Friday, April 1, 2011

Australian Cabinet Information - a retrograde approach in the 21st Century

Matthew Moore’s story on the NSW Government’s resistance to releasing the “Blue Book” briefings for incoming Ministers highlights the continuing malaise in attitudes to FOI/Right to enforcement or access to government information in Australia.

See http://www.smh.com.au/nsw/onus-on-ofarrell-to-end-labors-state-secrecy-20110330-1cgdz.html

Australian governments, public officials and law reformers continue to display a narrow and outdated conception of how to handle cabinet confidentiality. The general approach of categorically exempting information tagged as “Cabinet documents” with no public interest test or excessively long periods of protection (and in my view 10 years is far too long and unjustified).

The one exception is Queensland where under the Right to Information Act 2009 the Premier has been proactively releasing a small but steady stream of Cabinet documents

http://www.premiers.qld.gov.au/right-to-info/published-info/our-decisions.aspx

In contrast is the New Zealand position where the release of Cabinet information has been taking place for many years and in contrast to Queensland is extended to even very important decisions and topics.

See for example

http://www.justice.govt.nz/publications/global-publications/c/civil-union-bill-relationships-statutory-references-bill/cabinet-policy-committee-minute-of-decision/?searchterm=cabinet

Anti-Money Laundering and Countering the Financing of Terrorism AML/CFT Bill: Approval for Introduction at
http://www.justice.govt.nz/policy/criminal-justice/aml-cft/publications-and-consultation/LEG-paper-to-introduce-AMLCFT-Bill-final.pdf/view?searchterm=cabinet

See briefing to new incoming Conservation Minister in 2008 http://www.doc.govt.nz/upload/documents/about-doc/role/policies-and-plans/briefing-to-new-minister-of-conservation-2008.pdf


http://norightturn.blogspot.com/search/label/OIA

Govt departments -

http://www.dia.govt.nz/Publications-and-reports

http://treasury.govt.nz/publications/informationreleases

Proactive publication is now so common in New Zealand there is a policy governing proactive release see CO Notice (09) 5 7 August 2009 Publishing Cabinet material on the web: approval process and publication requirements. See below

In fact Item 8 even allows for a New Zealand Minister to release documents before they have been considered by Cabinet.


The irony is that it took an Official Information Act request to access this Cabinet Notice.

We are told that our system of government in Australia would fall apart if this type of information was released after a Cabinet decision let alone beforehand. This dreadful fate is said to await even if you release Cabinet documents before 20 years has passed at a Commonwealth level. Strangely nothing seems to happen to the smooth running of our system of government when Premiers or Prime Ministers exclusively brief journalists on a Cabinet meeting, or a Minister leaks who was on what side of a Cabinet argument or when a former Minister reveals cabinet deliberations in their memoirs penned shortly after leaving office.

There seems an almost total incapacity by government officials and government ministers to understand how a structured means of access that uses the public interest as the key to determine the degree, timing and extent of release is a better fit for governance in the 21st century.
It probably was an inferior form of governance even in the 18th century.


New Zealand CO Notice (09) 5 7 August 2009 Publishing Cabinet material on the web: approval process and publication requirements

Summary


1 A Minister may decide that it is appropriate for Cabinet material to be published online, either proactively or following a request for the information made under the Official Information Act 1982.

2 The Cabinet Manual (at paragraph 8.4) provides guidance about the proactive release of Cabinet material. This notice sets out in further detail the processes and responsibilities that follow a Minister’s decision to publish Cabinet material on the web. It aims to support departments and staff in Ministers’ offices to publish Cabinet material online consistently and effectively so that it is easy to find. The notice covers:
  • • the approval process, including roles and responsibilities; • consideration of principles of the Official Information Act 1982 and other
  • relevant considerations; • content and presentation requirements; and • quality assurance.

3 “Cabinet material” means submissions that have been considered by Cabinet or a Cabinet committee, and Cabinet and Cabinet committee minutes. “Publisher” means the person in a department or a Minister’s office who is responsible for administering the publication of the Cabinet material on the web.

4 The notice relates only to Cabinet material of the current administration. The process for publicly releasing Cabinet material of a previous administration is set out in paragraphs 8.83 and 8.84 of the Cabinet Manual.

Approval to publish Cabinet material

5 Cabinet material may be published on the web only if the relevant portfolio Ministers(s) has approved the release of the material in that way. The publisher is responsible for obtaining the approval or for checking that approval has been obtained.

6 Approval can be obtained by:
  • • the publisher (ie a Minister’s office or department) seeking the portfolio Minister’s approval to publish a Cabinet paper/minute online;
  • • the portfolio Minister directing officials to publish a Cabinet paper/minute online; or • the Cabinet minute noting that the portfolio Minister will publish the information on the
  • web.

7 Before approving publication, the Minister should consider:
  • 7.1 the application of the principles in the Official Information Act 1982, the Privacy Act 1993, and the Security in the Government Sector manual to the information;
  • 7.2 whether the document contains any information that would have been withheld if the information had been requested under the Official Information Act 1982;
  • 7.3 whether the document contains any information that must be withheld under the terms of any other legislation; and
  • 7.4 whether, in the circumstances, publication on the web is the best means of public release.

8 If a Minister decides before the paper is considered by a Cabinet committee or by Cabinet that publication will be appropriate, the paper should contain a recommendation noting that intention:
note that the Minister intends to publish this paper and related Cabinet decisions online, subject to consideration of any deletions that would be justified if the information had been requested under the Official Information Act 1982.
Content and presentation

9 It is the publisher’s responsibility to ensure that only the final versions of Cabinet material are published on the web.
  • • Papers: the final version of a paper is that signed and dated by the Minister and considered by a Cabinet committee or Cabinet.
  • • Minutes: the final version of a minute is that issued by the Cabinet Office following a Cabinet or Cabinet committee meeting.

10 Cabinet committee minutes should not be published, however, until they have been confirmed by Cabinet.

11 Depending on their administrative arrangements with departments, Ministers’ offices may choose to review the finalised content before publication on the web.

12 Once Cabinet material is published on the web, the storage and handling requirements belonging to its original security classification (specified in the Security in the Government Sector manual and at http://www.security.govt.nz/sigs/index.html) may no longer apply. Unless some information has been withheld from the online version, departments may need to think about reviewing the security requirements of the original version stored on their document management systems.

13 Where possible, papers and relevant minutes should be published together so that readers have context for the decisions made by Cabinet. The Cabinet Office is able to provide electronic copies of minutes on request.

14 Where Cabinet material has been published on the web following a request under the Official Information Act, any deletions should be flagged in the body of the text at each deletion point. It is good practice to state the reasons for deleting information.

15 Do not publish:
  • • Cabinet Office summaries, which do not provide information additional to that contained in Cabinet papers and/or minutes;
  • • the distribution lists on Cabinet and Cabinet committee minutes, since their function is purely administrative for the distribution of hard copy documents;
  • • the names and signatures of Cabinet Office committee secretaries; or • CAB100 consultation forms accompanying Cabinet papers.
16 Cabinet material published on the web should conform with the current New Zealand Government Web Standards 2.0. At the time of writing this notice, this is version 2.0 (dated March 2009) and is available at http://webstandards.govt.nz/new-zealand-government-web- standards-2/

Quality assurance

17 It is the publisher’s responsibility to ensure the quality and accuracy of Cabinet material made available on the web.
18 The following points should be included in any quality assurance checklists used by publishers of Cabinet material:
  • • the Minister has approved the item for publication • it is the final signed version being published • if it is a Cabinet committee minute, that it has been confirmed by Cabinet • the title and other reference information (eg shoulder number) is accurate • the date on which the paper was signed has been included • any distribution lists have been removed • the Cabinet Office summary (including its distribution list) has been removed • the signatures of the Secretary of Cabinet and/or of Cabinet committee
  • secretaries have been removed • the related CAB100 consultation form has been removed • all related Cabinet material (paper, minute) is included.

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