THE PUBLIC'S EXPECTATIONS v THE PUBLIC'S REALITY
  • The Government Information (Public Access) Act 2009, GIPA Act, was introduced to the NSW Parliament by Nathan Rees.
  • His introductory speech made clear his intention in bringing this new legislation to the NSW public was to make accessing government information easier, less complicated, and ensure a government that was more open, transparent and accountable to the people it served. Naturally, the public expected this to be the case. However, fast forward to 2024 where nothing has changed and NSW government agencies continue to maintain a tight grip on information, often using the legislated reasons to prevent release of information like nothing other than a shopping list ticking as many boxes as possible. Trusting members of the public naturally expect agency personnel to conduct GIPA business with the highest of integrity; after all they are public servants paid for by public monies doing public clerical paper-shuffling tasks. Trusting members of the public also expect those tasked with GIPA business are most suitably qualified and trained, given the unchecked access to publicly funded resources including unlimited and continued access to the Office of the NSW Crown Solicitor and other private enterprises offering exclusive GIPA training they withhold from the public. As such the public naturally expects the outcome of GIPA requests to be forthright, accurate, and relevant, not requiring long-winded internal and external agency reviews, and most certainly not requiring review within the nominated judiciary the NSW Civil & Administrative Tribunal (NCAT).

  • The public expects, and has the right to expect, agency personnel get things right the first time and without any hidden agenda whatseover. Such are the public's expectations. The reality however is very different in contrast. Agencies are now repeatedly documented to act out in the following manners: * Attempt to enforce the use of non-legislated application forms
  • * Mislead the public into signing non-legislated declarations
  • * Procrastinate GIPA requests * Impose unwarranted fees and charges
  • * Delay the release of documents after all fees are paid * Refuse to provide access to mandatory release information * Initiate, implement and uphold unlawful agreements with privileged members of the public / colleagues / associates to prevent the legislated release of information * Fabricate claims GIPA Applicants present risks to public safety * Lodge False and Misleading Statements and Submissions in formal judicial review proceedings * Breach the public's privacy
  • * Demand proof of ID without warrant
  • * Sign off GIPA documentation and related correspondence using psuedonyms
  • * Generally undermine the GIPA process
  • * Threaten defamation suits for sharing and spreading truthful GIPA and NCAT experiences
  • * Utilise external solicitors, stacking the engagements to exponentially increase costs, for the purpose of punitively seeking legal costs outside of the legislation.

  • Further, in the performance of these fundamental paper-shuffling tasks, the public has found evidence of government employees breaching the Government Sector Employee legislation, mandatory Codes of Conduct, and clearly articulated ethical guidelines set in policy and procedures, as none of these protocols and laws have any value or meaning.

  • Recently, evidence has been documented showing the state's Right to Information & Privacy Officers (NIPPN) meet as a collective, with the whole of the state's population of these government employees standing by while colleagues unlawfully share the public's personal information, unlawfully disclosing GIPA requests to each other secondary agency, and forming collective response strategies to use against those they categorise as 'difficult applicants'; all done under the prep-school Chatham House Rules where they seek to maintain anonymity and avoid accountability for their unlawful actions; the Rule states they are free to share information but no person can disclose who made it available.

  • It is shocking to realise they place Chatham House Rules senior to the statutes constraining their roles and functions.

  • AND they want their names, employer agency, position titles and contact numbers, protected at all costs, but blatantly deny the public the same rights.

  • In late 2021 this collective was effectively scrutinised and publicised by this site's administrator Telina Webb, resulting in the deactivation of the NIPPN website in order to conceal what it does and who are involved. Until that point in time, the NSW Right to Information & Privacy Practitioners Network (NIPPN) advertised its upcoming meetings, published its minutes, and advertised exclusive GIPA Training and vacant positions within the NSW government sector.

  • The public should be extremely concerned membership of this exclusive 'club' includes individuals from private enterprise, again all of whom have direct access to the public's personal information, and who use the club to gain direct access to government decision-makers.

  • NIPPN meetings showcase guest speakers from the Office of the Crown Solicitor, the NSW Ombudsman, private enterprise, and also the NCAT. The Office of the NSW Information & Privacy Commissioner also makes presentations to the meeting, but only to the second session leaving what occurs in the IPC's absence protected under Chatham House Rules.

  • The list of concerns goes on and on; at one stage the IPC was paying the catering costs for NIPPN meetings, held at no less an exclusive function centre as Parliament House Sydney.

  • And yes, membership of this exclusive covert group includes those government employees high up on the public servant ladder. And yes again, the Office of the NSW Information & Privacy Commissioner (IPC) is fully informed..............

  • So after all that, which is happening without a hitch in the background, if a GIPA Applicant decides to take up the legislated right to a formal review with NCAT, they discover just how bad things can reallly get.

  • Make no mistake; take an Application for reveiw to NCAT and you are going to court.

  • During the process the public has come to experience varying degrees of uncertainty, including:

  • * Denial of access to Tribunal products and services
  • * Confidential sessions which unlawfully exclude the Applicant * Caselaw which permits the introduction and addition of 'surprise' information to support the agency's case
  • * Costs being awarded against them despite there being no mechanism in the legislation to do so
  • * Agencies tapping into large legal teams including barristers, most against unrepresented Applicants
  • * Presiding Members of the NCAT proven to act with bias in favour of the agency
  • * Agency legal teams denegrating unrepresented Applicant's best-endeavour submissions
  • * Extensive time frames waiting for decisions / outcomes to be issued
  • * Granting of hefty agency Costs Wishes outside of the legislation, designed to dish out the harshest kind of unlawful punishment possible

  • Just to name a few............

  • It is a game that is totally stacked against the public, a public who at least in the beginning has faith in the legislation, the NSW government access to information process, and the judiciary.

  • Final insults to those same trusting public is the apparent complete absence of agency accountability. NCAT must "form the opinion" that an agency has acted unprofessionally and in breach of the legislation before it will refer misconduct occuring in the exercise of the GIPA Act 2009, misconduct documented to occur on a regular basis, but with the NCAT openly stating "we don't do misconduct", somehow validating why there has not been one single referral to the IPC since NCAT's inception in 2013.

  • There is case after case where the public has all-but begged the Tribunal to consider agency misconduct during the GIPA process, with formal responses making very clear "these issues do not form part of the substantive issues of the case."

  • But those issues do form a significant part of the substantive matters to the applicant, that's why they go to NCAT; it's not for the fun of it.

  • NCAT has not formed a single opinion about misconduct.

  • Not a single one, in hundreds and hundreds of cases and appeals.

  • There are many cases which document trusting GIPA Applicants suffering trauma, anxiety, distress, financial punishment and hardship, withholding of agency services and facilities, and blatant character assassination which is all in a days work for agency personell who have effectively criminalised the public for endeavouring to exercise their legally enforceable rights to access NSW government information (supposed rights).

  • This is the public's reality of the current NSW Access to Information process and what it should expect.
  • If you need help and support, would like to share your freedom of information experience, find out more about the public’s rights to access NSW government information, or work together to change the legislation please email info@nswfreedomofinformation.net and start the conversation.

DraftCom Pty Ltd t/as NSW Freedom of Information ABN: 87 076 511 941 PO Box 8030 Marks Point NSW 2280 P: 1300 679 364 or 1300 NSW FOI F: (02) 8246 3484 Hrs: Monday to Friday - 9.30am to 4.30pm
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