Less transparency, more efficiency in NSW’s ‘open government’

By Stephen Easton

Wednesday February 24, 2016

Elizabeth Tydd

New South Wales government agencies are getting quicker and more helpful in responding to requests for information from the public, but overall the state public service is becoming more opaque.

A wealth of statistics on the management of public information were released this morning by NSW information commissioner Elizabeth Tydd in her third report on the operation of the Government Information (Public Access) Act, which replaced the Freedom of Information Act five years ago. The report considers both the “push” of the GIPA Act through proactive disclosure and the “pull” of requests for information, and suggests there is room for improvement in both areas of transparency.

According to Tydd, the statistical trends indicate that “at a transactional level agencies are improving processes to achieve timeliness, and are increasingly achieving the intent of the GIPA Act in providing advice and assistance to citizens making a request to access information”.

But the figures also show information release rates are declining, and that rejections are increasingly being upheld by internal reviews within agencies. At the same time, there’s been a “consistent and significant” increase in applications for external review by Tydd’s office and the NSW Civil and Administrative Tribunal.

The information commissioner conducted 359 external reviews in 2014-15 — more than twice as many as the 156 her office completed in 2010-11.

Positive trends indicate that:

  • 91% of applications are being decided on time, with refusals because of delays falling to an all-time low of 6%;
  • fewer applications are being declared invalid — 8% in 2014-15 compared to 13% in 2010-11 — while more are transitioning from invalid to valid through modification — 40% last financial year compared with 15% in the act’s first year.
  • over the last five years where agencies have adopted the information commissioner’s recommendation to re-consider their original decisions, they have varied that decision in the majority of cases — approximately 65%.

On the other hand, the screws continue to tighten on government information in NSW. While “most agencies are improving their processes for dealing with applications to access information”, the amount of information released, both proactively and reactively, is declining.

In terms of reducing the flow of information, Tydd’s new figures reveal:

  • an overall decline in information released to applicants with partial and full release rates dropping over two years from 80% in 2012-13 to 69% in 2014-15;
  • insufficient compliance with mandatory proactive disclosure of information — especially contract reporting and disclosure logs — which remains consistently below 85%;
  • a consistent decline in agencies performing annual mandatory reviews of their proactive release programs, from 85% in 2012-13 to 71% in 2014-15; and
  • internal agency reviews that upheld the original decision have increased markedly to 54% from around 20% in previous years

When agencies have re-considered their decisions on the commissioner’s recommendation, they have changed the ruling in most cases over the five years the GIPA regime has been in place.

The commissioner also notes that more than twice as many “third party objectors” applied to block the release of information in 2014-15 than in the preceding year.

“There are challenges ahead to ensure the right to access government information remains affordable and the legislative intent of accessibility and timeliness is supported,” she said.

“I am committed to improving public participation in how the government provides access to information, and I will continue to work with the sectors to maximise information release — for the benefit of the community and for public purpose service providers to support improved service delivery.”

Tydd proudly reports her own agency has successfully worked through “what was a considerable backlog in information access cases” with case management and general process improvements that have helped it to do more work over time with a “similar” budget to what it started with.

Despite its workload of external reviews more than doubling since the GIPA framework began, and the addition of “a strategic, proactive regulatory approach” that is exemplified by a proactive audit of the university sector’s GIPA compliance, the commissioner states:

“I am confident that the IPC has well demonstrated its efficiency and effectiveness by any contemporary measure.”

Towards ‘open government’

Her forward plan is to continue working with NSW agencies to increase compliance, achieve the underlying objectives of the GIPA Act, and align NSW with a supposed national shift towards “open government” principles.

“The forward focus includes working with agencies to achieve the objectives of the GIPA Act; promoting a rigorous, comprehensive and citizen-centric approach to information management through sound leadership; and, along with our state and territory counterparts, contributing to the national agenda to switch on Open Government across Australia,” said Tydd.

According to the report, the IPC believes a hypothetical “well-functioning GIPA regime” is one that:

  • embeds a culture of proactive information release within agencies;
  • provides mechanisms to promote a citizen centric One Government mode;
  • comprehensively deals with all types of government held information;
  • facilitates the early and proactive release of information where a presumption in favour of disclosure is embedded early in policy-making (‘open by default’/‘access by design’);
  • facilitates the release of information in a way that is accessible; that is, technically and legally open, usable and available;
  • applies the public interest decision-making test with a keen understanding of the public interest factors for and against disclosure;
  • applies dynamically, based on a sound understanding of the scope of each pathway and the relationships between the pathway;
  • is flexible, responsive to change, and able to deal with non-traditional forms of information;
  • enables the flow of information between agencies and to the public;
  • ensures citizen engagement in government decision-making;
  • at the lowest reasonable cost, is accessible and comprehensible to citizens;
  • is based on sound information and records management principles and practices;
  • holds government to account; and
  • ensures that the right to access information is independently promoted and enforced.

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