How do I process an FOI request for an Incoming Government Brief

With the conclusion of the 2025 Commonwealth election and the associated caretaker period, we are now expecting that Commonwealth agencies will begin to receive freedom of information (FOI) requests for incoming government briefs (IGBs).

We have prepared the below guidance to assist FOI decision makers. 

What are incoming government briefs?

IGBs are prepared in anticipation of a federal election and play an important part in supporting the transition between Governments following the outcome of an election. Two (2) versions of an IGB are usually prepared, one being in the event that the current government is re-elected and one if a new government is elected. IGB’s provide a concise, informed, and detailed overview of various government portfolios for incoming ministers.

As such, IGBs often contain sensitive and important information. 

IGBs are confidential documents prepared by public servants to assist whichever party or Minister takes office following an election. According to the Office of the Australian Information Commissioner (OAIC) FOI Guidelines at paragraph [6.254], this makes IGBs fundamentally distinct in nature and purpose. As they are created before it’s known who will form government, they are inherently different from the usual departmental advice or brief, due to uncertainty in timing and audience.

IGBs and FOI

IGBs hold an interesting place in the freedom of information (FOI) landscape and are well documented in case law and regulator discussion (see paragraphs [6.253] – [6.259] of the FOI Guidelines).

It is a common misconception that IGBs will always be exempt in full under the Freedom of Information Act 1982 (Cth) (FOI Act). Whilst IGBs are unique in nature and the special role that an IGB plays is clearly recognised and accepted, any requests for IGBs still need to be assessed like any other FOI request.

That being said, it has been established in case law that there are compelling reasons as to why IGBs can (and arguably should) usually be withheld from release. Under the public interest test, it is often deemed contrary to transparency to release deliberative matter at such a sensitive time. This approach was affirmed in:

• Parnell & Dreyfus and Attorney-General’s Department [2014] AICmr 71 at paragraph [82], and
• Dreyfus and Secretary Attorney-General’s Department (Freedom of Information) [2015] AATA 962 at paragraph [102].

These authorities recognise that IGBs are intended to provide frank and helpful advice to Ministers stepping into office at a critical point in our system of government. In this context, it is important to balance the need for public servants to be able to speak and advise freely without concern that their advice will immediately be exposed, politicised, or taken out of context, whilst also balancing public interest factors in favour of disclosure.

In some cases, a political party may receive an IGB but not go on to form government. Here, disclosure becomes even more contentious. It may not be reasonable to reveal a department’s assessment of policies that the political party never had the chance to implement. As noted in Crowe and Department of Treasury [2013] AICmr 69 at [91], special treatment is warranted in such cases.

Further, the protection of IGBs isn’t limited to cases where governments change. Even when a government is re-elected, risks remain. The effect of disclosure has been considered by the then Administrative Appeals Tribunal in the context of whether it would damage working relationships between departments and ministers, particularly if it reveals early or tentative thinking. This point was highlighted in:

• Dan Conifer and Department of the Prime Minister and Cabinet (No. 2) [2017] AICmr 117 at paragraph [35], and
• Dreyfus and Secretary AG’s Department [2015] AATA 962 at paragraphs [105] and [107].

Having regard to the above considerations, FOI decision makers (and supporting business areas) should then assess then relevant document on a line-by-line basis.

FOI decision makers are required to pay close attention to the potential application of exemption and conditional exemptions provisions and the public interest test.

Exemptions and public interest

Agencies should be mindful that there is no provision in the FOI Act which blanketly exempts IGBs from release. In accordance with the legislation, the Information Commissioner noted in Crowe and Department of the Treasury [2013] AICmr 69 that all IGBs should be considered separately under the FOI Act.

The case law in relation to IGBs serves as a useful resource for government agencies when considering conditional exemptions and the public interest test in processing an FOI request for an IGB. The case law is primarily focused on the following exemptions in the FOI Act:

s 47C of the FOI Act – Whether the document contains deliberative matter for a deliberative process and is conditionally exempt

s 47E of the FOI Act – Whether disclosure could reasonably be expected to have a substantial adverse effect on the operations of an agency

However, we also note that IGBs will often contain information which may be appropriate for conditional exemption under other provisions including sections 33 (national security, defence or international relations), 37 (law enforcement and protection of public safety), 47F (personal privacy), and 47 and 47G (commercial and business information). We note this is not an exhaustive list.

In applying any of the above exemption provisions, an agency is then required to consider whether release would be contrary to public interest.

The following case law should also be considered by agency FOI teams when processing FOI requests for IGBs, with the key takeaways being that:

• agencies will be required to assess each IGB individually
• agencies should employ a broad perspective when assessing IGBs, and
• partial release of IGBs is a possibility, with many Agencies opting for this approach in recent years.

1. Parnell & Dreyfus and Attorney-General’s Department [2014] AICmr 71

This matter concerned an FOI request by a journalist for an IGB provided to the Attorney-General in the new Coalition government. Reasons for refusal included:

• the IGB represented deliberative matter (analysis, views, and advice) related to a deliberative process (advising incoming Minister on portfolio matters), triggering the s 47C conditional exemption of the FOI Act, and
• it would be contrary to the public interest under s 11A(5) to release deliberative matter in an IGB, particularly where the IGB is providing frank and helpful advice to a new Minister at a critical juncture in government.

Each individual part of the IGB was reviewed by the Australian Information Commissioner (AIC), considering what aspects of the brief might be subject to conditional exemption and then application of the public interest test. The original access decision made by the Department was varied, with only certain pages of documents being exempt.

An important quote by the AIC in this matter for agencies to consider is:

'This case illustrates the difficulty, in an FOI review process, of deciding which portions of a comprehensive brief are exempt and which are not. Many and perhaps most paragraphs in the IGB in this case could be individually and separately released without consequence. Yet the paragraphs together constitute a unique document that is prepared for a special purpose at a critical juncture in the system of responsible parliamentary government. Inevitably, therefore, one is drawn back to evaluating the exempt status of specific content by its inclusion in a document of a particular kind.'[1]

2. Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962

Mr Dreyfus sought a review of the 2014 Parnell and Dreyfus decision, requesting that the entirety of the IGB released. Justice Bennett was of the view that parts of the IGB were not exempt and varied the AIC’s decision.

Agencies should pay close regard to the following issued raised by Justice Bennett in this matter:

'It is important that those preparing the deliberative content of IGBs continue to understand that it may be not only frankly but also fully and in the knowledge that it is confidential to the intended recipient/s. It is then up to the Minister and the Secretary to determine any discretionary release.'[2]

Justice Bennett continued to explore the balancing exercise that decision makers assessing IGBs are forced to navigate, by noting that while the need for frankness, candour and knowledge of confidentially when drafting IGBs may not alone outweigh the public interest, '…factors against release are cumulative and it is that accumulation that tips the balance against access being granted.'[3]

3. Dan Conifer and Department of the Prime Minister and Cabinet (No. 2) (Freedom of information) [2017] AICmr 117

A key point of this matter, which concerned an IGB prepared for Prime Minister Turnbull, is the consideration of damage that can arise from disclosure of IGBs. The AIC’s exploration of this point, which should be carefully considered by agencies, notes that:

'… consideration of the damage that is likely to arise from disclosure of the incoming government brief should not be limited to damage relating to the relationship between current agencies and ministers in the present government, but should also include the likelihood of damage to relationships between agencies and their respective ministers in the future.'[4]

Similar to the approach in Dreyfus, parts of the IGB were released with the majority exempt from release.

Get in touch

If your agency requires advice or assistance with the processing of FOI requests for IGBs, please reach out to Chantal, Katherine or Molly and our team of FOI specialists would be happy to assist.

[1] See paragraph [82] of decision.

[2] See para 103 of decision.

[3] See para 107 of decision.

[4] See para 35 of the decision.