolio like PM&C there is national security briefing material et cetera. All of those things will be considered properly under the FOI Act application procedures, which is why the act was designed in that way.

Senator ABETZ—But the Prime Minister could, as indeed any minister could—even if the departmental advice is not to release a document—release it if they so chose. There is nothing under the FOI legislation stopping that, is there?

Senator Chris Evans—I do not know. But—

Senator ABETZ—What about the officials? I accept you do not know, Minister.

Senator Chris Evans—The FOI Act is an act of parliament and it sets down the procedures. It is deliberately designed not to be beholden to decisions by ministers, as I understood it.

Senator RYAN—It is not exclusive.

Senator ABETZ—No; the idea is that the minister does not intervene to stop the production of documents, is it?

Senator Chris Evans—That is right.

Senator ABETZ—So if the minister sees no difficulty, why doesn’t she release it, given it is already out in the public domain anyway, isn’t it? National security, I think, would hardly be an issue here to exercise the cerebral processes of the Prime Minister.

Senator Chris Evans—I am not sure what—

Then onto other things...