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Tuesday, April 02, 2013

NSW GIPA scheme short on performance information

It is hard to get a handle on the state of the game, with the Information Commissioner to step down in a few weeks. 

The lack of performance information has been noted here previously, as recently as January.

Prompted by a report in The Australian at the weekend Commission rules on casino documents on a review by the commissioner of a refusal of access decision by the premier's office that is critical of the original decision and other matters, I went looking for the review report.  

Not only is it not there but no review reports have been published since May 2012. The latest investigation report is dated June 2011. 

These reports are an important part of the armoury with the potential to keep ministers and agencies on their toes and up to the mark.

The most recent account of how the IPC is traveling came when the information and privacy commissioners appeared before the NSW parliamentary Committee on the Ombudsman, the Police Integrity Commission and the Crime Commission in February. The questioning was hardly forensic and the session only lasted an hour. But the Information Commissioner generally presented a positive picture both of IPC performance, and agency compliance and co-operation in implementing the Government Information (Public Access) Act. While a squeeze on resources at the IPC and in agencies was noted, not a lot was made of this. (Committee members showed interest in two specific issues, the privacy threats from the use of drones and access to convict records.)

Anecdotally - and that's all there is in the absence of performance information about efficiency and effectiveness at the IPC and what agencies are up to - it's a very mixed bag.  There are long delays waiting for IPC review decisions.The extent to which agencies abide by IPC conclusions which are recommendatory only is unknown. There has been no report published on agency performance.

One experienced journalist tells me using GIPA has been disheartening, to the point of giving it away as an investigative tool; another, that things vary enormously from agency to agency, with individuals often making the difference between outcomes that are understandable at least, and continuation of the old refuse access and die in the ditch approach.

Some exchanges between the commissioner and committee members taken from the transcript are below. 

With a disgruntled citizen apparently sending the commissioner 40,000 emails there may have been plenty of distractions from the IPC's main game.

What about in the external environment?
In the external environment we have been fortunate. We have a practitioner network which whom we can communicate who are actively, if you like, our many ambassadors out in the agencies. So to maintain a good and responsive line of communication to the right to information and privacy practitioners is a challenge but an important one. At a practical level, getting our own systems and processes in place to respond in a timely way to complaints, to make sure that our writing is targeted and helps agencies improve their practices, learning from every complaint or review that the Information Commissioner does. I think the doors have been open to us in terms of our own speech giving or participating in agencies' professional development. I have not found any doors closed. If I have asked for access to an agency, I have been granted it, as I would expect. Are they more general than you are thinking? Does that give you a flavour?
It does. Is it your impression that agencies are embracing the spirit of the Government Information (Public Access) Act and engaging with it , or are you finding there are any particular sources of cultural resistance?
Given that it is a sample of one and the cases are in the hundreds, not the thousands, this is what I see as a watchdog. As a watch dog you will always see what goes wrong and on the whole what goes wrong does not terrify me. On the whole what goes wrong are things that I think can be rectified by either better recordkeeping processes, better internal training and more targeted resources from us, so on the whole I am not seeing anything that concerns me or worries me greatly. Where we do encounter individual issues that are of concern, what we are comfortable to do is to immediately escalate those. If there was a problem with a particular agency I have no hesitation in contacting the head of the agency, and I have never found an agency head who said, "Get lost". The door has always been open. The agencies about whom our complaints or our reviews are greatest are obviously agencies like Police, and you would expect that to be the case. People want personal information
or they want informationfrom Police. If I talk about that, we spend a lot of our time working with P olice constructively but also bringing to their attention concerns and issues that we have. The dial ogue remains robust, it is ongoing and we see incremental improvements. Sometimes we step back two steps rather than one but we will reengage, so that sort of interaction is good. Other agencies in the clusters, for example, have brought me in to speak to their executive and say that I am here as the CEO and GIPA is important. That sort of thing is just invaluable because if the director general of the cluster is supporting you that raises your profile.
Are there any lessons for Government to learn arising from your experiences over the past 12 months?
There is nothing new in the message that I have as Information Commissioner.
That is why I try to embody that myself and in the way I help the Privacy Commissioner through provision of resources. This is about good services to the citizens of New South Wales. If agencies are genuinely open and have good lines of communication and listen to the citizens it is more likely they will give them what they need in terms of government information. It is more likely that they will put that information on their website. It is more likely that they will respond in a timely and service - focused way. That is a constant message. I think it is often a challenge for us as bureaucrats to think "service" but that lesson is just reinforced by all of my experiences. 
In addition to enhancing the experience of the citizen who is trying to interact, it can also be
administratively efficient just to give them what they want rather than have people going
in circles for months.
Exactly, and you are a happier person at the end of it, you have more confidence in
government processes. To admit that there is no document is a good thing rather than to have someone believe they have not given it to me, it must exist and then the question gets completely distorted. 
Often the person who the citizen has contacted is not the CEO of the agency; it is an officer.
In relation to recordkeeping often that can be quite a junior person and they do not want to make a mistake. It seems to me that one of the major blockages to the release of information is a quite understandable concern that a person may be acting beyond their authority to release the information, or it may be something that might get them into trouble in some way. They think that their job is to protect the agency therefore the default position is going to be no. Would you say that is a common problem?
No. There are pockets of that and when we see those patterns -and my staff will bring that to our attention- then we will contact the agency. Sometimes we might need to make an example of a particular issue. We will do that and publish it, for example, if there are pockets in local government. It is not always easy. It is very case by case there and it is person dependent — exactly as you have said. That is why I am a great believer in getting your administrative systems good and your communications people responsive and proactively releasing information so that the issues are reduced. I may have said this to you last time, but Dr Coombs and I have actively chosen to give our time to the practitioners. We actually have now set up a meeting. We have our four annual meetings with the practitioners here in Parliament House and then between that we now have a reference group of pra ctitioners. So we have a personal commitment to dealing with the people who are on the front line because, as you said, they are the people with whom the citizen interacts and they can be the front door that is open or that is closed. Same with our office, we are judged by our front door. We have invested a lot of our time and effort in reaching out to those people, making sure they know the commissioners care about them and we get good feedback that they are happy. We go and participate and get their feedback and make sure they know that we support them. We also make a point of that when we do our public speaking to the CEOs. I replay a line: Love your records managers. Adore them and cherish them. They are really valuable. If they do well GIPA goes well. We try to do it that way to encourage that.

To give the Committee an example, I have an individual who probably has now emailed me
individually over 40,000 times distressed and angry about a matter. I think that is right. I have tried to address that but there are some people you just cannot satisfy. There it is. We have a spectrum of complainants that we deal with but we try to give good advice and assistance and to model the behaviour that will deal with 90 per cent of the issues and not become part of the problem or exacerbate the problem. It means our front- line staff have to have good skills. They have to be very well supported by their managers. If something goes wrong you need escalation processes. It is quite a complex art.

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