Ombudsman rejects Gutwein Government secrecy bid over departmental briefs

Advice to Guy Barnett released after nearly three years following Labor application
 February 23, 2021
Published:  February 23, 2021
Photo illustration based on the cover page of the Ombudsman's decision. Image: Tasmanian Inquirer

Tasmania’s Ombudsman has rejected a bid by the Tasmanian Government to hide briefing notes for a newly appointed minister from public view.

The ombudsman, Richard Connock, ruled in late January in favour of Tasmanian Labor Leader, Rebecca White, granting her access to July 2016 ministerial briefings to the Minister for Resources and Construction, Guy Barnett. White had requested the documents in April 2017.

Right-to-information (RTI) advocates hailed the decision as a blueprint for the future.

“It is a very useful precedent-setting decision which details the hurdles the government needs to clear to withhold information,” said Rick Snell, an honorary associate professor in law at the University of Tasmania.

Snell said the government faced the prospect that similar requests could also be successful, but the ombudsman’s decision came with qualifications that meant it may not apply to the release of all department briefings to new ministers.

In particular, it may not apply to “blue books” prepared for governments immediately after an election.

The decision comes amid greater concern about Tasmania’s RTI system. The ombudsman has found RTI requests were refused nearly twice as often as any other Australian jurisdiction, and the rate of refusal had increased under the Liberal government.

“There is also no doubt that the government refuses right-to-information requests to release information, as a delaying tactic,” said Ella Haddad, Labor Shadow Attorney-General.

Both Labor and the Greens said change was needed.

Labor MP Ella Haddad, the Shadow Attorney-General, said most incoming briefs to ministers should be available to the public.

“There may be legitimate reasons for some information in incoming ministerial briefs to be confidential where it relates to commercial-in-confidence material and cabinet decisions. However, much of the information in these briefs is factual in nature and there is absolutely no reason why it could not be released as a routine disclosure,” she told Tasmanian Inquirer.

Haddad said the government’s “knee-jerk reaction” was to hide information.

“They are the most secretive government Tasmania has seen. The fact that nearly 100 per cent of reviews by the Ombudsman overturn government decisions to refuse to release information shows that clearly,” she said.

“There is also no doubt that the government refuses right-to-information requests to release information, as a delaying tactic.”

Greens Leader Cassy O’Connor, a minister in the Labor-Greens government between 2010 and 2014, said there was no reason to keep incoming ministerial briefs secret.

“The ombudsman agrees,” she said. “When we were in government, it was understood incoming briefs could be made publicly available. As a former minister, I know those briefs simply outline facts and issues. That information should be publicly accessible.”

Snell said incoming ministerial briefs provided an update of what agencies “are or have been doing and what may need to be changed by either the department of the government in terms of policies or projects”.

He said the ombudsman had treated the briefs to Barnett in 2016 as “largely factual updates” and distinguished them from briefs immediately after an election, which were about the impact and implementation of potential policies.

A spokesperson for the Premier Gutwein’s government did not respond to a question from Tasmanian Inquirer on whether incoming ministerial briefs would now be made public as a matter of course.

Incoming ministerial briefs have been routinely disclosed by some government agencies in New Zealand and occasionally released in Australia.

In December 2020, the re-elected New Zealand Labour Government led by Jacinda Ardern released more than 150 briefs for incoming ministers.

In Australia, both the Department of Prime Minister and Cabinet and Treasury released part of the briefings for incoming Labor prime minister Julia Gillard in 2010. Treasury also released its briefing to then treasurer Scott Morrison in December 2015. That same month, the Administrative Appeals Tribunal ordered the Attorney-General’s Department to release part of its 2013 briefing to Attorney-General George Brandis.

Ombudsman data reveals Tasmania lags in secrecy stakes

In his most recent annual report the Ombudsman found that in 2018-19 Tasmanian government agencies refused access to all information sought in 30 per cent of applications.

“This rate of refusal was nearly twice that of the next highest jurisdiction (Queensland at 16 per cent) and 750 per cent that of Australia’s most open jurisdictions (Victoria and the NT both at 4 per cent),” it said.

The report noted the percentage of complete refusals had increased in each year since 2016‐17, when it was 15 per cent. The Liberals formed government in March 2014.

A Gutwein Government spokesperson said it had asked the ombudsman to “look at ways to improve the RTI process” and “we look forward to receiving that advice shortly."

White’s request was for four briefs submitted to Barnett that provided an overview of mining industry developments, key issues in forestry policy and updates on Worksafe Tasmania and construction issues.

Barnett claimed all of the documents were exempt under two sections of the Right to Information Act, and that the disclosure of the briefs would compromise the willingness of public servants to provide similar information in the future.

White appealed, arguing he had made sweeping claims and failed to consider key factors identified in the legislation that provided guidance on how the public interest should be assessed.

In his 10-page decision, Connock found Barnett had not provided “specific reasons for the exemption of information”.

He concluded that Barnett had failed to show that disclosing the bulk of the four documents would harm the public interest. He exempted some sections.

After considering a submission from the Secretary of the Department of State Growth, Kim Evans, Connock agreed two further minor parts of the text were exempt.

Less than one page of the eight pages of the mining and forestry briefs was ultimately deemed exempt.

Thirty-three pages of the construction portfolio and Worksafe Tasmania briefings have not yet been uploaded to websites for released RTI documents.

Snell said the ombudsman’s decision “reinforced the emphasis of putting the onus on departmental decision makers to rebut the public interest in release”.

Bob Burton is a Hobart-based author, researcher, editor and freelance journalist. He is the Editor of CoalWire, a weekly bulletin on global coal industry developments for the US-based non-profit group Global Energy Monitor. His freelance journalism has been published in a wide range of news outlets from the British Medical Journal to the US-based PR Watch.

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