Council fails public disclosure audit: Why this matters
THE NSW Information and Privacy Commission last month released the findings of an audit conducted on Clarence Valley Council and the compliance with the open access requirements of the Government Information (Public Access) Act 2009.
The audit was conducted after it was reported that council did not intend to comply with the requirements of the act to publish the returns of pecuniary interests of elected councillors and other designated people.
So, what does this all mean exactly, and why does it matter? You've come to the right place:
What is the IPC and GIPA Act?
The Information and Privacy Commission NSW (IPC) is an independent statutory authority that administers legislation dealing with privacy and access to government held information in NSW.
One of the jobs of the IPC is to oversee the Government Information (Public Access) Act 2009 (GIPA Act) which is a law concerning access to government information.
According to the IPC website, the objectives of the GIPA Act are to "maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective".
"The GIPA Act authorises and encourages the proactive release of information by NSW public sector agencies, gives members of the public a legally enforceable right to access government information and ensures that access to government information is restricted only when there is an overriding public interest against releasing that information."
The GIPA Act is important here, and basically what it does is try to make sure all citizens of NSW are able to access information related to their elected officials and other designated people to make sure governments are open and transparent.
What does the GIPA Act and GIPA Regulation do?
In 2009 the GIPA Act replaced a section of the Local Government Act 1993 (NSW), and a Model Code of conduct for Local Councils in NSW (2018) requires a councillor or a designated person to complete and lodge with the general manager a return form that discloses any "pecuniary interest", which is an interest that a person has in a matter because of a reasonable likelihood or expectation of financial gain or loss.
Information Commissioner Guideline 1 was made pursuant to the GIPA Act to assist local councils to determine the public interest considerations for and against disclosure of information contained in the returns disclosing the interests of councillors and designated persons as required by the GIPA Regulation.
According to the IPC, the GIPA Act and the GIPA Regulation mean that information in the returns of pecuniary interest forms need to be made public on the website of each local council, unless to do so would impose unreasonable additional costs on the council, or if the council determined there was an overriding public interest against disclosing the information. If there is a decision that disclosing the pecuniary interest would be against the public interest, there is a mandatory obligation placed upon councils to facilitate open access by deleting a matter from the record to be made publicly available.
All this means is that guidelines set out under the Government information (Public Access) Act mean staff and councillors' disclosure of interest returns should be disclosed on the website of each local council.
Where does Clarence Valley Council come in to all of this?
The relevance of the GIPA Act and GIPA regulation, and their requirements that staff and councillors' disclosure of interest returns should be disclosed, is that Clarence Valley Council voted to refuse to comply with those regulations.
"In November 2019, the CVC resolved during a council meeting not to comply with the Information and Privacy Commission's (IPC's) Information Access Guideline 1 - For Local Councils on the disclosure of information (returns disclosing the interest of councillors and designated persons) and open access requirements under section 6 and Part 3 of the GIPA Act," the IPC audit stated.
"As at August 2020, the IPC had not been advised by CVC of any commitment to rescind the motion to adopt non-compliant practices. CVC's noncompliance offends both the GIPA Act and the requirements of the Model Code."
At the time, Cr Andrew Baker said their decision could bring the issue to a head.
"If it is unlawful, someone will tell us," he said.
"It has a great opportunity to be provocative and find out exactly where this lays."
Indeed it did turn out to be provocative.
In December last year the NSW Information Commissioner issued a 'please explain' to council after its decision to stop pecuniary interest declarations being displayed online.
At two more meetings councillors again defied the guidelines over the publication of interest declarations online with a majority of councillors voting down a recision motion on the issue last year.
What does this all mean, and why does it matter?
What this means, in the view of the IPC, is that there were "risks to the openness, transparency and accountability" Clarence Valley Council.
"The IPC … also identified risks present in the identification and management of potential or perceived conflicts of interest that might arise in the decision making of the CVC," the audit found.
"A demonstrated pro-compliance commitment by management to support transparency practices is integral to a robust compliance environment and essential to maintaining and advancing a system of responsible and representative democratic government that is open, accountable, fair and effective.
"Importantly these statutory requirements maintain integrity and combat corruption in our democratic system of government. Disclosure of pecuniary interests not only ensures transparency and accountability it also provides a necessary assurance that elected officials and other publicly funded senior decision makers, place the public interest above their private interests as demanded by, and expected of, public office."
So, what did the audit find?
The IPC concluded that "despite the extensive regulatory engagement undertaken by the IPC in advance of this audit, the practices adopted by CVC demonstrated noncompliance or inadequate compliance with the requirements of the GIPA Act".
Remember right back at the start where I explained what the GIPA Act is, what how it's all about making sure governments were being open and transparent and information could be easily accessed? The IPC audit found council was non-compliant or inadequately compliant with that legislation.
"A fundamental threat to the right to access open access information was also identified during the course of this audit. That threat manifests as evidence of a failure to properly apply the public interest test … of the GIPA Act. In particular there was no evidence provided during the course of this audit that decisions to establish an overriding public interest against disclosure applied the principles required in accordance with … the GIPA Act," the report states.
"The evidence provided to this audit supports a finding that redactions made in accordance with … the GIPA Act reflected the outcome of a tick box approach to a claim of an overriding public interest against disclosure and that any such claim would result in the redaction of information absent the application of the public interest test as required under the GIPA Act.
"Of utmost concern is that the draft processes containing the tick box approach absent any evidence of the requirement to conduct the public interest test appear to have been developed by CVC following regulatory engagement and guidance regarding the requirements of the GIPA Act."
The audit made 15 recommendations, and the good news is that all but one have been adopted in full.
Where to from here?
Clarence Valley Council general manager Ashley Lindsay said the audit was a constructive report and was useful in identifying the shortcomings of council and where they can improve with providing information to the public.
"I think the investigation and review has provided council will some constructive feedback on the shortcomings of our website and processes around the disclosure of interests and making them available on the website, which we have done but the process and location of them was questioned by the IPC," Mr Lindsay said.
"I think it was a constructive report, I acknowledge that there were a number of concerns by the IPC and we plan to work with them so we can address those concerns."
Council's website is also set for an upgrade, and while the council's disclosure of interests returns were publish on the public website from February 26 2020 Mr Lindsay said the new website would make it easier to access the disclosure of interests returns.