Treasury took the lead in October with the unusual step of posting a notice of determination refusing access on its disclosure log , presumably for the purpose of getting the word out and around. Other agencies followed suit in a complete about turn from 2007 where some had released parts of briefs and 2010 when just about every agency pro-actively published more substantial segments, significantly contributing to public understanding of issues facing government.
In Senate estimates last week ALP Senator Dastyari did some probing about the shift in gears at Finance and how the 2013 decision was reached. Finance released 18 pages of innocuous material on Christmas Eve. That was something of a difference - others ran the argument that the entire document was exempt and had to be withheld.
Finance Minister Cormann said the decision was nothing to do with him:
"I have no involvement in these sorts of decisions or in the timing of the announcements. What I get as a courtesy is regular notification on what FOI requests are pending, and I get regular updates on what releases have been made, but I have absolutely no involvement in any of the decision making whatsoever. I essentially get provided with information for noting.Secretary Tune explained he had decided to publish a redacted version in previous years but this time the ball had been passed to Deputy Secretary Connell:
I guess the second time around I thought we should take it right through the FOI process and have a look at it in a proper way. I accept that prima facie it looks like an inconsistency. But the first time I might have jumped the gun a bit, and the second time we decided to follow due process in full.Deputy Secretary Connell ran through the decision making process: no, there had been no external advice "at all", only input from the internal legal team. It was her decision. After it had been taken she advised the Secretary "for noting."
Ms Connell stood by her previous answer that no external advice had been received. This was not advice about the FOI determination. She had received the email
Treasury had broadcast its decision to the world and AGD had circulated their version to dep secs around Canberra (it is here (pdf) dated 8 November). I imagine the Finance internal legal team, if not Ms Connell were keeping close tabs on developments, heartened by the Australian Information Commissioner's decision in Crowe."...in my role as deputy secretary and not as decision maker. It was general advice that was sent out to a number of my colleagues. The key piece of advice in here goes to the heart of the policy advice we do receive often—that a decision on whether or not to release a particular document or particular information is a matter for the decision maker to consider. So I became decision maker for a similar request, I think, and I made a decision some seven weeks later, but I did not consult, I was not directed and I did not engage with other decision makers when I made that decision.
So no surprises about the take up in Finance and elsewhere of the argument that disclosure would endanger the development of a trust relationship with the minister, mean public servants in future would offer limited bland rather than frank honest advice, and operations of the agency would suffer substantial adverse effect.
And I'm sure it had nothing to do with the fact that keen judges of such things across the public service could detect changing tone at the top. For example in 2010 then shadow finance spokesman Andrew Robb, who prior to the 2013 election looked likely to be Finance minister but took Trade, had said the public service briefs prepared before that election warranted state secret status, if a public service 'down tools" was to be avoided:
''The red and blue books are fundamental to successful transition to government, and that's another important plank of convention in the way in which our government runs,'' he said. ''That material is based on frank and fearless … advice by the public service, and if they thought that could become public knowledge, they would not conduct that sort of assessment again.''The long Q&A in Estimates here for the buffs:
Senator DASTYARI: Ms Connell, was any guidance provided by PM&C or any other department on how to handle these? I imagine these were the same FOI requests that were given everywhere, so was there a standard government response to determine how the response was going to be made? Did AG's or PM&C provide advice to everybody?
Senator DASTYARI: Yes, I wanted to follow up that matter, Ms Connell, but I will give you a chance to say your piece.