By Sean Nicholls
Nicholls is the State Political Editor for the Sydney Morning Herald, where this article appeared on Jan. 12. (Reprinted with permission.)
Before the 2011 state election, Barry O’Farrell’s then opposition announced a lofty and noble ambition if it took power.
As part of an unfolding campaign manifesto, the Coalition promised to ”pursue a new era of open government”, chiefly by overhauling the state’s freedom of information regime.
”The community has the right to openness, accountability and transparency when it comes to government decision-making and information,” it said in its brochure, Start the Change, Make NSW No 1 Again.
”Community scrutiny of government – including through increased access to government information – both protects the public interest and propels better public sector decision-making and performance.”
One of the ways it would do this was to scrap the $30 application fee associated with requests for government information under the Government Information (Public Access) Act – otherwise known as GIPA applications.
But nearly two years after the change of government, the promise has yet to be delivered. And, rather ironically, the government is in no mood to explain why.
Last year John Robertson’s Labor opposition sought to embarrass the government into action with its own private members’ bill which proposes to abolish the application fee and stipulates that if a processing charge is imposed for dealing with an application, the first hour is free.
The government’s response? To accuse Labor of ”gross hypocrisy” for not doing so during its 16 years in power.
We were assured at the time that there was every intention to honour the promise – just don’t ask for details.
How has the O’Farrell government fared otherwise in its stated ambition since its election in March 2011?
It enjoyed an inauspicious start. The freshly appointed administration refused to release the ”blue books”, or briefings from the public service to incoming ministers, on the basis they were prepared for cabinet.
(They were eventually released after criticism by the office of the NSW Information Commissioner, whose job it is to ensure departments comply with the their GIPA obligations).
The following May the government introduced a bill to tighten up aspects of the GIPA regime. But it was largely tinkering around the edges, such as clarifying the time within which agencies must publish on their websites information that has been released.
By any measure, this falls a long way short of ushering in a ”new era of open government”.
Should we be surprised? After all, the view from opposition about how urgently changes to government transparency need to be made tends to change quickly once power is assumed.
The problem is that it is becoming increasingly apparent that there are significant problems with the way the public service is responding to its obligations under the GIPA Act in NSW.
Based on recent disclosures by the inaugural NSW Information Commissioner, Deirdre O’Donnell, the way the public service is abiding by the rules is alarmingly haphazard.
In her evidence to a parliamentary committee, published last month, O’Donnell describes government agencies struggling with ”a lack of resources, ineffective processes for dealing with GIPA requests or, in some cases, confusion about the requirements of the GIPA Act.”
There were ”inadequate systems and processes” for agencies to properly respond to GIPA requests.
After more than two years after the GIPA Act replaced the old Freedom of Information Act, some agencies had yet to update their systems to comply. This meant they were ”still applying the decision-making practices and procedures they used under the FOI Act,” O’Donnell told the committee.
That’s a pretty fundamental problem, given that the point of the GIPA Act was to shift to a system of ”proactive disclosure” whereby the public interest in releasing information must be carefully weighed against factors such as privacy and commercial confidentiality.
In fact, the inability or refusal of agencies to balance the issue of public interest against these other considerations was one of the ”common themes” O’Donnell revealed as emerging around the way government agencies handle GIPA requests.
”In particular, agencies take into account considerations against disclosure which should not apply,” she said.
Another issue was agencies overcharging for GIPA-related work. In one case that would do the city’s law firms proud, an agency charged an applicant for removing staples and photocopying documents because it didn’t hold electronic copies.
At least some of these problems were evident in the findings of an investigation O’Donnell’s office conducted into the handling of GIPA requests by NSW Police, which sparked by complaints by applicants.
As part of its investigation, published in June 2011, the office interviewed complainants and the police and examined its GIPA files. The report highlighted a number of ”concerns”.
”The decisions reviewed by the OIC provided little reasoning or factual context to support why the Police Force decided to apply considerations against disclosure,” it found. ”The decisions also failed to provide the public interest considerations in favour of disclosure.”
The office also concluded that the police would routinely refuse an application for information on the sole basis that an investigation was ”ongoing”.
”Of particular concern was evidence that, in forming this decision, the Police Force did not consult with the relevant investigator or prosecutor, and at times did not even sight the information requested,” the OIC review found.
Problematic disclosure issues were also identified during investigations into the Barangaroo Delivery Authority and Macquarie University.
There is some good news. O’Donnell said that in 82 per cent of cases the agencies released information that was requested. But even that figure is not completely reliable as many government agencies were late and/or incomplete in their reporting of GIPA matters. ”Accordingly, the OIC is not able to report on trends across all agencies”.
A statutory review of the GIPA Act is not due until after June 26, 2014. But on the strength of O’Donnell’s evidence to the committee, the government should not wait until then to consider what action to take.
A far more urgent task for a government which has promised ”a new era” of openness would seem to be determining why the system is in such turmoil and sending an unequivocal message about what is expected of the public service. And acting to abolish those application fees wouldn’t hurt either.
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