Despite the progress and evolvement of access to information legislation over the past (16) sixteen years, there is still much work to be done to meet the needs of every day people who rely on it for crucial information.
Regrettably there are too many disappointing FOI tales to tell and this is the latest across the desk of NSW Freedom of Information.
It is a very sad case of current legislative practices, policies and procedures failing vulnerable members of the public seeking answers to an avoidable personal tragedy.
The tragedy is not confined to the premature death of a much-loved son, brother, cousin and uncle.
It extends to the suspected taking of financial advantage of a heart-breaking situation by stealth, and where the current access to information and court processes have obstructed valid access to public documents.
The parents have strictly followed procedure and the legislation. They legitimately petitioned the NSW Supreme Court for access to the records of their deceased son’s estate, the application for letters of administration.
They wanted to know for themselves and ensure the court had not been duped by an extended family determined to take every cent of the deceased’s as quickly as possible, without any disclosures or due consideration of the remaining family.
But the court refused. It had consulted with third party solicitors representing the Letters of Administration Applicant, and had sided with it to prevent public access to the records.
Subsequently the parents would endeavour to exercise their supposed legally enforceable rights to access NSW government information, via Justice NSW; after all it was titled Dept of Communities and Justice surely for reasons of equity, fairness and compassion?
Today however, after having received a complete refusal from Justice NSW, and now receiving the outcome of an External Review by the Information Commissioner, the family sees nowhere else to go as exercising reviewable rights in the NCAT is emotionally and financially out of reach.
Regrettably there are too many disappointing FOI tales to tell and this is the latest across the desk of NSW Freedom of Information.
It is a very sad case of current legislative practices, policies and procedures failing vulnerable members of the public seeking answers to an avoidable personal tragedy.
The tragedy is not confined to the premature death of a much-loved son, brother, cousin and uncle.
It extends to the suspected taking of financial advantage of a heart-breaking situation by stealth, and where the current access to information and court processes have obstructed valid access to public documents.
The parents have strictly followed procedure and the legislation. They legitimately petitioned the NSW Supreme Court for access to the records of their deceased son’s estate, the application for letters of administration.
They wanted to know for themselves and ensure the court had not been duped by an extended family determined to take every cent of the deceased’s as quickly as possible, without any disclosures or due consideration of the remaining family.
But the court refused. It had consulted with third party solicitors representing the Letters of Administration Applicant, and had sided with it to prevent public access to the records.
Subsequently the parents would endeavour to exercise their supposed legally enforceable rights to access NSW government information, via Justice NSW; after all it was titled Dept of Communities and Justice surely for reasons of equity, fairness and compassion?
Today however, after having received a complete refusal from Justice NSW, and now receiving the outcome of an External Review by the Information Commissioner, the family sees nowhere else to go as exercising reviewable rights in the NCAT is emotionally and financially out of reach.
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"Dear Telina,As you have been fully aware we are laypersons, we have no legal experience whatsoever and no access to solicitors; we found the GIPA Act and the Court’s processes complicated, confusing and time consuming, with the decisions they made overly technical and full of unnecessary legal jargon.
We wanted to walk away and give up so many times. Well today we finally did. We still don’t understand why they wouldn’t work with us; they’re so out of touch with regular people. As you know we still don’t have any answers, we're still a very long way from the truth.
This was about the pain of losing of our beautiful son under suspicious circumstances, and also about his legacy; OUR son, nobody else's. This was about OUR family! We weren’t invading anyone’s privacy! This fiasco and atrocious example of our government services gone mad has left us angry and caused us more trauma and suffering if that were possible. If it wasn’t for your assistance and support along the way we would have been totally alone.
We had nowhere else to go, as far as we can tell this is the only service helping the public understand how freedom of information works in NSW. We couldn’t believe all your time and assistance was totally free! So a huge thank you Telina from our whole family and for all the work you do ,” wrote a representative of the family.
Excerpt from letter, 11.02.2025
“I’ve been following this case for over (3) three years and I’ve watched this family have departmental doors slammed in their faces at lightning speed. Recently I attended a hearing in the High Court of Australia. It was a completely open transparent process, with documentation published without delay, and transcripts available with even less waiting time. It was a testimony to how the lower courts should be operating. NCAT in particular, with its confidential sessions excluding parties to proceedings, no rules of evidence, no requirement agencies actually provide any evidence of claims in the context of the Administration & Equal Opportunity Division particularly,” stated Telina Webb of NSW Freedom of Information. “What this shows the public is there are huge failings in the current system and even larger ones within agencies tasked with upholding the public’s legislated rights to access NSW government information,” stated Ms Webb.
In 2009 Nathan Rees heralded in a new age of access to information, assuring the parliament the legislation he’d crafted would modernise attitudes and see overdue change in government responses to requests for information.
The Honorable Nathan Rees was talking about the GIPA Act 2009. It was to be revolutionary, breaking the entrenched cultural chains of control by overzealous government employees!
This new legislation would ensure legally enforceable rights to access government information.
Not so however in reality.
For the most part attitudes have not changed. Agencies profess to making sure access to justice is more readily available. But there is no evidence of this actually occurring.
Both the NSW Supreme Court and Justice NSW could have made the requested information available to these parents on a ‘view only’ basis, if only out of compassion and understanding for the uniqueness of the situation.After all, who would criticise or hold either agency to account for acting outside of the GIPA Act 2009 Schedule 2 Exclusions on this occasion?
The family continues to be left with many unanswered questions; questions about the legitimacy of the Supreme Court Applicant in particular.
Not to worry, what’s a little matter of financial gain totalling over a million dollars?
Shame NSW Supreme Court and most definitely shame Justice NSW.
The IPC might be understood for agreeing with Justice NSW especially as it sits as the legislative authority for the legislation.
Things need to change in the access to information arena.
In August 2024 Webb filed an urgent request for parliamentary inquiry into the NCAT and the NCAT Act 2013, particularly in the context of the GIPA Act 2009.
Clearly an inquiry is also necessary for the GIPA Act itself, particularly in this case where request for access to Supreme Court files and Justice NSW records end up in the same business area creating a conflict of interest.
Webb continues to petition for such inquiries on behalf of the NSW public and will report developments on this Site as available.
Contact:
NSW Supreme Court - File Access, sc.fileaccess@justice.nsw.gov.au
Justice NSW, Open Government Information & Privacy Unit, infoandprivacy@justice.nsw.gov.au
Commentary on this article is invited via the form below.
In 2009 Nathan Rees heralded in a new age of access to information, assuring the parliament the legislation he’d crafted would modernise attitudes and see overdue change in government responses to requests for information.
The Honorable Nathan Rees was talking about the GIPA Act 2009. It was to be revolutionary, breaking the entrenched cultural chains of control by overzealous government employees!
This new legislation would ensure legally enforceable rights to access government information.
Not so however in reality.
For the most part attitudes have not changed. Agencies profess to making sure access to justice is more readily available. But there is no evidence of this actually occurring.
Both the NSW Supreme Court and Justice NSW could have made the requested information available to these parents on a ‘view only’ basis, if only out of compassion and understanding for the uniqueness of the situation.After all, who would criticise or hold either agency to account for acting outside of the GIPA Act 2009 Schedule 2 Exclusions on this occasion?
The family continues to be left with many unanswered questions; questions about the legitimacy of the Supreme Court Applicant in particular.
Not to worry, what’s a little matter of financial gain totalling over a million dollars?
Shame NSW Supreme Court and most definitely shame Justice NSW.
The IPC might be understood for agreeing with Justice NSW especially as it sits as the legislative authority for the legislation.
Things need to change in the access to information arena.
In August 2024 Webb filed an urgent request for parliamentary inquiry into the NCAT and the NCAT Act 2013, particularly in the context of the GIPA Act 2009.
Clearly an inquiry is also necessary for the GIPA Act itself, particularly in this case where request for access to Supreme Court files and Justice NSW records end up in the same business area creating a conflict of interest.
Webb continues to petition for such inquiries on behalf of the NSW public and will report developments on this Site as available.
Contact:
NSW Supreme Court - File Access, sc.fileaccess@justice.nsw.gov.au
Justice NSW, Open Government Information & Privacy Unit, infoandprivacy@justice.nsw.gov.au
Commentary on this article is invited via the form below.