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Monday, March 03, 2014

Incoming government briefs:psst, go for 'frank and fearless' and pass it on.

No-one who follows these things closely would be surprised that public servants were tick tacking about the Freedom of Information applications received for the incoming government briefs prepared for Abbott government ministers at the time of the September 2013 election.

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."

Senator Dastyari later in the session tabled an email to Deputy Secretary Connell from the Deputy Secretary of Attorney General's Department David Fredericks presumably providing her with a copy of his decision to refuse access.

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
"...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.
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.

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?
Ms Connell : Only the interpretation of the act, as they generally do. They provide guidance to assist agencies in the interpretation of the act. But on these particular FOIs there was no direct advice given.
Senator DASTYARI: Were there any kind of discussions, informal perhaps? I imagine everyone got the same FOI request, as I am sure you are aware. It is not like this was a Finance-specific matter. I do not have the wording of the FOI request, but I anticipate that it was quite a general incoming government brief to the department. It just strikes me as a bit hard to believe that everybody came to the exact same conclusion, that there was no discussion no information, no centralisation of government approach on what was going to be released. Did AG's or anyone show you what they were releasing?
Ms Connell : I had no conversations with other decision makers in other agencies. I believe agencies did take slightly different approaches in releasing this information. That is my understanding. But I certainly had no discussions at all with other decision makers.
Senator DASTYARI: Did you seek any informal or formal advice from the FOI commissioner and/or the office of the commissioner?
Ms Connell : The only advice I sought was from my internal legal team, who are skilled at interpreting the act. It is a rather large act, so I do engage with them to help me with that interpretation. But beyond internal advice, no; there was no external advice at all.
Senator DASTYARI: Secretary Tune, again, I am not sure what the protocol is here, but is that information that we can request? I cannot see that as being advice to government, so is that information that we can request?
Ms Connell : It is more verbal advice—helping me understand the interpretation of the act. Decision makers do not do them regularly. We do them from time to time, so I often talk with the legal team to help me with that interpretation.
Senator DASTYARI: So, the legal team gives you an interpretation.
Ms Connell : They assist me with an interpretation.
Senator DASTYARI: You are the primary decision maker.
Ms Connell : Correct
 Senator DASTYARI: You then notify Mr Tune.
Ms Connell : I liaise with my peer adviser, initially—who was another deputy, on this occasion. And once the decision is made we send it through to the secretary for him to note.
Senator DASTYARI: And then does the secretary notify the minister before making it public? How does the process work?
Senator Cormann: I was wondering how long it would take you to get to that. So let me make it very clear so that there is absolutely no doubt. 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.
Senator DASTYARI: No, there was not an implication there.
Senator Cormann: I just thought I would put it beyond doubt.
Senator DASTYARI: I will leave it at that, because, I have to say, Secretary, you have been very honest and frank about this, and I thank you. I just do have to say—and again, this probably is not a question; it is more of a statement, so I apologise—
CHAIR: I don't know that we need a statement, Senator Dastyari. This is about questions. You can put out a press release.
Senator DASTYARI: I do have to say that it is very difficult for us to understand why, in a period of a few years, you felt it appropriate to go from what is a detailed information brief—which, appropriately, does have things retracted; it was not as if you were exposing information, and I assume this went through a legal process whereby you got this checked off by the lawyers in terms of what you could and could not release—
Mr Tune : No, it was more judgemental, because it was not following the FOI procedures per se. They were sort of in the background. But the choice of retractions was essentially mine.
Senator DASTYARI: I just feel that, having made that decision, it is highly inappropriate—I guess I put this to you—to then make a completely different inconsistent decision, which to me does not seem to be based on any factual basis other than—
Senator Cormann: I think that the secretary has explained that now in some great detail. Essentially, he changed his mind. That happens.
............................
 Senator DASTYARI: Ms Connell, I just want to give you the opportunity over the break to come back and perhaps amend one of the pieces of evidence that you gave this committee a bit earlier.
Senator Ronaldson: Hang on. You are alleging that the officer had given evidence that was not correct.
Senator Ronaldson: Can you please put a matter to them.
CHAIR: Minister, it is about reconsidering evidence. That would be the appropriate term.
Senator DASTYARI: I am actually trying to do the right thing. Ms Connell, again, this is not remotely trying to be a kind of 'gotcha' thing. I just want to give you the opportunity. At no point am I implying that there was an intention to mislead or anything of that kind. When we had the conversation earlier, I asked quite clearly whether there had been any correspondence or discussion of that kind between any department and Ms Connell as to how to treat the FOI evidence that you had decided to do.
I will table an email here, which is addressed to you from David Fredericks—the deputy secretary in the Attorney-General's Department—outlining the decision of the Attorney-General's Department, which I think alters some of what you had said to us a bit earlier in terms of whether or not there was any kind of correspondence coming from a central government process. 

............................ 


Senator DASTYARI: Yes, I wanted to follow up that matter, Ms Connell, but I will give you a chance to say your piece.
Ms Connell : I am comfortable with the evidence I gave earlier. My recollection of that—if I can just recap, because I do not have the transcript—is I did say that we do receive advice on the interpretation of the FOI Act from time to time—
Senator DASTYARI: No. I did go and check this, and I asked you in as many different ways as I could. I think I asked you four or five different ways. There were four or five different opportunities. It was not something we just skated over; it was something we went into detail with. Your evidence was, firstly, that you did not receive any direction; secondly, that there was no communication; and that, while from time to time you did get advice, you did not in this instance.
Ms Connell : Correct. So this email that you have provided to me, I note, was sent to me 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.
Senator DASTYARI: Okay. Ms Connell, I am giving you an opportunity here to clear the record, and not taking the opportunity to do so, I think, is what is concerning.
CHAIR: Senator Dastyari, just—
Senator SMITH: Ms Connell, is it true that Senator Dastyari has misinterpreted the relevant—
CHAIR: Just a moment. Senator Dastyari, you have put a position to Ms Connell and she has responded. She has taken the opportunity to clear the record. You may have further questions, but I do not think it is fair to assert that she has not attempted to clarify her evidence.
Senator DASTYARI: Did you receive an email from the Attorney-General's Department outlining how they were dealing with an almost identical FOI request?
Ms Connell : In my role as deputy secretary in Finance—
Senator DASTYARI: No. Did you receive an email?
Ms Connell : I received this email—as you have reminded me; I had no recollection of it—of an AGD decision that had been issued, so I assume it was a public decision that was sent to a number of—
Senator DASTYARI: Okay. So when you said—
Senator Ronaldson: Just let the officer finish.
CHAIR: Just one moment, Senator Dastyari.
Ms Connell : And it was sent to a number of my colleagues at the same time, and AGD often provides us with policy guidance on the FOI Act, so I am assuming I received it under that purview.
Senator DASTYARI: And, when you said earlier today that you had not received correspondence or emails of this kind, you were wrong.
Ms Connell : No. My recollection was I said I did not receive direction or consult with any other agencies or decision makers on my decision to release our IGB.
Senator DASTYARI: Did you read the email?
Ms Connell : I assume I read the email, yes. I received it, so I would have read it.
Senator DASTYARI: And did you read the decision, the attachment, from—
Ms Connell : Quite possibly, I did.
Ms Connell : Prior to being appointed as the decision maker, I would assume, given the timing was about seven or eight weeks—
Senator DASTYARI: And you just forgot something as significant as being given the responsibility for being the delegate for an FOI, for an incoming government brief, that had been the subject of political conjecture and debate and an entire debate at an estimates process where you sat there, at that table. You received an email but you just completely forgot.
Ms Connell : Senator, with respect, I—
Senator Ronaldson: Chair, there were a whole lot of matters put to the witness about political exposure et cetera. It is a statement of fact that the witness knew that. I do not think that is fair, just to rattle off a whole series of scenarios on the basis that the witness was aware of political commentary or anything else—
Senator DASTYARI: Ms Connell was sitting there when we had the debates last time, at the last estimates, Senator.
CHAIR: Minister, I do agree with you. I think that Ms Connell should have an appropriate opportunity to respond and I would invite her to do so; and then, at the conclusion of your response, Ms Connell, this committee will be taking a break.
Ms Connell : Senator, I cannot attest to my recollection. All I can restate is that I received this email; it was in my capacity as deputy secretary within the Department of Finance, not as a decision maker contemplating under the FOI Act the release of our own FOI. I probably was privy to a range of decisions that were made by a number of my colleagues because they were all—
Senator DASTYARI: Then why didn't you answer that earlier when I asked you the question?
Ms Connell : I do not recall being asked that question. My recollection was that you asked whether I consulted or was directed on my role as a decision maker.
Senator DASTYARI: So you are saying that because the email was addressed to you as deputy secretary and not addressed to you as decision maker—even though you were the decision maker and you were the deputy secretary—that somehow makes the whole thing different?
Ms Connell : The topic of this email was AGD's decision, not my decision as—
Senator DASTYARI: Yes, but the question I asked you—
CHAIR: Thank you. Senator Dastyari—
Senator DASTYARI: That is, frankly, just not good enough.
CHAIR: Senator Dastyari, your time has expired.
Senator DASTYARI: This is just embarrassing, Ms Connell.
CHAIR: The Hansard can be referred to for an accurate record.
Senator DASTYARI: This is just outrageous!
Senator Ronaldson: Stop bullying the officer.
 
 

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