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Monday, August 04, 2014

OAIC sides with 'frank and candid' to rule incoming government briefs exempt

The decisions by Australian Information Commissioner Professor McMillan in Parnell &  Dreyfus, and Crowe on the exempt status of incoming government briefs (IGB) under the Freedom of Information Act will please those in government who argue 'frank and candid' advice work depends on protection from disclosure, even though much of the reasoning focuses on the special circumstances of briefs prepared in advance for a new government. 

Much is made of the necessity that the public service get off to a good start with the new boss.

Unfortunately nothing much is made of the values that underpin the work of the Australian Public Service, that is to offer frank, honest timely advice based on the best available evidence. And little weight is attached to the public interest in knowing what government knows, for accountability purposes, and the contribution this information can make to informing public discussion and debate. 

This despite the fact that parts of the briefs should involve public service expert assessment and analysis of issues and challenges facing the nation, in the Crowe case now four years old, and in Parnell one year after the issues were raised with the government.

And that much of it might be pretty bland stuff in any event. As the Commissioner observes in Parnell "many and perhaps most paragraphs in the IGB could be individually and separately released without consequence."
  1. ..Yet the paragraphs together constitute a unique document that is prepared for a special purpose at a critical juncture in the system of responsible parliamentary government. Inevitably, therefore, one is drawn back to evaluating the exempt status of specific content by its inclusion in a document of a particular kind.
The Commissioner notes (Parnell [83]) that there is nothing to prevent ministers and agencies from making some information from an IGB publicly available, and that some have.

But he might have gone further as the South Australian Ombudsman did in commenting about the state equivalent documents in that case found to be cabinet documents:

In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind.
In Parnell & Dreyfus the Commissioner found that the entire 'Strategic Brief' including the list of contents and the transmission letter prepared for incoming Attorney General Brandis a year ago, and parts of the accompanying 'Information Brief' are deliberative process documents [s 47C] and disclosure on balance would be contrary to the public interest. 

In Crowe, the Commissioner applied the same reasoning, but cited some differences between the two [29-35] to rule against disclosure of those parts of a brief prepared in 2010 for prime minister Gillard that had not been released previously.

The decisions come as no surprise given the OAIC decision last year refusing access to the unused 2010 brief prepared for a Liberal Party Treasurer.

There are a number of other requests for IGBs through Righttoknow presumably some in the OAIC intray now awaiting predictable results, and Sean Parnell who tweeted this,
last week (from Communications I think) keeps trying.

As to the public interest...

The  considerations [Parnell at 57-72] that in the Commissioner's reasoning "provide a strong public interest basis for concluding that it would be contrary to the public interest to release the deliberative content", as summarised here, focus on the special nature of the brief and the briefing exercise but expect selective quoting concerning the importance of 'frank and candid' (as there is from Cornerstone) when it comes to arguing that advice and opinion needs to be kept tightly under wraps in other circumstances:

  • a department must establish a working and trusting relationship with a new Minister and the confidentiality of the discussions and briefing provided to the new Minister are essential at that early stage in developing a relationship that accords with the conventions of responsible parliamentary government; 
  • part of the value of the brief is that it provides a department’s frank and honest advice on the policy priorities and challenges facing a new government. The context is unique and requires that confidential advice can be prepared by the department for the incoming Minister, without endangering the impending development of a proper working relationship with the Minister.
  • the brief is prepared essentially as a communication limited to an audience that may comprise only one person – the new Minister. If it is known that the brief will be disclosed publicly under the FOI Act, there is a risk that it will be tailored to a different audience or with different interests in mind.
  • it is important, in the early days of a new government, that the public service is not drawn into political controversy, or required publicly to defend the advice provided to a new government. An incoming brief that is not confidential may include only bland material that will not raise concern, and possibly be of less value to a new government. An associated risk is that the brief will not be comprehensive and will be replaced by oral briefings to the new Minister. 
The Commissioner said [63] if it was known that the deliberative content was to be released publicly it seems highly likely it would not be written in the frank and direct style that it is.  Release now would be likely to have an inhibiting effect on the content and style of an IGB at a future election.
The Strategic Brief contained a large amount of factual material but the Commissioner said the analysis and views in the document would be robbed of their essential meaning without this material, and it would be impractical to attempt to separate factual from deliberative content, as the two are intertwined.[40]. The obligation to prepare an edited copy arises only if it is ‘reasonably practicable’ to do so, and "should be applied in a common sense fashion that advances the open government objectives of the FOI Act by providing access to something of substance rather than a skeleton of words, phrases and page numbers" [43]. It would not be practical in this case.

Access was granted to those parts of the Information Brief that draw from public sources relating to the role, structure, functions, personnel and resources of the Department but not to pages 33 – 36 (‘Significant Litigation’- a brief description of legal issues and some comments on the consequences that may flow from particular outcomes), pages 45—49 (‘Portfolio Budget and Staffing’ the impact that budget and savings measures will have on the portfolio, and some of the challenges this presents), pages 83 – 105 (‘Key Stakeholders’ government and non-government organisations and individuals who the Department advises are key stakeholders in subject areas of special portfolio interest), and the ‘Key Issues’ section of each of the ‘Portfolio Agency Summaries’ in pages 53 – 81.

The Commissioner rejected [56] the department's submission that parts of the briefs were also conditionally exempt under s 47E (d) (substantial adverse effect on the proper and efficient conduct of the operations of an agency) on the basis it had not cogently explained why release of non-deliberative and purely factual material in the IGB could be expected to have this effect. 

He also expressed doubt [72-73] that the ‘Significant Litigation’ section of the ‘Information Brief’ contained legal advice that is exempt from disclosure under s 42, because it seemed outside the legal-adviser client relationship, or was not given for the dominant purpose of providing legal advice to the Attorney, but it was exempt as deliberative matter in any event.

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