Freedom of Information NSW

Matthew Moore at the Sydney Morning Herald has been blogging for some time now about the problems facing journalists and the public in Freedom of Information applications to the NSW State Government.

On 4 May 2008 Moore wrote:

"So how come the review is five years late? The Attorney-General's spokesman said the blame lay with the Attorney-General's Department, headed by one of the state's most experienced public servants, Laurie Glanfield. "The delay arose because the Attorney-General's Department has used the opportunity to propose several reforms of the act," the spokesman said.


If it takes more than five years for the Attorney-General's Department to propose "several reforms" to the tribunal act, what hope is there that the Ombudsman's review of the FoI Act will ever be implemented? Remember, it took the Premier's Department and the Ombudsman's office nine years to rewrite interpretation guidelines for the FoI Act.


The one certainty about the NSW act's reform is that it won't happen in a hurry."


More than a year later on 23 July 2009 Moore wrote an article in the Sydney Morning Herald. He noted that:

"BARELY a month after introducing progressive freedom of information laws, the Premier has downgraded their importance by handing responsibility for their implementation to the Attorney-General.


His move ends two decades in which the premier has had responsibility for freedom of information, and runs counter to moves in Canberra to take responsibility for FOI laws away from attorneys-general and move them closer to the heads of government to increase their status and reduce the role of lawyers in interpreting them."

As Peter Timmins has so rightly characterised the matter: NSW Takes A Backwards Step.

Why be bothered about FOI, the current NSW Attorney General Mr John Hatzistergos and his Director General Mr Laurie Glanfield? In the current state of affairs the public is offered "freedom from information" -- it is not free to apply, and when the Government deems it so we are not allowed to know. Timmins has remarked:

"... the Attorney General has been involved in other instances of ordinary performance in this respect. Take the case of the long lost statutory review of privacy legislation, invisible publicly for years until the NSWLRC referred to it in August last year. Then in January this year the mysterious case of the statutory review of the NSW Administrative Decisions Act, with nothing surfacing publicly for years after it should have been tabled in Parliament. Even when eventually published, locating the reports and government responses is tough going (good luck, even with this link after hard digging) and submissions received as part of the reviews are never published.Then there was the tabling in Parliament by the Attorney General of the Privacy NSW Annual Report last year, about six months after it was completed, and a few days before the end of the next reporting year.The Attorney General was also one of the many NSW ministers who didn't publish media releases on the web until the Premier insisted upon it last year. He doesn't speak publicly often: one of the two speeches now posted on his website outlines his vigorous opposition to a charter of rights for Australia.All pretty good background for the minister responsible for the making of a regulation concerning the planned publication scheme for government agencies, required by the new act."

Timmins notes above in passing about "digging" through Lawlink the website sponsored by Mr Glanfield's Department. Lawlink has to be rated as one of the worst websites operated by a state government department. Its search facility malfunctions and supplies erroneous and misleading "search results". It is badly laid out on various pages so that one has to unnecessarily scroll down long lists of "agencies" to locate whatever agency you are seeking. The website seems to be structured in various pages so as to cause maximum user-frustration in searching for information.

Lawlink is the same website that hosts the site of the Office of the Protective Commissioner (OPC) (one half of the new outfit the NSW Trustee and Guardian). What an atrocious mess awaits the clients of the former Public Trustee NSW once their website vanishes and is amalgamated into the defective Lawlink set-up under the OPC's software. Yes it will save an estimated $10 million that would have been needed had the OPC's primitive system been integrated into that of the Public Trustee.

Of course as Public Trustee clients slowly find out that it has been taken-over by OPC, watch the revocation of Wills and Powers of Attorney sky-rocket. Why will they gradually find out? It is understood on the grapevine and among people who are not part of his department that Mr Glanfield did not want Public Trustee clients to be informed while the legislation was before Parliament lest there be any dissent.

However all will be well because of the new 13 Super-Departments created as a desperate diversionary measure to deflect the public from screaming about lousy service and incompetence. Ah yes, now we come to the much touted "efficiencies" of the Attorney General's Department. We are told that it is efficient. We are told that it is a leader among its interstate counterparts.

We are offered by the Minister and Director General the current faddish jargon about delivering "value" and "better service". No longer are these agencies "business centres". Now they are centres of excellence delivering service to the public. About the only people who "may" believe those words are the bureaucrats who foist these words on over-worked and under-resourced employees and on the public. Well the public have not opened a novel called "Gullible's Travels"!

So in a bureaucratic culture where clients of a small government agency engaged in fiduciary activities were kept in the dark, one should not be surprised then that FOI is a misnomer for in practical terms it really looks like FFI (Freedom From Information).

Mr Hatzistergos vs Law Society vs Merger

Michael Pelly's piece in today's The Australian "Island Sojourn: Nice Work if you can get it" is well worth perusing. Pelly's article consists of two parts. One centres on the secondment of Justice Spigelman to head a corruption inquiry in Antigua, while the second half draws attention to the unfolding story about the merger of the Office of Protective Commissioner and Public Trustee.

The article stands as another illustration of the ludicrous political and bureaucratic masquerade that affects the entire Attorney General's Department, the courts, and the smaller agencies that have been absorbed into the department.

Pelly notes there appears to have been a remarkable about-face on the part of the NSW Law Society in its stance on the merger of the Public Trustee and Protective Commissioner. He states:

"The NSW opposition was all fired up last month based on a letter from the Law Society president Joe Catanzariti who described the merger as 'regrettable', while drawiing attention to the different client bases and the negligible cost saving of $100,000 a year ... No sooner had opposition legal affairs spokesman Greg Smith finished flaying the merger - while brandishing the Law Society letter - than some new correspondence landed on Hatz's desk. And wasn't the AG happy to read the new position of the Law Society onto the record. "

Between the lines of Pelly's discussion lies the untold story about the lobbying undertaken by the Attorney General, his Director General Mr Glanfield, and other officials.

One lot of lobbying occurred behind the scenes with the Law Society and which players were involved is something that no-one is willing to talk about. While nobody seems willing to talk speculation is rife that officials at the Law Society were treated brusquely. The impression one can form on the basis of the back-flip is that considerable pressure was probably exerted to extract a pro-merger letter of support from the Law Society. What unpleasant words were exchanged is not known. The uncanny feeling one gets is that the letter of support that Pelly mentions was probably obtained begrudgingly.

The other fascinating aspect concerns the lobbying at Macquarie Street to woo cross-bench support for the merger. From last December a grass roots campaign of opposition to the merger began with advocacy groups in the disability sector and clients of the Public Trustee generating letters of alarm and protest. It is understood that senior bureaucrats in the Attorney General's Department went into a furious mental meltdown with accusations that employees were disloyal and leaking information. The bureaucratic suspicion was part of an apparent culture of secrecy cultivated to keep the merger out of the public eye, and certainly clients of both organisations were not officially advised of the proposed merger.

Sources in the grass roots networks have pooh-poohed the claim that information was leaked to them. These sources point out that all information presented in letters was based on a thorough investigation of publicly available annual reports. The campaign of opposition involved direct lobbying, correspondence, and a neat pile of submissions from concerned citizens one of which was over 70,000 words in length.

The Greens had from the beginning of 2009 expressed reservations and reluctance to support the merger in correspondence to advocates in the disability sector and to clients of the Public Trustee.

Why did The Greens do a somersault from being anti-merger to pro-merger? Speculation is rife that a deal was done. Merger legislation to create the NSW Trustee and Guardian (amalgamating Public Trustee and Protective Commissioner) was due for debate in the Legislative Council before the end of June. The week leading up to the scheduled debate the Shooters Party was trying to galvanize support for its proposed bill concerning shooting of animals in National Parks. Sources in the Labor Government made it known to the press that it was having second thoughts about supporting the Shooters' bill. The Labor Government immediately lost the support of the Shooters Party that it so routinely relies on in the Legislative Council. The only way the merger bill could succeed was by this trade-off: Greens support for merger in exchange for Labor squashing the Shooter's bill.

And so it was that the last piece of Government legislation to pass on Tuesday 23 June 2009 was the NSW Trustee and Guardian Act. The following day the Legislative Council was in uproar as all bets were off for government business and the sale of NSW Lotteries was set aside because the numbers were against the Government. The climax was the staged walk-out of most Labor members in the Council on the evening of 24 June. After midnight proceedings ground to a halt. The Council doors were closed with proceedings left hanging in the air -- so that when Parliament resumes in September the Council will still be technically meeting according to hansard on 24 June.

The collapse of the Council's proceedings appears to be directly related to the lobbying by the Minister and Mr Glanfield to get the merger through at all costs.