NSW is finally moving towards open and accountable government under the vigilant eye of an information champion...or is it?
A small group of open government supporters and observers were intrigued, even slightly excited, when the Government Information (Public Access) Act 2009, referred to as the GIPA Act, was passed in Parliament in June 2009...even if it was Nathan Rees’ baby. The Act introduced a regime which copied reforms already in place in other jurisdictions, such as Queensland, the UK, Canada and the Commonwealth of Australia and of course, the Act didn’t take effect until another 12 months in July 2010.
The $4 million champion
The freedom of information reform included a hefty price tag of $4 million per annum, for operational costs only (not including the Information Commissioner’s undisclosed salary), to establish an independent Office of the Information Commissioner (OIC) to promote and administer the GIPA Act. Prior to the GIPA Act, freedom of information was administered by the NSW Ombudsman’s Office at what most argue was at a lower operational cost. The rationale was that independence and more appropriate levels of funding was required to ensure more effective promotion of open government and oversight of government agencies.
Excitement continued to build around the open government reform when the Information Commissioner, Deirdre O’Donnell, was appointed to promote and administer the GIPA Act. Just one dissenting voice raised a question in a blog announcing the appointment: Anonymous said, “Oh dear. I don’t recall anything outstanding about her tenure at the TIO.”
Despite the barb, in her first week of taking up the role, Ms O’Donnell proudly calls herself a “champion” and promised the people of NSW a “revolution” to “change the culture of the public service, to make it far more open” in her interviews with journalists and as reported by Matthew Moore for the Sydney Morning Herald on 15 May 2010. The new regime gives her powers to ensure NSW government agencies comply with the GIPA Act, such as the powers of a royal commissioner, which Ms O’Donnell describes as “teeth” which she is not afraid to use.
The question is, almost 12 months on since assuming the role, has Ms O’Donnell kept her promise to the people of NSW and justified the $4 million cost to the people? More importantly, is Labor’s legacy receiving the regard and attention it deserves under a new Liberal government and has Ms O’Donnell’s courage to use “teeth” diminished without Labor’s support?
So far, so what?
Let’s look at Ms O’Donnell’s performance so far:
● In late May 2011, Premier Barry O’Farrell makes a decision which sends open government backwards by imposing a blanket ban on the release of all “blue books”, which are briefs prepared for the incoming ministers pre-election, on the basis that the briefs had been prepared for incoming cabinet. Under the GIPA Act, briefs which are prepared for the “dominant purpose” of its being submitted to Cabinet need not be disclosed. The Premier’s decision is inconsistent to the position taken by the Commonwealth government where “red books” (the equivalent of NSW blue books) are disclosed. The decision had not miraculously appeared without any warning, the issue had been debated in March 2011 and reported in the Sydney Morning Herald. So what part did the NSW Information Commissioner as champion of open government have to play in this important debate prior to the decision being made by the new Premier and did she bare her “teeth”? That remains to be established.
● As at 10 December 2010, in response to a GIPA request made by blogger and Australian Lawyer Peter Timmins, the OIC had received 141 requests for assistance: 105 of which were requests for a review of a decision made by agencies in relation to a GIPA request and 36 of which were complaints about agency GIPA-related processes and procedures. Only 33 of these requests had been finalised and closed by the OIC.
Have those figures improved? In its website, under OIC decisions, the OIC states that “the Casework and Compliance team has now received 220 requests” and “we have closed 58 by 24 February 2011”, that’s 162 requests still outstanding!
Has there been much further progress since then? One of our friends will be submitting a GIPA request shortly to find out the updated figures which will be reported on this blog.
● As at 6 June 2011, the OIC has only published 2 decisions relating to a review on its website and the agencies involved in these reviews have been de-identified. The main reason why review or complaint decisions are published is deterrence via the shame factor. Those agencies and individuals whose poor performance have been identified will think twice about repeating the behaviour lest risk suffering public shame again, and other agencies and individuals are encouraged to apply the law appropriately lest they also suffer public shaming.
So how does Ms O’Donnell’s office compare to other Australian information commissions: the Queensland Office of the Information Commissioner publishes all their review decisions. The applicants are de-identified, however the agencies are named.
In its response to the GIPA application made by Peter Timmins on 1 December 2010 asking about the NSW OIC’s review cases, the NSW OIC advised that the “OIC is still determining our policies around publishing decisions and/or summary - when this policy is finalised, it will be available on our website”. As at 6 June 2011, six months on, no such policy can be located on their website. The only information available which hints at their policy in publishing decisions is a short sentence on their website under the heading OIC decisions: “We intend to provide full copies of our final views on the website in the future, but at this stage will provide some anonymised decisions along with case studies.”
● Decisions reported also only relate to review cases. The NSW OIC’s website features no reporting on proactive compliance measures which have been carried out during the 12 months of their operation, not even any policies or procedures manual on their compliance and review functions can be found...transparency fulfilled? Other jurisdictions, such as the Queensland Office of the Information Commissioner on the other hand developed a detailed Charter, Policies and Procedures Manual on their Performance Monitoring and Reporting function within six months of operating.
● The GIPA Act requires all NSW public sector agencies, including the NSW OIC, to publish Open Access Information on their website. Open Access Information includes the agency’s publication guide (an explanation about the agency’s functions and structure, how the public may participate in the agency’s policy making, what information the agency holds and how the public may access its information), policy documents, disclosure log of access applications, register of government contracts, and schedule of records that the agency does not disclose. The OIC has the opportunity to set the bar for all other NSW public sector agencies which it is required to oversight to promote transparency through the mandatory Open Access Information requirements.
Does the NSW OIC set the bar on Open Access Information? As at 6 June 2011, no information is contained under the NSW OIC ‘disclosure log’, ‘information not disclosed’ and ‘contracts register’ sections, and only one document is listed under the ‘policy documents section on the NSW OIC’s website. The only policy document published is an instrument of delegation. No policies are currently published relating to how the office performs its functions under the GIPA Act.
12 months on and we’re still waiting…
Since all the mishaps of the Labor government, eyes are on the new government, and more so on those responsible for ensuring government accountability. The NSW Information Commissioner has one of the most critical roles to play in achieving open government. Have the efforts to create an independent freedom of information office separate to the NSW Ombudsman been justified? The facts are not looking good but we believe it may still be, however it depends on whether the Information Commissioner intends to demonstrate her independence or fall into line under the pressure of political muscle as the symbol of Nathan Rees’ legacy.
The people’s challenge…just a start
Here is a challenge that one of our friends who wrote to us would like to put to the NSW Information Commissioner: performance agreements are imposed on heads of agencies and these government heads must report on their performance against these KPIs to justify their salary. The proposition:
- Salaries of heads of agencies should be publicly and proactively disclosed, and
- Reports on performance against performance agreements should be published.
We believe there is ample public interest considerations in favour of disclosure to justify disclosure of information pertaining to the performance of heads of public sector agencies who are not only funded by public money but make decisions on the use of public money and these considerations outweigh any public interest consideration/s against disclosure. Additionally, the GIPA Act encourages disclosure of information in a manner which does not result in a public interest consideration against disclosure.
Will the Information Commissioner take the lead as self-proclaimed champion of open government and set an example for the public service by proactively disclosing her salary and providing a report on her performance over the last 12 months against her performance agreement???
