news The Attorney-General’s Department has declined to release under Freedom of Information laws the incoming ministerial briefing (known as the ‘Blue Book’) provided to new Attorney-General George Brandis, censoring the release of the entire document in a decision which appears to run directly contrary to a similar decision by the Department of Communications.
When new Ministers are sworn in to lead government portfolios, they receive extensive briefings on those portfolios from their departmental bureaucrats. Known as ‘Red Books’ for a returning Government or ‘Blue Books’ for a new Government, the briefing documents contain a wealth of information about the new Minister’s portfolio, commitments, decisions and so on.
Over the next several years, the Attorney-General’s Department will examine a number of issues which are of intense public interest, ranging from data retention and surveillance to reform of Australia’s copyright legislation to the issue of online copyright infringement (Internet piracy).
Because of the importance of these issues and the need to ensure that both the Australian public and other sides of politics are fully informed about these issues, last month Delimiter sought access under Freedom of Information laws to the Blue Book ministerial briefing provided to new Coalition Attorney-General George Brandis.
Delimiter has similarly sought access to the Blue Book provided to Communications Minister Malcolm Turnbull, due to the public interest and national importance of issues in the Communications portfolio, such as the National Broadband Network.
In that case, after the initial application, the Department of Communications last week halved its processing charges for releasing the ‘Blue Book’ provided to new Communications Minister Malcolm Turnbull, citing the fact that release of the document would be consistent with the objects of the FoI Act and would resonate strongly with the public, although the final fate of the FoI request is not yet clear.
The Department of Communications is currently proceeding with the process to get Turnbull’s ‘Blue Book’ released, although it is likely that significant portions of the document will be redacted for various reasons, including commercial confidentiality and the need to ensure a trust relationship between the Minister and his department.
However, in a similar decision issued on Friday afternoon to Delimiter, the Attorney-General’s Department took the opposite view to the Department of Communications, deciding to block the release of Brandis’ ‘Blue Book’ entirely.
“… If the document is disclosed, I consider there would be a substantial adverse effect on the Department’s ability to establish and maintain a good working relationship with the new Minister,” wrote Emily Roper, Acting Assistant Secretary for the Attorney-General’s Department, in a letter to Delimiter on the issue. The full letter can be downloaded online in PDF format.
The FOI Act forces departmental decision-makers to consider a public interest test with respect to releasing documents, even if there are other considerations which would prohibit their release. In her letter, Roper stated with respect to this issue:
“An object of the FOI Act is to give the Australian community access to information held by the Government of the COmmonwealth and to facilitate an increase in the public participation in Government processes, with a view to promoting better-informed decision-making. Although the information contained in the document may contribute to the achievement of these objectives, I do not consider that disclosing the form in which the information is presented to the Minister could further inform public debate on these issues.”
Even if the whole Blue Book document were considered for edited release, Roper wrote that other exemptions included in the FOI Act could see significant portions prohibited from release — such as issues relating to law enforcement, public safety, the operation of international law, or even national security, including the Australian Security Intelligence Organisation which the Attorney-General oversees. There could even be material subject to legal professional privilege, according to the bureaucrat.
Further, Roper added that in Opposition, new Prime Minister Tony Abbott had stated that he believed the release of incoming government briefs would “contravene the Westminster conventions”.
There are several mechanisms to appeal such a decision on the part of the Attorney-General’s Department — firstly by seeking an internal review by the Department itself, and secondly seeking a review by the Office of the Australian Information Commissioner.
Delimiter has sought, in the first instance, an internal review by the Department of Roper’s decision, noting that the Department of Communications had come to an opposite decision relating to its own ‘Blue Book’. There is also substantial precedent for the release of ministerial briefings in general. After the 2010 Federal Election, for example, the Treasury chose to release its incoming ministerial briefing (‘the Red Book’) in response to a number of FoI requests.
Delimiter also suggested in its appeal request that a close examination of the Attorney-General’s ‘Blue Book’ would find that substantial portions of the document are not controversial and would be suitable for public release. This suggestion is based on experience reading other public incoming ministerial briefing documents.
“Blocking the entire ‘Blue Book’ document from release is not consistent with the approach taken by other departments over the past several years, and ignores the significant public interest arguments for its release,” Delimiter wrote in its appeal letter. “Furthermore, there is substantial reason to believe that significant portions of the document are not controversial.”