Two departments, two decisions on releasing ‘blue books’

By Stephen Easton

Monday December 21, 2015

Two central departments of the Commonwealth government, two different decisions on what parts of their “blue books” can be released.

First, Treasury. In response to a request from the ABC it released the incoming minister’s brief it gave Treasurer Scott Morrison in early December. The journalists published their article, focusing on the department’s support for increased “labour market flexibility” and including the whole document, which was also posted on the same afternoon.

Other news outlets got something out of it too, taking their own angles, but the stories were by no means earth-shattering to Morrison or the government. In line with the relevant section of the act, Treasury covered up all the parts they thought would “have a substantial adverse effect on the proper and efficient conduct of the operations of an agency” or breach someone’s privacy. The federal government kept on governing.

“… the Attorney-General’s Department plays “hardball” on freedom of information.”

In contrast, the Attorney-General’s Department plays “hardball” on freedom of information. This was the turn of phrase chosen by its former head Roger Wilkins in a 2014 Senate Estimates hearing, and its actions have been unchanged under his successor Chris Moraitis.

The AGD’s combative approach was in the news again last week when the Administrative Appeals Tribunal ordered it to release some parts of its incoming brief to Attorney-General George Brandis. The request was filed by his opposite number, former A-G Mark Dreyfus, and is presumably a more sensitive document than Treasury’s briefing to Morrison.

Dreyfus has also been engaged in a protracted FOI battle with Brandis’ office, which has strenuously resisted releasing his ministerial diary appointments.

The AGD stated it was “considering the implications of the decision” by the AAT and added that “no timeframe has yet been placed on provision of the document to the applicant”.

In her ruling, Justice Annabelle Bennett succinctly described the public service argument that must be balanced against the public’s expanding, and lately contracting, right to know:

“It is important that those preparing an Incoming Government Brief do so without concern as to the consequences of doing so.”

Honest government? ‘Nothing to hide’

Mid-year, when Dreyfus applied to the AAT, he gave a different view, arguing that incoming government briefs “provide an important overview of the state of the nation at the time the new government takes office and help inform public policy debate” and that his own brief was released when he was A-G:

“Public debate should be informed by the expert advice of government agencies which their taxes pay for. Honest governments have nothing to hide.”

For many in the bureaucracy, it was a bridge too far when incoming government briefs first began being released under FOI, some with with very little redacted, during Labor’s last term of government. Changes to the FOI framework in 2010 mandated a pro-disclosure culture and created the Office of the Information Commissioner, but resistance is ingrained in the public service.

Public servants must accept whatever legislative changes the political winds bring, but the incremental expansion of the public’s right to know has a direct effect on their work. It created a growing sense of having journalists, business people, politicians and the public looking over their shoulders as they wrote advice to serving ministers.

On the other hand, getting used to doing things differently — like giving candid, strong advice knowing at least some of it could be made public — is simply the nature of change. Some FOI requests are invalid, or would tie up an unreasonable amount of resources, but the time and money burnt up resisting more-or-less legitimate requests through every possible avenue must be an equally unacceptable form of waste.

Transparency campaigners, many of them also experienced public servants, thought the expansion of FOI rights in 2010 was a significant and long-lasting change for the better. But the election of the Abbott government showed just how powerful the ruling party can be, both in resisting transparency itself and in sending signals to its departments to do the same.

Unusually, this year saw several senior federal public servants — notably APS commissioner John Lloyd and the outgoing head of the APS, Michael Thawley — push back publicly against freedom of information, knowing the government of the day was firmly behind them.

Lloyd also questions the intention of FOI, and whether those who use the laws most often do so in the public interest, or their own. It may well be the case that many FOI requests are at least partially self-interested, and not launched in the spirit of public transparency and accountability. But surely by the same logic, agencies fighting every request tooth and nail are not acting in the spirit of the legislation either …

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