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  • News, Telecommunications - Written by on Monday, February 10, 2014 10:45 - 26 Comments

    Turnbull Blue Book access application fails

    turnbull

    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.

    opinion/analysis
    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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    26 Comments

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    1. Sathias
      Posted 10/02/2014 at 10:48 am | Permalink |

      We were promised open, accountable government. Yet another election promise broken.

      • Karl
        Posted 10/02/2014 at 5:21 pm | Permalink |

        I read a study somewhere that it is theoretically possible to sue for fraud over broken election promises, it just never happens because the party can claim they honestly intended to keep the promise when they made it, but when they got into power circumstances made it impossible. In this case they must be mighty close, there is nothing stopping them being open, they are literally choosing to break the promise.

        • Chook
          Posted 10/02/2014 at 8:21 pm | Permalink |

          It is also very difficult (read: impossible) to prove that you only voted a particular way based on an election promise. There is, I believe, a case on record when Hawke promised in 1983 to build the Darwin to Adelaide rail line, then broke said promise and was sued. This might be slightly incorrect and I would welcome more detail from anyone that could contribute.

          • Karl
            Posted 10/02/2014 at 10:30 pm | Permalink |

            I’m pretty sure that you wouldn’t need to prove that you voted for them for that reason alone, you’d just have to prove that you had a reasonable expectation that they would keep the promise.

            • Chook
              Posted 11/02/2014 at 9:23 pm | Permalink |

              I think the question could also be more how do you prove that you actually did vote for them given the nature of how we vote.

          • SMEMatt
            Posted 11/02/2014 at 3:25 pm | Permalink |

            The one I think might have a chance might be TPG investors over Turnbulls comments as that is a very real cost associated with one thing being said before and after the election.

    2. dave
      Posted 10/02/2014 at 11:00 am | Permalink |

      Did you think about trying the Administrative Appeals Tribunal? Obviously the information commissioner is going to back the people who now pay his wages, but wouldn’t the AAT be independent?

    3. TJW
      Posted 10/02/2014 at 11:01 am | Permalink |

      They really don’t want us to know exactly what state the real NBN was in do they? Not surprising of course. If that information got out it would almost certainly show just what a massive waste of money the CBN is about to become and how foolhardy it is to change direction at this stage. Plus, it would be very hard to put a positive spin on it. They wouldn’t really be able to claim that it was a partisan document like they did with the report Jason Clare released a few months ago, since the whole point of the Blue Book is to prepare the new minister to take over as efficiently as possible.

      At the end of the day, it’s just another example of politics getting in the way of the good of the country. Everybody with a brain in their head knows that the NBN (the real NBN) is something Australia needs. People who are tech-savvy know that it should be FTTH, simply because that’s the end game anyway and it’s cheaper to just do it now, rather than a decade from now when the CBN officially falls apart. But hey, since when has common sense been allowed to get in the way of political ideology?

    4. Daniel
      Posted 10/02/2014 at 11:01 am | Permalink |

      I’ve found this text floating around the interwebs in a few semi-reputable places:

      Mr Abbott also promised before the election to have a government “which is transparent and open,” saying “the last thing we want to do is to hide anything from the Australian people.”

      Did Tony Abbott deliberately misstate as fact his commitment to a government that’s transparent and open?

      • Andy
        Posted 10/02/2014 at 2:16 pm | Permalink |

        I think “transparent and open” only applies if you funded their campaign…

      • rick
        Posted 11/02/2014 at 7:50 am | Permalink |

        The adults have kept their promise of “no surprises”.

        it is absolutely no surprise to me that the entire Abbott government lied through their teeth to get into power, is one of the most opaque and closed we’ve ever had, and is blaming all of their problems on the ALP and the ABC.

        no surprises whatsoever.

    5. Darryl Adams
      Posted 10/02/2014 at 11:18 am | Permalink |

      Why cant you use the money to make Delimiter more awesome?

      Or maybe run another Pozible campaign to fund expansion?

      • Posted 10/02/2014 at 11:24 am | Permalink |

        “Why cant you use the money to make Delimiter more awesome? Or maybe run another Pozible campaign to fund expansion?”

        It would be unethical of me to take money from people for one purpose and then use it for another. In addition, Delimiter is not a charity; it is a profit-making enterprise. I do not wish people to give me money. I wish people to pay me for goods and services I provide.

    6. Relim
      Posted 10/02/2014 at 11:40 am | Permalink |

      This government is so transparent it’s invisible.

      Accountability? Only on a need to know basis. Which is no-one and never.

      Malcolm Turnbull is a scumbag that professes one thing and does another. At least he’s consistently dishonest. Now that’s integrity.

      I eagerly await the Turnbull/Coalition supporters’ comments in defense of this decision.

    7. Tom
      Posted 10/02/2014 at 12:14 pm | Permalink |

      Perhaps you can use the money to ‘encourage’ someone to get you a copy of the document?

      /half-joking

    8. tinman.au
      Posted 10/02/2014 at 2:24 pm | Permalink |

      It’s disgusting really, how are the Australian public supposed to make meaningful choices when voting for these people when they work in secrecy like this?

    9. Spoonie
      Posted 10/02/2014 at 2:37 pm | Permalink |

      I think the transparency was overwritten by the promise of no surprises. I am not even remotely surprised the Libs act this way, so they lived up to that election promise I guess.

    10. Mitch
      Posted 10/02/2014 at 3:24 pm | Permalink |

      It is yet another frustrating day for people who want the government to uphold their promise of being “open and transparent”.

      Are you going to march in March?

    11. StephenH
      Posted 10/02/2014 at 4:30 pm | Permalink |

      As Cathy Wilcox put in her excellent cartoon – the age of entitlement is over and the first entitlement to go is the entitlement to a straight answer,
      another is to the use of impartial authoritative expertise in Govt reports

      https://pbs.twimg.com/media/Bf-779pCUAAwNZT.jpg

    12. SBD
      Posted 10/02/2014 at 9:22 pm | Permalink |

      I think a relevant article link has been omitted.

      http://delimiter.com.au/2014/02/05/never-misstated-facts-says-turnbull/
      .. should be included.

      Just imagine the furor if some of Turnbull’s “facts” were in fact opposite to proven information contained in the blue book. He could no longer plead ignorance. Non-core promises, guarantees, misdirection, are all well and fine though, but have to keep those “facts” accurate.
      It has long been hard for me to believe some of the comments by the minister could be made by someone who should be in a position to fully understand the technology and issues. Surely he is informed historically within his career, through his position as shadow minister, to his current role (fully briefed by department and NBN). I can only conclude that comments such as the Alan Jones prove he is totally deceptive, or truly incompetent.

      FWIW, did Mr. Turnbull not in fact, state that the Liberals had a Fully Costed “CBN” plan, surely they either had one or they didn’t? Was that a fact because the sums altered drastically. Perhaps it’s simply a matter of fully costed not meaning competently assessed?

      Perhaps a public effort to Inform the Minister would be of significance? With enough fanfare accompaning a fully referenced brief (such as the recent senate presentation wiki) we could block future mistatements by removing any claim of being unaware of … The Australian peoples Blue Book for Turnbull, what he can no longer deny being aware of.

    13. Simon Shaw
      Posted 11/02/2014 at 12:02 pm | Permalink |

      Colour me completely unsurprised by this.

      What is a surprise is that you bothered trying in the first place.
      This government is one of the most secretive Australia has seen.

      • Seano
        Posted 11/02/2014 at 8:35 pm | Permalink |

        Most secretive government since the Menzie’s lot were trying to find “reds under the beds”, Howard would be beaming. Now it seems that if you’re not a blue blood, you’ll be treated as a second class, non-Liberal party member, citizen…Almost makes me want to join a union so I can thumb my nose at them.

    14. Magus
      Posted 11/02/2014 at 2:03 pm | Permalink |

      Does anyone else find it ironic that Simon Ash disregards the precident set (22/23) stating that ‘each FOI decision is made personally’, but then goes on to quote precidents..?

      I am sure that the minister could step in here, although it may prove an embasassment if he has been mis representing what is in there.

    15. Macca
      Posted 14/02/2014 at 10:36 am | Permalink |

      You didn’t explain why there are not other avenues to follow where you could appeal further. What are the other options. Who are legal owners of this information? What about the http://www.aat.gov.au/.

      Surely a bloomin first assistant secretary hasnt the right to just say NAH.

      Ta for trying :-(

      • Posted 14/02/2014 at 11:03 am | Permalink |

        “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.”

        There is very little evidence that either the OAIC or the AAT would reject the decision at this point.

        • Macca
          Posted 14/02/2014 at 1:38 pm | Permalink |

          The owner of the information should get to dictate whether it gets released. So it is crucial to determine who owns the information. For example, with regards to Legal Professional Privilege it is the client who has the right to waive the privilege, not the solicitor. You’d have to ascertain if the legislation/policy etc. says that the Department retains rights to the information it provides. Highly unlikely given that similar provisions wouldn’t apply in any other ‘profession’.

          Also, it would be worthwhile going to the AAT. At least it is bound by law – if not by the rules of evidence.

          In the article Mr Ash states that the fact that similar documents have been released in the past is irrelevant. Well, that’s bunkum. They have all operated under the same laws, unless Abbott has changed them, so it is a matter of policy only. Reference to precedent would show that government policy was being applied inconsistently on similar facts, which is grounds for Judicial Review if not AAT review.

          The government can’t fetter it’s own discretion by never being able to diverge from policy but it should only be done for good reason. However this can be a two-edged sword. The government can’t apply the law inflexibly – i.e. by ALWAYS releasing Blue Books, nor can they now act inflexibly by NEVER releasing Blue Books.

          Alternative course would be if certain parts of the document should not be released for particular reasons then they should be edited out and the rest released.

          It would definitely be worthwhile pursuing in the AAT to test the decision. Costs would be an issue but it shouldn’t be too much – unless the Department hires Mr Big QC to run the case. You may need to get a feeble old pensioner to request the documents so that they can appeal all the way to the AAT and not be likely to have costs awarded against them – although that is not guaranteed.

          I am happy to contribute to future fund raising




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