Blue Book non-disclosure in NSW:behind the scenes

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Those who followed developments concerning access to incoming government briefs-the red and blue books- in Canberra following the 2010 election, and more recently in some of the states -will find the contents of a bundle of documents posted online in the NSW Department of Premier and Cabinet Disclosure Log  in December of interest.

The documents DPC11/03467(pdf) were released to a GIPA applicant (I'm guessing the Daily Telegraph given this report in December) who sought access to documents provided by the Department to the Premier's Office after last year's election, the period from March until November 2011, in relation to access applications made under the GIPA act.

Question time briefs prepared for the Premier suggest what he might say if asked in Parliament about the refusal to disclose any of the incoming government folders, and provide him with other background information, including as some of us said in March, that the Premier could direct disclosure outside the act should he wish to do so, something that never happened.

One undated brief informs the Premier that the Department was reviewing its decision to refuse access in response to a GIPA application, in line with a recommendation from the Information Commissioner that all agencies should do so. (NSW Government Blue Books (pdf)). The only evidence of any result, in this batch of documents, are pages 88-89 from the Departmental Support Services section of the folder, about tabling procedures in parliament, GIPA processing and the registration of lobbyists scheme- they don't come any more bland. (A search on the department's website for "incoming government briefs" produces nothing from the folders at all.)

 Fifty four of the 97 pages consist of weekly lists, through to September 2011, of GIPA applications received by and on hand in the Department-a first glimpse of a full list of what applicants seek. One of the briefing notes confirms that the Premier's office is only notified of a departmental determination after the event, but these lists show that detail about applications is known long before that, with applications from "the media" (no names or other details) categorised and distinguished from the rest.

On disclosure of what government agencies told their new masters and mistresses as they slid feet under the desk, compare and contrast NSW -virtually nothing-with significant if far from complete disclosure of similar documents by 13 or more federal government agencies including those bastions of closely guarded information, Treasury, Foreign Affairs and Defence. To repeat, poor form for a government that came to office indicating improvements in transparency and accountability were a high priority.

(Update: Stephen Murray in a comment on this post draws attention to the release of parts of four volumes of the folders-there are others- on the Premier's department Disclosure Log (a bit of digging on page three) following release, he says to the Australian Financial Review. His analysis of the content is worth reading. To summarise:
"So, what has now been released is an amalgam of mission statements, corporate plans, handbooks and guidelines along with a seeming dump of the combined contents of departmental Outlook Contacts and Appointments: more “Bland Books” than “Blue Books”.)

Or as the South Australian Ombudsman, bound by the legislation there to rule that incoming government briefs were cabinet documents exempt for the same reason as in NSW, but where unlike NSW, agencies retain a discretion to disclose, commented:

In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind

As to the bundle of Premier's department documents, there is no index or content list but here is what it contains, in order, with some comment along the way:

A1: Material used in a short training session for DPC staff.
Comment-pushes the right messages, nothing remarkable here.

A2: Extract from Ministerial Handbook June 2011-ditto

A3: Powerpoint presentation to ministerial staff on Probity and Accountability-ditto

A4:Ministers' staff training materials from Office of Information Commissioner-ditto

A5 (33/97): Question time brief: Incoming Government Folders May 2011-if asked about public access, the Premier is advised to emphasise the "important long standing convention" of confidentiality and given some ammunition to make the point.

Comment: In the background note, not in the recommended answer, the Department advises that as cabinet documents, the folders are covered by an absolute non disclosure provision in GIPA, and that the act prohibits ministerial interference in departmental  decisions. Not spelled out is that that the the Department made sure the documents would have cabinet document status by sending an instruction circular to agencies before the election that the folders were to be prepared for submission to cabinet. That was all that was needed. The background note again, not the recommended answer, tells the Premier that he or the cabinet may approve public release of the folders. The Premier didn't act on this.

A6: Question time brief on the related issue of ministerial involvement in GIPA decison making May 2011-covers similar ground.

A7 (37/97): Question time brief: Confidentiality of Incoming Government Briefings, undated-suggests the Premier maintain the line, but that he mention that the Department and other agencies have refused access applications, and those decisions have been subject to review by the office of Information Commissioner.

Comment. In the background note, not in the suggested answer, the Department says that as part of that review the Office of Information Commissioner in September 2011 "recommended that the agencies reconsider their decision to refuse access..and consider releasing some of the material-such as material that is solely factual material. The Department of Premier and Cabinet is reviewing its decision in the light of the Office of Information Commissioner's report and recommendations."  Just what happened as a result is unclear.There only subsequent reference in these documents is that two pages from the folder that certainly fit the description "solely factual" appear as A9. (Update- thanks to Stephen Murray for the alert that parts of four volumes-there are others- released in December are here, but be sure to read Murray's comments as well.)

A8 (39/97): Question time brief: GIPA Applications made to DPC, undated. Advises the Premier, if asked about what information is provided to the Premier's Office about GIPA applications, to respond that the Department provides the office with a copy of a determination once it is made for information only, and that neither the Premier or his office have any role in determinations made by the Department or other agencies.

Comment: the background note provides additional information about the number of applications received over the year, and decisons to grant or refuse access. In December the Daily Telegraph ran this story, somewhat off the mark regarding claims to have discovered a new system " to ensure secret tip-offs about public efforts to access embarrassing government information."

A9 (41/97) Two pages ) from the 2011 Incoming Government Brief (88-89) containing factual information about tabling documents in Parliament , GIPA and the Lobbying Code Of Conduct. No briefing note or other accompanying material.

Comment: That's it for "solely factual information"?? Perhaps these pages only included here because of relevance to the GIPA application, but there is no sign of release of anything else about the Department or the state of the state in March 2011.
 

B1 (43-97): GIPA Applications received-Department  of Premier and Cabinet- through to September 2011.

Comment: interesting micro-detail about what applicants ask for from Premier's, all categorised as General or Media. A nice heads up for the Premier and his staff-who hopefully stick to the non interference rule. I'm sure they read the Ministerial Handbook (A2)  -Ministers and Ministers' offices are not entitled to be provided with draft access determinations; agencies must not provide them or seek advice or comment from the Minister or the Minister's office about determinations that have not been finalised) and even more importantly, the material provided by the OIC(A4) (it is an offence under the GIPA act for any person to act unlawfully, direct an unlawful action or improperly influence a decision)