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Wednesday, September 11, 2013

Blue book 2010 decision likely to be compulsory reading for FOI decison makers

In making some observations yesterday about incoming minister briefs - the Blue books - I was oblivious of the Freedom of Information review decision two weeks ago by Australian Information Commissioner Professor John McMillan, Crowe and Department of the Treasury [2013] AICmr 69 (29 August 2013). Thanks to a reader for the heads up.

The document in question in this case consisted of some pages from the Blue book prepared by Treasury in 2010 for an incoming Coalition government following that year's election, an eventuality that never happened. 

Contrary to usual Treasury practice of destroying (!) such a document immediately after the election, copies were kept through the period of uncertainty leading to the formation of the Gillard government by which time another applicant had lodged an application and the matter was in the AAT when Mr Crowe applied. Treasury settled with the applicant in the AAT by providing a redacted copy, but not the pages sought in this case.

(Of some relevance to the present, Professor McMillan makes passing reference to the fact that back in 2010 "the Treasury noted the strong views of the Leader of the Opposition, the Hon Tony Abbott MP, that the release of incoming government briefs would contravene the Westminster conventions." Interesting times.)

In the matter before him Professor McMillan affirmed the decision to refuse access on the basis that the pages are conditionally exempt under s 47C (deliberative process) and disclosure would on balance be contrary to the public interest.

The special circumstances of the case are highly relevant to the decision. Professor McMillan avoids pre-judging any issue that might arise in connection with refusal of access to September 2013 incoming minister briefs, although in a first, he acknowledges that a class claim can be raised and considered under s 47C [45].

The decision also contains plenty of ammunition for those who might now or soon be casting around for reasons to block applications likely to be forthcoming for these briefs: the summary of Treasury's submissions [13-28]; consideration of broader issues [33 -72]; discussion of the deliberative process and operation of agency exemptions and the associated public interest factors [73-96] that includes some heartening news for 'frank and candid' fans [46-59]; and of less immediate relevance, the law in Queensland which provides a 10 year exemption and the submission from Professor McMillan and the Freedom of Information Commissioner to the Hawke review, and reflected in the report, that a similar approach be taken in the Commonwealth [97-101].

Agencies are likely to cherry pick from the decision reasons to claim exemption in 2013 for departmental commentary and advice on the incoming government's policies and priorities, and on implementation issues, opportunities and challenges.

But there is less here to help those arguing exemption for information about structure and functions of a department, key personnel, facts and statistics, and upcoming events. In addition the public interest factors for disclosure in order to inform discussion and debate  are arguably strong where the information concerns the state of the nation or slices of it, relevant national and international trends, work underway in the department and the challenges facing the government. 

On the separate issue of delay raised in another post yesterday  Mr Crowe's FOI application was lodged with Treasury in December 2010 and has been before the OAIC since January 2011. While this case involves complex questions, this is not speedy access to independent external review.

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