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.

More confidentiality the answer for Queensland councils?

It was the ongoing prospect of unfair media coverage that Brisbane Lord Mayor Campbell Newman said justified a "cabinet exemption" under the Right to Information Act for some documents concerning the operation of Brisbane City Council contained in the City of Brisbane Bill that passed Queensland Parliament last week. So he wouldn't be surprised by  'Death of democracy at City Hall'  as the headline in the Brisbane Times the following day in its report on parliamentary debate on the bill. A step backwards for transparency, yes, and certainly not justified for the reason claimed by the Lord Mayor in the Brisbane Times. But the "death of democracy"  a quote from a Labor Councillor is over the top.It's not dead, just somewhat unnecessarily winged in the local government department.

Hat tip to those involved in NSW GI Bill

The NSW Government Information (Public Access) Bill and related legislation only got to initial reading stage in the Legislative Assembly yesterday, with the Premier Nathan Rees (copy of the statement here) outlining the key features and government policy that underpins the changes. No other speakers and debate was adjourned. While my druthers, and I'm sure those of others who lodged submissions didn't all get a run, there have been changes to the Consultation Draft that generally improve an all-together good piece of legislation. The Premier and those who did the work deserve high praise for their efforts. The Premier was right to say the bills

"turn the freedom of information regime on its head. The bills establish a framework to actively promote the release of Government information and they offer the opportunity for a fresh start...These bills constitute a fundamental freedom of information revolution... New South Wales will gain the nation's best freedom of information laws. The public's right to know must come first. As well as comprehensively responding to the Ombudsman's report, they pick up reforms arising from the Solomon review in Queensland and recently proposed changes to Commonwealth legislation. The bills mark a paradigm shift. Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information. This is generational change and reform that is long overdue."

The Premier said the Privacy Commissioner and the Information Commissioner will be brought together in a single office once the NSW Law Reform Commission report on privacy legislation has been finalised. Local councils will be pleased that confusion over access rights concerning Section 12 of the Local Government Act and the FOI Act are to be no more- Section 12 is to be repealed and local council disclosure obligations (including a reworked 12 (1) now in Schedule 5) and public rights of access to other information are all contained in the GI Bill.

Mayor of Gosford flunks accountability 101

On ABC 7.30 Report last night, Matt Peacock interviewed the Mayor of Gosford about $40 million in write-downs on Council's investments in collateralised debt obligations. A local business group has asked the Council questions as to exactly what funds have been invested in what schemes.

MATT PEACOCK: The council's answer was that it receives a monthly assessment and update of the investment portfolio from Structured Credit Research and Advisory on a commercial in confidence basis. It's also receiving advice on the possible unwinding and early redemption of investments, and that advice, too, is commercial in confidence.

MAYOR CHRIS HOLSTEIN: The councillors are given a regular update, councillors are briefed on where they are sitting and what's the position on all of those and how they are currently rating and where we're going.

MATT PEACOCK: And what about the public?

MAYOR CHRIS HOLSTEIN: Well, we put it out to the public. I'll have 170,000 financial experts will tell me, "You should have gone this and you should have done that."

Mayor, that's the whole point. Citizens are entitled to ask and be told what you are doing with their money, and entitled to tell you what they think about it all. It's called transparent, responsible and accountable government. I'd be amazed if the claims of "commercial in confidence" for information about where Council money is invested, and the current value of those investments, would stand up to scrutiny in any Freedom of Information challenge.

Documents held by former councillor still within FOI reach, maybe.

John Lightowlers

The Acting WA Information Commissioner, John Lightowlers, has ruled that any documents, including emails and other digital information held by a former member of the council of a local authority, are documents of the council for the purposes of the Western Australian Freedom of Information Act if they relate to the performance of the councillor's role as a member of the council, and were created or received by the councillor in his or her official capacity while an elected representative. Ross William Leighton and Shire of Kalamunda [2008] WAICmr 52.

The Acting Commissioner [ 56-57] based his decision on the definition in the Act of documents of an agency, which encompasses documents to which an agency is entitled to access, even where the documents are not in the actual possession or custody of the agency, and provisions of the Local Government Act and the State Records Act regarding duties to maintain and recover government records.

This seems like a first where an FOI application has been found to extend to documents currently held by a person no longer serving as a councillor.On the basis of the reasons outlined by the Acting Commissioner it would likely be the same result under FOI legislation in other states, and probably applies also to documents held by former ministers and public servants.

The NSW Ombudsman ( Joint Premier's/Ombudsman FOI Manual 2007 at 3.5.4) hasn't had any doubts that documents held by current councillors in their elected capacity and which concern their civic or council duties under any act are documents held by the council for the purposes of the FOI Act.The WA decision takes one more logical step.

Unfortunately for the WA applicant, the Acting Commissioner was satisfied that the former councillor had destroyed all relevant documents and purged her computer of records after she ceased being a member of the council, so the victory on the scope of the application turned out to be rather academic.

Canada developments resonate with visitor from Australia

I'm travelling in the US and Canada at present, for the last few days in Ottawa.

 Today's Ottawa Citizen has two items of interest and relevance to our own access to information situation in Australia.

The editorial "Daring to dine out" comments on the fact that local councils in Ontario do not have the resources to inspect restaurants for compliance with health standards,which require three inspections a year for those in the high risk category. But Ottawa's council is to make inspection reports available online "so that the dining public can access the results quickly", bringing Ottawa into line with emerging international best practice. No Australian state, territory or local government jurisdiction has been prepared to go there so far.

 The paper also reports on the results of a three year inspection by the Information Commissioner into whether government agencies had "secret rules" for processing Freedom of Information applications from media organisations, leadingto delays in disclosure of documents. The Commissioner couldn't find evidence of secret rules but found plenty of instances of unfair and unjustifiable delays where "special handling" labels were attached to applications. This is an area that warrants attention from the NSW Ombudsman and others who are looking at what goes on in our own systems.

Approved council minutes still subject to FOI amendment

This NSW Administrative Decisions Tribunal decision resolved a Freedom of Information review application of a refusal to amend a report to a local council meeting by ordering the council to make two of five requested amendments and upheld the council decision on the other three. In an earlier post we commented that the dispute about whether the Tribunal had jurisdiction to consider the application could have been avoided if the applicant had sought to exercise rights under privacy legislation rather than seeking amendment under the Freedom of Information Act.

One of the unsuccessful arguments put was that as the report formed part of the approved record of the council meeting, the council could not after the event make an amendment because of its obligation under the Local Government Act to ensure full and accurate minutes of a council meeting were kept.

"The two amendments that I have determined should be made - in paragraphs 2 and 3 of the Report, do not, in my view, interfere with the Council’s obligation under section 375 of the LG Act to keep full and accurate minutes of the proceedings of a meeting of the Council. The amendments merely make a relatively minor correction to a report to the Council, albeit important to Mr Livermore in terms of the accuracy of the personal information concerning him contained in the Report. Since this was purely a report by the General Manager to the Council on a staffing matter, the amendments would not appear to affect the fullness or accuracy of the Council minutes." (56)