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Thursday, March 08, 2012

FOI protection for Victorian Blue books set up well ahead of 2010 election

Melissa Fyfe of The Age was unsuccessful in a challenge in the Victorian Civil and Administrative Tribunal to the refusal by the Department of Sustainability & Environment (DSE) to grant access under the Freedom of Information Act to the Departmental Status Report (DSR) and the Policy Implementation Action Plan (PIAP) prepared for the incoming government in 2010. Along similar lines to what was done in NSW and South Australia to protect these types of documents, the grounds for refusal were set in place earlier that year when the Department of Premier and Cabinet issued guidelines to agencies that stated the purpose for which they were to be created included to brief the Premier on an issue to be considered by cabinet.

At Commonwealth government level where significant disclosure of the incoming government briefs by agencies voluntarily occurred in 2010 after the Federal election, those documents were prepared for the incoming minister. Agencies would not have had the cabinet exemption available in those circumstances. As possible exemption grounds other than cabinet documents such as deliberative process involve a public interest test with strong pro-disclosure elements, most agencies chose to voluntary disclose a redacted version of the brief. And contributed in many instances to informing public discussion and debate.

In Victoria from the time well before the election when the guidelines were issued by DPC, the documents regardless of the content or how they were eventually used were protected from disclosure under FOI. Of course the Premier and ministers retained and still retain the discretion to disclose such documents outside the confines of the FOI act. While they may (for obvious reasons) want to withhold PIAPs unless compelled to disclose, why DSRs need to be locked away from public scrutiny for years is less clear.

 The guidelines issued by DPC said (emphasis added):
A ... DSR is a document that sets out for the information of the Premier the current status of the department. The Premier may also provide the DSR to the relevant minister. ... The DSRs are prepared in confidence for the consideration of the Cabinet and will be presented to Cabinet by the incoming Premier ... preparation of DSRs ... should be in strict accordance with guidelines for document and information security relating to Cabinet in confidence information. ... If the Coalition is elected to government, the incoming premier and ministers are given the Blue Books. PIAPs provide advice to the incoming premier on how a particular policy can be implemented. ... PIAPs are ‘Cabinet-in- Confidence’ documents and must be treated as such.
Documents prepared for the purpose of  briefing the Premier (or a minister) on issues to be considered by cabinet are exempt under s 28(1)(ba). Senior Member Procter listed the relevant principles [30] and concluded:
  1. The dominant and one of the substantial purposes to which the DSR and PIAP were created was to brief a minister (the incoming Premier, should the Coalition gain office) in relation to issues to be considered by the Cabinet.
  2. That purpose permeated the Public Service’s actions in early 2010, commencing a complex process to prepare for a potential change of government or the re-election of the current government. When the new Government was elected, within a very short time, senior officers of DPC held a meeting with the new Premier and his staff at which the Blue Book was handed to the Premier for consideration by him and presumably his staff with the expectation that he would consider using the documents to brief the new Cabinet. The documents were also created for another purpose, being to eventually reach the minister of DSE once appointed. However, that purpose does not displace the dominant purpose.
  3. The dominant purpose led to the documents being created in a generic form across government departments in the manner which they were created. It appears likely that if DSE prepared the documents to brief its new minister, they would have taken a very different form, likely allowing for more detail. Perhaps they would not have been called DSR or PIAP.
  4. The DSR was written to brief the Premier, as the chair of Cabinet, to:
    1. consider and determine the appropriate structure of Cabinet subcommittees having regard to the resources available and issues facing the Government; and
    2. provide the necessary context in which decisions in Cabinet can be made.
  5. The PIAP was written to brief the Premier to:
    1. inform him of issues likely to form part of the Cabinet agenda;
    2. provide advice on issues connected with the incoming government's pre-election promises, in anticipation that they will be discussed in Cabinet shortly after its establishment; and
    1. provide an informed assessment of pre-election promises that can be considered by Cabinet for the purposes of determining what its position ought to be in government.
  6. While it was ultimately up to an incoming Premier to decide whether to in fact use the documents to brief a new Cabinet, the purpose at the time the documents were created was formed with the realistic expectation that the documents would be put to Cabinet to consider issues raised in them. They were not intended to be placed before Cabinet only for information purposes.
  7. The Age submitted parts of the documents should be released under section 28 (3), if they contain purely statistical technical or scientific material the release of which would not involve the disclosure of any deliberation or decision of the Cabinet. With Macnamara DP’s discussion of section 28(3) in Mildenhall No. 1 8 VAR 1995 284 at 293 in mind, I have reviewed the documents and find no such information.

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