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Monday, June 27, 2011

NSW Information Commissioner joins performance discussion

Readers of comments will have seen an exchange about the performance of the NSW Information Commissioner following this post, prompted by a comment by Doyle Brady who wrote a longer first piece on the subject to kick off the eyes on government blog. In a welcome development the Commissioner Deirdre O'Donnell has joined the conversation. As some who are interested may have missed this, I'm moving the discussion from comments to centre stage. Other contributions are welcome, particularly on outcomes and results of 12 months of GIPA, and the leadership and oversight by the Commissioner's office.

To paraphrase, Doyle Brady who I don't know, raised questions in a critical tone about what the Commissioner had achieved in the first 12 months-see the link above for the detail.

I said
There is a lot to do in the first 12 months in setting up a new office such as this. Overall it seems to me a fair bit has been accomplished. I'll leave it to the Commissioner to elaborate if she wishes. But some of the points Doyle makes about the Office are well taken- only two published review decisions, lack of published information about investigation of agency compliance with publication requirements, for example.You could add no information about performance standards for the Office or how agency performance is to be measured, no guidelines on the public interest test, and no published speeches. Recalcitrants and agencies with systemic problems-there have to be some?-have also escaped public attention so far, apart from Macquarie University which some fell got off lightly.

It is still an open question whether the creation of an independent freedom of information/privacy office separate to the NSW Ombudsman is the best approach. The Premier in opposition maintained combining the two was the way to go but unscrambling things after a year seems premature.

One weakness apparent in the legislation regardless of where the function sits is that the Commissioner's powers on review are recommmendatory not determinative. What's the batting rate on agency acceptance so far? I'd also give the office more clout regarding the publication requirements of the act.

As to Doyle's couple of proposed litmus tests, executive remuneration and performance is an annual report requirement, the latter pretty anodyne for sure. See Department of Premier and Cabinet 2009/2010 page 101 for example
There is no reason why remuneration shouldn't be routinely disclosed apart from this. CEO performance agreements should include open government and other deliverables, and generally should be publicly available although I can see circumstances where disclosure of some content might not be in the interests of delivering efficient and effective public administration. Publication of performance payments and reasons also makes sense. Whether we would be best served by full routine public disclosure of performance assessment against performance agreement is another of those questions that can't be answered in the abstract or in a general one size fits all sense. Insisting on it may not produce the performance assessment system or performance results we hope for. 

Doyle Brady replied
I agree that there is a lot to do setting up a new office in the first 12 months. However, when compared to the performance of other jurisdictions in their first 12 months NSW is certainly lagging behind, particularly on the compliance front. Qld OIC developed a robust compliance plan which they published on their website within the first 6 months of operation. The question is, has Deirdre failed to develop any meaningful strategies for her department or that the department intended to promote transparency is selective in disclosing their own information? I certainly couldn't obtain any information in relation to their compliance processes nor any other strategies. Excuses such as being the 'new kid on the block' as many of us have heard her iterate in many speeches and staff rotation is getting stale 12 months on(not to mention, if I recall correctly, the additional 4-6 months they had prior to the GIPA Act commencing). All we want to see now are results and action, not more excuses!

Deirdre O'Donnell had this to say
Welcome to the open government conversation Doyle Brady! As NSW Information Commissioner and the champion of open government in this state, I welcome robust discussion of my activities and achievements. Given my privileged role, it is vital that I am accountable to the Parliament and the people of New South Wales. While our annual report for 2011/2012 will be the most comprehensive way for me to address what’s been happening in the NSW public sector after a year of the GIPA Act, I’ve also done two reports to my Parliamentary oversight committee about the work of my office. The last report at the start of this year gave a snapshot of our first six months of operation. I will provide an updated report to the new committee when it is formed, covering January to June 2011, and this will be published this on the OIC website as part of our open access information.

As Peter says it has been a busy 12 months since the GIPA Act commenced. My reports to my committee have been one way to demonstrate my priorities and my office’s achievements over that time. As Mr Brady correctly observes, at this stage we have only published two review decisions. Not unexpectedly with the commencement of the new legislation, there has been strong interest in accessing government information. The volume of complaints and review requests has been a challenge for our office, but with the recruitment of additional staff, we are well on track to dealing not only with the outstanding reviews, but to begin regular publication of our decisions.

Much of our work in the past 12 months has been to promote the new legislation to both agencies and the public. GIPA is a very different piece of legislation to FOI, and getting agencies to understand that has been an important message to convey. This is the first step in driving the necessary cultural change required to ensure the Act really achieves its objects. Peter is well known for promoting the fundamental importance of cultural change, and I see it as key to the success of the new regime in this state. That is why we have focused so much on working with NSW government agencies to provide them with the knowledge and resources they need to comply with the legislation. Agencies have received specific advice on what the OIC will seek in compliance reviews, in the form of a compliance checklist – a resource that enables agencies to conduct their own audits to ensure they comply with the GIPA Act.

The public interest test is of course central to the new proactive regime. We have so far published three guidelines that deal with aspects of this test. Guidelines 1 and 3 specifically assist local councils to apply the public interest test in relation to publication on the internet of personal or sensitive information. We have chosen to take a targeted approach with guidelines to address problems that risk impeding the achievement of the objects of GIPA. In providing guidelines, we want to assist agencies but not to prescribe their decision-making. To this end, we have produced e-learning material for agencies and the public and a fact sheet explaining in general terms how the public interest test works. We have also made a submission to the ADT that may be of interest.

In the coming 12 months our focus on monitoring agency compliance with the Act will move to centre stage. We will continue reviewing agency websites, publication guides and annual reports to ensure NSW government agencies are meeting their open access information responsibilities, and report on what we find. Easier access to key information is one of the most important public benefits of GIPA, and we will be evaluating and commenting on whether that is being achieved.

For now, thanks to Peter Timmins, Doyle Brady and others who continue to contribute to vigorous discussion about open government in NSW. I’m always happy to meet with fellow right to information supporters, so any time Mr Brady or anyone else would like to drop into our office for a constructive chat over cup of tea, and perhaps a biscuit, please let me know. 


  1. Anonymous12:48 pm

    I just want to say, doesn't staff rotation mean problem with staff retention?

    I'm a right to information officer within the nsw public service and have to deal with the OIC a lot. In the last few months I've noticed that every time I establish a good rapport with a review officer, the next time I call I find that person has left. I think just in the last 3 months, at least 3 review persons (and I think one was a manager or senior person) have been advised as having left the office. It's such a shame because so far the ones I've talked to who have left were really good. I'm now on my fourth review person and I hope she sticks around.

    As a long-serving public servant, staff generally don't leave an agency unless there's something very wrong and staff flee before they're dragged under and they're really unhappy. I get the feeling all the performance issues we've seen publicly is only the tip of the iceberg. The government might want to review the information commission's operations. In my experience, staff retention and operation issues inevitably leads to a forced restructure by the Department of Premier and Cabinet, and with all the government talk of a state-wide overhaul, the information commission may very well end up another body, even if not under the Ombudsman.

  2. I've heard the OIC comment that agencies have been recruiting some of her staff giving rise to continuity problems in some areas.

  3. Adrienne Nguyen1:49 pm

    The Information Commissioner says that the volume of complaints and review requests have taken a toll on her ability to publish decisions, aren't reports on review and complaint decisions written in a professional manner to enable the decision to be easily published? That's what all good investigative agencies do, see the NSW Food Authority, ICAC and NSW Ombudsman's Office for example.

    As right to information legislation isn't a new jurisdiction, I would have thought the first thing she did on taking over the jurisdiction from the NSW Ombudsman's Office was to ask the Ombudsman for advice and pointers on best practice so she wouldn't need to reinvent the wheel. I'm sure the Ombudsman's office would already have had investigation report templates the new Information Commission could use. Maybe the Information Commissioner could ask the Ombudsman's now for that advice. Alternatively, maybe as Doyle Brad and Peter Timmins rightly implies, there is sufficient evidence now to show that the jurisdiction should be given back to the NSW Ombudsman as it is becoming more obvious that Bruce seems to have proven skills and better, well-established compliance best practices than the new Information Commissioner.

  4. I said it is an open question where the oversight function best sits, and that unscrambling things after 12 months seems premature.

  5. Anonymous3:40 pm

    i've also heard the oic mention other agencies pinching their staff as an excuse for backlog in reviews. Don't know numbers but if anonymous comment is true than there's been staff in other teams leaving too because my agency recently recruited some oic staff from another team. public service is notorious for staff who never leave. Unlike the private sector, there's rigid rules for recruitment in government, so pinching staff from other agencies doesn't happen. As someone involved in recruitment i should know the impossibility of pinching staff. A public servant has to be motivated to go through the grueling recruitment process of preparing selection criteria, interviews and pre-employment security checks. As a public servant, there's not many agencies I know of where at least 3 staff in the same team leaves within 12 months of employment...and within 12 months of an agency commencing!

  6. DCameron7:23 pm

    As an information practitioner and lawyer, I'm not impressed by the Information Commissioner's response to the points that have been raised on her performance issues. What I find lacking is proof of results in her response. Without proof of results her attempt to counter the non-performance points is merely spin.

    Here's what I'd like to see as proof of her performance:
    1. her performance agreement (as you have already challenged her to provide) and her report against that agreement over the last 12 months;
    2. their compliance and review plan and their 12months report on agency performance and whether their compliance strategies have been successful so far in ensuring compliance with the GIPA Act;
    3. their business strategy and their performance against it over the last 12 months;
    4. As Ms O'Donnell emphasises her plan on culture change, their culture change strategy and their performance against it over the last 12 months;
    5. their revised compliance & review plan, business strategy and culture change strategy for the next 12 months, including details of new initiatives based on analysis of their performance over the last 12 months, agency performance and culture assessment.

    I also agree with the comment made by Rob in Brady's post that the Information Commissioner doesn't seem to understand her legislation. Having attended practitioners' forums and seminars on the GIPA Act, I've noticed that her talks never tread into the details of the legislation and her agency's functions. I also noticed that she did not attend the second last practitioners' forum where practitioners had complex questions about their copyright advice, and in the last practitioners' forum she diverted all questions to her staff when questions into guidelines and legislation arose. It's a very poor image that she has impressed on agencies and information practitioners, if the head of the agency doesn't attempt to understand her own legislation and functions how can she expect us to?

  7. Anonymous9:26 pm

    The Joint Parliamentary Committee on the Office of the Ombudsman and the Police Integrity Commission exercises oversight functions of the OIC and Ms O’Donnell mentioned that she reports to this Committee twice a year. In light of the comments posted on this blog about the Information Commissioner’s performance, lack of reporting, delays with reviews and staff retention issues, perhaps the Committee needs to exercise their oversight functions as a matter of priority.