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Monday, July 15, 2019

NSW: 30 years on the open government journey shouldn't go unnoticed

The thirtieth anniversary of the commencement of freedom of information in NSW passed on 1 July.

I didn't see any public acknowledgement from within government ranks, and its just another anniversary after all.

The NSW Government has had much more on its plate including working through a massive reorganisation that kicked off within weeks of the March 23 election. This involved abolition of nine agencies and wholesale transfer of functions to fit a new framework, relevantly including a Customer Service Cluster (pdf) and the transfer of the Information and Privacy Commission from the now abolished Justice Portfolio.

Having expressed concern and reservations over the years about the icy grip lawyers have on information access functions, this appears to be a positive step.

For those interested in a bit of history below is a post (slightly edited) I wrote five years ago on the 25 years of the NSW access to government information journey.

The record since, overall, would appear to reflect gradual improvement with NSW Information Commissioner Tydd in the lead. Interested to hear from observers about  the last five years.

There will always be rough patches, ditches and the occassional rock fall but NSW is a long way down the path from the 'bastion of secrecy' that the late Peter Wilenski described in 1982.


NSW-information access-the journey so far. 
First published July 2014 

"The ALP policy platform going into the 1972 election included a commitment to Federal legislation. That started the discussion that led to the enactment of a law finally passed by Parliament in 1981. The act commenced a year later. 

A report on the state of the NSW public service in 1977 (Directions for Change) by the late Professor Peter Wilenski and his follow up report in 1982 (Unfinished Agenda) recommended freedom of information legislation, by this time a commitment in state labor's policy platform.The 1982 report described the NSW Government as a “bastion of secrecy.” The Labor Government introduced an FOI Bill into Parliament in 1983 which promptly disappeared into the filing cabinets at the premier's department marked 'courageous' and lapsed. 

Silence followed although I can recall then head of the premier's department Gerry Gleeson saying in the mid eighties that NSW (without an FOI act and with very limited parliamentary scrutiny) led the nation on transparency and accountability mechanisms. Needless to say it didn't.

Against a backdrop of corruption allegations in the Labor government tipped out at the election and within months of his electoral victory in 1988, Liberal Premier Nick Greiner introduced separate bills on freedom of information and the establishment of the Independent Commission Against Corruption. 

Greiner saw the link  between excessive secrecy and corruption. His key adviser through this period Gary Sturgess said at the time corruption “is behaviour between consenting adults, it’s secret. It’s a crime of the powerful.”Because it took place in secret it was often difficult to obtain evidence and prosecute successfully, so “what we have (in the ICAC) is a process of shame, exposure and cleansing.”

The connection between the two initiatives was that greater transparency through FOI would reduce opportunities for corruption, and the ICAC would help educate the public sector about the management of corruption risks, and investigate allegations of corrupt conduct.

But FOI's objectives went beyond curbing corruption.The second reading speech is replete with references to how the law would strengthen democracy, improve accountability, and lead to a more active citizenry involved in the affairs of their government. It would help citizens make more informed judgments at election time. The prospect of greater scrutiny would lead to better decisions by ministers and public servants in the day-to-day operations of government.

The ICAC commenced operations in March 1989, the FOI act on 1 July 1989.

It was recognised at the time that FOI would require strong, vigorous and continuing leadership to shift government culture from discretionary secrecy to compulsory disclosure of information. Responsibility for the FOI legislation was retained in the Premier's Department, not as elsewhere assigned to Attorney General's. A senior, able and experienced public servant with a strong commitment to make things work, David Roden was put in charge of a support unit.

However the FOI support unit only lasted a couple of years, the then secretary claiming, either naively or with hidden intention, that it had done such a good job in seeding FOI it was no longer needed. 

A long period of 'orphan status' for FOI began, with few and rare voices speaking up for the principle of transparent and accountable government that underpinned the law, except successive occupants of the Office of Ombudsman, and long time Deputy Ombudsman Chris Wheeler.

It also became clear within a few years that the law itself had significant flaws and implementation efforts were at best patchy. 

Then ombudsman, David Landa, told the government early on the act was overly complex with too many vaguely worded provisions that were being used to refuse access to documents. He also said not enough was being done to change the culture. 

Successive ombudsmen reported consistently that the law needed review and that the public service was failing to manage responsibilities required by law, let alone reflected in spirit and intent. Various reports highlighted obfuscation, delay and the high cost of access.

No one took much notice until Ombudsman Bruce Barbour found an enthusiastic supporter of meaningful change in Premier Nathan Rees in 2009, having placed on the table a year earlier a comprehensive review and a long list of recommendations.  

With change in the air elsewhere, notably in Queensland, Rees led and Parliament passed a much improved but short of best replacement act, the Government information (Public Access) Act in 2010. (No one has ever owned up publicly for the terrible choice of name.) Unfortunately Rees took his eye off the ball for a moment, enough time for responsibility for the new legislation to be passed to Attorney General's to administer, not a step in the right direction.

'Orphan' no more, under the GIPA scheme the Information Commissioner has responsibility to champion the open transparent and accountable government cause among other functions.

As for the lofty ambitions of 1988, information access is much improved, and the 'open data' journey is underway. Still rumblings of discontent about time, cost and mental gymnastics when it comes to some reasons for decision.

 A five year statutory review of the GIPA act is due now, so hopefully a chance to to build in further improvements.

Anecdotally, culture change has occurred and continues, but we don't have much in the way of measures or indicators to get at the complete picture. As a generalisation, Wilenski's 'bastion of secrecy' doesn't hold these days. However I'm yet to hear of agency interest in asking their staff about attitudes they see on display about open, transparent government, or asking applicants what they make of their GIPA experience, and how access to information could be improved.

A larger part of the corruption iceberg may be visible these days through the investigations of the ICAC. Prophetically, Greiner himself said in 2009 "the corruption we see now in the state is probably just as endemic and systematic" as it was in the late 1980s.

On the democracy front, experts and the public would agree that the government and the people are still largely separated in "them and us" groupings, and that we are still in the dark about what goes on in many areas of government. Too much of what passes for consultation is of the "read our discussion paper, send us a submission and we'll go ahead and do what we intended anyway."

As for the quality of government decisions, ministers and public servants are still too often at the barricades seeking to protect from disclosure advice documents on the basis that release would be the end of the world as we know it.Not seeming to recognise at a time when politicians and government agencies aren't held in high regard, that openness and transparency are essential for rebuilding trust and confidence in the policy process, as Stephen Bartos argued in The Canberra Times.

Greiner was onto something 25 years ago."