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Wednesday, October 23, 2013

Treasury leads on 2013 Blue book transparency-backwards

In contrast to 2010, when it led by providing partial but significant disclosure of the brief provided to the returning Treasurer and was followed in due course by most other departments, this time Treasury leads in the opposite direction, refusing access in response to a freedom of information application to the incoming minister brief prepared for Treasurer Joe Hockey. And to the Red book prepared for a returning Labor government, although let's leave that to one side for the purpose of this post.

The decision to refuse access to the entire brief is passing strange given Treasury released in response to FOI applications substantial parts of the same document prepared for a Coalition victory which didn't happen in 2010; audacious in it's reasoning, using but going further than the comments made on the issue by Australian Information Commissioner Professor McMillan in the recent Crowe v Treasury decision; and disappointing in effect as others are sure to follow. 

Sean Parnell in The Weekend Australian reported the Attorney General's Department had rejected an application for the AG's brief as well. 

With the current delay in the OAIC meaning any review decision could be 12 months down the track, Treasury has provided a template for others wrestling with the issue. And bought months of secrecy regardless of the eventual outcome, although public statements and selective leaks from on high that suit the department, the Treasurer or the government can be expected

The decision sounds a louder alarm about government transparency generally, already ringing because of other developments and the fact that neither the Prime Minister nor any ministers including Senator Brandis who has responsibility have said anything in the lead up to the election or since to reassure that the future involves more not less.

Treasury seems to be tilling the ground for a class claim and ruling that briefs of this kind should be automatically and entirely exempt regardless of what they contain. If successful, or a Hawke review report recommendation to this effect is acted upon, you can forget about access until 2023.

In Crowe,Treasury, seeking to protect six pages that had not been released in 2010 relied upon s 47C, the deliberative process document exemption. Professor McMillan upheld the decision, but pointed out that in any argument that the entire brief was exempt, factual and statistical material would not be covered. This would not be the case if other exemptions were in play. However it might be an uphill battle [see 95] to argue exemption for the entire brief relying on substantial adverse effect on agency operations under s 47E(d), particularly for non-deliberative content.

Treasury takes what it can from this and has a crack. 

It contends that disclosure would have a substantial adverse effect on agency operations  and on balance would be contrary to the public interest. The deliberative process exemption is cited as a back up but Treasury goes no further asserting that providing reasons would involve 'substantial and unreasonable diversion of resources.'

The reasons for decision in support of the s 47E claim put old public service friends "Frank and Candid" center stage in somewhat new clothes.Treasury argues that the harm from disclosure in response to an FOI application is that  officers won't do their job properly next time, with flow on adverse effects. In summary:
  • unless confidentiality is assured, future briefs are unlikely to be as comprehensive and therefore less useful to a new government in the initial stages of its administration
  • a less than comprehensive brief would impair the Treasurer's ability to inform Parliament of the actions and policies of the department and the wider portfolio 
  • and the failure to provide a comprehensive brief would interfere with the effectiveness of the relationship between the Department and the incoming government which is central to the proper and efficient functioning of the Treasury.
The same arguments are given a twist and transform into public interest factors cited against disclosure, because release would
  • pose a risk that the quality and value of the brief would be compromised 
  • interfere with the establishment of a trusting and effective relationship with The Treasurer
  • adversely effect Treasury's effectiveness as a central policy agency
  • prejudice Treasury's ability to obtain confidential information from other government agencies. 
The assertions are questionable on the one hand and remarkable on the other.

Questionable because parts of the brief such as work underway across the agency, structure and functions, key personnel, statistics and upcoming events are likely to be factual and not contentious; public servants have a duty to provide comprehensive, impartial and professional advice; the law of the land since 1982 has been that advice can only be withheld from the public where disclosure is contrary to the public interest; and while public interest factors arguably might protect advice until decisions are made concerning the practicality (and wisdom) of policy proposed in opposition, they tend in favour of disclosure of information such as the experts' views of the state of the economy, the strategic outlook and pressing issues that need attention. (Treasury gives less than three lines to the public interest in disclosure factors that include informing public debate on issues of importance.)

Remarkable given substantial portions of the brief prepared in 2010 were released shortly after that election [Crowe decision at 9-10] and Treasury officers would have known this in preparing the 2013 document. Presumably they produced a comprehensive brief this time despite any uncertainty regarding disclosure.

What front benchers said about disclosure of the briefs while in opposition is entirely irrelevant of course but take your pick: 
Prime Minister Abbott and Minister for Trade and Investment Robb back in those days on why disclosure was not a good idea. Minister for Finance Senator Cormann and Minister for Employment on why there should be more of it after Treasury and Finance published redacted briefs in 2010.

Relevant posts on this subject written before the Treasury decision became known, in order, are 

Will Blue books inform public discussion and debate?

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

Transparency 'tone at the top'

Incoming government briefs: what's changed since 2010 

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