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Thursday, September 24, 2009

"Interesting' Ombudsman report-a serious understatement.

Following on from the previous post, and thanks to James King for the comment and lead, those seriously interested in Freedom of Information processes will find the NSW Deputy Ombudsman's 120 page report on the handling by the Office of the Board of Studies (OBOS) of FOI applications for HSC marks and related documents, posted here not just interesting but instructive, and... well, shocking.

Words that stay in the mind after reading the report about OBOS handling of the matters are adversarial, defensive, combative, obfuscatory, technical, legalistic, uncooperative, and according to the Deputy Ombudsman's interpretation of the Act, plain wrong on a number of counts, including regarding the limitation on the need to search for computer records mentioned here the other day. The Ombudsman reports on a couple of firsts in 20 years experience reviewing FOI complaints - senior officers writing letters for more junior officers to sign, and a senior officer "independently" reviewing the exercise of his own statutory powers - twice.

The reported cost of employing the Crown Solicitor's Office, $15000 for representation of OBOS for a technical but in the end pyrrhic victory in the Administrative Decisions Tribunal, is just the tip of the direct and indirect cost of the exercise including loads of legal advice also from the Crown Solicitor (66 documents the Ombudsman's Office couldn't access because of claims of privilege) on the way through, not to mention his lengthy investigation and report.

Make what you will of the fine detail. The Deputy Ombudsman's findings were:
"19.1 I find that the OBOS’s failure to have a person with sufficient knowledge, skills and experience, in relation to the FOI Act and the relevant case law and government
policy, to make an appropriate determination in relation to the December 2005 or January 2007 applications, was unreasonable. (s. 26(1)(b) of the Ombudsman Act)

19.2 I find that the handling of the December 2005 application was unreasonable, based on irrelevant considerations and partly on a mistake of law. (s. 26(1)(b), (d) and (e) of the Ombudsman Act)

19.3 I find that the handling of the January 2007 application (including the handling of the ‘fresh’ FOI application) was unreasonable, based on a mistake of law and based on irrelevant considerations. In particular, I find that the OBOS’s actions in not treating the Lane letter as a determination were based on a mistake of law. (s. 26(1)(b), (d) and (e) of the Ombudsman Act)

19.4 I find that the denial of access to the documents sought in the January 2007 application constituted conduct of the OBOS for which reasons should have been
given but were not given. (s. 26(1)(f) of the Ombudsman Act)

19.5 I find that the handling of Mr Parsonage’s complaint of 15 January 2007 about the way his December 2005 application had been handled was unreasonable and
otherwise wrong. (s. 26(1)(b) and (g) of the Ombudsman Act)

19.6 I find that the handling of Mr Parsonage’s complaint, made at the end of his request for an internal review in a letter dated 12 April 2007, about having to pay another $40 internal review fee, was unreasonable and otherwise wrong. (s. 26(1)(b) and (g) of the Ombudsman Act)

I note that in its comments on a draft copy of this report, the OBOS stated that it does not agree with the generality of these findings with respect to the application of the law. However, during consultation on 2 September 2009, the Minister and the President of the Board of Studies accepted our findings. I welcome this positive and constructive response."
Roll on that culture change.

Here is an additional piece in today's SMH , and this from the editorial:
"To eliminate what it sees as needless worry ( over scaling) the board has turned it into what the Ombudsman describes as a black box: raw marks go in at one end, and final marks come out at the other, but as for what goes on in between, no one outside the board is allowed to know. To those who ask, ''But what if a mistake is made?'', the board answers only, ''Trust us.''

The board has said it will not release raw marks because they would only be misleading. Certainly, if people do not understand the process, the experience of having a raw mark scaled down to a lower final mark will seem baffling, possibly unfair and certainly suspicious - despite all the professionalism of markers and board personnel intended to ensure the opposite.

Will, as the board appears to fear, releasing candidates' raw marks give them the opportunity and motivation to contest the final mark - to kick up a stink and waste board resources in pointless challenges? Quite possibly. It comes down to a question, though, of how best to uphold the board's integrity. We believe transparency is more likely to boost public confidence than the present policy of keeping candidates in the dark.

The HSC is a public examination, and all results should be available to candidates. It is worrying that the Ombudsman found the board went to considerable, and highly questionable, lengths to keep the marks secret. The culture of secrecy runs deep in NSW. Constant vigilance is needed to ensure this oppressive instinct is kept in check."

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