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Monday, March 23, 2015

New government, same story on access to incoming government brief in Victoria

A newish government in Victoria but nothing seems to have changed regarding access to the incoming minister briefs.

The Age reports "Labor fails to meet its own freedom of information test" that a request by the shadow health minister was refused by the Department of Health on the grounds that "the document could be characterised as a cabinet document."

Re-run of 2010?
Following the 2010 election Melissa Fyfe of The Age unsuccessfully pursued the Departmental Status Report (DSR) and the Policy Implementation Action Plan (PIAP) prepared by the Department of Sustainability & Environment for the incoming Baillieu government all the way to the Victorian Civil and Administrative Tribunal

Along similar lines to what was done in NSW and South Australia to protect these types of documents, the grounds for refusal were set in place when the Department of Premier and Cabinet issued guidelines to agencies before the election that stated the purpose for which they were to be created included to brief the Premier on an issue to be considered by cabinet.

I expect it's the same situation this time around.

According to The Age, in opposition "Labor repeatedly demanded the former Baillieu and Napthine governments "lift the veil of secrecy" and release the briefs."

Discretion to disclose
Of course the Premier and ministers then and now have a discretion to disclose such documents outside the confines of the FOI act. In the same way the Premier released 9000 pages of documents in December on the East West Link that the previous government argued could not be disclosed because they were cabinet documents.

Premier's Department Guidelines that came to light in the Fyfe case in 2012 described the documents then in dispute:
"DSR.. sets out for the information of the Premier the current status of the department. The Premier may also provide the DSR to the relevant minister. ... The DSRs are prepared in confidence for the consideration of the Cabinet and will be presented to Cabinet by the incoming Premier ... preparation of DSRs ... should be in strict accordance with guidelines for document and information security relating to Cabinet in confidence information. ... If the Coalition is elected to government, the incoming premier and ministers are given the Blue Books. PIAPs provide advice to the incoming premier on how a particular policy can be implemented. .."
Public interest
While any government may want to withhold PIAPs and their equivalents unless compelled to disclose, why DSRs need to be locked away from public scrutiny for years is less clear. Information about structure and functions of a department, key personnel, facts and statistics, and upcoming events isn't sensitive. 

In addition the public interest factors that favour disclosure in order to inform discussion and debate are arguably strong where the information concerns the state of the state or slices of it, relevant trends, work underway in the department and the challenges facing the new government. Unfortunately such considerations are given no weight if a document satisfies the cabinet document exemption. They came into play in this Commonwealth decision 
last year but not enough to tip the balance in favour of disclosure.

The South Australian Ombudsman nailed it with this comment in 2011urging exercise of a discretion available there to disclose:

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.
NSW next in line
With an election on 28 March it remains to be seen what transpires in NSW

In 2011 the door shut as a result of the cabinet document exemption, but the Information Commissioner took a look and recommended factual material at least could be released. 

Some interesting insights emerged as a result of a later follow up GIPA application regarding briefs to the Premier on the need for secrecy.

Parts of four volumes of the folders eventually appeared on the Premier's department Disclosure Log following release, with one observer commenting:
"So, what has now been released is an amalgam of mission statements, corporate plans, handbooks and guidelines along with a seeming dump of the combined contents of departmental Outlook Contacts and Appointments: more “Bland Books” than “Blue Books”.)
Not surprised by the headline in The Mandarin "Red and blue books best kept secret say mandarins."

Sir Humphrey lives on.

(Addendum: And in Queensland where another new government is settling in, Schedule 3, section 4 of the RTI Act provides this exemption but a minister or agency has a discretion to disclose. Let me know of developments there.
  • Information briefing incoming Minister
    • Information is exempt information for 10 years after the appointment of a Minister for a department if the information is brought into existence by the department to brief an incoming Minister about the department.

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