Commissioner finds Macquarie University not up to the GIPA mark

A report dated 9 March but just published of an investigation by NSW Information Commissioner Deirdre O’Donnell into  Macquarie University (pdf) in Sydney reveals some extraordinary aspects of administration of the Government Information (Public Access) Act. The investigation followed a complaint that termination of employment in September last year of the person holding the position, among others, of General Counsel, followed contact by her with the Commissioner's office to seek to clarify the status of the university under the GIPA act. The Commissioner stopped short of a finding that employment had been terminated for this reason - probably a criminal offence if proven- but made an adverse finding against the University that criticism for contacting the Commissioner was inappropriate, and likely to have undermined effective university compliance with the Act.

The report also deals with the failure by the university to prepare, in the year before, for the commencement of the GIPA act in 2010 as university staff involved in implementation were held back from doing so by instructions from the University executive; intervention with the Information Commissioner by the NSW Universities Vice Chancellors Committee (a group chaired by UNSW Vice Chancellor Fred Hilmer) apparently to seek relief for universities from all or some of the disclosure obligations under the GIPA act; and incorrect information given by a person associated with the Committee that the Commissioner had exempted universities from compliance.

The Commissioner made further adverse findings regarding actions by the executive in giving inappropriate directions to staff that communications with the OIC be via the NSWVCC, and in interfering with compliance efforts of the staff. Macquarie has been asked to publicly affirm its commitment to complying with the GIPA Act through communications with all staff and on its website and to provide a written report on the processes it has put in place to promote compliance within three months. The OIC will conduct a formal audit of Macquarie University’s compliance with the GIPA Act in six months’ time (September 2011).

Update: The OIC has been in touch to say that while "the Commissioner signed the report on March 9, it contained adverse comment about the agency. We were therefore required to notify the Education Minister before publishing the report. Given the state election, we considered it appropriate to also notify the new Education Minister, who replied the day the report was published on May 13." Thanks. 
Further Update: As reported in the Sydney Morning Herald on 17 May

The most serious issue involved the termination of employment of Macquarie’s Secretary/ General Counsel/Registrar (OU in the report) in September last year after earlier contact with the Office of Information Commissioner regarding the University’s status under the GIPA act. This contact came after OU was informed of what turned out to be incorrect advice by a person involved with the UVCC that the Commissioner had exempted NSW universities from compliance.

The Commissioner accepted OU's statement that she was told that one reason for her termination was her ‘communications in relation to GIPA’ and concluded that based on her “evidence and the email correspondence, it would have been open to (her) to believe that she had been directed not to comply with the GIPA Act.” However the “evidence made it difficult to show sufficient causation" between the university’s response to the contact and the termination. The Commissioner made no finding on this aspect of the complaint, deciding against referring the matter for prosecution.

It is an offence under s 43(4) of the Government information (Information Commissioner) Act to cause detriment to any person for making a complaint, assisting or providing evidence to the OIC and under s 43(5) to dismiss or cause prejudice to an employee on account of the employee assisting the OIC. The maximum penalty for contraventions is 200 penalty units ($22,000), five years imprisonment, or both.(I'm assuming this is the end of the matter but perhaps not. A citizen can commence a criminal prosecution in the NSW Local Court. Section 46 of the GIIC act contains no limitation or restriction, in contrast to initiation of a prosecution for any offence listed in the GIPA act. Such a prosecution may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General (s 128)).

Most of the concern regarding university compliance with GIPA appears to have revolved around the register of contracts to be published on the university website. Regarding the claimed understanding that the Information Commissioner had exempted NSW universities from compliance the Commissioner observes: “This is difficult to comprehend given the experience and legal knowledge of the parties."

The Commissioner notes that the GIPA requirement for publication of information about contracts was not entirely new. "Universities had been required to publish similar information since 1 July 2007, (in fact from January 2007) and the failure to do so was a breach of s15A of the Freedom of Information Act." According to the report, Macquarie “had no appreciation” of this obligation and it “appears this has been a common issue in the NSW university sector.” 

If this is the case there has been a complete loss of corporate memory across the sector.

This issue was discussed in FOI circles in NSW from the time the Clover Moore sponsored FOI amendment bill that required contract publication was introduced into parliament in October 2005. After parliament passed the bill in late 2006 it was drawn specifically to the attention of universities and other agencies in training programs throughout 2007.

I know –I ran the training programs including several for particular universities during this period, and have spoken about the issue to some universities since.  Some in the university sector indicated at the time they didn't intend to do anything about it.  After commencement, there were stories doing the rounds  that some had made contact with Clover Moore and perhaps the Premier's department raising the possibility of relief. But there is no question the sector was very much aware of the FOI requirement.

Most NSW universities  (all but Australian Catholic University fit the definition of an agency as a body established by a NSW act for a public purpose) now appear to comply in a fashion with the GIPA publication of contract requirement. Notable exceptions where the register is not online (happy to be corrected) are Professor Hilmer’s University of NSW, the University of New England and University of Western Sydney

And finally, déjà vu: in 2003 following an investigation by the NSW Ombudsman into the handling of particular FOI applications by Macquarie University and a recommendation that the University engage an expert to look into identified shortcomings in University processes including the involvement of the then vice chancellor's office in FOI matters, and to review policies and procedures, I was engaged to draft these documents, brief and advise senior management and staff on compliance issues, and conduct training programs for staff. Getting the message across about what the act required to a different vice chancellor back in those days wasn’t easy going, but the executive group, perhaps with gritted teeth, largely adopted  the recommended policies and procedures.Things seemed to progress reasonably from then, until August last year at least. I have had no involvement with Macquarie on GIPA related matters.