news Delimiter has appealed 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.
Late last week, Andrew Madsen, Assistant Secretary of Governance for the Corporate Division of the Department of Communications, wrote to Delimiter rejecting the FoI application for Turnbull’s Blue Book. You can download the three documents Madsen sent in ZIP format here.
As with other similar FoI requests (for example, a similar request filed with the Attorney-General’s Department), Madsen wrote that he had decided to exempt the full Blue Book from being released under FoI laws. The bureaucrat noted that the briefing comprised information “that relates to deliberative thinking by the Department in preparing advice for an incoming government”, and attached a previous FoI decision on this issue relating to Turnbull’s Blue Book.
That document states: “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 of responsible 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 of trust 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 of the 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 of the government.”
Delimiter has immediately requested an internal departmental review of Madsen’s decision. Delimiter’s application states:
This email constitutes an application for an internal review of this decision. My reasons for requesting this follow below.
Firstly, I note that there is substantial precedent for the public release of incoming ministerial briefings, especially with relation to the Department of Communications. In November this year, for example, the Department released substantial portions of the June 2013 Incoming
Minister’s Briefing. I note also that 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.
I would strongly argue that in reviewing this decision, the authorised decision-maker would need to evaluate and explain why this specific FoI request for an Incoming Minister’s Briefing relating to the Department of Communications should be denied, when the past two Incoming Minister’s Briefings for the Department of Communications have been partially released under FoI.
In other words; why has the Department 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? What is specifically different about this document that would change the decision, given the strong precedent existent in this portfolio?
Secondly, I note that Communications Minister Malcolm Turnbull has publicly canvassed releasing at least a portion of the document.
Minister Turnbull stated: “But I would be prepared — very, very happy — to encourage my [departmental] Secretary to release that incoming ministers brief if the Leader of the Opposition were prepared to consent to release all of the cabinet papers relating to the NBN.”
I suggest that a close examination of the Incoming Minister’s Briefing would find that substantial portions of the document are not controversial and would be suitable for public release. This suggestion is based on the 2013 and 2010 releases of those year’s IMB documents. Minister Turnbull’s public statements in Parliament on the matter imply that he believes some of his IMB documents could be released without damaging his relationship with the Department.
I note that the decision-maker has cited the need to avoid damaging the Department’s relationship with the Minister as a key reason to exempt the IMB document. However, Minister Turnbull stated in Parliament that he would be open to releasing segments of his IMB. This demonstrates the need for granularity in the decision about this FOI request. It seems rational, given the Minister’s attitude and the precedent, that the whole document should not be exempted, and that at least some sections could be safely considered for release under FOI.
Lastly, I would highlight the very strong degree of public interest which exists with relation to these documents — a much stronger degree of public interest than is usually seen in such requests.
It is believed that included in the IMB briefs is consideration of the new Government’s National Broadband Network policy. A series of recent articles published by the Sydney Morning Herald and ZDNet [see here, here and here] has highlighted that some of the constituent elements which helped form the IMB documents may show that the new Government’s NBN policy is not viable.
This issue is being publicly debated constantly at the highest levels, including in Parliament.
The NBN project is Australia’s largest infrastructure project and is critically important for the future development of Australia’s economy. In order for the public to form a view on whether the new Government’s NBN policy is viable, it is critical to obtain the objective view of the Department and NBN Co, which are tasked with implementing the policy.
The strong degree of public interest in the matter is also indicated by the fact that this FoI request was crowdfunded in record time based on contributions directly from the public. The applicant is a journalist and will publish and analyse any documents released under this FOI request. This will directly contribute to the public interest in this case.
Delimiter has previously received the following statement from the Office of Minister Turnbull with respect to the Blue Book issue:
“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.”
In his letter, Madsen also noted that he had taken the decision to waive FoI-related charges with relation to this FoI application. Delimiter crowdfunded $2,877 via Pozible.com to access Turnbull’s Blue Book. The Department is currently reimbursing some of this funding. If the internal review of Madsen’s decision is also rejected, as Delimiter believes it is likely to be, then Delimiter will use that funding to appeal the issue to the Office of the Australian Information Commissioner. If the funding is not used, Delimiter will refund it in full to those who donated to the Pozible.com campaign.
Image credit: Office of Communications Minister Malcolm Turnbull