Valid Request for Review of Agency Decision Denying Existence of Government Information Receives a Gag Order from NSW Civil and Administrative Tribunal, 26.09.2022
The Crown Solicitor’s Kirri Sue Mattes was successful today in securing a blanket Not-for-Publication Order from NCAT, the result of an Application for Administrative Review from Telina Webb from NSW Freedom of Information.
The order makes clear no mention or reference to Person X, an employee of the Respondent iCARE in the proceedings who had provided a Sworn Affidavit, could be made in any way whatsoever. This includes any media release.
Kirri Sue Mattes, who is noted not being a member of the NSW Law Society, provided the NCAT with a copy of a media release published on Ms Webb’s website www.nswfreedomofinformation.net, a media release which highlighted a separate NCAT matter concerning Port Stephens Council’s Governance Manager Tony Wickham. Ms Mattes relied upon that media release as evidence the Not-for-Publication Order should be granted, insisting the identity of iCARE’s witness X should be completely protected.
Today’s hearing concerned proceedings against government insurer iCARE, where Ms Webb sought access to information concerning a 400-strong state-wide membership of NSW Right to Information & Privacy Officers, all of whom gather for quarterly meetings under the organisation title NSW Right to Information & Privacy Practitioners Network, the Network.
The information the subject of review by NCAT was identified as being stored on iCARE’s record keeping Server, and as such Ms Webb was of the view the information qualified as government information, particularly as it pertained directly to agency personnel and their connection to government business and functions.
ICARE’s Determining Officer Lilli Tzinberg who processed the request for information refused access to the Network records claiming it was not classified as information held by government. However, documents released by ICARE since Ms Tzinberg’s determination reveal the Network’s Consultative Committee were focused on preventing member details from being made public, indicating the members knew the requested information was in fact governmental in nature.
“According to a Network source, the Network was established some (20) twenty years ago by a private consultancy and has grown in membership since then. It is extraordinary to realise there is evidence of government right to information and privacy officers colluding to intentionally keep information from the public, surpassing any past suspicion of such attitudes and actions,” stated Ms Webb.
Minutes of Meetings available on the internet have shown Network members openly singling out a member of the public who requested information, forming collective blanket strategies on how agencies should respond, implicating the whole of NSW State Government and the integrity of freedom of information requests.
The identity of the highlighted person and his website were hyperlinked and included in the Minutes to ensure every member was fully informed, the person being Investigative Journalist Nigel Gladstone of the Sydney Morning Herald, and his website www.righttoknow.org.au.
Information published on the internet by the Network indicate it facilitates and endorses the breaching of the public’s privacy, where Network members readily share the public’s personal information for ulterior motives, as in the case of Mr Gladstone.
Such actions claim protection from accountability under the Network Terms of Reference which claim anonymity under prep-school Chatham House Rules, claiming members cannot be identified for any unlawful disclosure of the public’s personal information they share with other members or the general public.
This is completely outside of the right to information and privacy legislation obligations, Code of Conduct mandates, and formal guidelines provided by the NSW Information & Privacy Commissioner.
These “practitioners” are employed by NSW government agencies, meeting to discuss their respective agency business and functions in the exercise of the Government Information (Public Access) Act 2009, GIPA, and Privacy & Personal Information Protection Act 1998, PPIPA.
NSW government Right to Information and Privacy Officers have been meeting at facilities such as Parliament House in Sydney for a number of years, booked into the Jubilee Room and Juliette Theatrette, with the NSW Information & Privacy Commissioner covering costs of thousands of dollars for each get-together under the accounting category of “corporate expenses”.
Minor complications arose in these particular proceedings before NCAT, when ICARE’s Affidavit Deponent X confirmed to be on the Network’s Consultative Committee, advised the NCAT she was “indefinitely indisposed” and was not available for cross-examination of her evidence.
The question for determination by the NCAT is whether or not Section 12(4) Schedule 4 of the GIPA Act 2009 applies to the information requested by Ms Webb, preventing its release to the public.
The NSW Information & Privacy Commissioner made submissions supporting Ms Webb’s Application stating, “The Commissioner has doubt as to whether Cl 12(4) would operate in the factual circumstances in these proceedings before the Tribunal, particularly in the unique factual circumstances presented.”
Clause 12(4) Schedule 4 was incorporated into the GIPA Act in 2014 following the statutory review of the Act. It is not likely a member of the public recommended its inclusion.
Today was the “first mention” of this clause of the legislation and as such it will naturally be expected to set a legal precedent, one that agencies will be anxious to follow should it go their way.
Commenting after the proceedings today, Ms Webb noted, “The legislation sets out (supposed) legally enforceable rights to access NSW government information, but the reality is that agencies continuously fight very hard to obstruct those rights. With all the propaganda attesting to open, transparent government, this is yet another example of a government fallacy for those asking for government information. ICARE, the government insurer, engaged the NSW Crown Solicitor to fight to prevent the release of government information. The officer who determined my request was noticeably absent in the proceedings, a secondary officer who decided to step forward and make ICARE’s case to the Tribunal “indefinitely indisposed”? This is information about an organisation hiding in plain sight, an organisation of government personnel claiming the Network is non-governmental, yet is financially supported and publicly endorsed by the NSW Information & Privacy Commissioner as being decidedly governmental.”
Regular presenters to the Network, promoting government services and support to agency personnel, include the IPC, the NCAT, Justice NSW, the NSW Ombudsman, and the Crown Solicitors Office. The Crown Solicitor (CSO) also offers paid-for GIPA and PPIPA training courses directly to the Network, although there is no evidence she is accredited to do so. There are serious concerns the CSO’s direct peddling of training to the Network does not align with formal procurement processes.
Likewise other organisations promoting directly to the Network, bypassing procurement processes, are Salinger Privacy, Youngman Consultancy, and Carter’s Freedom of Information.
None of the training offered directly to the Network is made available to the public of NSW, leaving the public completely disadvantaged.
None of the training offered to the Network by the Crown Solicitors Office or private organisations is regulated.
At no time did Kirri Sue Mattes of the Crown Solicitor’s Office make the legislated disclosure of the Crown Solicitor’s financial interest in the Network.
Neither did Kirri Sue Mattes appear to be concerned about the Network enjoying ongoing sponsorship courtesy of the IPC.
As a further indication of the quality of the agency ICARE, agency members of the Network, and the Crown Solicitors Office, questions of impropriety have been identified in the Sworn Affidavit provided to the Tribunal, which shows the Deponent X was not truthful.
Ms Webb is pondering how she will be able to comply with the NCAT’s gag order and at the same time ignore her civic duty to report the ICARE officer’s actions for breaching the NCAT Act 2013 Section 71, and the Oaths Act 1900 Section 29.
She is also pondering how the NCAT will enforce its Section 64 Order which presently denies her the right to seek counsel in whatever form or from whatever arena she chooses, as seeking such counsel includes the sharing of the iCARE’s Deponent X Statements and Submission. NCAT does not have the jurisdiction to dictate where a party seeks counsel.
Regardless, the order comes after the horse has effectively bolted as iCARE’s Statements and Submissions have been repeatedly shared with third parties in the interim and lead up to the proceedings, making the Order completely superfluous, redundant and ineffectual.
As with any section of the NCAT Act 2013 which concerns an offence, information emanating from the NCAT Registry indicates it is up to a party to proceedings or a member of the public to lodge an application for contempt or breach of orders, as the NCAT itself does nothing through its own initiative due to inadequacies of the legislation.
Kirri Mattes of the Crown Solicitors Office is not expected to make the necessary report about the untruths within her client’s Sworn Affidavit as an officer of the court, given her department’s financial interest in the Network.
The NCAT has reserved its decision as to whether it agrees with the IPC the requested information is in fact government information held by government.
This is but the first step of Ms Webb’s valid access application.
Should the NCAT determine the requested information is information held by government, Kirri Mattes has disclosed the information will not be released without considering public interests and / or objections to do so. The fact the information is government information appears to be irrelevant to the Crown Solicitor’s Office.
Members of the NSW Right to Information & Privacy Practitioners Network are obviously nervous the public will have access to this government information, that is the membership list at the date of the request for information, and the Minutes absent from the Network Google website at that same date.
This case leaves the burning question “who is Person X of iCARE and what is the degree of her influence over NCAT Tribunal members and the Office of the NSW Crown Solicitor which ensures the invoking of an order under Section 64 without having to even make an appearance at the proceedings?!?”
Contact:
Kiri Mattes, (02) 9474 9538
Lili Tzinberg, (02) 7922 1053
The order makes clear no mention or reference to Person X, an employee of the Respondent iCARE in the proceedings who had provided a Sworn Affidavit, could be made in any way whatsoever. This includes any media release.
Kirri Sue Mattes, who is noted not being a member of the NSW Law Society, provided the NCAT with a copy of a media release published on Ms Webb’s website www.nswfreedomofinformation.net, a media release which highlighted a separate NCAT matter concerning Port Stephens Council’s Governance Manager Tony Wickham. Ms Mattes relied upon that media release as evidence the Not-for-Publication Order should be granted, insisting the identity of iCARE’s witness X should be completely protected.
Today’s hearing concerned proceedings against government insurer iCARE, where Ms Webb sought access to information concerning a 400-strong state-wide membership of NSW Right to Information & Privacy Officers, all of whom gather for quarterly meetings under the organisation title NSW Right to Information & Privacy Practitioners Network, the Network.
The information the subject of review by NCAT was identified as being stored on iCARE’s record keeping Server, and as such Ms Webb was of the view the information qualified as government information, particularly as it pertained directly to agency personnel and their connection to government business and functions.
ICARE’s Determining Officer Lilli Tzinberg who processed the request for information refused access to the Network records claiming it was not classified as information held by government. However, documents released by ICARE since Ms Tzinberg’s determination reveal the Network’s Consultative Committee were focused on preventing member details from being made public, indicating the members knew the requested information was in fact governmental in nature.
“According to a Network source, the Network was established some (20) twenty years ago by a private consultancy and has grown in membership since then. It is extraordinary to realise there is evidence of government right to information and privacy officers colluding to intentionally keep information from the public, surpassing any past suspicion of such attitudes and actions,” stated Ms Webb.
Minutes of Meetings available on the internet have shown Network members openly singling out a member of the public who requested information, forming collective blanket strategies on how agencies should respond, implicating the whole of NSW State Government and the integrity of freedom of information requests.
The identity of the highlighted person and his website were hyperlinked and included in the Minutes to ensure every member was fully informed, the person being Investigative Journalist Nigel Gladstone of the Sydney Morning Herald, and his website www.righttoknow.org.au.
Information published on the internet by the Network indicate it facilitates and endorses the breaching of the public’s privacy, where Network members readily share the public’s personal information for ulterior motives, as in the case of Mr Gladstone.
Such actions claim protection from accountability under the Network Terms of Reference which claim anonymity under prep-school Chatham House Rules, claiming members cannot be identified for any unlawful disclosure of the public’s personal information they share with other members or the general public.
This is completely outside of the right to information and privacy legislation obligations, Code of Conduct mandates, and formal guidelines provided by the NSW Information & Privacy Commissioner.
These “practitioners” are employed by NSW government agencies, meeting to discuss their respective agency business and functions in the exercise of the Government Information (Public Access) Act 2009, GIPA, and Privacy & Personal Information Protection Act 1998, PPIPA.
NSW government Right to Information and Privacy Officers have been meeting at facilities such as Parliament House in Sydney for a number of years, booked into the Jubilee Room and Juliette Theatrette, with the NSW Information & Privacy Commissioner covering costs of thousands of dollars for each get-together under the accounting category of “corporate expenses”.
Minor complications arose in these particular proceedings before NCAT, when ICARE’s Affidavit Deponent X confirmed to be on the Network’s Consultative Committee, advised the NCAT she was “indefinitely indisposed” and was not available for cross-examination of her evidence.
The question for determination by the NCAT is whether or not Section 12(4) Schedule 4 of the GIPA Act 2009 applies to the information requested by Ms Webb, preventing its release to the public.
The NSW Information & Privacy Commissioner made submissions supporting Ms Webb’s Application stating, “The Commissioner has doubt as to whether Cl 12(4) would operate in the factual circumstances in these proceedings before the Tribunal, particularly in the unique factual circumstances presented.”
Clause 12(4) Schedule 4 was incorporated into the GIPA Act in 2014 following the statutory review of the Act. It is not likely a member of the public recommended its inclusion.
Today was the “first mention” of this clause of the legislation and as such it will naturally be expected to set a legal precedent, one that agencies will be anxious to follow should it go their way.
Commenting after the proceedings today, Ms Webb noted, “The legislation sets out (supposed) legally enforceable rights to access NSW government information, but the reality is that agencies continuously fight very hard to obstruct those rights. With all the propaganda attesting to open, transparent government, this is yet another example of a government fallacy for those asking for government information. ICARE, the government insurer, engaged the NSW Crown Solicitor to fight to prevent the release of government information. The officer who determined my request was noticeably absent in the proceedings, a secondary officer who decided to step forward and make ICARE’s case to the Tribunal “indefinitely indisposed”? This is information about an organisation hiding in plain sight, an organisation of government personnel claiming the Network is non-governmental, yet is financially supported and publicly endorsed by the NSW Information & Privacy Commissioner as being decidedly governmental.”
Regular presenters to the Network, promoting government services and support to agency personnel, include the IPC, the NCAT, Justice NSW, the NSW Ombudsman, and the Crown Solicitors Office. The Crown Solicitor (CSO) also offers paid-for GIPA and PPIPA training courses directly to the Network, although there is no evidence she is accredited to do so. There are serious concerns the CSO’s direct peddling of training to the Network does not align with formal procurement processes.
Likewise other organisations promoting directly to the Network, bypassing procurement processes, are Salinger Privacy, Youngman Consultancy, and Carter’s Freedom of Information.
None of the training offered directly to the Network is made available to the public of NSW, leaving the public completely disadvantaged.
None of the training offered to the Network by the Crown Solicitors Office or private organisations is regulated.
At no time did Kirri Sue Mattes of the Crown Solicitor’s Office make the legislated disclosure of the Crown Solicitor’s financial interest in the Network.
Neither did Kirri Sue Mattes appear to be concerned about the Network enjoying ongoing sponsorship courtesy of the IPC.
As a further indication of the quality of the agency ICARE, agency members of the Network, and the Crown Solicitors Office, questions of impropriety have been identified in the Sworn Affidavit provided to the Tribunal, which shows the Deponent X was not truthful.
Ms Webb is pondering how she will be able to comply with the NCAT’s gag order and at the same time ignore her civic duty to report the ICARE officer’s actions for breaching the NCAT Act 2013 Section 71, and the Oaths Act 1900 Section 29.
She is also pondering how the NCAT will enforce its Section 64 Order which presently denies her the right to seek counsel in whatever form or from whatever arena she chooses, as seeking such counsel includes the sharing of the iCARE’s Deponent X Statements and Submission. NCAT does not have the jurisdiction to dictate where a party seeks counsel.
Regardless, the order comes after the horse has effectively bolted as iCARE’s Statements and Submissions have been repeatedly shared with third parties in the interim and lead up to the proceedings, making the Order completely superfluous, redundant and ineffectual.
As with any section of the NCAT Act 2013 which concerns an offence, information emanating from the NCAT Registry indicates it is up to a party to proceedings or a member of the public to lodge an application for contempt or breach of orders, as the NCAT itself does nothing through its own initiative due to inadequacies of the legislation.
Kirri Mattes of the Crown Solicitors Office is not expected to make the necessary report about the untruths within her client’s Sworn Affidavit as an officer of the court, given her department’s financial interest in the Network.
The NCAT has reserved its decision as to whether it agrees with the IPC the requested information is in fact government information held by government.
This is but the first step of Ms Webb’s valid access application.
Should the NCAT determine the requested information is information held by government, Kirri Mattes has disclosed the information will not be released without considering public interests and / or objections to do so. The fact the information is government information appears to be irrelevant to the Crown Solicitor’s Office.
Members of the NSW Right to Information & Privacy Practitioners Network are obviously nervous the public will have access to this government information, that is the membership list at the date of the request for information, and the Minutes absent from the Network Google website at that same date.
This case leaves the burning question “who is Person X of iCARE and what is the degree of her influence over NCAT Tribunal members and the Office of the NSW Crown Solicitor which ensures the invoking of an order under Section 64 without having to even make an appearance at the proceedings?!?”
Contact:
Kiri Mattes, (02) 9474 9538
Lili Tzinberg, (02) 7922 1053