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Monday, February 25, 2013

Tribunal rules against council’s bid to keep the lid on manager’s performance.

(Sorry about the formatting-something went haywire here.)

In a decision that is sure to attract attention in the local government sector and perhaps beyond, NSW Administrative Decisions Tribunal Deputy President Higgins in Clarke v Blacktown City Council [2013] NSWADT 36 found there was no overriding public interest that prevented disclosure of most of a council report on the performance assessment of the council's general manager. 

 The council tried at every step for over two years to withhold what it argued was sensitive information in the report submitted to the full council in September 2010.

 I represented Mr Clarke in the later stages of the ADT review including with written submissions and appeared for him in the hearing before Deputy President Higgins. With his permission this commentary draws more broadly on the applicant's experience than is the case with usual observations about court, tribunal and commissioner decisions.

Deputy President Higgins ordered disclosure of withheld information consisting of 
  • two paragraphs in the report containing the assessment and overall rating of the general manager's performance by the review panel;
  •  the strategic objectives against which the general manager was assessed; 
  •  and the general manager's self assessment of performance against each of these previously confidential objectives.

The council has 28 days to appeal the decision and has not yet released the documents.

It remains to be seen what if anything was worth the effort and expense.

The Tribunal decided in favour of the council on only one category of information in dispute:  the review panel's assessment of the general manager's performance against each of the objectives. Deputy President Higgins said there was a strong public interest in disclosure of this information [80] but decided disclosure on balance was contrary to the public interest on personal information and "provided in confidence" grounds.

The decision is not a precedent that marks the end of confidentiality as a necessary element in the performance review process, or for the disclosure of information of a highly personal nature about a public servant.  

Deputy President Higgins and along the way, the Office of Information Commissioner NSW, decided the public interest required disclosure of information about the performance of the general manager in carrying out the public duties set out in the Local Government Act and in acting to deliver on the council's priorities, goals and plans that should also be disclosed. Despite council claims that withheld information was all personal information, and other harms to the public interest would result from disclosure including at one stage
a risk to someone of harm or serious harassment or intimidation

The applicant, Mr Clarke is a former councillor, and an activist, advocate and self-described altruist in his endeavours for greater accountability and transparency in the local area. He is 85 years of age.

Mr Clarke's application under the NSW GIPA act in November 2010 sought access to the report submitted to the council by the councillors that had conducted the review, and for documents concerning the way the review had been conducted. His interest was sparked when two months before the required review of performance took place, the council renewed the general manager's contract for five years. The report had been submitted to a closed session of the council. Little detail was reported publicly. 

Apart from obfuscation, Mr Clarke endured delay at every step of the way.
It took eight months for the Office of Information Commissioner NSW to issue a ruling in his favour after he took the matter there in January 2011. The council then made a new decision basically maintaining its previous position. When Mr Clarke took that decision to the ADT, another eight months passed before a hearing, with council dragging things out whenever the chance arose.  After the matter was heard in July 2012, the decision was reserved for seven months. 

This is not the promised and necessary speedy access to independent review. 
The time line illustrates the persistence needed when an applicant is faced with agency resistance to disclosure, particularly when the information in question is information the boss doesn't want disclosed, and where it has available funds to employ lawyers who can argue the toss about GIPA in this case, Sparke Helmore.

The council stared down the Office of Information Commissioner

Inconsequential parts of the report and attachments were released at various points.

Eighteen months in, on the morning of the first day of the ADT hearing, 11 pages of information from the report were put on the table. The information was similar to information contained in the council's 2009 and 2010 annual reports. 

Deputy President Higgins' decision two years and three months since it all began now requires more.

According to Mr Clarke, Blacktown City Council has spent something of the order of $40,000 on this so far and hundreds of hours of staff time seeking to protect information about the performance review from disclosure. The Local Government and Shires Associations also sprung into action to assist, inviting other NSW councils to contribute to the cost of defending Blacktown's decision in the Tribunal. One example from Leichhardt Municipal Council (pdf) although the $162 on the line there wouldn't help defray costs much at all. Ratepayers in Blacktown and elsewhere should be asking questions.

In addition, NSW taxpayers have also footed a sizeable but unquantified bill for the hours, days, weeks and months spent on the case by the Office of Information Commissioner and the ADT. As for Mr Clarke's time, he's an altruist.

Broader concerns 
Mr Clarke's doubts about the thoroughness of the review process were confirmed when council was unable to locate any relevant documents that guided the councillors involved in undertaking the review other than the pro-forma, a questionnaire provided by a consultant engaged to assist and Mr Moore's self assessment. The Division of Local Government recommends training for this task, and along with the ICAC publishes guidance regarding managing performance and corruption and other risks. The council apparently provided none of this to the councillors involved.

Public interest 
Two relevant extracts from the decisions concerning the public interest in disclosure are worthy of wide dissemination: 
54.....Mr Moore is engaged in the exercise of public functions and is a representative of the agency. He has been reappointed to the position of General Manager for a further five-year term, which strengthens the public interest in favour of the release of information that accounts for that decision and demonstrates that he is performing at the required standard.
55. While there are considerations against disclosure that apply to the information requested by the applicant, the Information Commissioner is not satisfied that they are strong enough to outweigh the presumption and further considerations in favour of disclosure. The Information Commissioner recommends that there is no overriding public interest against disclosure of this information and that the information should be disclosed to the applicant.
Deputy President Higgins [71] 12 February 2013:
“In my view, there is a ..public interest in having sufficient information to scrutinise the statutory functions being performed by a general manager of a local government, as that position is one of considerable power and influence in the manner in which a local government operates and exercises its functions (for example, its service, regulatory, administrative and revenue functions). That is, information about the statutory functions being performed by the general manager and what methods and processes are used by the elected Council Members to monitor and assess those functions will enhance local government accountability.”
In passing, Blacktown City Council engaged in another expensive but largely unsuccessful effort leading to this Tribunal decision in 2011 to prevent disclosure of a lengthy confidential report into irregularities involving an employee and a contractor. Michael McKinnon of the Seven Network pursued that one.

Aspects of the decision in his case rankle with Mr Clarke particularly the Tribunal's interpretation of his application and the reasonableness finding regarding the council's search for relevant information. Not surprisingly, he is moving on with another cause.

Blacktown needs more like him.


9 November 2010 - Clarke application to Council.
7 December 2010 - Council decision-disclosure of part report and attachments, refusal of access to substantive material concerning criteria and performance.
10 January 2011 - review application lodged with Office of Information Commissioner.
7 September 2011 - OIC Final Report. Recommends against Council decision to refuse access. No evidence for claim that disclosure "would expose a person to a risk of harm or serious harassment or serious intimidation." Public interest in disclosure overrides other consideration against disclosure.
21 October 2011-new Council decision following OIC recommendation-further partial disclosure. Refusal of access to substantive material concerning criteria and performance.
November 2011 - review application lodged in ADT.
January 2012 - first of three planning meetings. Deadlines set often passed without compliance by council. Council submissions cite public interest considerations against disclosure- all are subject to a public interest test.
GIPA Section 14 - Item 1(d) - prejudice the supply of confidential information,
Item 1(g) - disclosure of information provided to the agency in confidence

Item 1(h) - prejudice the effectiveness of a review conducted by the respondent 
Item 3(a) - personal information
Item 6 - secrecy provisions 
16-17 July 2012 - ADT hearing. On the morning of day one the council released 11 pages of information similar to that contained in published material including annual reports.
12 February 2013-ADT decision. Tribunal finds two of five considerations, prejudice the supply of confidential information, and prejudice the effectiveness of a review conducted by the agency are of no relevance. Where considerations against disclosure are relevant they are overriden in all but one category by the public interest in disclosure. Council ordered to disclose [77-83] the assessment and overall rating of the general manager’s performance by the review panel, the strategic objectives against which the general manager was assessed, and the general manager's self - assessment of performance against each objective. 

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