Council Matters| Peter Cormick
26 January 2017
YOUR RIGHT TO KNOW WHAT YOUR COUNCIL KNOWS
If there’s one thing that we can all agree on, it’s that governments and their agencies are naturally secretive. And, depending on just what the secrecy is about, it can either be annoying, irritating or downright enraging. After all, governments – at least in our so-called ‘western democracies’ - are meant to be answerable to the people who have elected them.
But we are always hearing of ‘secrets’ held by governments – that ought not to have been withheld - that have been revealed by courageous whistleblowers, investigative journalists who give journalists a good name and citizens, committed to open government, who persist in uncovering that which must be uncovered.
Why politicians and bureaucrats behave in this way really requires an analysis of human nature – a subject as complex as any. But the explanation can be, and often is, as simple as the information suppressors being desperate to avoid embarrassment – to cover up, to keep the job – a matter of survival! Maybe many, if not most of us, would fall into this culture trap of withholding information, if we found ourselves in similar ‘bureaucratic circumstances’. But withholding government information from the public – other than that which should clearly be withheld (such as genuine matters of national security) – can never be justified.
As we all know, this culture of secrecy occurs at all levels of government. Look for instance at the recent example of the former Federal Health Minister, Sussan Ley, who, according to media reports - and like so many politicians - abused her parliamentary privileges, by spending public money primarily for personal purposes. After the investigation into this abuse had been completed and a report provided to the Prime Minister, he told the public that because it had been provided in the context of a report to Cabinet, he was not permitted to let the public know the details of the abuse or how on earth it was allowed to occur in the first place. And that is an essential, common feature of the withholding of information: relying on whatever technical out might be available, no matter how tenuous, to deny access.
And all of this occurs in the midst of seemingly first class freedom of information laws. They are simply construed in ways that enable the culture of secrecy to perpetuate. It can and does become a game for the perpetrators: “By what means can we deny access – go away and do your best?”
Seeking information from government agencies can involve a lot of time in familiarising oneself with the relevant legislation and in jumping through the hoops, as one moves through the application and then an appeals process. But there is just so much time in the day – and that is one fact that bureaucrats will rely upon: that the applicant simply won’t know what to do next and/or won’t have the time to pursue an application for access to information. There are however those who keep on keeping on – and we have at least a few in our shire, to whom we should be grateful. Against the odds, they strive to keep our council transparent and accountable. Yet, in each of the cases that I am familiar with, these applicants were denied access to the information they sought even though the NSW Information Commissioner, taking account of the facts and the relevant law, had recommended release of the information sought. Unfortunately, the Information Commissioner does not have the authority to order the release of information – only to recommend it - and council takes full advantage of that shortcoming. It is only by appealing to the NSW Civil and Administrative Tribunal (NCAT) that one might obtain an order to release the information sought. There is one such case – of an applicant appealing against council’s rejection of the Information Commissioner’s recommendation - currently in progress; and I will report on the outcome when it occurs – along with the details of the case itself.
For those who enjoy background material, here is an extract from the NSW Hansard for 23 June 2009, which promises the world when it comes to making information available to the public (emphases added):
Mr NATHAN REES (Toongabbie—Premier, and Minister for the Arts) [4.42 p.m.]: I move: That these bills be now agreed to in principle.
It is my privilege to introduce the Government Information (Public Access) Bill, the Government Information (Information Commissioner) Bill and the Government Information (Public Access) (Consequential Amendments and Repeal) Bill, legislation that will vastly improve the transparency and integrity of Government in New South Wales. In October 2008, I addressed this House on the issue of the transparency and accountability of Government and made clear my view that the old culture of Government secrecy has to end and that the public's right to know should be respected. Members of the public should be able to have access to the widest possible range of information to give them confidence in Government decision making. And that means a total revamp of the system. I gave a commitment that I would introduce new legislation to reform freedom of information [FOI] in the first half of this year, once the outcomes of the Ombudsman's review of the Act were known. And today we are delivering on that commitment.
These bills together represent the first comprehensive overhaul of the freedom of information regime in 20 years. These bills do just what we undertook to do. They 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. The new legislation shifts the focus toward proactive disclosure. The legislation requires that certain "open access information" must be published. This includes details of an agency's structure and functions, its policy documents, and its register of significant private sector contracts. In addition, agencies are authorised to release other information unless it is sensitive personal information or there is some other overriding public interest reason why it cannot be disclosed. There is a significant amount of information that can and should be released without the need for a formal application.
On 1 July 2010 the Government Information (Public Access) Act 2009 (GIPA Act) came into effect. It was meant to be the beginning of a new era in freedom of information. But nothing of the kind has occurred. Section 14 of that act is the go-to section for government authorities: Public interest considerations against disclosure. Section 12, which lists the Public Interest considerations in favour of disclosure, is all but ignored – as is section 3, which sets out the Object of the Act:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
These are very fine words but, unfortunately, government authorities, including our council, will take full advantage of the Information Commissioner being a paper tiger and count on applicants not being able or bothered to take their matter to the NCAT.
What is needed is a change in culture, from above, through the person who oversees an authority’s operations. In the case of our own council, that person is the General Manager. If the GM is on board then all else should follow.
It is only through a genuine embrace of the spirit and object of the GIPA Act by council that the constantly strained relationship between it and the community can be rectified. Trust, in any relationship, requires openness. It is up to council to enable that openness – through genuine pro-active disclosure of information - and thereby work towards a healthy relationship with the community.