news Technology media outlet Delimiter today confirmed it would appeal a move by the Department of Communications to block the release of new Communications Minister Malcolm Turnbull’s ‘Blue Book’ incoming ministerial briefing under Freedom of Information laws.
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.
In Turnbull’s case, the Blue Book ministerial briefing is particularly important, because the post of Communications Minister will be a critical one for the Australian Government over the next several years. This is because the Coalition has promised to radically reshape Labor’s National Broadband Network, despite the fact that Labor’s NBN policy has always enjoyed overwhelming popular support amongst the general population. In addition, there are a number of other key issues in the Communications portfolio which Turnbull will need to deal with, ranging from Internet censorship and filtering, digital rights, media law and so on.
Because of the pivotal nature of the role, on 25 September Delimiter sought access under FoI laws to the ‘Blue book’ of briefing documents which was provided by the Department of Communications to Turnbull when he was sworn in as Minister. This document, which is 545 pages long (according to the department), consists of everything which the department believes Turnbull will need to know.
On 6 November, Andrew Madsen, Assistant Secretary of the Department’s Governance Branch, wrote back to Delimiter noting both positive and negative factors which might influence the release of the document. At that time, Madsen allocated charges for the processing of the document and noted: “Release of the Blue Book would be consistent with the objects of the FOI Act, which include increasing scrutiny, discussion, comment and review of the government’s activities.”
Delimiter’s FoI request on this issue — funded by readers through a crowdfunding request on Pozible — is still progressing. However, last week the Department made a separate decision on a separate FoI request with relation to the same document — Turnbull’s Blue Book. That application was received before Delimiter’s, in the caretaker period before the election, and so has been processed earlier.
In a letter dated 11 November to an unknown application, Madsen wrote that he had decided to block the release of Turnbull’s Blue Book under FoI laws.
Madsen noted that the briefing comprised information “that relates to deliberative thinking by the Department in preparing advice for an incoming government”. You can read the bureaucrat’s full reasoning in the full letter available online in PDF format here.
“Disclosure of the confidential briefs would undermine the ability to develop and build an effective and productive working relationship between the Department and the Government in accordance with the long-standing conventions ofresponsible parliamentary government. The incoming government briefing represents the first exchange of advice between a department and an incoming Minister and as such, it has a unique status in forming the relationship oftrust and confidence between the Department and Minister.”
“The potential for this particular advice to be disclosed could result in the Department being drawn into public controversy and potential conflict with the Minister early in the term ofthe new government. Such an outcome could cause lasting damage to the relationship between the Department and the Minister, which could be detrimental to the effective operation ofthe government.”
Because of this and related reasons, public interest issues notwithstanding, Madsen noted that he had decided to block the release of Turnbull’s Blue Book as a whole and would not be releasing it redacted. Any charges associated with the application and already were to be refunded, Madsen wrote, and any other charges waived.
The decision has implications for Delimiter’s separate FoI request. It is extremely likely that the Department will make a very similar decision with respect to Delimiter’s request for Turnbull’s Blue Book.
With this in mind, Delimiter today notes that should the same decision be made with respect to our separate FoI request for Turnbull’s Blue Book, we will immediately appeal the decision, firstly through seeking an internal departmental review of the decision, and through other review processes such as through the Office of the Australian Information Commissioner if necessary.
Delimiter will use the funds provided as part of our crowdfunding request on Pozible to appeal the Department’s Blue Book decision. However, ultimately, it is likely that the majority of the funds will be returned to contributors as per our original commitment. Delimiter will continue update readers as to the progress of the FoI request.
Last week, the Attorney-General’s Department similarly declined to release under FoI laws the incoming ministerial briefing (known as the ‘Blue Book’) provided to new Attorney-General George Brandis, making a similar argument as Madsen did in his judgement last week. Delimiter has subsequently appealed that decision through internal departmental review.
There is 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 will suggest in its appeal request that a close examination of Turnbull’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 to the Attorney-General’s Department. “Furthermore, there is substantial reason to believe that significant portions of the document are not controversial.”
Delimiter has invited Turnbull’s office to release non-controversial sections of the Blue Book voluntarily, but the Minister has as of yet not taken action on the issue.
The Opposition last week severely criticised Turnbull for what it said was a lack of transparency in Government.
“Communications Minister Malcolm Turnbull’s commitment to transparency in Government has failed to survive the first parliamentary sitting week,” said a joint statement issued by Shadow Minister for Communications Jason Clare and his Deputy, Michelle Rowland. “In opposition Mr Turnbull said: ‘We will be completely transparent.'”
“Yesterday Mr Turnbull’s Department quietly updated its website to reject a freedom of information request for public access to the ‘blue book’ or incoming government briefs – the frank and fearless advice provided by the Department of Communications on how the Coalition’s policies would or would not work in practice.”
“There is no reason why Ministers shouldn’t release their incoming government briefs unless they’ve got something to hide,” Clare said. “In Opposition Malcolm Turnbull said NBN Co was more secretive than the Kremlin and the Church of Scientology. Now he is in Government he is refusing to release the brief he was given when he became a Minister. Previous Ministers have done this and so should he. This is not the Government that they promised to be.”
The two MPs said Australians had a right to know what the government is planning, how it is going to happen and where cuts will be made. “If Minister Turnbull believes that his policies are right for the nation then he should release the briefs today. Every day that he doesn’t release the documents shows that he is hiding bad policy that won’t work,” Rowland added.
Update: Delimiter has received the following statement from the Office of Minister Turnbull:
“Freedom of Information laws ensure that applications are assessed at arm’s length from the Minister. However, it is important to note that the Minister has implemented an important number of transparency measures for the NBN Co including weekly reporting of rollout statistics, quarterly reporting to Parliament and briefings with industry analysts, increasing the level of industry experience on the NBN Co board and committing to a strategic review of the project so that all Australians know exactly how much this project is costing and how long it will take under various approaches.”
Turnbull should be aware by now that Delimiter does not back down, when we have decided to take a stance on an issue. We are committed to pursuing the release of the Minister’s Blue Book and will use every avenue available to us to reach this goal. This is one story which is not going away any time soon — unless Turnbull takes steps to voluntarily release his Blue Book ministerial briefing, this story is going to drag on for a very long time. If the Minister is truly committed to transparency, as he has stated, then we would encourage him to forestall this issue from dragging on by taking action on this issue.
Turnbull cannot simply wash his hands of the transparency issue and leave it up to the FoI officers at the Department of Communications. As the quick success of Delimiter’s crowdfunding request showed, there is significant public demand for the release of this document — and that demand will not go away any time soon.
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