Silver Anniversary: 25 years since FOI commenced in NSW

The silver isn't without some tarnish but access to government information has come a long way since the commencement of the NSW Freedom of Information Act on 1 July 1989. 

From that day the absolute discretion exercised more frequently than not by public servants and ministers to refuse or limit access because they could, was replaced by legal, enforceable rights to know what government knows unless there are good reasons why not.

Time is testimony to the fact that opinion varies about whether that line has been drawn in the right place and whether those responsible for delivering the goods have delivered in full or left the requester empty handed or short changed.

But overall the Information Commissioner can report in 2014 that many applicants get most of what they seek most of the time; the Government's ICT Strategy proclaims: "An open, online approach to delivering services, communicating and sharing information in accordance with the principles of transparency, participation, collaboration, and innovation"; and the government has encouraged an Open Government Community of Practice.

A pity that 1 July 2014 passed apparently unnoticed in the corridors of power. With or without a cup of coffee and a biscuit discussion about this journey would have been not only of interest to many but for government would have the makings of a reasonably good story about what has been achieved since 1989, and the lessons so far.

If you are interested in the stepping stones along the way to where things are today:

NSW cabinet documents

Sean Nicholls in Fairfax papers on Saturday reminded NSW Premier O'Farrell of freedom of information commitments made in Opposition that haven't been heard of again in the two years since the government was elected:

... the ''proactive'' release of contemporary cabinet documents was a recommendation of a 2009 Ombudsman's inquiry into freedom of information laws. O'Farrell, as opposition leader, told parliament: ''The Coalition will implement the Ombudsman's recommendations regarding the proactive release of certain cabinet information.'' He also said: ''We believe that the quarantine period on cabinet documents should be reduced to the completion of two terms of Parliament - that is, eight years. In other words, we strongly believe that cabinet information should be out of the public domain for only eight years.''

NSW was first to put a 10 year limit on the application of the FOI act to cabinet documents way back in 1989. There things have stayed while Queensland, the ACT and South Australia have nudged a little further.

Further puzzling over NSW conclusive certificates

More today in the Sydney Morning Herald about those NSW conclusive certificates and what they stand for.  

As Sean Nicholls reports the Premier now says the Deloitte report will be released eventually. Nicholls continues:

The power to block the public release of documents using a conclusive certificate had been used only once in the 20 years before the O'Farrell government came to power, but has been applied eight times in the two years since. The power was included in an overhaul of NSW freedom of information legislation by the former Labor government in 2009. The new Government Information (Public Access) Act, which replaced the Freedom of Information Act, removed the power for ministers to issue certificates to block release of documents. But it gave agencies the right to issue certificates over what they deem to be cabinet documents, preventing their release. No certificates were issued under the former Labor government after the GIPA Act came into force in July 2010. But eight have been issued by departments since the O'Farrell government came to power in March 2011.

The following is a bit legal and finicky I'm afraid. But bear with me....

As I commented yesterday there is no provision in the GIPA act for a certificate that blocks access to information sought by an applicant. The issue under that act is whether in a particular instance there is an overriding public interest against disclosure of information. It is to be conclusively presumed that there is an overriding public interest against disclosure of cabinet information, defined by reference to various facts set out in Schedule 1(2).

The relevant provision relied on in the media reports about conclusive certificates is Section 30 of the Government Information (Information Commissioner) Act which appears in Part 3 Division 4, headed Powers of Commissioner.

S 30 includes this reference to a certificate:

(2) "A certificate of the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet that any information, record or thing or the answer to any question comprises, contains or would reveal Cabinet information is conclusive of that fact for the purposes of this section."

The certificate can only be issued by specified officers in the premier's department, not by others.

And as s 30 (2) states, a certificate issued by one of those officers is conclusive "for the purposes of this section."

The purpose of the section is to impose a limit on the commissioner's powers as set out in the GIIC act. Specifically the powers do not enable the commissioner to require any person to do certain things if this would involve disclosing cabinet information. The commissioner for example can't demand to see a document to satisfy herself that it is a cabinet document. Section 30(1) states:

This Act does not enable the Commissioner:
(a)  to require any person:
(i)  to give any statement of information, or
(ii)  to produce any record or other thing, or
(iii) to give a copy of any record, or
(iv) to answer any question,
 if compliance with the requirement would disclose information that is Cabinet information, or
(b)  to inspect any such record or thing.

But the certificate would not establish conclusively that the document is a cabinet document for the purposes of refusal of access, or for the purposes of a decision by the commissioner in reviewing such a decision. Both decisions are decisions under the GIPA act.

A  s 30 (2) certificate establishes conclusively that documents are cabinet information for the purpose of limiting the exercise of power by the Information Commission to inquire about or sight disputed information.

Section 30(1) would seem to allow any government agency to refuse to provide information to the commissioner even in the absence of  a certificate from Premier's, simply by asserting that compliance would require a person to disclose cabinet information.  In the event of such a claim, it would be open to the commissioner to argue the toss with the agency about whether doing an act or thing would involve disclosure of cabinet information. The commissioner would no doubt find it difficult to look behind such a claim.  But it would be just a claim in the absence of conclusive evidence. Conclusive evidence that the information in question is cabinet information exists if a certificate has been issued by Premier's under s 30.

Although it's a close run thing, there is no bad old day powers in the NSW legislation to block public access through an official's certificate.

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.

Significance
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


Background
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. 

Delay
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.

Cost
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: 
 

The Office of Information Commissioner 7 September 2011:

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.


Timeline:

NSW never fails to shock or disappoint

Those of us in NSW are bearing but not grinning at revelations before the Independent Commission Against Corruption of get rich schemes involving former ministers. My one sentence about matters not mentioned to date made the Letters in the Sydney Morning Herald on Saturday:

"I guess anything that happened while Eddie Obeid himself was making decisions as minister for fisheries and minister for mineral resources from 1999 to 2003 is just ancient history, and we best move on?"

State Political Editor Sean Nicholls highlighted shortcomings and calls for change from Labor (new to such things) and The Greens about the pecuniary interest register and lobbying disclosures. The Premier is waiting for the ICAC report he says. Both issues have been the subject of recommendations going back years that weren't acted upon.

Among the "transparency" news in Fairfax Media today is this NSW Government Information (Public Access) Act gem:

The Greens MLC John Kaye asked about casual staff at Coffs Harbour Base Hospital and how many had been employed for longer than 12 weeks. The right to information manager at the Mid North Coast Local Health District, Chris Chick, replied it would cost $13,262 to retrieve the information. That included an estimated 51.5 hours at $36 an hour to check the database.

Tribunal delay, Henry George and other hopeless causes

I'm sure there are plenty of examples of clutching at straws or voids in space with resultant costs to the taxpayer and delay to others.

However those waiting patiently for a Government Information (Public Access) Act review decision from the NSW Administrative Decisions Tribunal (in a matter that I'm involved in, since a hearing in July) won't be amused that part of the long delay results from the tribunal having to deal with cases such as NSW Henry George Foundation v Director General Department of Attorney General and Justice decided by Deputy President Higgins last week. The application for review came before the tribunal member in February and April last year.

Everyone is and should be entitled to their review of course, but it should have been made clear along the way in this case that virtually everything being put on behalf of the third party, a charitable trust objecting to disclosure of three years of filed financial accounts, was fanciful and had no prospect of success. The case was decided on the papers, without a hearing.

But Deputy President Higgins took (seven months and) 72 paragraphs to reject claims regarding various public interest considerations against disclosure that did not arise (one), were not relevant (two) or were not established (three). On one, that disclosure of its annual financial statements could reasonably be expected to prejudice the future supply of information from an informant, Deputy President Higgins said the applicant "clearly has little understanding of the application of this ground of public interest consideration against disclosure." Other public interest arguments in my view, were slightly higher grade.

One claim was remitted to the agency for determination, although Deputy President Higgins seemed dubious, with good reason: whether disclosure of the names of trustees, acknowledged as personal information, could reasonably be expected to 'reveal' their names, in light of the fact they appear on the trust's letterhead used in correspondence, and some in other court proceedings.

None of these arguments appear to have been submitted to the tribunal by a hapless group innocently caught up in a GIPA application and doing its best to deal with unfamiliar legal issues. Dwyer Lawyers, experts in tax, wills, estates etc acted for the trust. You have to wonder whether they opined beforehand that there were reasonable prospects of success.

Henry George is turning in his grave at the cost to the taxpayer of agency and tribunal time spent on this. 

There is no reference in the decision to the agency raising the issue of costs but one ground for an order is the relative strength of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.

Agencies that concede as soon as a matter hits the ADT - as the Department of Education  and Communities did in this recent case that has been cluttering Deputy President Higgins' decision pending tray - should have done better first time round, and by failing to do so also contribute to delay in the tribunal for others, and unnecessarily to ADT costs. Not to mention the administrative cost in this case that may arise from stuffing up in releasing unrelated personal information about others to the applicant.

It's my second day back. Excuse the grumpiness.

GIPA war story

A disenchanted GIPA user provided this account of the experience in response to last week's post. Only one story I know, and in this arena, knockbacks are common and often/sometimes (depending on your perspective) for good reason. Interests for and against disclosure need to be balanced. But I'm aware of others in NSW frustrated by delay and the run around. In the absence of more extensive published information about agency and OIC performance, snapshots such as this provide a sliver of the big picture.

(Removed at the request of the person concerned-it's a long and complicated story.)

What's 30 bucks?

All that's standing between government agencies in NSW and more requests for information than they can handle?

A couple of comments received following that posting last week about the NSW GIPA act included one from a journalist with a lot of FOI experience to the effect that scrapping the $30 application fee for GIPA requests would be a huge mistake in NSW on the basis of Commonwealth experience:

FOI units get inundated with every single ill-considered thought bubble application from nuff-nuffs, political crackpots and Opposition staffers demanding “all documents relating to…”. The end result is a choked, overloaded FOI system where the objective of the FOI unit is simply to rid itself of its growing stockpile applications. With Federal FOI requests, I repeatedly find a lack of thoroughness in the searches and responses. The $30 fee is a sensible – and hardly expensive – hurdle that make applicants stop and think about their request for a bit. There are not endless resources in the public sector."

There is plenty of room for debate about fees and charges that goes beyond what and who is a nuff-nuff, and what constitutes an "ill considered thought bubble" although we might find some common ground on the latter, including some requests by journalists that seem to fall into this category.

And of course the NSW fee isn't unreasonable, given it is the same now as it was when first set in 1989. Adjusting for inflation, that $30 would be be around $56 today. (The more significant issue is the barrier that charges can constitute to the exercise of access to information rights.)

As to Commonwealth experience, applications for non-personal information under the Commonwealth act are up since application fees were abolished and other minor changes made to the charges regime in 2010. However at around 5000 in the year to June across the entire government spectrum, pathetically low are the words that immediately come to mind. But it is up around 16% on the previous year. And it's true some agencies that have never been bothered much by FOI have had significant increases in FOI activity.

Submissions from government agencies to the review of charges by Australian Information Commissioner Professor McMillan- an inquiry now hand-balled to Dr Hawke with a "find how to reduce costs" plea - were as dark and gloomy as my journalist correspondent about what had happened within government agencies during the first year of the new charge arrangements. Lack of resources and presumably some cutbacks given the belt-tightening underway was and remains a legitimate complaint. 

However as I commented at the time:

 Some give the impression that dealing with an increased number of "non-personal" information access requests is a nuisance and diverts resources from the "real work" of advising and assisting government to develop policies and to manage programs to implement them. Amid those grumbles there is little acknowledgement that information access itself is a service, with citizen rights and agency obligations mandated by law, backed by policies including the Declaration of Open Government that give new prominence to accountability and transparency. All for the stated purposes of enhancing representative democracy through increased public participation in government, encouraging scrutiny, discussion, comment and review of government activities, and to recognise that government information is a national resource. Not to mention that Parliament intended that functions and powers set out in the FOI act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. (Sound familiar?-2010 FOI act amended objects, s3)The changes to charges and abolition of all application fees were conscious government decisions, taken in part to mitigate to a degree the cost barrier to use of the act. As Defence, and Agriculture Fisheries and Forests also point out in submissions, the administrative cost of processing $30 application fees far exceeded the return.The "not fair, applications are on the rise" tone in some submissions suggests the long anticipated culture change has a long way to run. As has public awareness of FOI, and public engagement in the affairs of government. Heaven forbid, even more use of the act could be in prospect.

 Research and evidence about cost, scope for efficiencies, and the impact of fees and charges on the exercise of rights to information would help the discussion in NSW, Canberra and elsewhere. Particularly experience in Tasmania where they retain a small application fee but have abolished all other charges. Floodgates?

In any event, I'm not holding my breath in anticipation of the O'Farrell government acting as it promised prior to the election by now supporting the Robertson bill to abolish the GIPA application fee.

 

Gunns down, NSW wood price out

Despite objections by the two companies involved, the NSW Administrative Decisions Tribunal (Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195) has ruled in favour of disclosure of information under the GIPA act concerning current wood supply agreements with Forests NSW. The information included the sustainable yield,  resource price and allocation of hardwood

In evidence a senior executive of one of the timber companies said he was not aware of any publicly available information of this kind. Evidence on behalf of the applicant from an economist and an environmental consultant cast doubt on this and on the claimed adverse effects of disclosure on business and commercial affairs. Judicial Member Montgomery balanced the considerations as follows:

197. I consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to increasing (sic) the financial accountability of the First Respondent. I agree with the Applicant that there is a clear public interest in an agency that is dealing with public assets being accountable for the manner in which it contracts to sell those assets. This interest is strengthened by the fact that the Agreements were entered under a system that did not involve an open tender.

198. I also consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to further public policy development around the management of the publicly owned hardwood forest estate in NSW.

199. I also consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to encourage community engagement with government about sustainability.

200. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the Second and Third Respondents could be placed at a commercial disadvantage in relation to other contractors or potential contractors if the redacted material is disclosed.

201. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the commercial value of some aspects of the redacted information could be diminished if the redacted material were disclosed.

202. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the Second and Third Respondents' business, commercial or financial interests might be prejudiced if the information has not been released already were disclosed.

203. As I have indicated above, it is my view that there is considerable doubt in regard to the extent of those risks.

204. In my view, the public interest considerations in favour of disclosure outweigh those against disclosure.

205. It follows, in my view, that the determination should be set aside insofar as it relates to the Agreements. In its place the decision should be made that the redacted information in the Agreements is to be released to the Applicant. That information should be released within 30 days of the publication of this decision.

Judicial Member Montgomery in this 2007 Freedom of Information case had ruled that information about the royalty rate then more than 3 years old but still commercially valuable, was not exempt on the basis of evidence that another state had released information regarding rates without any apparent impact on commercial viability. 

Information Commissioner NSW and Administrative Decisions Tribunal differ over "right to appear and be heard"

A significant difference emerged late last and earlier this year between the Information Commissioner NSW and the NSW Administrative Decisions Tribunal concerning the commissioner's role in cases before the tribunal. It's not known whether the Commissioner is sticking to her guns that her rights are broader than two tribunal members envisage, and resolution of the issue by the courts is problematic. But applicants may find themselves without the same level of support than hitherto particularly in those cases where the Commissioner prior to ADT consideration undertook a review, and would bring that knowledge and a view about the merits of the case to the table.


The GIPA act (s 104) provides that the Information Commissioner (and the Privacy Commissioner in review cases that concern a privacy-related public interest consideration) "has a right to appear and be heard" in matters before the tribunal. (Unique I think in Australian FOI schemes, as are other aspects of the NSW review model.)  The act and the Administrative Decisions Tribunal Act do not mention the commissioners in listing those who are parties to proceedings, although the tribunal (ADTA s 67) may make any person a party in certain circumstances. 

The issue is whether the "right to appear and be heard" is subject to implied limitations. In separate decisions the tribunal has said the Commissioner's right does not extend to making submissions in relation to the merits or contentions of a review application. Or to be given access when evidence is given in the absence of the applicant, the applicant's legal representative and the public. The tribunal in both cases ruled the commissioner's role is limited to submissions in relation to the applicable law and policy to assist the tribunal in the conduct of a review.

 In neither however did it undertake detailed analysis or cite precedents to support its interpretation.The Information Commissioner in a submission in a later case argued the right goes further than making submissions relating to questions of law and extends to adducing evidence relevant to the application. The published decision in that case contains no mention of the the issue although the points raised certainly deserve consideration. The Commissioner hasn't said anything publicly about the matter as far as I'm aware.

The commissioners had a couple of hours on Monday with parliament's Ombudsman and Police Integrity Commission Committee so interesting to see, when the transcript emerges, what came up there.

Surprise-parts of NSW incoming government brief "entirely factual"

Followers of blue/red book disclosures will be interested to see the NSW Information Commmissioner has informed the Sydney Morning Herald, as the complainant, that parts of the brief prepared for the incoming O' Farrell government last May consist of "entirely factual material" and are therefore outside the scope of information prepared for cabinet, the disclosure of which would be contrary to the public interest. The government is yet to respond to what amounts to a recommendation from the commissioner that the information be released.  Yes, poor form for a government that claimed to be interested in improving transparency.

Fees and charges for FOI access

The Australian and NSW information commissioners both have discussion papers out for comment in connection with current reviews of charges for (Commonwealth) FOI and fees and charges for (NSW) GIPA access applications. The Commonwealth abolished application fees from 1 November 2010, and with some exceptions retains the charge regime unchanged for many years. NSW in essence retained the application fee ($30) and charges at the level set in 1989.

The OAIC paper reflects the Minister's terms of reference and provides comprehensive background and comparative information. Some might see the discussion being framed to some extent as a close examination of the case for an increase in charges and by how much. The first points as they appear in the Executive Summary are all about cost and revenue:

• The scale of charges set in the Freedom of Information (Charges) Regulations 1982 (the Charges Regulations) is not subject to indexation and has not increased since November 1986.
• Between the commencement of the FOI Act on 1 December 1982 and 30 June 2011, Australian Government agencies have reported a total cost of $498,364,739 to process the 906,639 FOI requests received during that period. The majority of requests are for documents containing personal information: in 2010–11, requests for personal information accounted for 82.63% of all requests.
• Since 1997–98, the cost of administering the FOI Act has steadily increased. However, the total amount of fees and charges collected has consistently been less than 5% of the yearly cost of administering the FOI Act, ranging from 0.33 % (1982–83) to 4.91% (1994–95) with the yearly average at approximately 2%.
• The volume of charges collected has decreased significantly from 78.72% of the charges notified in 1991–92 to 9.60% in 2009–10.

The closing date for comment is 21 November. Professor McMillan will be conducting public and agency consultations.

The focus of the NSW Consultation Paper is "on learning how government agencies apply the fees and charges provisions in practice, whether they consider the provisions to be working effectively, and inviting suggestions for improvement, keeping in mind the objects of the GIPA Act." The OIC has released a separate survey for members of the public, the media and non-government agencies.

I don't see a reference in the paper to the Premier's pre-election commitment (among others) to abolish application fees. Submissions close 31 December 2012.

Both reviews hopefully will look at  related matters such as whether the cost of dealing with requests by an individual for his/her personal information-a key element of privacy law- should be counted by agencies as an FOI cost. And other issues such as

• whether the administrative cost of keeping track of time and managing a complex array of charges is justified by the return, or other reasons,

• the cost/ benefit of maintaining or in the Commonwealth's case reimposing an application fee and abolishing charges, following a Tasmanian lead,

• ways to reduce cost through more pro-active disclosure.

• efficiencies in processing including through more and better the use of technology, and

• how poor/overly defensive decision making that results in high cost review applications can be improved.

NSWADT in first GIPA decision notes important FOI changes

The NSW Administrative Decisions Tribunal has published the first decision on a review application lodged under the Government Information (Public Access) Act that commenced on 1 July last year. Judicial Member Molony in Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 overruled the Department's decision, finding the public interest favoured disclosure to the applicant of the Queensland Police Service Court Brief for charges against him that had been provided to the agency by its Queensland counterpart.

The information that had been deleted from the brief partially released to the applicant, and in dispute before the Tribunal, was names of the individual complainants and their roles in public office, and details of what they told Queensland Police about Mr Richards' harassment of them- a mixture of personal information about the complainants and Mr Richards.

The only public interest consideration referred to in the decision was disclosure would reveal an individual's personal information- the complainants' details and what they told the police- a public interest consideration against disclosure listed in the GIPA act (3(a) in the Table to s 14, to be weighed against any public interests that favoured disclosure. This is of no relevance when the information concerns the applicant, only when information of this kind concerning another or others is sought.

The evidence before the Tribunal was that the applicant had sought and been granted access to a copy of the full brief including those parts redacted, by Queensland Corrective Services under the Information Privacy Act. A significant factor in the Queensland decision had been that the brief had been relied on by the Queensland Police and the content revealed at the Southport Magistrates Court, on 13 May 2010 when Mr Richards was charged with two counts of using a carriage service to menace, harass or cause offence. In deciding to release the brief in full, QCS concluded that Mr Richards was already aware of the information "as it has been put to you by police and the court" [36].

Judicial Member Molony [37] decided that as the information already had been disclosed in open court, release under the GIPA Act could not be reasonably expected to reveal the complainant's personal information (as per 3(a)) because "reveal information" was defined (Schedule 4, Clause 1) to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."

Judicial Member Molony [40] noted important changes introduced by the GIPA act where the definitions of 'government information', 'personal information', and 'reveal'  "operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information .. has been publicly disclosed."

Judicial Member Molony made no reference to 3(b) in the Table to s 14, that disclosure would contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, presumably because the agency didn't rely on this provision or argue it in the case. On the basis of the reasoning regarding 3(a), such an argument might fail because the personal information was available in a publicly available publication (PPIPA s 4(3)(b)) -the Queensland court transcript or decision. 

The effect of the GIPA act 3(b) public interest consideration against disclosure is to import  into that act the disclosure principle from the PPIPA act. It's something of a mystery in the light of the fact that the PPIPA act s 5 states:

Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009 (2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

The circularity is evident. 3(b) was included at a late stage in the drafting of the act at the initiative of the then Privacy Commissioner and Acting Information Commissioner Judge Taylor, and not subject to any public discussion as far as I am aware.

NSW Government shuts the door on incoming government briefs

Documents prepared for submission to cabinet are subject to a watertight exemption under the NSW GIPA act, so you might say the NSW Government's hands were tied from the time public servants were told before the election that this was the purpose of the incoming government briefs they were asked to prepare before the state election in March. So the decision to impose a blanket ban on access to all such documents in response to applications under the GIPA act, as reported by Matthew Moore in today's Sydney Morning Herald was preordained. But as there is no restriction on release of such information by the Premier and ministers outside the GIPA act, a government interested in lifting the game on accountability and transparency would grab the opportunity. Large slabs are likely to consist of factual information about the situation the incoming government faced.

I stopped counting after 13 Commonwealth government departments including Treasury and Defence released parts of the briefs prepared for the incoming government in Canberra last year-released under FOI because that act, unlike GIPA contains a discretion to release otherwise exempt matter (or more correctly because they weren't cabinet documents or otherwise exempt). Much of this material contributed significantly to informed public discussion and debate.

Not in NSW where the government has placed material that better informs ministers about the state of things on roads, schools and the health system for example, on the same "state secret" footing as the incoming government brief prepared in Canberra by Foreign Affairs and Trade, one Commonwealth department that flatly refused to release anything of this kind.

As I told Moore," it's poor form for a government that came to office indicating improvements in transparency and accountability were a high priority.."

NSW Premier fronts questioning about transparency and integrity

NSW Premier Kristina Keneally faced questioning first up in a Budget Estimates hearing last week about her views on accountability, transparency, integrity and standards raised by Ombudsman Bruce Barbour recently. The Premier said she agreed with the Ombudsman's comments that these values are important to any democracy, and that for democracy to function at its best, its elected members must uphold them as she does in her actions, and as she expects members of the Government to do so. The Premier said she was not surprised that the Ombudsman advocates the importance of these principles:

"However, I was surprised that he chose to make such comments in a public forum, given that he has met with me in my capacity as Premier and has not raised those particular views with me directly...I.. respect that he holds a position in which, if he seeks to do so, he can provide that full, frank and fearless advice directly to the Government. To date he has not done that."

From the transcript it sounds as if the Premier and Ombudsman have met once in the 10 months since she came to office.There was no admission of any shortcomings in this area and nothing to indicate government interest in the Ombudsman's call for legislated standards for the public sector and for re-examination of the integrity framework. The Premier rejected the suggestion she should follow up his concerns with the Ombudsman, and defended her personal record:

"Let me remind you that in circumstances where I have made a determination that Ministers in my Cabinet have not acted with the integrity that I expect I have sought and received their resignation. When I held the portfolio of Planning I instituted a series of reforms and changes in that portfolio that put in place greater transparency, particularly around the issues of political donations, particularly around depoliticising the Planning portfolio. So if you would like to make a characterisation that I am not acting with initiative I would invite you to examine the entirety of my ministerial record."

There were questions to the head of the Premier's department about the register of minister's interests, something he admitted he didn't look at regularly if at all. After a little scrambling it turned out one of his deputies has it under control. No one raised the question why the GIPA act confers an absolute presumption of a public interest against disclosure of anything in the register.

Later in the hearing,The Greens Dr John Kaye raised a concern about cabinet documents and the operation of GIPA, but ran out of details when more was needed: