Review of information access law in NSW grinds on, missed deadline notwithstanding

This post in March commented on the slow, closed door approach to review of open government legislation in NSW and elsewhere.

The NSW Parliament imposes deadlines but they pass... and pass.

The Government Information (Public Access) Act 2009 and the Government Information (Information Commissioner) Act 2009 include a requirement for a statutory review to be undertaken by the Minister administering the act "as soon as possible after the period of 5 years from the date of assent to this Act" with a report to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

The review is to determine whether the policy objectives remain valid and whether the terms of the Acts remain appropriate for securing these objectives. 

The date of assent for both acts was 26 June 2009, the date of commencement 1 July 2010.

Five years after the date of assent takes us to 26 June 2014. A period of 12 months after the end of 5 years for the report to be tabled means the deadline was 26 June 2015.

Shadow Attorney General Paul Lynch in a Question on Notice on 3 May 2016 asked the Attorney General "when the review would be completed." Attorney General Gabrielle Upton on 7 June answered (2944) "The review is currently being carried out and a report will be provided in due course." 

No report has been tabled as at 26 July 2016.

In May, in a welcome development the attorney general's department invited me and a few others to a roundtable, informing invitees that the department was interested in input into the review from outside government as most of the 80 submissions received had come from government agencies and local councils.  

Participants had no input into the agenda but a couple of hours chat ensued about the issues the department wanted to talk about-something at least.
  
Thirteen months and counting for a review report to be tabled isn't too bad when you look at deadlines listed by Justice as Reviews in Progress. The report on the review of the Workplace Surveillance Act 2005 was due no later than June 2011 and for the Defamation Act 2005, October 2011.

One of these days.....

Reviews of open government laws largely conducted behind closed doors are no exemplar for public engagement

Clearly some who walk the corridors of power think all wisdom resides within.

NSW is a classic case, where a statutory review of legislation disappeared from public view in August 2014 and hasn't been heard of since. More below.

Then there's the Hawke statutory review of the Commonwealth Freedom of Information and Information Commissioner acts in 2012-13 that involved very limited public engagement beyond invited submissions and led to a report in early 2013 that has not been the subject of policy discussion in the public domain since. The one Abbott government FOI initiative, the (ongoing) attempt to legislate to abolish the Office of Australian Information Commissioner was not supported by anything in the review report, on the contrary Hawke concluding the office was doing a good job. That initiative wasn't discussed beforehand outside government and only with a few inside, with no apparent search for options and better answers to whatever problem (allegedly complexity of review processes and cost) the government was considering.
  
Queensland commenced a statutory review of the Right to Information Act and the Information Privacy Act in August 2013 with the issue of a Discussion Paper. Submissions closed in November 2013 but silence (and a change of government) since.

In Victoria where the corridors echoed as the new government arrived with 'Labor will end this secret state and open our doors to the public, because we all deserve to know the details that affect our lives' and 'Under Labor's changes, no future government will ever be able to keep a crisis secret. No more hiding, no more excuses.' This was followed by the 2015-16 Budget  commitment of $4 million this year for the creation (rebranding the FOI Commissioner and then some) and operation of the Office of the Public Access Counsellor. Victoria has had an Acting Freedom of information Commissioner since September 2015. No one including Special Minister of State Jennings has mentioned a much needed review of antiquated Victorian FOI legislation that reflects the best thinking of 1983 but the last mention of "Public Access Counsellor" in the Parliament was in August 2015 when the minister said work had commenced on the necessary legislation. Maybe interested parties have been engaged in this exercise but there's nothing about it in the public domain. 

The Victorian Parliament's Accountability and Oversight Committee Report in December 2015 also made a raft of recommendations which do not appear to have been acted upon or discussed publicly including strengthening powers of the FOI commissioner to obtain documents and boost public and agency engagement; early action on FOI requests by agencies; improving reporting by the FOI commissioner on outcomes achieved; providing people with clearer guidance when appealing FOI decisions of agencies directly to the Victorian Civil and Administrative Tribunal; and supporting the release of information that is the subject of frequent FOI requests, which are likely to be routinely granted.

But back to NSW.

Sean Nichols in the Sydney Morning Herald reminds of the great promise of reforms to the  NSW Government Information (Public Access) Act when introduced in 2009 and the statutory review of the act and the companion Government Information (Information Commissioner) Act required to commence within five years. The reviews are to ascertain whether the objects remain valid and whether the terms of the acts remain appropriate for securing these objectives.

The reviews kicked off with a notice inviting submissions by August 2014 so there was some stirring at the time in the Department of Justice. 

It is still listed on the Justice website as a Current review, confirmed by the Information Commissioner who in her 2014-15 Annual Report on the operation of the GIPA act refers to

"the current statutory review (providing an opportunity) to identify the aspects of the statute that are effective and aspects that could be improved. Significantly, IPC submissions have highlighted the interaction of the GIPA Act with other NSW law including the Public Interest Disclosures Act 1994…."

The report continues

"Public participation is integral to Open Government and the GIPA Act provides mechanisms to support citizen participation and engagement with agencies. Under the GIPA Act, the Information Commissioner has powers to support NSW citizens’ participation in the development of policies and service delivery by government. The IPC will collaborate with NSW citizens and agencies to promote public participation and assist agencies in achieving success in their engagement with NSW citizens." 

The review of the GIPA act was the opportunity to showcase public participation in the development of policy concerning open transparent government and in improving access to information as a government service.

But alas public participation was limited to a brief opportunity to lodge a submission by 29 August 2014. 

No issues paper, no discussion paper, no survey of users of the act, no forum for discussion and debate of issues raised in submissions, and no testing and building on ideas. 

Submissions haven't been published to date even those lodged by the Information Commissioner referred to in her report. (My humble contribution here. I didn't receive an acknowledgement let alone a take up on the offer to discuss.)

Sean Nicholls says Premier Mike Baird has a "big chance to prove he really is committed to open government" by plucking the review out of the black hole and getting rid of current nonsense such as the practice still common of requiring FOI applications to be sent by mail accompanied by a cheque or Money Order. (No kidding, and there are plenty more improvements that should be in the frame.)

I'm hoping when something surfaces from Justice that the Premier and his ministers aren't of the 'all wisdom resides' school.

Eva Rinaldi from Sydney

Update:  Justice plowing on, and on and on.....
From a NSW Parliamentary Committee hearing of the Information and Privacy Commission 3 March 2016

Mr PAUL LYNCH: There is meant to have been a review of the Government Information (Public Access) Act, due in 2014.I do not suppose you have any idea what has happened to it?
Ms TYDD: We are in regular contact with the department in relation to the progress of that statutory review. It is a meaningful review from the standpoint of the IPC. We have taken the opportunity to ensure that we provide submissions to that review and the department has continued to accept them.
 The opportunity that has presented itself at office level and direct to that statutory review is also informed by the statutory reports and this year's section 37 report makes specific mention of some of the considerations that could be taken into account in conducting that review. We certainly remain available and supportive of progress in that regard.
Mr PAUL LYNCH: Has anyone given you the slightest
hint about when it will be completed?
Ms TYDD: No, I do not know when it will be completed.

NSW GIPA falling short, but no 'secret state'

In the 2014-15 Annual Report on the operation of the NSW Government Information (Public Access) Act tabled in Parliament last week, Information Commissioner Elizabeth Tydd commented that the strategic intent of the GIPA Act is "not being fully realised" because of shortcomings in the proactive release of information by government agencies, and in response to applications for information,that there had been an overall decline in information released. 

The Mandarin provides a good summary. 

Points of interest from my reading:

• compliance by agencies with mandatory proactive disclosure requirements is down from 80% in 2012/13 to 69% in 2014-15. (Comment: If agencies aren't fully complying with mandatory proactive disclosure requirements almost six years after the act came into force you have to wonder what difficulty they have in understanding the term 'mandatory.' The Commissioner doesn't name agencies - in the case of those at the lower end of the compliance scale at least, she should);  

• fewer agencies report they undertake the required annual review designed to increase proactive release programs, down from 85% in 2012/13 to now around 71%. (Ditto-names, particularly of those who fail on this and other legislative requirements.)

• the number of formal GIPA applications remained steady at 13,000. Over 78% (10,000) were from either a member of the public or their legal representative, 2000 from private business, 300 each from non-profits and media, and 150 from members of parliament.55% of decisions related to personal information applications.

• the overall release rate (full or part access) in response to applications was 69%, a decline from a high of 80% in 2012/13. (Comment: I'm not sure what that means for the question posed 'Did applicants get what they asked for?" Raw stats are one thing but as to whether the democratic purposes of right to know legislation are being achieved, who knows? I'm yet to hear of an agency asking applicants for feedback about their GIPA experience and I don't think the IPC has done any digging in this space. Frequent users such as journalists, lawyers, non profits and members of parliament would have something interesting to say if they were asked.)
• Legal professional privilege is high on the list of public interest considerations used to refuse access, particularly with local councils and universities. Ministers who received only 60 applications between them and in half, did not hold the information requested (presumably the relevant agency did), relied heavily in refusing access on the Cabinet public interest consideration, for which there is no public interest test.
  

• applications to the IPC for review of decisions rose from 156 in 2010/11 to 359.  (Comment: This tells us something important but what? Increased dissatisfaction with agency decisions? Frustration with agency internal review processes? Growing awareness of the IPC review option? Other? Any spike suggesting systemic problems in one or more agencies?

• in 2014/15 in around 50% of cases involving state government agencies and 60% in the case of local councils, the IPC recommended reconsideration of the decision. (That is the IPC thought the decision wasn't properly made or was on the wrong track and a new decision should be made reflecting its findings.)

• Around two thirds of cases where the IPC recommended the agency undertake a further review of the decision in question saw the agency vary the decision. (Comment: It's unclear in how many cases the agency did not act on the IPC recommendation. Any agency that has a pattern of not responding positively to the IPC recommendation should be named IMHO);

• there were 154 applications to the NSW Civil and Administrative Tribunal for review. In 61% of decided cases, NCAT upheld the agency decision. 

• "(U)nder the Public Interest Disclosures Act 1994 the Commissioner is an investigating authority where public officials make public interest disclosures to the Information Commissioner about government information contraventions in terms of section 12D of the PID Act. Public interest disclosures often involve allegations in relation to the five offences contained in the GIPA Act. For example destroying, concealing or altering records to prevent them from being released; knowingly making decisions that are contrary to the legislation; or directing another person to make a decision that is contrary to the legislation. In 2014/15, the Information Commissioner received two and closed five complaints involving public interest disclosures. With the benefit of this most recent experience, the IPC has commenced a process of refreshing procedures and developing internal and external guidance to provide greater transparency and assistance to IPC officers, parties to public interest disclosures, and the public more generally. In leading this work, the Information Commissioner will work closely with the NSW Ombudsman, State Records Authority and NCAT to ensure close and supportive alignment of jurisdiction." (Comment; Hmm, were the PIDs about the same agency, or different agencies, what was the nature of the disclosures, what followed and what were the findings, was improper or criminal conduct involved? Alas no details or broader observations.)

"Secret State' 

NSW Opposition frontbencher Jodi McKay, Shadow Minister for Justice and Police gave the Sun Herald the first part of the headline for its piece on the report  Baird government labelled 'secret state' as information increasingly blocked 
 
There are plenty of flaws and McKay was on the right track last week in Parliament in criticising the government over the scandalous exclusion of the multi-billion dollar Westconnex project from access to information law. 

However she overreached or has a shortish memory with the barb "Mike Baird is Premier of the secret state."

Premiers before Nick Greiner in 1988 deserved that label.

The late Peter Wilenski in Unfinished Agenda in 1982, a report for then Labor Premier Neville Wran knew a secret state when he saw one and told the Premier so. 

Wilenski recommended among other things a freedom of information act but his report  was slipped into the bottom drawer at the premier's department and stayed there, ignored for years.

We've come a long way since then, first courtesy of the Greiner/ Fahey governments in the late 80s, the latter dragged further along in the early 90s by independents with the balance of power such as John Hatton, Clover Moore and Tony Windsor, and then after years of neglect under the Carr and Iemma governments, shunted further in the right direction by Premier Rees in 2009.

Still a long way short, with Westconnex exclusion from the act a barbeque stopper but not the only evidence. 

However 'secret state' only if you don't have a sense of history.

Barbeque stopper: NSW government contracting itself out of information access law?

Jacob Saulwick's report in the Sydney Morning Herald on Saturday was a barbeque stopper where I was over the weekend and I don't expect that's just because I move in narrow circles:

The largest transport project in the country could be shielded from public scrutiny after the government transferred control of the $15.4 billion WestConnex motorway to a "private corporation". The transfer means information about the Sydney Motorway Corporation, which is now in charge of building the motorway, cannot be captured by freedom of information requests.......When Fairfax Media requested, using the Government Information (Public Access) Act (GIPA), the salary and bonus details of top WestConnex representatives, Roads and Maritime Services responded, in part: "Sydney Motorway Corporation Pty Ltd is a private corporation and not a Government agency."

Saulwick went on to mention that a spokeswoman for the SMC said a 2014-15 financial report would be submitted to ASIC by the end of October, which would disclose information relating to key management compensation. The spokeswoman also said that because the corporation is delivering and financing the road on behalf of RMS, RMS "will continue to hold information relating to WestConnex and remains subject to GIPA".

But could it be true, friends asked, that the government could in effect contract out to a wholly owned government private company control of a government funded $15 billion project and avoid the standard government transparency and accountability provided by freedom of information?

The answer is yes it could. On the other hand, it doesn't have to be.

More later when I have the time.

Deep breaths needed instead of talk about binning Big Tobacco access rights

The Nick Baker - Richard McKenzie piece in Fairfax Media on the two pronged attempt to utilise freedom of information laws to obtain data from surveys on smoking has raised some interesting issues. 

However some reactions - that the applicant shouldn't be able to exercise the right to seek access to government information, that this sort of thing may frustrate public health research and may even warrant legislative amendment - seem way over the top. 

(Addendum- an opinion piece from the Los Angeles Times on the right to access scientific research undertaken at public expense-within limits. And more pertinently this on "Big Tobacco' FOI rights on The Conversation UK and this on The Conversation Australian version. I'm with Nola Ries of University of Newcastle-tobacco companies should be free to use FOI laws even if we don't like it.)

Without seeing the detail of what was sought, what was released in NSW and what reasons were given for refusal of access in Victoria it's difficult to muster the outrage running in some commentary, or be concerned the laws don't adequately protect sensitive information and data.

Baker and McKenzie report a lawyer acting for American Tobacco obtained Cancer Institute NSW research into adults' attitudes to smoking through an application under the Government Information (Public Access) Act. But the Victorian Cancer Council "is spending thousands of dollars" fighting an FOI application from the same lawyer in the Civil and Administrative Tribunal "for data from surveys by thousands of Victorian school children and teenagers that reveal their attitudes to smoking and alcohol."

Just what was sought and obtained from the Cancer Institute NSW is unknown. The Chief Cancer Officer, Professor David Currow said "The Cancer Institute NSW was compelled" to provide tobacco survey data requested under the GIPA act.There are plenty of public interest considerations designed to safeguard sensitive information from disclosure but not possible to comment on the decision without more detail.

The GIPA act differs in many respects from Victoria's FOI act.

There, the yet to appear VCAT decision will throw light on the exemption claims in due course.

Both Victorian Cancer Council Director Todd Harper and Professor of Health Policy at Curtin University Mike Daube (see below) are outraged but whether their concerns about release of de-identified data amount to valid exemption claims is yet to be seen.

FOI is no stranger to Big Tobacco but the idea of a 'block tobacco' FOI amendment is just plain silly.

Last week for NSW statutory review submissions

A reminder, to me to get cracking as much as it is to you, that submissions to the statutory review of the NSW Government Information (Public Access) Act and the Government Information (Information Commissioner) Act close on 29 August.

I'm no fan of the way these reviews are conducted- a notice that the review is underway that few will ever see, terms of reference limited to "determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives", no discussion or issues paper, no dialogue or fora for interested parties to engage and discuss, and almost certainly no attempt by the agency conducting the review or any agency to survey users, or frequent users. On the other hand government agencies will be well armed with suggestions that reflect their interests.

Somewhat similar to the unsatisfactory process in the review of the Commonwealth act by Dr Hawke that the government has now had a year to chew over.

In Queensland the review of the RTI act and aspects of the information privacy act kicked off a year ago with release of two discussion papers but not a word since.

NSW access to information law under review

The five year statutory review of the NSW Government Information (Public Access) Act 2009 and the Government Information (Information Commissioner) Act 2009 is underway with a call for submissions. Get cracking!

The purpose of the review is to determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives.

The policy objective of the Government Information (Public Access) Act 2009 is to open government information to the public by:

• authorising and encouraging the proactive public release of government information by agencies, and
• giving members of the public an enforceable right to access government information, and
• providing that access to government information is restricted only when there is an overriding public interest against disclosure, in order to advance an open, accountable, fair and effective system of Government.

The objective of the Government Information (Information Commissioner) Act 2009 is to establish an independent champion of open Government.

 

The review will also consider the relationship between the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998.

 

The Acts can be viewed at www.legislation.nsw.gov.au

The Department of Police and Justice invites interested individuals and organisations to make written submissions to the review. Submissions should be sent to: The Director, Justice Policy, Department of Police and Justice, GPO Box 6, Sydney NSW 2001 or by email to justice.policy@agd.nsw.gov.au.
If you would like to provide comments in an alternative format please call (02) 8061 9222. If you are hearing or speech impaired please contact us via the National Relay Service on 133 677.
 
All submissions will be treated as public and may be published, unless you indicate that all or part of your submission should be treated as confidential.
 
The closing date for submissions is 29 August 2014.

NSW GIPA scheme short on performance information

It is hard to get a handle on the state of the game, with the Information Commissioner to step down in a few weeks. 

The lack of performance information has been noted here previously, as recently as January.

Prompted by a report in The Australian at the weekend Commission rules on casino documents on a review by the commissioner of a refusal of access decision by the premier's office that is critical of the original decision and other matters, I went looking for the review report.  

Not only is it not there but no review reports have been published since May 2012. The latest investigation report is dated June 2011. 

These reports are an important part of the armoury with the potential to keep ministers and agencies on their toes and up to the mark.

The most recent account of how the IPC is traveling came when the information and privacy commissioners appeared before the NSW parliamentary Committee on the Ombudsman, the Police Integrity Commission and the Crime Commission in February. The questioning was hardly forensic and the session only lasted an hour. But the Information Commissioner generally presented a positive picture both of IPC performance, and agency compliance and co-operation in implementing the Government Information (Public Access) Act. While a squeeze on resources at the IPC and in agencies was noted, not a lot was made of this. (Committee members showed interest in two specific issues, the privacy threats from the use of drones and access to convict records.)

Anecdotally - and that's all there is in the absence of performance information about efficiency and effectiveness at the IPC and what agencies are up to - it's a very mixed bag.  There are long delays waiting for IPC review decisions.The extent to which agencies abide by IPC conclusions which are recommendatory only is unknown. There has been no report published on agency performance.

One experienced journalist tells me using GIPA has been disheartening, to the point of giving it away as an investigative tool; another, that things vary enormously from agency to agency, with individuals often making the difference between outcomes that are understandable at least, and continuation of the old refuse access and die in the ditch approach.

Some exchanges between the commissioner and committee members taken from the transcript are below. 

With a disgruntled citizen apparently sending the commissioner 40,000 emails there may have been plenty of distractions from the IPC's main game.

NSW conclusive certificate limits Information Commissioner's powers

The front page report by Sean Nicholls in the Sydney Morning Herald and followed up by the Opposition on the airwaves this morning, had me thinking the bad old days of conclusive certificates, those virtually insurmountable road blocks to access, had returned when I wasn't watching. Not quite, just  a reminder of a power to limit the Information Commissioner's conduct of a review application that is not unique to access applications under the Government Information (Public Access) Act.

Nicholls reported on a decision by the Department of Premier and Cabinet to apply "extraordinary secrecy provisions" to suppress a report by Deloitte to assess the potential economic benefits of the Crown proposal for a six star hotel at Barangaroo in Sydney, claiming it is a cabinet document. 

The senior review officer at the IPC Natasha Case was possibly misquoted saying "the Information Commissioner must accept it as ''conclusive evidence that the documents … are cabinet information for the purposes of the GIPA Act and therefore must not be disclosed.''

There are no conclusive certificate provisions in the Government Information (Public Access) Act that prevent disclosure to an applicant.

Here, the commissioner is in receipt of an application for review of a decision by the department to refuse access to the report. In undertaking the review it would obviously be helpful to sight the report and ask questions about the circumstances of its creation in order to test whether it qualifies as a cabinet document as defined in Schedule 1 of the GIPA act.

The effect of the certificate is that the commissioner cannot access the report or other relevant information in carrying out the review. The Government Information (Information Commissioner) Act  (s 30) limits the commissioner's powers in these circumstances, preventing inspection of any record or requiring a person to provide information, answer questions or provide the commissioner with a copy of any document specified. The report is conclusively a cabinet document for the purpose of this limitation.
 
The commissioner will have to soldier on to reach a decision on whether the report is or isn't a cabinet document without that assistance, relying entirely on whatever information the department has provided to explain the reasons for its decision.

Technically the commissioner could decide that the report is not a cabinet document. You wouldn't want to bet on it. Even then the commissioner's powers don't extend to requiring the report be released, merely that the department may choose to make a new decision in the light of her findings.

The limitation on access to a document the subject of such a certificate is not unique to the GIPA act and the commissioner. The Administrative Decisions Tribunal Act (s 124(4), and the Ombudsman Act (s22) contain similar provisions.

So 'extraordinary' maybe, but not entirely new or novel. 

I've no idea how many such certificates are issued. No mention that I can see in the DPC Annual Report.

Any connection between this development and the Information Commissioner's decision announced on Monday to stand down presumably is entirely coincidental.

 

Robbo's bright ideas lead government to 1689 and bring Sir Humphrey centre stage

The NSW Opposition leader John Robertson's latest idea is a good one: that interest disclosures by NSW parliamentarians should extend to family members and be posted online. Required disclosures are limited to the member's interests-hence a discounted car given to the wife of the then treasurer didn't need to be included- and are available for inspection on week days during business hours in Macquarie St.The corresponding federal parliament requirement to notify registrable interests includes those "of which the Member is aware of the Member’s spouse and any children wholly or mainly dependent on the Member." Premier O'Farrell responded that the Privileges Committee should take a look-presumably to see if this would have been OK in 1689.

Mr Robertson's previous transparency idea was the bill seeking to give effect to a promise to abolish GIPA application fees made by the now governing Liberal Party before the last election, a bit of an attempt at political points scoring. Predictably it didn't get anywhere. The government voted it down in the Legislative Assembly on 21 November.

The application fee in NSW of $30 (an agency may waive, reduce or refund the fee ) has remained the same since 1989. It is no big deal although if information access is a right, it could be argued that you shouldn't have to pay to exercise it.

However the resumed parliamentary debate on the bill had me wondering whether Antony Jay and Jonathan Lynn who wrote the Yes Minister series had snuck into town and were now writing briefing notes to be shared among government members. He wasn't alone but Andrew Cornwell Member for Charlestown takes the Sir Humphrey prize:

In a tight fiscal environment we should think about the effect on, say, a university that is subject to the Government Information (Public Access) Act. Most universities have a full-time employee actively dealing with Government Information (Public Access) Act applications, with the $30 fee, under the current arrangement. Universities are afraid that removal of the $30 fee could result in the number of applications multiplying tenfold or a hundredfold. That would result in decreased services for students and increased costs to universities, and it would affect people's ability to deliver better educational outcomes for our kids. Some applications request information from 20 years ago. People have a right to make Government Information (Public Access) Act applications but they are subject potentially to misuse..

......Imagine the increase in middle management that would result from opening up, carte blanche, Government Information (Public Access) Act applications. Organisations, businesses, government departments and other government agencies that are getting on with delivering services to the community would end up with a reduced number of people on the front line and a bloated middle management dealing with thousands of difficult, potentially vexatious and problematic Government Information (Public Access) Act applications that have no relevance to the actual service delivery of those organisations "

He probably ran out of time before he got to the part that hospital beds and libraries would need to close.

As grave predictions were made about what would transpire if the application fee was abolished, no one mentioned how much in application fees is collected a year. Or the cost in agency time and resources of collecting fees, particularly as the vast majority of agencies in NSW don't allow payment on-line (from the Attorney General's own department: "enclose the $30 application fee (cheques and postal orders made out to 'NSW Department of Attorney General and Justice'). 

My guess is it is way in excess of $30 every time a cheque or money order, for heaven's sake, comes in. But apparently well worth it to keep the hordes at bay, if government speakers are to be believed.

No-one mentioned that agencies are encouraged to provide free of charge information in response to an informal request under the GIPA act if there are no public interest reasons why it should be kept confidential. Or whether the barbarians at this gate are numerous enough that we should rethink this dangerous idea.

And no-one provided a scrap of evidence to support claims that the effect would be negative all round. While advice from the Information Commissioner NSW was cited, the report on a review that commenced in October 2011 on fees and charges has not been published. 

The recent comment by the Australian Information Commissioner that abolishing the application fee had had knock on effects in the Commonwealth jurisdiction but he wouldn't be recommending its reintroduction apparently passed everyone by.

The Greens Jamie Parker on the cross-bench provided a touch of realism and sanity.

As to the rest, not parliament's meatiest debate or finest hour.

Another good idea if Mr Robertson is looking for one, is the same on-line disclosure requirement for payments of entitlements to NSW parliamentarians.The annual report for 2011-2012 of the Department of the Legislative Assembly has been published recently. Annual reports by the Department of Legislative Council appear to have gone missing for the moment at least. The only place you find any information about entitlement payments to  assembly members is in Appendix G of the report - global amounts no details. (While not complete because it does not include payments made by the parliamentary departments, and is not close to real time, detailed disclosures regarding payments to or for federal parliamentarians by the Department of Finance and Deregulation are published online, and more regularly than once a year.)

NSW Information and Privacy Commission Annual Report

The NSW Information and Privacy Commission Annual Report 2011-2012 details a busy year:

"This year, the Information and Privacy Commission responded to 6,380 calls and received 275,702 website page views. We finalised a total of 898 matters over the year. The Office of the Privacy Commissioner (OPC) responded to a 60% increase in request for assistance, from 1,696 requests in 2010-11 to 2,712 in 2011-12.. The OPC completed 181 internal reviews, provided 109 advices, and finalised 102 complaints. The Office of the Information Commissioner finalised 280 information access reviews, 5 investigations, and 79 complaints."

There are many other activities mentioned in the report although it is thin on the outcomes from all this effort.

Two issues of concern regarding the office, delay and powers, rated a mention:

The two main criticisms the Information Commissioner received during the reporting period were that external reviews take too long and that our recommendations are not enforceable. While positive feedback was received on almost half of our cases, due to the backlog during the year, 15% of applicants were unhappy with the delays they experienced. We have implemented process and staff changes in response to that feedback. The fact that our recommendations are not enforceable is a feature of the right to information model adopted by New South Wales. It differs from its Queensland and Commonwealth counterparts in this respect. A right of review by the ADT exists, but the Information Commissioner can only make recommendations to agencies. This is an issue that will doubtless be considered when the GIIC Act is reviewed in accordance with Section 48 of that Act.

With regard to agency performance the report refers to work undertaken in preparing the first report (for 2010-2011) under section 37 of the Government Information (Information Commissioner) Act 2009, a report on the operation of the GIPA Act generally, across all agencies. 

That report is yet to be published.  

The Information Commissioner comments that  a clear baseline against which to assess overall public sector performance under GIPA is still to be developed, but the picture from available data

shows greater requests for Information Commissioner reviews than were predicted when the office was being set up and the function transferred from the NSW Ombudsman. It also shows a high level of awareness of the legislation and its impact on agency information management practices as well as the vital importance of a culture in agencies of openness and service to the public. 

The foundations of the GIPA act "appear well understood by agencies, and members of the public are exercising their enforceable right to access government information."

From these comments in the Directions for 2012-13 section the commissioner seems aware of performance reporting shortcomings:

"In the year ahead, I look forward to being able to provide better data to the Parliament and to agencies on their performance measured against the GIPA Act. Now that the new administrative arrangements across the public sector have been bedded down, it is important to focus on the optimal reporting regime that will allow the Parliament and the people of New South Wales to assess the benefits of the GIPA legislation. As a core outcome of GIPA, we should expect to see simpler and more streamlined access to government-held information....
What success looks like needs to be broader than checklist compliance with a set of requirements under the legislation; it needs to reflect an improved experience of responsive service that can then lead to greater public confidence in the processes of government. It will be seen in better communication with the public, informed by and in response to public feedback. As part of my champion role, my office will focus on improving advice and guidance via our website and e-learning tools about the GIPA Act. As part of my mandate to receive complaints and requests for reviews under the Act, we will continue to focus on
improving our timeliness and responsiveness in line with our service targets.

In the meantime the following extracts suggest significant weaknesses and problems still to be addressed in information access in many/some NSW agencies: