NSW info commissioner concerned by low levels of government compliance with access laws

By Shannon Jenkins

Tuesday July 27, 2021

Every day, public servants across the world write millions of formal memos, notes and briefings. (Image: Adobe/Monkey Business)

New South Wales information commissioner Elizabeth Tydd has reminded state government agencies of their responsibility in proactively delivering information to the public, after a new report identified low levels of compliance among departments.

“In an environment that recognises information as a public asset, that asset should, like all public assets, be preserved against reckless destruction or interference,” Tydd said on Monday.

“It is the responsibility of individual agencies to achieve high standards of disclosure and release to promote transparent government and elevate public trust in government.”

The new report, which was tabled in parliament this week, assesses the operation of the Government Information (Public Access) Act 2009 (GIPA Act). The legislation aims to give members of the public confidence in government decision-making by ensuring they can access the widest possible range of information.

The 2019–2020 report on the operation of the GIPA Act has examined the performance of more than 240 government agencies — including the nine principal departments — against their requirements under the act, and sets out important guidance to policy makers and agency heads.

The latest annual report marks ten years of reporting on the operation of the act. Tydd said the state Information and Privacy Commission now has enough data to examine how the act has delivered on its vision.

“The statistics provide compelling insights that must guide our future commitment to opening this public asset,” she said.

Read more: NSW info commissioner calls for cultural shift to open access, not ‘controlling and shielding’

The NSW government’s principal departments are subject to five additional requirements for open access. This includes making available a list of the department’s major assets and acquisitions, and the number and value of properties disposed of by the department during the previous financial year.

The most significant finding from the 10 years of data, according to Tydd, relates to the low levels of compliance by government departments to meet these open access requirements.

The commissioner said it was ‘concerning’ that, in 2020:

  • Just two departments had a full or partial list of major assets and acquisitions (consistent with 2018-19).
  • One department partially met the requirement in relation to the total number and the total value of properties the department disposed of during the previous financial year, while another six departments had information only on the value of properties disposed of, mostly included in the department’s annual report.
  • One department had the department’s guarantee of service (consistent with 2018/19).

There were also low levels of compliance by the council sector in meeting their requirement to publish disclosures of pecuniary and other interests on their websites, which the commissioner said ‘represents a significant failure of systems, process, and culture’.

Read more: NSW info commissioner reminds councils their private pecuniary interests must be made public

State government agencies received 17,246 valid access applications in 2019/20, the report found. Of those, 13,690 were from members of the public — up from 6,000 in 2010/11. There was also a whopping 230% increase in applications seeking personal information between 2010 (3,000) and 2020 (10,000).

Applicants with the highest release rates were private sector business (75%). The report noted that the release rates for businesses are ‘consistently exceeding’ those for members of the public (70%).

“This finding is significant in determining if the presumption in favour of access to information is operating as intended – to ensure that the public’s right to know comes first,” it said.

In response to this finding, Tydd has recommended that the public’s right to access their own information is ‘further examined and facilitated in the context of digital government to provide seamless, low cost access to personal information of the applicant’.

The data has shown that compliance with proactive disclosure requirements by government departments and some smaller agencies has risen from 60% in 2010 to 72% in 2019/20. However, that figure is down from an all-time high of 83% in 2017/18.

Tydd said it would be expected that, after 10 years, government agencies would achieve mandated proactive disclosure. But but has ‘not uniformly occurred’, the commissioner noted.

“Immature systems and process and more broadly, culture, impedes compliance with disclosure of assets by government departments and declarations of interests by local councils,” she said.

Mandatory proactive disclosure requirements can help agencies prevent and combat corruption, according to Tydd. She has called on government leaders to support their agencies to meet these requirements.

“Engaged and committed leadership is required to realise the objective of open government,” she said.

“Leaders must make obvious their commitment to open government and call for regular assessments of compliance within their agencies. The IPC information governance tools make this a seamless task.

“Self-audit tools support agencies on their journey to cultural transformation, and increased uptake will benefit citizens and agencies alike.”

Read more: NSW information and privacy agency issues advice on $1.6b digital project fund


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