Loophole in Current Freedom of Information Process Enables NSW Agencies to
Obstruct Access Applicants' Legislated Review Rights, 17.03.2023
Newly appointed Port Stephens Council Governance Officer Sarah Rose has today revealed a loophole in the Government Information (Public Access) Act 2009 (GIPA) relating to review rights for those seeking legitimate access to NSW government information.
The loophole has been confirmed by the Office of the NSW Information & Privacy Commissioner (IPC), with no indication from the Commissioner of any efforts on her part to close it for the benefit of the general public.
Case in point, NSW Freedom of Information Advocate Telina Webb lodged a request for information held by Port Stephens Council in early November 2022, for documentation associated to staff training. Council’s Senior Governance Officer Holly Jamadar advised Ms Webb in early December that the determination period had been extended for the purposes of third party consultation, which is featured in the GIPA legislation.
However, on 23rd December 2022 Ms Jamadar issued her Notice of Decision disclosing she was withholding the requested information until such time as the third parties consulted had the opportunity to exercise their rights to review of Council’s decision to release documents. Ms Jamadar went further to state that the anticipated date of release of the documents was expected to be 01st February 2023, if the third parties did not seek a review of Council's decision.
The release of the information by that date would have ensured Ms Webb’s own rights of review could be exercised in accordance with the legislated time frame of (40) forty business days.
With that time having well and truly expired, and with no word from Port Stephens Council in the meantime, Ms Webb wrote to Council on 07th March 2023 to enquire of the status of her request. Council took a further (5) five business days to reply on 14th March 2023, when Sarah Rose Governance Officer did finally advise no third party had exercised their rights of review.
Ms Rose would later advise Ms Webb that her own review rights were set out in Council’s Notice of Decision, with the final date for lodging of any review being 10th February 2023.
“I believe the public does understand the “stop the clock” mechanism within the GIPA Act 2009, where an agency can pause an access application pending agency enquiries during that time period. However, I also believe the public would naturally expect that same “stop the clock” mechanism would be invoked upon making a third party’s rights for review available to them. Port Stephens Council did not make this clear, that is that the time frame for lodgement of any appeal of Council’s Notice of Decision was not affected by any third party rights of review. Regrettably the public should not be surprised by this saboteur-like behaviour of this particular agency, as the records now show how Port Stephens Council resents the GIPA Act 2009, has fabricated evidence against legitimate access applicants, and has deliberately thwarted legislated judicial process in order to achieve its covert agenda which has included acts of favouritsm and preferential treatment for privileged members of the public, while denying fundamental procedural fairness to others,” stated Ms Webb. “Worse, it has now been some (10) ten years since my first freedom of information encounter with Port Stephens Council and it is clear it is business as usual, with Council’s Governance Manager and Senior Right to Information Officer Tony Leslie Wickham ensuring each of his protégé’s is well trained in the art of procrastinating valid requests for Council information. The toxic culture of Them v Us, as personally propagated by Tony Wickham in his public presentation of July 2018 is clearly alive and thriving,” she added.
“With the recent disclosed position of the NSW Crown Solicitor by its Kirri Mattes, that the public should be completely denied access to the publicly-funded GIPA Act 2009 Training she provides to all NSW government agencies, the NSW Information & Privacy Commissioner is seen to be totally failing the public to ensure there is some degree of level playing ground when a member of the public trustingly approaches an agency for access to its information. The Commissioner is also failing the public by her lack of action to close legislative loopholes of an Act that belongs to the public,” Ms Webb stated. Contact: Tony Wickham: 0408 497 649 Holly Jamadar: 0467 183 514 Sarah Rose: (02) 4988 0421
The loophole has been confirmed by the Office of the NSW Information & Privacy Commissioner (IPC), with no indication from the Commissioner of any efforts on her part to close it for the benefit of the general public.
Case in point, NSW Freedom of Information Advocate Telina Webb lodged a request for information held by Port Stephens Council in early November 2022, for documentation associated to staff training. Council’s Senior Governance Officer Holly Jamadar advised Ms Webb in early December that the determination period had been extended for the purposes of third party consultation, which is featured in the GIPA legislation.
However, on 23rd December 2022 Ms Jamadar issued her Notice of Decision disclosing she was withholding the requested information until such time as the third parties consulted had the opportunity to exercise their rights to review of Council’s decision to release documents. Ms Jamadar went further to state that the anticipated date of release of the documents was expected to be 01st February 2023, if the third parties did not seek a review of Council's decision.
The release of the information by that date would have ensured Ms Webb’s own rights of review could be exercised in accordance with the legislated time frame of (40) forty business days.
With that time having well and truly expired, and with no word from Port Stephens Council in the meantime, Ms Webb wrote to Council on 07th March 2023 to enquire of the status of her request. Council took a further (5) five business days to reply on 14th March 2023, when Sarah Rose Governance Officer did finally advise no third party had exercised their rights of review.
Ms Rose would later advise Ms Webb that her own review rights were set out in Council’s Notice of Decision, with the final date for lodging of any review being 10th February 2023.
“I believe the public does understand the “stop the clock” mechanism within the GIPA Act 2009, where an agency can pause an access application pending agency enquiries during that time period. However, I also believe the public would naturally expect that same “stop the clock” mechanism would be invoked upon making a third party’s rights for review available to them. Port Stephens Council did not make this clear, that is that the time frame for lodgement of any appeal of Council’s Notice of Decision was not affected by any third party rights of review. Regrettably the public should not be surprised by this saboteur-like behaviour of this particular agency, as the records now show how Port Stephens Council resents the GIPA Act 2009, has fabricated evidence against legitimate access applicants, and has deliberately thwarted legislated judicial process in order to achieve its covert agenda which has included acts of favouritsm and preferential treatment for privileged members of the public, while denying fundamental procedural fairness to others,” stated Ms Webb. “Worse, it has now been some (10) ten years since my first freedom of information encounter with Port Stephens Council and it is clear it is business as usual, with Council’s Governance Manager and Senior Right to Information Officer Tony Leslie Wickham ensuring each of his protégé’s is well trained in the art of procrastinating valid requests for Council information. The toxic culture of Them v Us, as personally propagated by Tony Wickham in his public presentation of July 2018 is clearly alive and thriving,” she added.
“With the recent disclosed position of the NSW Crown Solicitor by its Kirri Mattes, that the public should be completely denied access to the publicly-funded GIPA Act 2009 Training she provides to all NSW government agencies, the NSW Information & Privacy Commissioner is seen to be totally failing the public to ensure there is some degree of level playing ground when a member of the public trustingly approaches an agency for access to its information. The Commissioner is also failing the public by her lack of action to close legislative loopholes of an Act that belongs to the public,” Ms Webb stated. Contact: Tony Wickham: 0408 497 649 Holly Jamadar: 0467 183 514 Sarah Rose: (02) 4988 0421