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Thursday, May 12, 2011

NSW Information Commissioner satisfied with Barangaroo contract disclosures

"This government will ensure that there is absolute transparency about this process," NSW Planning Minister Brad Hazzard told parliament yesterday during debate on the controversial Barangaroo development proposed for Sydney Harbour. That may provide some comfort to those keen to see, and to see behind, the detail of a partly published $6 billion contract with Lend Lease, and the associated decisions and approvals made and given by the previous government (heading for the courts until some discussion today about an independent inquiry) in a process that some suggest has been marked by excessive secrecy.

Those same interested parties and observers may have been surprised that a recent investigation by the Office of Information Commissioner NSW (OIC) found little fault with the Barangaroo Development Authority's (BDA) approach in withholding parts of the contract from publication, largely reflecting OIC satisfaction with the agency's response (after criticism and complaint) in releasing or promising to release more information. They might think the BDA got off lightly, but at least the OIC intends to take another look at how things are going on the disclosure front in July.

In August last year the Sydney Morning Herald editorialised about redactions from the published $6 billion contract with Lend Lease, noting deletions on the basis of “commercial in confidence" for information about payments for development rights to be made by 2018, the developer's contributions to infrastructure such as ferry wharves and light rail, the cap to the company's liability for damages for breaching the contract, and penalties it would face for missing targets for water, waste and carbon standards. The paper said the failure to be open about the arrangements rendered NSW information access law that requires such contracts to be published, "a joke" and urged the Information Commissioner to action.

The OIC, eight months on, released this report of its investigation into the publication of the contract, the first investigation report published since the office was established in July last year. While it found the "initial publication of the development agreement was compromised by the significant redactions to the document and did not appear to fully comply with the open access provisions of the GIPA Act," the OIC was satisfied with subsequent efforts by the Barangaroo Development Authority (BDA)
"to address these shortcomings have improved its response to the requirements of the GIPA Act through the release of further information about the contract, the provision of far more detail in an explanatory table and, significantly, an undertaking to an ongoing review of the redactions as commercial sensitivities abate over time. I consider this to be a proper response to the open access obligations under section 32(2) of the GIPA Act."
The OIC was "satisfied that BDA redacted information from the contract in accordance with its understanding of the GIPA Act at the relevant time" [23] leaving open whether that understanding was a little or a lot, and in a finding that exhibited caution on its part was not able to reach a conclusion whether the BDA had been overly cautious in redacting parts of the contract [32].

Some shortcomings were noted: the redactions undermined the purpose of the legislation  [24], there had not been adequate explanation [25] and deletion of names of people involved in the project showed an exaggerated concern about privacy [26]. 

Barangaroo watchers take heart: the OIC, unprompted, will review the further release of information by BDA in July 2011 [33].

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