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Thursday, December 08, 2011

NSW Information Commissioner powers too limited

The NSW Information Commissioner has published three reports of reviews under the Government Information (Public Access) Act, the first since the act commenced on 1 July last year. One report is about access to the incoming state government briefs from March this year, the others are local council cases of broader significance, one (Clarke) concerning access to performance review information about the general manager, the other (Beale) to a report prepared for the ICAC.

The absence of published reports of this kind till now has been a surprising gap in the materials made available by the commissioner, as users of the act and agencies need and benefit ( well, theoretically sometimes) from guidance on the commissioner's approach to interpretation and application of the act in practical circumstances.

The published reports also highlight a weakness in the NSW model that is unique in the Australian context-the commissioner's powers are limited to making a recommendation and are not binding on the agency or reviewable. All three published reports are favourable to the applicant to some degree and recommend the agency concerned make a fresh determination.The agencies may or may not act in accordance with the recommendations, which are also open ended as to time. None of the three published reports include any indication of the agency response.

The applicant, after a long wait for an information commissioner decision (in one case (Clarke) the IC report was finalised in September 2011 following an application received in November 2010), then waiting to see if an agency responds by making a fresh determination in accordance with the recommendation, could if still aggrieved take the matter to the Administrative Decisions Tribunal. And start again a process that is likely to take another 6-12 months if not settled. At least the Tribunal has determinative powers. 

The NSW model is unique among information commissioners around the country. Elsewhere (Commonwealth, Queensland and Western Australia) the commissioner has powers to decide whether a document should be released in accordance with the law, subject to further merits review (Commonwealth) or judicial/error of law review (Queensland and WA).  The Ombudsman in South Australia and Tasmania similarly. Victoria is introducing legislation to create the position of Freedom of Information Commissioner today which seems likely to be in similar mode. More on that when the bill is available.

The NSW review framework is not designed for speedy resolution of disputed decisions on access or efficiency for applicants and agencies. While an overhaul is warranted, it will be interesting in the meantime to see if the NSW commissioner follows up recommendations and publishes (agency names please) information about acceptance and rejection, and how long each  takes to respond.

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