Crowe and Department of Prime Minister and
Cabinet [2014] AICmr 72 (30 July 2014)
Decision and reasons for decision of
Information Commissioner, Professor John McMillan
Applicant:
David Crowe
Respondent:
Prime Minister and Cabinet
Decision date:
30 July 2014
Application number:
MR11/00014
Catchwords:
Freedom of Information — Incoming government
brief prepared for party that formed government
— Whether document contains deliberative matter
prepared for a deliberative process — Whether
disclosure could reasonably be expected to damage
Commonwealth-State relations – Whether contrary
to public interest to release conditionally exempt
document — (CTH) Freedom of Information Act
1982 ss 11A, 47B, 47C
Contents
Summary ........................................................................................................................ 2
Background .................................................................................................................... 2
Decision under review ................................................................................................... 3
Submissions of the parties ............................................................................................. 3
The Department’s submissions .................................................................................. 4
The applicant’s submissions ....................................................................................... 5
Deliberative processes exemption (s 47C)..................................................................... 6
‘Deliberative matter’ prepared for a ‘deliberative process’ ...................................... 6
‘Purely factual material’ and other non-deliberative material .................................. 6
‘Contrary to the public interest’ ................................................................................. 7
Commonwealth-State relations (s 47B) ......................................................................... 9
Decision ........................................................................................................................ 10
1
Summary
1.
I affirm the decision of the Department of the Prime Minister and Cabinet (the
Department) of 19 January 2011 (as revised) to refuse access to documents
requested under the Freedom of Information Act 1982 (the FOI Act).
2.
This decision is given on the same day as another decision that deals with
similar issues arising from an FOI request for access to an Incoming
Government Brief (IGB) prepared for a party that formed government, Parnell
& Dreyfus and Attorney-General’s Department [2014] AICmr 71. The issues are
discussed more fully in that decision (though it arose later in time than this
case) because it relates more broadly to a decision refusing access to the
entirety of an IGB. Another relevant IC review decision is Crowe and
Department of the Treasury [2013] AICmr 69, which concerned the exemption
status of portions of an IGB prepared for a party that did not form government.
3.
Two special issues discussed in the present decision are that the IGB was
prepared for the Prime Minister, and was prepared nearly four years prior to
this decision. Generally, this decision affirms the reasoning in Parnell & Dreyfus
and in Crowe, that for FOI Act purposes it is in the public interest to maintain
the practice whereby confidential deliberative advice on the full range of
portfolio issues can be prepared for and provided to a Minister following a
national election, in the form of an IGB.
Background
4.
On 2 November 2010, Mr David Crowe, a journalist, applied to the Department
for access to:
The brief prepared by your Department for the returned Labor federal
government, referred to as the Red Book, and presented to the incoming
government after the August 21 election; and
The brief prepared by your department in the event of a Coalition federal
government, referred to as the Blue Book, which would have been presented
to an incoming Coalition government after the 21 August election.
5.
On 15 December 2010, the Department advised Mr Crowe that it had decided
that the documents he had requested were partially exempt documents under
the exemptions relating to national security (s 33), Cabinet (s 34), law
enforcement (s 37), material obtained in confidence (s 45), CommonwealthState relations (s 47B), deliberative processes (s 47C) and personal privacy
(s 47F).
6.
On 16 December 2010, Mr Crowe requested internal review of the
Department’s decision to refuse access to sections 2 – 6 of Volume A of the
Red Book. On 19 January 2011, the Department advised that it had decided to
2
vary the original decision and released additional parts of Volume A of the Red
Book.1
7.
On 4 February 2011, Mr Crowe sought IC review under s 54L of the FOI Act of
the Department’s decision to refuse access to those parts of the Red Book not
released on internal review. Mr Crowe further narrowed the scope of this
matter by advising that he was seeking review of the Department’s decision to
the extent only that it relied on s 47B (Commonwealth-State relations) and
s 47C (deliberative processes).
8.
On 20 February 2013, the Department revised its internal review decision
under s 55G of the FOI Act and released further parts of Volume A of the Red
Book to Mr Crowe.
9.
On 17 October 2013, Mr Crowe confirmed that he wished to pursue review of
the Department’s revised decision.
Decision under review
10.
The decision under review is the internal review decision of the Department
made on 19 January 2011 (as revised on 20 February 2013) to refuse
Mr Crowe’s request for access to pages 5 – 72 in sections 2 – 6 of Volume A of
the Red Book (or IGB). I describe some of the content of this document below
at [11], [12] and [35]. The nature and content of IGBs is described more fully in
Crowe (at [5] and [14] – [28]) and in Parnell & Dreyfus (at [15] – [16]).
Submissions of the parties
11.
12.
1
I have treated the following as the submissions in this case:

as to the Department’s submissions: the internal review decision of 19
January 2011, and a submission of 17 December 2013 following a request
to the parties for any final submissions in the case

as to the applicant’s submissions: his application for internal review of 4
February 2011, and a submission of 14 November 2013.
The parties’ submissions overlap with those considered in Crowe and in Parnell
& Dreyfus. The following summary focusses on points in the submissions that
were either unique to this case or that were more strongly pressed than in the
other cases. The focus of the submissions was upon whether disclosure of the
additional material from the IGB would be contrary to the public interest.
The Department provided access to additional material on pages 6, 14, 18—22, 24, 25, 28, 59, 65
and 71 of Volume A.
3
The Department’s submissions
13.
I will note four themes in the Department’s submissions. First, the Department
drew attention to the nature of its IGB as a far-reaching brief to the Prime
Minister as the head of government:
The circumstances around the development of the Incoming Government Brief
for a Prime Minister are almost unique in the Australian Public Service. The
brief surveys a broad and comprehensive range of policy and public
administration matters, from a national and international perspective, for the
purposes of providing high level advice to a new or returning incoming
government. It contains within it information relevant to Australia’s national
security interests and international relations, to the relationship between the
Commonwealth and the States and Territories and to the management of
relationships with key stakeholders across the private sector and the not for
profit sector.
14.
That point is illustrated by the five chapter headings of the material that was
partially exempted – ‘What Immediate Policy Actions are Required?’, ‘What
are Australia’s Strategic Challenges?’, ‘What is Required to Successfully Move
Ahead with Your Agenda?’, ‘What Changes are Required to the Structure of
Government?’, and ‘What is Required to Set up Your Ministry, Cabinet, Office
and Parliament?’.
15.
Secondly, the submissions echoed (but mostly at a general level) the
considerations discussed in Crowe and in Parnell & Dreyfus concerning the
need for confidential treatment of deliberative material in IGBs. Among the
points were that an IGB contains expert and high level advice and commentary
on issues that may require immediate Ministerial attention or policy
development, or that remain the subject of current policy deliberation; an IGB
is prepared at a sensitive time in the cycle of government and provides frank
and candid advice to a Minister from senior officials who advise in the
expectation of confidentiality; the confidentiality of IGBs has supported the
good record of the Australian Public Service in managing the smooth transition
of governments, and thus supporting the efficient and proper functioning of
government; and the processes of policy consultation could be adversely
affected by the release of early advice or assessments by senior officials on
matters that require a final decision by government.
16.
Thirdly, the Department noted that it had made a considered decision that
resulted (on three occasions) on the progressive release of additional material
from Volume A of the IGB. The Department’s submissions summarised and
responded briefly to the public interest factors in favour of disclosure, and to
points made by the applicant in his submissions. The submission also
acknowledged a letter of 30 April 2009 from the Cabinet Secretary, Senator the
Hon John Faulkner, to departmental secretaries and agency heads asking them
to apply a presumption in favour of giving access to documents.
4
17.
Fourthly, the Department noted that it had claimed exemption for some
material under s 47B, but did not elaborate on this claim. The Department
stated that it was unable to explain why disclosure could reasonably be
expected to cause damage to Commonwealth-State relations without risking
similar damage.
The applicant’s submissions
18.
I will note four themes in the applicant’s submissions. First, he noted that he
had narrowed the scope of his requests during the review process. This was
done in recognition that the IGB contained material that may legitimately
qualify for exemption under the FOI Act, and to focus the review process on
the public interest dimension of the Department’s decisions on the
deliberative processes and Commonwealth – State relations exemptions. The
applicant did not contest the exemption claims relating to Cabinet documents,
national security, law enforcement, personal privacy and material obtained in
confidence. The applicant also welcomed the Department’s action in releasing
portions of the IGB, though was critical of the Department for not linking the
exemption claims more specifically to the material redacted from the IGB.
19.
Secondly, the applicant questioned in various ways the Department’s view that
disclosure of the redacted material would harm the national interest or the
workings of government. While acknowledging that he was not privy to the
contents of that material, he asserted that there was a tendency by
Departmental officials to overstate the issue of damage: ‘The assertions by
department officials about harm to the national interest are invariably about
hypothetical harm. No instances are ever given of actual harm in the past,
which might be useful in proving their point.’ He noted similarly that no-one in
government could point to evidence that the national interest had been
harmed by the previous release of material from IGBs or advice to Ministers. It
is a feature of contemporary government that advice and tentative ideas
presented to Ministers find their way into the public domain and are publicly
debated. To the extent that the release of preliminary advice can be
inconvenient or awkward for government, the FOI Act declares that
considerations of that nature are irrelevant in assessing the public interest
(s 11B(4)).
20.
Thirdly, the applicant made submissions on the positive public interest benefits
that could flow from release of additional material from the IGB. The exempt
material that he was contesting contained the Department’s advice on the
state of the economy and federal budget and immediate policy challenges
facing the Government. Generally, he submitted, government is in a better
position to make decisions on those matters if there is a robust public debate
that is informed by the advice given to government by its senior advisers. By
way of illustration he referred to the decision of the caretaker Labor
Government following the 2010 national election to provide Treasury advice to
the cross-bench members of Parliament, and to the occasional release by
5
Ministers of discussion papers, preliminary thoughts and exposure draft
legislation.
21.
Fourthly, the applicant submitted that many departmental decisions refusing
to release IGBs following the 2013 national election misconstrued the decision
in Crowe. He pointed also to inappropriate reliance by departments on both a
recommendation in a report by Dr Allan Hawke AC for a special exemption for
IGBs, and to a reported comment by the Hon Tony Abbott MP when Leader of
the Opposition that the release of IGBs would contravene the Westminster
conventions. (I will not further address this theme in the applicant’s
submissions, having discussed similar points in Crowe and in Parnell &
Dreyfus.2)
Deliberative processes exemption (s 47C)
22.
The requirements of s 47C of the FOI Act are discussed in Parnell & Dreyfus and
will not be repeated here.3 I will briefly note those requirements and
concentrate on the special or distinguishing features of this case. There are
three principal issues on which a finding is required in this IC review.
‘Deliberative matter’ prepared for a ‘deliberative process’
23.
The first issue is whether the material in the IGB that has not been released
(the redacted material) contains ‘deliberative matter’ that was prepared for a
‘deliberative process’. If so, it is conditionally exempt under s 47C.
24.
The short answer is ‘yes’. I have read the redacted material and it is framed as
advice, analysis, opinion and recommendations for consideration and possible
decision by the Prime Minister. For example, opinions are expressed as to why
matters are urgent or important. Formal recommendations are made and
other advice and suggestions are provided as to the urgency, prioritisation and
implementation of issues. This is couched as advice for ‘your consideration’, as
‘proposed’ arrangements, ‘proposals outlined for your agreement’ and actions
‘you may wish to consider’. This material was prepared for a specific
deliberative process with the Australian system of government.
‘Purely factual material’ and other non-deliberative material
25.
The second issue is whether the redacted material contains ‘purely factual
material’. If so, it is not deliberative matter for the purposes of s 47C (see
s 47C(2)(b)). Nor is material that merely describes an agency’s structure,
processes and activities treated as deliberative matter.
26.
The Department has already released some purely factual and other nondeliberative material to the applicant (together with some material that could
qualify as deliberative matter, but that is mostly on the public record in one
2
3
See Crowe at [87] (as to the comment by the Hon Tony Abbott MP) and [97] – [101] (as to the
report of Dr Hawke); and Parnell & Dreyfus at [29]-[35] (as to the decision in Crowe) and [81] –
[83] (as to the report of Dr Hawke).
See [37] – [49] and [57] – [72].
6
guise or another). The factual and other non-deliberative material that has
been released is mostly descriptive of existing government arrangements,
programs, commitments and announcements.
27.
Some of the material that has not been released is factual in nature. However,
to apply a distinction explained in Crowe at [81] – [82] and in Parnell & Dreyfus
at [38], it is factual material that is either an integral part of the deliberative
process content of the IGB or is embedded in or intertwined with that content
and is impractical to excise. As such, it qualifies for conditional exemption
under s 47C.
‘Contrary to the public interest’
28.
The third issue is whether it would be ‘contrary to the public interest’ at this
point in time to provide access to the (conditionally exempt) redacted
material. If so, it is exempt from release under the FOI Act.
29.
I have earlier summarised the public interest contentions made by the parties
(at [12] – [19]). There is also a fuller discussion in Parnell & Dreyfus at [57] –
[72] of the competing public interest considerations that are relevant to
releasing the deliberative content of an IGB prepared for a party that did form
government. Save in two respects, the public interest considerations in this
case are no different to those discussed in Parnell & Dreyfus. It follows that I
am guided by the findings I reached in that case, as to why it would generally
be contrary to the public interest to release the deliberative content of an IGB.
30.
Three key findings were: an IGB is a unique document that is prepared for a
special purpose at a critical juncture in the system of responsible parliamentary
government; release of the deliberative content of an IGB at the time of its
preparation or soon after could be expected to draw a department or Minister
into a debate or controversy that would confound the objective of placing the
Minister in the position of taking control of a new portfolio and establishing a
trusting and effective working relationship with the department; and the
quality, value and relevance of an IGB would be compromised if it was written
in a less frank or direct style in anticipation that it may soon be a public
document.
31.
An additional finding, relevant also to this case, is that little weight could be
attached to the previous release by agencies of portions of IGBs. As I explained
in Parnell & Dreyfus at [66] – [70], it is difficult to compare the character,
sensitivity, confidentiality and exemption status of material from IGBs
prepared by different departments or in different periods of government.
32.
That leaves only two special or distinguishing public interest factors in this
case. The first is that the applicant has made a well-argued submission that the
public interest may favour greater release of IGB content than the Department
has agreed to. The applicant was careful to frame this as a request for the
Information Commissioner to run a critical or searching eye over the
7
Department’s submissions and the redacted material, as he was not privy to
the contents of that material.
33.
I comment below on the contents of the IGB in this case. A general
observation, however, is that a consequence of releasing deliberative content
from the IGB, as urged by the applicant, is that it would probably trigger a
change in practice within government concerning the preparation of IGBs.
Undoubtedly some IGB content would still be protected, notably under other
exemptions or – if the content was particularly sensitive – under the
deliberative processes exemption. But it may be difficult for the authors of an
IGB to gauge in advance where the line would be drawn. If so, a likely
consequence is that IGBs would be written differently in future, and this
change would occur across government. The conventional government
practice described in Crowe at [13] – [28] concerning preparation and
confidentiality of IGBs would therefore change.
34.
I acknowledge that to be a tenable outcome – a shift in the public interest
balance – that would find support beyond the submissions in this case. A
forceful case can be made for greater disclosure of advice to government and
for facilitating broader participation in and scrutiny of government policy
formulation and decision making. However, the central premise of my findings
in this case (and in Crowe and in Parnell & Dreyfus) is that, for FOI Act
purposes, it is in the public interest to maintain the practice whereby
confidential deliberative advice on the full range of portfolio issues can be
prepared for and provided to a Minister following a national election, in the
form of an IGB.
35.
The second distinguishing public interest consideration in this case is that the
IGB under consideration was prepared in 2010 for an incoming Labor
Government that was not re-elected in 2013. As noted in Crowe (at [65] and
[90] – [92]), IC review is a merit review process in which account must be taken
of the facts and circumstances that exist at the time the review decision is
made.4 There is also a temporal element in s 11A(5) of the FOI Act, which
requires that access be given to a conditionally exempt document ‘unless (in
the circumstances) access to the document at that time would, on balance, be
contrary to the public interest’ (emphasis added).
36.
The age of a document and changes in the circumstances of government can
therefore be relevant to deciding whether disclosure would be contrary to the
public interest. This was not directly addressed by the parties in their
submissions in late 2013, following the national election. A finding in the
internal review decision in January 2011 – that ‘much of the policy advice
contained in the document remains the subject of current policy deliberations’
– may have been overtaken by a change in government and the effluxion of
time.
4
FOI Act s 55K; Shi v Migration Agents Registration Authority (2008) CLR 286.
8
37.
Here it becomes important to inspect the material for which exemption is
claimed. I note two matters, both of which provide ongoing support for the
exemption claim. The first is that much of the redacted material remains
sensitive, though possibly for a changed reason from that applying when the
IGB was written. The IGB contains advice to the incoming Prime Minister that is
written in a frank and direct style – under headings such as ‘Why is this
important or urgent?’, ‘Critical enablers for success’, ‘Potential signature
initiatives’, ‘Critical priorities’ and ‘Recommendations’. There are many
suggestions in the IGB about matters that require strong Prime Ministerial
leadership or personal intervention.
38.
Disclosure of that advice at this time could be held up as a yardstick for
measuring the performance of the Prime Minister to whom the advice was
provided. This would potentially create controversy about either the advice
provided to the Prime Minister, the Prime Minister’s and Government’s
response, the relationship between senior Departmental advisers and the
Prime Minister, or the implications for the current Government - Department
relationship. A logical consequence is that IGBs would be prepared differently
in future with an eye to avoiding that controversy. This could rob an IGB of its
essential and contemporary purpose.
39.
The second observation is that there are many sentences in the IGB that mirror
comments that are already in the public domain or that could individually be
released without consequence. However, as I noted in Parnell & Dreyfus at
[82], the confidentiality that attaches to deliberative content in an IGB has less
to do with the character of individual sentences or comments, and more to do
with their inclusion in a document of a special nature. As I also commented in
that case at [80], it is not reasonably practicable in an IC review process to
decide, sentence by sentence, which parts of the diverse content of such a
comprehensive document can be released on public interest grounds, without
receiving detailed agency submissions and conducting a lengthier IC review
process.
40.
In conclusion, I decide that it would be contrary to the public interest to
release at this time the redacted material in the IGB.
Commonwealth-State relations (s 47B)
41.
The Department made a claim of exemption under s 47B(a) for material on two
pages of the IGB. As noted above at [16], the Department did not elaborate on
this claim, commenting that to do so could reasonably be expected to risk
further damage to Commonwealth-State relations.
42.
It is not necessary that I firmly resolve this issue in light of my findings under
ss 11A and 47C. However, I do observe, having read the material in question,
that I doubt whether disclosure of the relevant material could reasonably be
expected, at this point in time, to damage relations and be contrary to the
public interest. Disclosure of the material could perhaps prompt some
9
discussion or raise an eyebrow, but is unlikely to rise to a level of ‘damage’ as
that concept has been spelt out in other cases. Examples referred to in the
Guidelines that I have issued under s 93A of the FOI Act include disclosure that
could interrupt or create difficulty in Commonwealth-State relations, adversely
affect the administration of a joint project, impair the continuing viability of a
joint program, undermine intergovernmental trust and cooperation, or
prejudice the flow of information between governments.5
Decision
43.
Under s 55K of the FOI Act, I affirm the decision of the Department of
19 January 2011 (as revised) to refuse access to material on pages 5 – 72 of the
IGB prepared in conjunction with the August 2010 election. The material on
those pages is conditionally exempt under s 47C of the FOI Act and to give
access at this time would, on balance, be contrary to the public interest.
Professor John McMillan
Australian Information Commissioner
30 July 2014
Review rights
If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the
FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides
independent merits review of administrative decisions and has power to set aside, vary, or affirm an
IC review decision.
An application to the AAT must be made within 28 days of the day on which the applicant is given the
IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may
be payable when lodging an application for review to the AAT. The current application fee is $861,
which may be reduced or may not apply in certain circumstances. Further information is available on
the AAT’s website (www.aat.gov.au) or by telephoning 1300 366 700.
5
Office of the Australian Information Commissioner, Guidelines issued by the Australian
Information Commissioner under s 93A of the Freedom of Information Act 1982 at [6.39].
10