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News, Telecommunications - Written by Renai LeMay on Monday, February 10, 2014 10:45 - 26 Comments
Turnbull Blue Book access application fails
news An attempt by technology media outlet Delimiter to retrieve the ‘Blue Book’ incoming ministerial briefing of Communications Minister Malcolm Turnbull under Freedom of Information laws has failed, with the Federal Government as a whole appearing to standardise around interpreting its rights as blocking such documents wholesale.
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.
In early December, the Department of Communications wrote back denying the request, stating that the release of the document had the potential to undermine its relationship with the Communications Minister of the day, in a move which could be “detrimental to the effective operation of the government”.
Delimiter subsequently appealed the decision, noting that there was substantial precedent for the public release of incoming ministerial briefings, especially with relation to the Department of Communications. In November last year, for example, the Department released substantial portions of the June 2013 Incoming Minister’s Briefing. The Incoming Minister’s briefing immediately prior to that, prepared for the 2010 Federal Election, was also released publicly under FOI laws.
In addition, there is precedent in other portfolios; 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. Former Health Minister Tanya Plibersek is also known to have released her Incoming Minister’s Briefing.
Delimiter argued that the Department, in examining the case, would need to specifically discuss why it had blocked the release of this year’s Incoming Minister’s Briefings, when at least the most recent past two comparable documents (in 2013 and 2010) were released; in other words, what is specifically different about this document that would change the decision, given the strong precedent existent in this portfolio.
Delimiter also noted that Turnbull himself had personally canvassed releasing at least a portion of the document.
In response to Delimiter’s appeal, last week Simon Ash, first assistant secretary of the corporate division of the Department of Communications wrote back denying the appeal and upholding the department’s initial decision on the matter. You can download Ash’s full letter here in PDF format.
Ash specifically flagged Delimiter’s point that previous incoming ministerial briefing documents had been released.
“The inference by the applicant appears to be that this is a factor in support of disclosure,” wrote Ash. “I do not agree with this assertion. Each FOI decision is made personally by the particular delegate with regard to the particular nature of the documents subject to each FOI request. There mere fact that other decision-makers have concluded that certain content in past [incoming government briefs] may be released under the FOI Act is not determinative in this particular case.”
Ash further noted that over the past few years, “a body of knowledge has developed” with in the Federal Government around the release of such documents, including in the Hawke review of the operation of the FOI Act. Both the review and associated statements by the FOI Commissioner have supported the view that such incoming minister’s briefs should be exempt from FOI laws.
Ash further addressed Turnbull’s comment that he would be happy to discuss the release of portions of the Blue Book document with the department. “The mere fact that the Communications Minister has made public comment in support of releasing a portion of the documents is not, in my view, a factor in favour of disclosure,” he wrote.
Delimiter has the right to further appeal the decision — either to the Information Commissioner, or to the Administrative Appeals Tribunal. However, at this stage Delimiter has decided not to appeal the decision, because there is substantial evidence that the nature of the Department’s decision is being supported and is consistent across government and by the Information Commissioner.
Other similar FOI requests have similarly been rejected by other Federal Government departments recently, such as the Attorney-General’s Department.
As part of the campaign to gain access to Turnbull’s Blue Book, Delimiter used the crowdfunding platform Pozible to raise some $2,877 to gain access to the document. That money will now be refunded directly to the 153 supporters who contributed to the campaign, over the next several days. It may take several days for the funds to be completely refunded. If you supported the campaign via PayPal, the funds will be reimbursed there, while if you entered your credit card directly into Pozible, the funds will be reimbursed to your credit card. If you are not refunded after a week or so, please contact Delimiter.
Delimiter wishes to thank all supporters of the campaign.
That’s all for now, folks. The Federal Government has circled the wagons around FOI requests for incoming ministerial briefs; I really don’t think we’re going to get any further with this one. It’s a sad day, but that’s the reality of the lack of real transparency in our Federal Government.
As a side note, I will say that I believe the Freedom of Information Act is remarkably ineffectual at the moment at … opening up freedom of access to information being held by our Federal Government. I’ve had half a dozen FOI requests going over the past few months. In each case, each department has gone to the utmost to block or deny the request. In some cases, they’ve made it prohibitively expensive to get even basic information. I suspect that this approach is very much going to become the norm as time goes on. Every department is being locked up as tight as possible.
Image credit: Office of Malcolm Turnbull
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