NSW GIPA falling short, but no 'secret state'

In the 2014-15 Annual Report on the operation of the NSW Government Information (Public Access) Act tabled in Parliament last week, Information Commissioner Elizabeth Tydd commented that the strategic intent of the GIPA Act is "not being fully realised" because of shortcomings in the proactive release of information by government agencies, and in response to applications for information,that there had been an overall decline in information released. 

The Mandarin provides a good summary. 

Points of interest from my reading:

• compliance by agencies with mandatory proactive disclosure requirements is down from 80% in 2012/13 to 69% in 2014-15. (Comment: If agencies aren't fully complying with mandatory proactive disclosure requirements almost six years after the act came into force you have to wonder what difficulty they have in understanding the term 'mandatory.' The Commissioner doesn't name agencies - in the case of those at the lower end of the compliance scale at least, she should);  

• fewer agencies report they undertake the required annual review designed to increase proactive release programs, down from 85% in 2012/13 to now around 71%. (Ditto-names, particularly of those who fail on this and other legislative requirements.)

• the number of formal GIPA applications remained steady at 13,000. Over 78% (10,000) were from either a member of the public or their legal representative, 2000 from private business, 300 each from non-profits and media, and 150 from members of parliament.55% of decisions related to personal information applications.

• the overall release rate (full or part access) in response to applications was 69%, a decline from a high of 80% in 2012/13. (Comment: I'm not sure what that means for the question posed 'Did applicants get what they asked for?" Raw stats are one thing but as to whether the democratic purposes of right to know legislation are being achieved, who knows? I'm yet to hear of an agency asking applicants for feedback about their GIPA experience and I don't think the IPC has done any digging in this space. Frequent users such as journalists, lawyers, non profits and members of parliament would have something interesting to say if they were asked.)
• Legal professional privilege is high on the list of public interest considerations used to refuse access, particularly with local councils and universities. Ministers who received only 60 applications between them and in half, did not hold the information requested (presumably the relevant agency did), relied heavily in refusing access on the Cabinet public interest consideration, for which there is no public interest test.
  

• applications to the IPC for review of decisions rose from 156 in 2010/11 to 359.  (Comment: This tells us something important but what? Increased dissatisfaction with agency decisions? Frustration with agency internal review processes? Growing awareness of the IPC review option? Other? Any spike suggesting systemic problems in one or more agencies?

• in 2014/15 in around 50% of cases involving state government agencies and 60% in the case of local councils, the IPC recommended reconsideration of the decision. (That is the IPC thought the decision wasn't properly made or was on the wrong track and a new decision should be made reflecting its findings.)

• Around two thirds of cases where the IPC recommended the agency undertake a further review of the decision in question saw the agency vary the decision. (Comment: It's unclear in how many cases the agency did not act on the IPC recommendation. Any agency that has a pattern of not responding positively to the IPC recommendation should be named IMHO);

• there were 154 applications to the NSW Civil and Administrative Tribunal for review. In 61% of decided cases, NCAT upheld the agency decision. 

• "(U)nder the Public Interest Disclosures Act 1994 the Commissioner is an investigating authority where public officials make public interest disclosures to the Information Commissioner about government information contraventions in terms of section 12D of the PID Act. Public interest disclosures often involve allegations in relation to the five offences contained in the GIPA Act. For example destroying, concealing or altering records to prevent them from being released; knowingly making decisions that are contrary to the legislation; or directing another person to make a decision that is contrary to the legislation. In 2014/15, the Information Commissioner received two and closed five complaints involving public interest disclosures. With the benefit of this most recent experience, the IPC has commenced a process of refreshing procedures and developing internal and external guidance to provide greater transparency and assistance to IPC officers, parties to public interest disclosures, and the public more generally. In leading this work, the Information Commissioner will work closely with the NSW Ombudsman, State Records Authority and NCAT to ensure close and supportive alignment of jurisdiction." (Comment; Hmm, were the PIDs about the same agency, or different agencies, what was the nature of the disclosures, what followed and what were the findings, was improper or criminal conduct involved? Alas no details or broader observations.)

"Secret State' 

NSW Opposition frontbencher Jodi McKay, Shadow Minister for Justice and Police gave the Sun Herald the first part of the headline for its piece on the report  Baird government labelled 'secret state' as information increasingly blocked 
 
There are plenty of flaws and McKay was on the right track last week in Parliament in criticising the government over the scandalous exclusion of the multi-billion dollar Westconnex project from access to information law. 

However she overreached or has a shortish memory with the barb "Mike Baird is Premier of the secret state."

Premiers before Nick Greiner in 1988 deserved that label.

The late Peter Wilenski in Unfinished Agenda in 1982, a report for then Labor Premier Neville Wran knew a secret state when he saw one and told the Premier so. 

Wilenski recommended among other things a freedom of information act but his report  was slipped into the bottom drawer at the premier's department and stayed there, ignored for years.

We've come a long way since then, first courtesy of the Greiner/ Fahey governments in the late 80s, the latter dragged further along in the early 90s by independents with the balance of power such as John Hatton, Clover Moore and Tony Windsor, and then after years of neglect under the Carr and Iemma governments, shunted further in the right direction by Premier Rees in 2009.

Still a long way short, with Westconnex exclusion from the act a barbeque stopper but not the only evidence. 

However 'secret state' only if you don't have a sense of history.