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Wednesday, January 22, 2014

New information commissioner and a new external review tribunal in NSW.

And with the GIPA act up for statutory review this year, 2014 could be a big one here.

Information Commissioner
Elizabeth Tydd replaces Deirdre O'Donnell who stood down last July. Ms Tydd was most recently the executive director of the Office of Liquor, Gaming and Racing, a real hot seat in Sydney in recent times. And before that assistant commissioner of the Compliance and Legal Group at the Office of Fair Trading, and deputy chairperson of the Consumer, Trader and Tenancy Tribunal, now part of the newly minted NSW Civil and Administrative Tribunal

It's a big job with much to be done to lead the open government 'revolution' foreshadowed in 2010. How far things have moved in that direction is an open question with plenty of suggestions from users that it's not far and certainly not enough.

But information about agency performance in NSW is patchy, and anecdotal. No reports on the operation of the GIPA act across all agencies required each year of the commissioner by section 37 of the Government Information (Information Commissioner) Act have been published. As to the much mooted 'culture change', ???
The commission annual report (pdf) 2012-2013 is as thin as those that have gone before regarding the performance of the commission and the effect and impact of a no doubt busy year.

The basic stats are 46 formal GIPA matters finalised, 237 information access reviews, one investigation, 50 ADT matters, 58 complaints, 388 requests for assistance, and 161 privacy internal reviews.

The measures cited in the report as performance measures provide little insight into what has been achieved or efficiency, effectiveness, or quality in delivering the goods. Timeliness in dealing with GIPA reviews is an acknowledged source of agency and applicant dissatisfaction. 

On this score the restructure referred to in the report, with employee numbers down to 25 from 33 a year ago must have played a role.The financials assign $496, 370 to 'voluntary redundacy'.

However after ploughing through the report this reader is none the wiser about the state of the game. A sample of unanswered questions: the state government agencies, local councils or ministers' offices at the upper end of the scale for GIPA review applications and complaints; the number/% of finalised review decisions or negotiated resolutions that substantially affirmed the agency decision or recommended or flowed from reconsideration; the % of GIPA review matters where the agency accepted the OIC recommendation to undertake further review and the names of agencies that did not act on those recommendations (the IPC is limited to recommendations and does not make determinative decisions-therein lies a problem); the correlation between the OIC view and the ADT where a matter followed that course; the average cost of an IPC review and time taken in resolving review and complaint matters and the duration of matters that make up the backlog.

NCAT commenced operating on 1 January 2014 replacing more than 20 of the State's existing tribunals including the Administrative Decisions Tribunal. (Super tribunals are the Admin law flavour of the decade: the establishment of NCAT, follows the creation of VCAT, QCAT, and (WA) SAT. And SA was thinking about it some years back.)

Mr Robertson Wright SC, the inaugural NCAT President,was sworn in as a Supreme Court Judge before assuming the position. Prior to his appointment Mr Justice Wright was a barrister for 30 years and a part time judicial member of the Administrative Decisions Tribunal since 2007. 

The ADT deputy president (full time from commencement of operations in 1998) Magistrate Nancy Hennessy heads the Administrative and Equal Opportunity Division which will handle GIPA and privacy merits review. Judge Kevin O'Connor, the ADT president for the duration, is listed as Deputy President of NCAT responsible for management of the internal appeals list. 

Most members of the merged tribunals are probably making the transition but for whatever reason deputy president Higgins isn't listed. Members include experienced FOI/GIPA and privacy hands Steve Montgomery, Peter Molony and Naida Isenberg in addition to Deputy President Hennessy.

In the final ADT annual report Judge O'Connor's reflections include that in 1998, ten years after the FOI act commenced in NSW with the FOI review function allocated to the District Court, there was no body of FOI case law to guide decision making. The ADT in 15 years published around 400 FOI decisions.

In 2012-2013, the ADT had 96 GIPA filings and 43 privacy matters, around the same number as the previous year. Average disposal time 28 weeks. 

The significant appeal cases noted in the report include two GIPA decisions: NSW Office of Liquor Gaming and Racing v Fahey [2012] NSWADTAP 55, and Department of Family and Community Services v Edwards [2013] NSWADTAP 17.

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