IMPOTENT ACTS:
There is SO much to talk about with this piece of legislation which belongs to the NSW public; as such this page will continually evolve as more details and evidence of its actual operation and the ways NSW government agencies respond to it come to light.
The GIPA Act as it's generally known, is an Act which gives legally enforceable rights to any person who seeks access to NSW government records and information (supposedly anyway..........).
Let's get started!
(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.
Despite the clear message the object of the GIPA legislation is 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.....so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information," nothing could be further from the truth.
Let's be honest; has any member of the public encountered a single Right to Information Officer in the whole of NSW who has shown they strictly align to the letter of the law as set out in Section 3?
The Administrator of this Site has to date, in over 200 GIPA Applications, hundreds of informal GIPA requests, and over a dozen judicial reviews, found only one single Agency Employee who acts in accordance with Section 3; and that was for open access information mandated for release so probably doesn't really count.
Only one.
Quite the contrary.
The first port of call is, as the Port Stephens Council Governance Manager Tony Wickham now famously disclosed in July 2018, the Three Wise Monkeys: Hear no evil, See no evil, Speak no evil. Mr Wickham made the disclosure during a presentation he made to the organisation Local Government Professionals NSW of which he has been a member for many years. He also depicted getting access to government information was like getting blood out of a stone, and depicted valid access applicants as dithering senior citizens who didn't have a clue about what was really going on.
With such publicised and promoted attitudes and approaches to the public's requests to access government information, the Object of the Act is completely out of reach to those outside the GIPA Circle of Trust.
It would be difficult to form any reason to proceed with a request for NSW govenment information on the basis of Section 3, when the very individuals processing those requests trample all over it at first instance.
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Pretty straight forward yes?
There is........... This means the legislation has established a fact, and the fact is that there is a presumption in favour of disclosure, that is releasing the requested information.
Unless..............This means 'except if', meaning only under the particular circumstances set out, which in this case is QUOTE ".......an overriding public interest against disclosure," UNQUOTE.
So could there be a legitimate situation when an agency claims there is an overriding public interest against disclosure, that means it has a very compelling reason for withholding the information? Surely there are plenty of those stuffing agency compacti to the point of overflowing?
Even that sounds very legitimate at first glance. A valid reason to show documents should be prevented from release.
But what if, when you peak under the covers it was all a lie? It was all made up? This section of the Act was cast aside as completely irrelevant?
Surely not!
The cases of McEwan v Port Stephens Council and Webb v Port Stephens Council established with certainty that the starting point of analysis for particularly open access information mandated for release should be that it is open access in nature. That means Section 5 has been enlivened.
Instead what occurred in both these cases Port Stephens Council starte the process with public interest considerations against disclosure; so it took a completely opposite statutory approach. They claimed it was all legitimate and was backed by evidence, secret evidence that is, evidence that was never disclosed to McEwan or Webb.
Of course history now discloses the reason why Council acted in this way was entirely due to its Governance Manager Tony Wickham suggesting, initiating and implementing a falsified claim of a public interest consideration against disclosure, most notably the Section 14 Table 3(f) which asserted there existed a serious of risk of harm to the public if the subject records were released.
By acting in this way Tony Wickham was effectively able to disregard Section 5.
Evidently, despite the legislation stating there is a presumption in favour of disclosure of government information, we now see evidence under Council’s letterhead and with Council email footers, making it abundantly clear this section is nothing other than a speed bump for so-minded agency personnel. Those evidenciary documents litter this Site.
It is easy to see how the public questions the value of Section 5 of the Act, given the way agencies mess with it.
(1) An agency must make the government information that is its open access information publicly available unless there is an overriding public interest against disclosure of the information.Note—Part 3 lists the information that is open access information.(2) Open access information is to be made publicly available free of charge on a relevant website (unless to do so would impose unreasonable additional costs on the agency) and can be made publicly available in any other way that the agency considers appropriate.(3) At least one of the ways in which an agency makes open access information publicly available must be free of charge. Access provided in any other way can be charged for.(4) An agency must facilitate public access to open access information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record and it is practicable to delete the matter.(5) An agency must keep a record of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure. The record is to indicate only the general nature of the information concerned.(6) Nothing in this section or the regulations requires or permits an agency to make open access information available in any way that would constitute an infringement of copyright.(7) In this section—relevant website means—(a) a website maintained by the agency, or(b) for open access information prescribed under section 18(g) for which a website is prescribed by the regulations—the website.
Section 6 is closely aligned with Section 5, however if an agency is so-minded to obstruct legitimate access to information, make no mistake it will.
This leaves the public's faith in an agency's ability / capacity / willingness to act in accordance with it, lost.
(1) An agency is authorised to make any government information held by the agency publicly available unless there is an overriding public interest against disclosure of the information.(2) The information that an agency decides to make publicly available is to be made publicly available in any manner that the agency considers appropriate, either free of charge or at the lowest reasonable cost to the agency.(3) An agency must, at intervals of not more than 12 months, review its program for the release of government information under this section to identify the kinds of government information held by the agency that should in the public interest be made publicly available and that can be made publicly available without imposing unreasonable additional costs on the agency.(4) An agency can facilitate public access to government information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record.(5) The functions of an agency under this section may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.
Section 7 also aligns with Section 5, and additionally with 6, but as already stated, if an agency chooses to act in contravention of it, who is going to stop them, particularly when avenues of review are protracted and unneccessarily intimidating and costly.
(1) An agency is authorised to release government information held by it to a person in response to an informal request by the person (that is, a request that is not an access application) unless there is an overriding public interest against disclosure of the information.(2) An agency can release government information in response to an informal request subject to any reasonable conditions that the agency thinks fit to impose.(3) An agency cannot be required to disclose government information pursuant to an informal request and cannot be required to consider an informal request for government information.(4) An agency can decide by what means information is to be released in response to an informal request.(5) An agency can facilitate public access to government information contained in a record by deleting matter from a copy of the record to be released in response to an informal request if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record.(6) The functions of an agency under this section may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.
No, sorry, again being able to act in a proactive manner is something the public rarely sees, if at all. In the case of Port Stephens Council and its open access information highlighted in the case of McEwan v Port Stephens Council, where Mr McEwan sought rightful access to Mandatory Interest Disclosures (informally and in accordance with the legislation), Council spent approximately $99,000.00 trying to prevent that legal access.
Just to repeat that: $99,000.00 of taxpayer / ratepayer monies on an unwinnable case.