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."

Information in short supply on O'Farrell era of open government

Back on deck and looking forward to a lively 2013.

Just in time to see the Sydney Morning Herald take a look at performance or non-performance in NSW under the Government Information (Public Access) Act in "It's time for transparency". Sean Nicholls concludes the O'Farrell government has fallen a long way short of ushering in a promised ''new era of open government.''

More specifically Nicholls also reported on the refusal of access to a government commissioned report on the controversial second casino license in "O'Farrell keeping new casino report close to his chest", leading to this editorial yesterday "Transparently, can-do Barry can do better":

"Freedom of information, we are tempted to say, is like the quiet, well-behaved child who parents find easy to ignore. Many a promise is made but many a promise is not kept. It is never a surprise that the ardour of oppositions for greater transparency should cool when they nab themselves the keys to the ministerial suites. Again, we expected better of O'Farrell's team. Myriad problems have been revealed with the Government Information (Public Access) Act, known as GIPA, more than two years after it replaced the old Freedom of Information Act. Among them is an unfulfilled promise to abolish application fees."

Prompting some letters today ("O'Farrell Inc").

I've commented previously on the abolition of application fees commitment. The government's reasons for changing it's mind on this, once elected, were feeble at best.

But the biggest GIPA problem is that apart from the anecdotal, some good, some not good (quite a few frustrated, disappointed and delayed applicants find me one way or another), we just don't have information about how things are going.

I've mentioned a few times previously that a report on the operation of the GIPA act across all agencies for 2010-11 (and another for 2011-2012) required by section 37 of the Government Information (Information Commissioner) Act is yet to appear 18 months later.

The separate commissioner's annual report on the operation of her office is the source of some of the problems referred to in the Nicholls article. However information as follows, not contained in that report, would at least throw a glimmer more light on how the review process itself is operating:

The top five or ten state government agencies the subject of GIPA review applications and complaints, and in each case the number.
The same for local councils.
The same for ministers.
The number/ % of finalised review decisions that substantially affirmed the agency decision.
The number of instances where the OIC did not affirm the decision and recommended reconsideration.
The % of those matters where the agency accepted the OIC recommendation.
The names of agencies that did not act on OIC recommendations in more than one instance.
Anything meaningful on the average cost of an IPC review or of the different categories of matters resolved in various ways.
Anything meaningful on time taken in resolving IPC review and complaint matters and the backlog in terms of time since receipt.

NSW parliament disclosures fine-by 1689 standards

The Sydney Morning Herald published my letter today (scan down to "Publish MP disclosures online") with an edit that makes the final reference to 1689 even more obscure. Here's the text as submitted, with links. The letter was in response to Linton Besser and Kate McClymont at the weekend" Inquiry opens Pandora's box of extensive dealings"
about Eddie Obeid which kicks off " He is not the man his bare pecuniary interest register has depicted."

"The O'Farrell government took action in parliament recently to legislate to remove doubt as to the ability of the ICAC to consider and make findings in relation to the Registers of Disclosures of Members of Parliament. Entries in the name Obeid and Macdonald are now proving interesting and illuminating.

The President of the Legislative Council had queried whether parliamentary privilege, "by operation of the 1689 Bill of Rights," applied to the registers. As the Premier explained, the legislation was necessary to allow the registers to be accessed and utilised by the ICAC "even though they are already publicly available and open to public scrutiny."

The registers are available for inspection between 10 am and 4 pm if you find yourself in Macquarie St on a weekday, but not otherwise. A few journalists occasionally bring some entries to the attention of a wider audience.

Premier O'Farrell told parliament that scrutiny of the registers by ICAC "will not impact adversely on the business of Parliament. It will not inhibit debate. It will not undermine freedom of speech. It will not impede any activities that members of Parliament undertake in the exercise of their representative and parliamentary duties. To the contrary, what it will do is to enhance the integrity and standing of this place. It will further reinforce why it is important for all members to make full and proper disclosure in accordance with the 1983 constitution regulation."

True. But that applies in spades if the registers were to be published on-line, close to real time. With the potential added bonus that more eyeballs might ensure we are aware of sources of gifts and income from second jobs as well as the mysteries and discrepancies.

The same applies to payments of allowances and entitlements and other expenditure by the parliament for and on behalf of members. At present the global amount paid to each is published but buried away in appendices to the annual reports of the departments of the Legislative Assembly and Legislative Council. No details of payments made are provided and the reports can relate to expenditure incurred up to 12 months previously.

The payments are a small part of the $139 million allocated to the parliament in the 2012-13 budget. Parliament is not subject to right to information legislation that applies to state government agencies. The then presiding officers waved off the Rees government when it made an initial inquiry about taking such a step in 2009.

Time for change, Premier.

After all it's 2012 not 1689.

Peter Timmins.

As readers will know the Commonwealth parliamentary departments are subject to FOI - for the moment at least.

The Nikita O'Farrell tag doesn't quite do it.

Leader of the NSW Opposition John Robertson introduced the Government Information (Public Access) Amendment (Removal of Application Fee) Bill into parliament last week giving the O'Farrell government the opportunity to deliver on a commitment made in the lead up to the election. Or not, as the case may be. Not a bad political ploy but the bill will languish in the pile that goes nowhere unless the government feels inclined to act.

The bill might prompt someone at the Office of Information Commissioner to dust off the file opened in October 2011 for a public consultation on fees and charges, the purpose of which was  "to see whether the fees and charges provisions help to promote the objects of the GIPA Act to maintain open and accountable government by facilitating access to information at the lowest reasonable cost."  Nothing has been said in the year since, publicly at least.

Mr Robertson apart from rubbing the government's nose in an undelivered promise, had plenty to say about access to government information under the GIPA act, referring to "deliberate" overcharging, and some refusals for questionable reasons of opposition requests, with an agency claim that the board minutes of Infrastructure NSW were Cabinet-in-confidence sounding a bit rich.

While performance information beyond the anecdotal is thin, Mr Robertson's claim that this is "the most secretive government in this State's history" is way off the mark. 

Pick any government that pre-dates Greiner and the introduction of the Freedom of Information Act in 1989, for example, including any from the long list of Labor governments. The late Peter Wilenski described NSW in the late 70's early 80's as a 'bastion of secrecy' and no-one demurred. Throw in the later improved but still barren decade for the open government cause from 1995 where even ministerial media releases weren't posted on the internet during the Carr era so as to avoid leaving discoverable footprints, and pleas from the Ombudsman for reform were routinely ignored. All power to Nathan Rees, still there in Mr Robertson's team, for steps in the right direction in 2008-2009. 

As to this 'killer' line, 'Joe Stalin' might have better suited Mr Robertson's purpose:

You would have got more information out of the Soviet Union under Nikita Khrushchev than you do under Barry O'Farrell in New South Wales. 

(Comparing tyrants isn't all that useful but Wikipedia comments on "The Kruschev Thaw" as allowing some freedom of information in the media, arts and culture that "all together helped liberate minds of millions and changed public consciousness of several generations of people in the Soviet Union." Positively enlightened compared to old Joe.)

With GIPA two and a half years on,18 months of that overlapping O'Farrell's time in office, it's a mixed bag. Journalists tell me generally things are somewhat better than the pre-GIPA days, adding plenty of caveats and exceptions. But a steady stream of individuals pass on to me tales of woe and classic runarounds. Frustration at the long delay in the Office of Information Commissioner in dealing with review applications is also high on the list of grumbles, heightened where the agency goes its merry way despite a recommendation from the OIC that it think again. 

There is a dearth of published information about the operation of the GIPA act, agency compliance with publishing requirements, or performance in dealing with informal and formal requests - another OIC file that needs retrieving and a dusting.

The Government Information (Information Commissioner) Act 2009 requires (s 37), in addition to an annual report on the work and activities of the office, a report from the commissioner on the operation of the GIPA Act generally, across all agencies "as soon as practicable after 30 June in each year."  The act commenced on 1 July 2010. No report has been published to date for the year to 30 June 2011, nor so far for the period ending 30 June this year. I've asked on several occasions where things stand-months ago the commissioner told me she was in editing mode on the 2011 report. The parliamentary presiding officers and the Attorney General are to get a copy-maybe its stuck there?

No one asked about the s 37 report or much at all about agency performance when the NSW parliamentary Committee on the Ombudsman, the Police Integrity Commission and the Crime Commission held a brief meeting (one hour four minutes) in May with the Information and Privacy commissioners to discuss the 2010 and 2011 annual reports on the operation of the office. 

No one asked either about whether the NSW external review model with an ADT and OIC option but limited OIC powers was working as hoped, or could be improved. 

Questions, questions.

Answers, please?

Sydney Olympic deals still commercially significant

 Ah remember the days..revisited recently in a Government Information (Public Access) Act case in the NSW Administrative Decisions Tribunal concerning the relatively rare issue of access to cabinet information ten or more years old. The decision involved something not quite as rare, a win (mostly) for the Sydney Swans (8-3, midway through the season).

The conclusive presumption that there is an overriding public interest against disclosure of cabinet information ( GIPA Schedule 1 Clause 2) does not apply if (a)  public disclosure of the document has been approved by the Premier or Cabinet, or (b)  10 years have passed since the end of the calendar year in which the document came into existence.

Nevertheless, depending on content, context and the effect of disclosure, there is scope on other grounds to claim an overriding public interest against disclosure. 

Deputy President Higgins in Hall v Department of Premier and Cabinet [2012] NSWADT 46 decided some withheld parts of a 1999 cabinet minute prepared in the lead up to the 2000 Olympics should be released, affirmed the decision (with a confidentiality order attached to the reasons) to refuse access to other parts that had continuing commercial significance to the Swans and the Stadium Australia Management Limited (SAG), and referred other disputed parts of  the document back to Premier's for reconsideration. (The document as released is yet to appear on the department's disclosure log.)

Few points of law arose in the case. The order that some information withheld by the department should be disclosed resulted primarily from the failure to satisfy the tribunal that disclosure would have the adverse effects claimed. For information of this kind it was unnecessary to consider whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations for disclosure. However with regard to some, Deputy President Higgins commented "there are a number of public interest considerations in favour of disclosure of the information in the disputed paragraphs. The stadium is an important public asset and disclosure of the disputed information (now 13 years old) could reasonably be expected to enhance Government accountability and ensure effective oversight of the expenditure of public funds" [52]. Other information of this kind "appears to be purely factual and uncontroversial" [72]

Blue Book non-disclosure in NSW:behind the scenes

snappedshot.com

Those who followed developments concerning access to incoming government briefs-the red and blue books- in Canberra following the 2010 election, and more recently in some of the states -will find the contents of a bundle of documents posted online in the NSW Department of Premier and Cabinet Disclosure Log  in December of interest.

The documents DPC11/03467(pdf) were released to a GIPA applicant (I'm guessing the Daily Telegraph given this report in December) who sought access to documents provided by the Department to the Premier's Office after last year's election, the period from March until November 2011, in relation to access applications made under the GIPA act.

Question time briefs prepared for the Premier suggest what he might say if asked in Parliament about the refusal to disclose any of the incoming government folders, and provide him with other background information, including as some of us said in March, that the Premier could direct disclosure outside the act should he wish to do so, something that never happened.

One undated brief informs the Premier that the Department was reviewing its decision to refuse access in response to a GIPA application, in line with a recommendation from the Information Commissioner that all agencies should do so. (NSW Government Blue Books (pdf)). The only evidence of any result, in this batch of documents, are pages 88-89 from the Departmental Support Services section of the folder, about tabling procedures in parliament, GIPA processing and the registration of lobbyists scheme- they don't come any more bland. (A search on the department's website for "incoming government briefs" produces nothing from the folders at all.)

 Fifty four of the 97 pages consist of weekly lists, through to September 2011, of GIPA applications received by and on hand in the Department-a first glimpse of a full list of what applicants seek. One of the briefing notes confirms that the Premier's office is only notified of a departmental determination after the event, but these lists show that detail about applications is known long before that, with applications from "the media" (no names or other details) categorised and distinguished from the rest.

On disclosure of what government agencies told their new masters and mistresses as they slid feet under the desk, compare and contrast NSW -virtually nothing-with significant if far from complete disclosure of similar documents by 13 or more federal government agencies including those bastions of closely guarded information, Treasury, Foreign Affairs and Defence. To repeat, poor form for a government that came to office indicating improvements in transparency and accountability were a high priority.

(Update: Stephen Murray in a comment on this post draws attention to the release of parts of four volumes of the folders-there are others- on the Premier's department Disclosure Log (a bit of digging on page three) following release, he says to the Australian Financial Review. His analysis of the content is worth reading. To summarise:
"So, what has now been released is an amalgam of mission statements, corporate plans, handbooks and guidelines along with a seeming dump of the combined contents of departmental Outlook Contacts and Appointments: more “Bland Books” than “Blue Books”.)

Or as the South Australian Ombudsman, bound by the legislation there to rule that incoming government briefs were cabinet documents exempt for the same reason as in NSW, but where unlike NSW, agencies retain a discretion to disclose, commented:

In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind

As to the bundle of Premier's department documents, there is no index or content list but here is what it contains, in order, with some comment along the way:

NSW Information Commissioner joins performance discussion

Readers of comments will have seen an exchange about the performance of the NSW Information Commissioner following this post, prompted by a comment by Doyle Brady who wrote a longer first piece on the subject to kick off the eyes on government blog. In a welcome development the Commissioner Deirdre O'Donnell has joined the conversation. As some who are interested may have missed this, I'm moving the discussion from comments to centre stage. Other contributions are welcome, particularly on outcomes and results of 12 months of GIPA, and the leadership and oversight by the Commissioner's office.

Commissioner finds Macquarie University not up to the GIPA mark

A report dated 9 March but just published of an investigation by NSW Information Commissioner Deirdre O’Donnell into  Macquarie University (pdf) in Sydney reveals some extraordinary aspects of administration of the Government Information (Public Access) Act. The investigation followed a complaint that termination of employment in September last year of the person holding the position, among others, of General Counsel, followed contact by her with the Commissioner's office to seek to clarify the status of the university under the GIPA act. The Commissioner stopped short of a finding that employment had been terminated for this reason - probably a criminal offence if proven- but made an adverse finding against the University that criticism for contacting the Commissioner was inappropriate, and likely to have undermined effective university compliance with the Act.

The report also deals with the failure by the university to prepare, in the year before, for the commencement of the GIPA act in 2010 as university staff involved in implementation were held back from doing so by instructions from the University executive; intervention with the Information Commissioner by the NSW Universities Vice Chancellors Committee (a group chaired by UNSW Vice Chancellor Fred Hilmer) apparently to seek relief for universities from all or some of the disclosure obligations under the GIPA act; and incorrect information given by a person associated with the Committee that the Commissioner had exempted universities from compliance.

The Commissioner made further adverse findings regarding actions by the executive in giving inappropriate directions to staff that communications with the OIC be via the NSWVCC, and in interfering with compliance efforts of the staff. Macquarie has been asked to publicly affirm its commitment to complying with the GIPA Act through communications with all staff and on its website and to provide a written report on the processes it has put in place to promote compliance within three months. The OIC will conduct a formal audit of Macquarie University’s compliance with the GIPA Act in six months’ time (September 2011).

Update: The OIC has been in touch to say that while "the Commissioner signed the report on March 9, it contained adverse comment about the agency. We were therefore required to notify the Education Minister before publishing the report. Given the state election, we considered it appropriate to also notify the new Education Minister, who replied the day the report was published on May 13." Thanks. 
Further Update: As reported in the Sydney Morning Herald on 17 May

NSW Information Commissioner satisfied with Barangaroo contract disclosures

"This government will ensure that there is absolute transparency about this process," NSW Planning Minister Brad Hazzard told parliament yesterday during debate on the controversial Barangaroo development proposed for Sydney Harbour. That may provide some comfort to those keen to see, and to see behind, the detail of a partly published $6 billion contract with Lend Lease, and the associated decisions and approvals made and given by the previous government (heading for the courts until some discussion today about an independent inquiry) in a process that some suggest has been marked by excessive secrecy.

Those same interested parties and observers may have been surprised that a recent investigation by the Office of Information Commissioner NSW (OIC) found little fault with the Barangaroo Development Authority's (BDA) approach in withholding parts of the contract from publication, largely reflecting OIC satisfaction with the agency's response (after criticism and complaint) in releasing or promising to release more information. They might think the BDA got off lightly, but at least the OIC intends to take another look at how things are going on the disclosure front in July.

NSW Information Commissioner on the public interest

The NSW Information Commissioner is yet to issue guidelines on the application of the public interest test in the GIPA act but this submission on behalf of the Commissioner in a matter currently before the Administrative Decisions Tribunal provides an indication of how the office interprets aspects of the relevant provisions. 

The NSW ADT has not published a decision so far on a review application under the GIPA act that commenced in July 2010. The Information Commissioner has a right  that may be unique in Australian law to appear and be heard in such cases.

The submission is obviously tailored to matters relevant to the case involving NSW Police, but parts of general interest include:

FOI can cost a packet, so fine print on discounts warrants a close look

Aussie Legend WikiMedia Commons

Access to government information under right to information laws can involve more than a brass razoo, except in Tasmania where an application fee but no other charges apply. So circumstances where waiver, reduction or rebate may be available are of particular interest to those who use the acts. In NSW the now repealed Freedom of Information (Fees and Charges Order) 1989 relating to circumstances in which a rebate could be given on "public interest" grounds gave rise to problems, suggesting as it did that the issue came down to whether there was a public interest in disclosure of requested documents. Clause 6 provided (emphasis added):

The fees and charges payable by-
...
(e) an applicant whose application relates to information that it is in the public interest to make available are to be half the fees and charges that would otherwise be payable in respect of that application."

The replacement Government Information (Public Access) Act, reflecting recommendations in the Ombudsman's 2009 Report, took a different approach, clearly distinguishing the decision on a rebate on charges from a decision concerning access to the requested information. S 66 provides:

Discounted processing charge—special public benefit

(1) An applicant is entitled to a 50 per cent reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally...

(3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.

The NSW Information Commissioner has released Guideline 2: discounting charges – special benefit to the public generally.  Overall useful and less legalistic than other schemes, but two issues worthy of comment, and a query about whether FOI charge systems are worth all the effort.

NSW speaks up for a return to integrity in public life

No one would be surprised that "restoring integrity to public life" was fourth (8%) in the top five issues listed as the highest priority for government after Saturday's election in NSW, according to the print version of this article (p 8) about results of a Herald/Neilsen Poll. Premier O'Farrell fresh from the most comprehensive election victory in memory seems certain to heed this message. The only questions are how vigorously and when. Action would have more dramatic effect than walking around with a sign saying "I'm not them."

The Liberal Party pre election commitments on transparency and accountability included all the expected headings, but the specifics on issues such as lobbyists fall far short of expectations and the recommendations of the ICAC, and on access to government information are out of date in some respects. Action on a range of fronts should be taken promptly to convey and sustain the message that this government is and will remain different in the way it governs.

For starters on the transparency front, and there are other areas just as pressing:

• instructions for prompt public release of those parts of the incoming government briefs prepared for ministers that outline the state of things in NSW;
• a letter to the Liberal and National parties urging/insisting disclosure as soon as practicable of donations received prior to 26 March and voluntary adoption of something close to real time disclosure from now on, with legislative changes along these lines to follow;
• order immediate review by each agency of any GIPA matters before the Information Commissioner, the Administrative Decisions Tribunal or the courts with a view to speedy resolution;
• ask the Information Commissioner for a report on issues that have arisen in the first nine months of operations, to identify agencies that appear to be lagging in fully embracing the open government principles underpinning the GIPA act, and to bring to attention any proposed changes in legislation that may be necessary, for example regarding IC powers, to give full effect to the scheme; and
• put parliamentarians on notice that changes coming to arrangements for allowance and support payments will include publication of details of payments online.

Then there are broader issues raised in Ombudsman Bruce Barbour's call last year for an overhaul of the integrity structure.

The Premier should manage the integrity action agenda himself unless he has a "john faulkner" type who can be given a very senior cabinet slot that extends to responsibility for this and related matters such as public sector reform. And while Greg Smith, in line for Attorney General, seems impressive, a law related portfolio isn't the best home for these things.

Masterly argument blocks release of school value add

The NSW Department of Education rejected an application under the Government Information (Public Access) Act for access by the Sydney Morning Herald to information on the value added by the state's comprehensive schools to their students' performance between year 10 and year 12. In an editorial (second at this link) the Herald said refusal of access to "this sophisticated and meaningful data" is simply ridiculous, particularly as  the Department released the same information about selective schools one month ago. The editorial points out that the Department's decision is inconsistent with the federal government's push for greater transparency, that it means that no data which shows any differences between schools could be released, and that it denies parents access to the most meaningful information available on school performance.

All this is to no avail if the Department is correct in claiming the information is covered by section 18A of the Education Act 1990, and it waved a Crown Solicitor's opinion at the Herald to make the point. Section 18A in its current form came out of an Alice in Wonderland debate in Parliament that led to measures ( subsections (4) and (5)) that the Government decried but voted for, that impose a fine on NSW newspapers utilising publicly available information to publish comparative performance information.

Schedule 1 of the GIPA act lists section 18A of the Education Act as one of the prohibition on disclosure provisions in 26 acts that are taken (section 11) as establishing a conclusive presumption of an overriding public interest against disclosure. Schedule 1 clause 1 states the overriding presumption applies where disclosure is prohibited by those provisions and "whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence." This suggests that in dealing with a GIPA application an agency must refuse access to information that properly falls within any of these prohibitions.There appears to be no discretion to release available to be exercised by the GIPA decision maker even though under the original acts information can be released in certain circumstances.

On the basis of the Herald reports I'm not convinced the release of the added value index would involve a publication prohibited by section 18A, so it will be interesting to see what might come from any challenge. In any event a National Agreement would clear this up if governments were really serious about transparency and the school system. But why NSW should need Commonwealth agreement before releasing information about NSW schools is another matter.

Section 18A states:

Spin costs, regardless

activatecricket.com.au

Whether spin is government business in Victoria - more correctly, whether ministerial media plans are ministers' documents subject to the Freedom of Information Act - will be resolved by VCAT, but former speaker Ken Coghill is right, in theory at least, that if it isn't, the party not the taxpayer should be paying for this function. David Rood of The Age recaps the evidence in the case and concludes  "(w)in or lose the government's legal argument fails the common sense test."

Meanwhile the Opposition in NSW has used the law to find $4.3 million in spin costs, amid claims that the government tried to block FOI requests for this information.The SMH reports "The Department of Premier and Cabinet advises it did not attempt to block access to this information. It was deferred until the expiry of a standard review period, and then released.'' Not sure what this means - maybe consultation with those concerned prior to release?

Information that could have kicked off that empty DPC Disclosure Log?

NSW disclosure logs so far, a mixed bag

Fair dinkum...

Two and a half months after the NSW GIPA act commenced, including the requirement each agency post on the internet information about a disclosure to a particular applicant of potential interest to the wider community, the disclosure log of Premier and Cabinet, Education and Training, Planning, and many other important NSW agencies remain as empty as my wallet. Maybe they haven't had formal applications, or haven't released anything of broad interest - the strict legal requirement - although this would be surprising. There would be nothing to stop an agency also making available information released in response to an informal request in any event.

While it is referred to in the Publication Guide posted on the web, I can't find the NSW Police disclosure log. Police were far and away the leader in the number of Freedom of information applications over 20 years.

The following agencies are some who have something to show: NSW Health, Treasury, University of Sydney, Justice and Attorney General, Camden Council, NSW Fire Brigades, and Roads and Traffic Authority.

A central NSW site with a link to major agencies' GIPA page - like this for Queensland agencies - would be a help to those keen to keep an eye on developments.

Hatton hot to trot

Another ministerial resignation, in NSW, along with a couple of other scandals this week prompted former independent state MP John Hatton, who has a stellar reputation for integrity, to announce yesterday he would stand as a independent candidate for the Legislative Council. ''We live in a corrupt state,'' his media release stated. ''Open, accountable government, a level playing field for all business, freedom of information, ethical, impartial decision making in key areas simply does not exist in NSW,'' Hatton declared. 

This might be a little over the top. Freedom of information, read GIPA exists. It's true, the environment may not be conducive - never has - to open and accountable government, and the new law is yet to prove its worth. And culture change depends heavily on words and deeds through strong, clear, visible and ongoing leadership from all those at the top, encouraging professional public servants to recognise and act in the spirit and intent of the law.There's the rub.

The SMH reports Hatton, one of the three independents who shook up things up in NSW, including forcing a Royal Commission into police corruption, and FOI changes following the 1991 election, "has come out of retirement to tackle his old enemy. It's as if he can smell it." More details in Business Spectator include a blast for the Opposition and the ICAC.

Future payments to government "commercial in confidence"?

What constitutes "commercial in confidence" seems likely to get an early work out from the NSW Information Commissioner if the Sydney Morning Herald follows through on its editorial  today (the second in this link) about the publication of a $6 billion agreement between the Barangaroo Delivery Authority and developers Lend Lease published this week, stripped the Herald says, of almost all financial information. Well at least payments by Lend Lease for the development rights in seven payments yet to be made by 2018, what Lend Lease is contributing to the infrastructure like ferry wharves and light rail, the cap to the company's liability for damages for breaching the contract, or penalties it would face for missing targets for water, waste and carbon standards by the due dates. 

The Government Information (Public Access) Act requires such contracts to be published, but not "commercial in confidence" information or other information where there is an overriding  public interest against disclosure. "Commercial in confidence" isn't anything an agency or contractor might want it to be, but a term defined in Schedule 4 of the act. As the Herald, asks, ticking off the elements of the definition:

Would it disclose the contractor's financing arrangements, its cost structure or profit margins, its full ''base case financial model'', or any intellectual property? We think not. But perhaps it comes under this catch-all classification: ''any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.'' That must be it - but how?

It sounds something of a stretch.The Herald says that the Authority's compliance with the publishing requirement " renders the new law a joke.

This is a challenge to NSW's new Information Commissioner, Deirdre O'Donnell, who has declared that she wants to champion a ''revolution'' in the public sector's attitude to information. So let the revolution begin, and heads roll on the Hungry Mile."

Hullo and goodbye to section 12 of NSW Local Government Act

The commencement of the NSW Government Information (Public Access) Act on 1 July also saw repeal of section 12 of the Local Government Act, ending for local authorities the complexity arising from dual rights of access to documents under the LGA and FOI acts. From now on GIPA  procedures apply. Perhaps fitting that this decision (Jeray v Blue Mountains City Council) was handed down last week in proceedings in the Land and Environment Court concerning an application under section 12, and the removal of documents from a file by council staff on legal privilege grounds. It's the first litigation concerning the section in my memory, and points up the unsatisfactory pre 1 July situation that FOI was subject to merits review by the ADT, while section 12 issues were matters that could only be pursued in the Land and Environment Court (and through complaint to the Ombudsman). The decision itself is of no great moment (except the Court set a high hurdle [14] for the applicant in requiring him to specify documents removed from the file that he hadn't seen) but such a rare beast, its worth a mention. Given the repeal, there's unlikely to be more.

No news in good news

New right to information laws in NSW and Tasmania from 1 July didn't spark much coverage in major media in either state with no take up I can see on the media release  by Tasmanian Attorney General Lara Giddings welcoming the commencement of the RTI Act, or on a similar release by NSW Information Commissioner Deirdre O'Donnell. Commissioner O'Donnell gave applicants this useful quote to use in response to contiunuing run-around:

"There will no longer be any excuse for long drawn out applications for every piece of information requested by a member of the public or a journalist," she said. Under the GIPA Act, all government agencies must try to provide the requested information quickly and informally, with formal applications an absolute last resort." 

There may be more, but the only mentions of the new era in NSW that came to attention were in two local papers who understandably gave it some local flavour. Good on the Manly Daily 26 June and the Braidwood Times 30 June.

The NSW Office of Information Commissioner has a quarter page advertisement in today's Sydney papers announcing the changes and its role.If it appeared in the Daily Telegraph it makes an interesting bookend with this "Secret state" front-page screamer.

NSW agencies put best foot forward on GIPA day

NSW agencies appear to have done a good job to post Government Information (Public Access) information on the web from Day One. I can't vouch for quality, and will be particularly interested to see who goes further than the modest but useful mandatory publication requirements, but the following list of links to the relevant web page of major departments and agencies might come in handy. For comparative purposes Queensland agency links for the more extensive publication schemes required by their Right to Know Act are here.

Department of Justice and Attorney General.

Department of Premier and Cabinet.

Department of Health.
Department of Human Services

NSW Police Force

Department of Planning

Department of Environment, Climate Change and Water

Treasury- Office of Financial Management may be here somewhere.The other side of the shop-Office of State Revenue  is here
Department of Education and Training
Department of Industry and Investment
Department of Services Technology and Administration
Transport NSW
Roads and Traffic Authority