What are the bureaucrats at Destination NSW so determined to hide?
For more than three years, public servants working for the state government’s tourism and events agency have fought tooth and nail to suppress information about how much it spends on parties and shows, including the Newcastle 500 Supercars.
They have been criticised by fellow public servants from the Information and Privacy Commission and in two scathing decisions from the NSW Civil and Administrative Tribunal for not following FoI laws.
In the process Destination NSW (DNSW) has spent more than $100,000 on lawyers to fight the Herald’s freedom of information request - money that would buy a lot of fireworks for New Year's Eve or more fancy lights for Vivid Sydney.
In a decision delivered last week, Senior Member Deborah Dinnen ordered DNSW to disclose documents revealing how it lands major tourism events and how much it spends on them. She rejected the agency’s argument that it was not in the public interest to disclose information regarding the funding of events and key organisations such as the Sydney Festival and Art Gallery of NSW.
Dinnen also criticised the agency's approach to requests for information made under the NSW Freedom of Information law, known as the Government Information (Public Access) Act.
"There will always be a tension between market competition and open and accessible government, but the GIPA Act places obligations on government to ensure that access to information takes precedence, by placing the presumption on disclosure," Dinnen said. "[DNSW]’s attitude throughout the course of dealing with this access application indicates that it does not understand, or is in disagreement with the correct application of these obligations."
She also criticised the agency for refusing to grant access to documents without identifying why specific information should be withheld: “This approach attempts to short-cut the balancing exercise required by correct application of the GIPA Act.”
David Shoebridge, NSW Greens Upper House MP, says DNSW’s determination not to release information was one of the clearest examples of “just how broken our laws are”.
“This matter really exposes how agencies that are fighting against transparency game the system,” he says. “They game it with internal delays. They engage in protracted, often unmeritorious legal battles and even when they’re found to be clearly at fault by the tribunal they still don’t release the information.”
Penny Sharpe, Labor’s spokeswoman for tourism and major events, says: “The Berejiklian government operates a regime that is more about freedom from information than giving the public access to information about the work and expenditure of the NSW government.”
So what are the skeletons that DNSW is afraid to let out of its closet?
In April 2015, the Herald requested information about how much money DNSW had contributed to events such as Vivid Sydney, New Year’s Eve celebrations, and Sydney Festival as well as various musicals and stage productions. Documents that would shed light on how these funding decisions are made were also sought.
Some of the events supported by DNSW have been successful, others have been ridiculed by critics and shunned by audiences.
Vivid Sydney, for example, has grown into one of the city's biggest cultural events. Premier Gladys Berejiklian said 2.3 million attended the 2017 festival, and asserted that overseas and international visitors had injected $143 million into the state's economy. The festival is owned, managed and produced by DNSW.
However, The Addams Family musical, which received funding from DNSW, closed early in 2013 after poor ticket sales, and producers of the show were locked in a battle over pay and conditions with its production crew, the Herald reported in 2013.
It is not the only dud investment made by the agency. NSW taxpayers lost at least $1 million in 2016 after the Sydney Sings festival, spruiked by Leo Schofield, was cancelled.
A DNSW spokesman refused to confirm the amount of money given to Sydney Sings, saying it was "commercial in confidence".
That is an excuse trotted out to avoid telling taxpayers how much money is spent on events, according to Shoebridge. “If a private entity wants to contract with a government agency and receives taxpayers’ money there should be an expectation of complete transparency.”
Sharpe says: “While there are some legitimate commercial concerns in relation to Destination NSW, that should not be an excuse to refuse to provide information that is in the public interest.”
DNSW is not just in the business of fun and games. Residents of Newcastle East have been fighting the agency's secrecy for years to obtain details about the Newcastle 500 Supercars event, which they claim has harmed local businesses, damaged their homes, affected the health of vulnerable people and disrupted their lives.
In her forthcoming book Wrong Track: What Drove Supercars to Newcastle, Christine Everingham writes: "The Newcastle 500 clearly illustrates how state sponsored - yet privately owned - major events, provide the perfect cover for deals to be done without the inconvenience of public scrutiny."
DNSW has an annual budget of $159.7 million, according to its 2016-17 annual report. Its chief executive Sandra Chipchase was paid $452,250 (plus allowances). The annual report also lists the agency’s hefty expenses such as "advertising" ($30.9 million) and "promotion" ($95.2 million).
DNSW rebuffed the Herald’s request for documents about its spending, claiming an “overriding public interest” against disclosing why and how much it spent on these events, triggering the long-running quest to uncover documents how it spends taxpayers' money.
Years of requesting internal and external reviews, sending endless emails and an official complaint about the agency’s tardiness in responding have led, on more than one occasion, to a windowless rooms in the John Maddison Tower in Sydney’s CBD where the Herald and DNSW's team of lawyers put their arguments before the tribunal.
Some secrets may be worth keeping for reasons of defence or security. But should the amount of money spent on imported musicals, Vivid’s light shows or the New Year’s Eve fireworks also be a state secret?
A DNSW spokeswoman gave up one piece of the funding jigsaw in May, revealing the agency spent about $6.8 million on the lights component of this year’s Vivid. “The total cost of Vivid Sydney includes a mix of government funding from other NSW government agencies, private enterprise events (more than 600) and commercial sponsorship,” she says.
Under NSW's FoI law, there is a presumption in favour of disclosing government information. It also gives members of the public an enforceable legal right to ask for information and various avenues to appeal a decision. However, those laws provide enough excuses for public servants to keep their secrets, take inordinate amounts of time to make decisions or seek to charge high feesfor searching and photocopying documents.
Figures compiled by the Information and Privacy Commission suggest the NSW government is becoming more secretive: “Across all departments and sampled smaller agencies the desktop audit found that compliance with the mandatory proactive release requirements had declined to 76 per cent, compared with 89 per cent in 2015-16.”
The number of FoI requests made in NSW was 14,651 in 2015-16 - less than half the 34,249 requests made in Victoria, according to the National FoI Metrics dashboard. NSW bureaucrats also refused a far higher percentage of FoI requests than their counterparts in Victoria.
Shoebridge says government agencies and departments seek to avoid handing over information that is time-sensitive: “It’s not just months of delay, it can be years of delay to get the most basic information.”
Sharpe is not impressed with the operation of the state’s FoI law either. “Every request is met with delay, defer and the charging of exorbitant amounts of money to release basic information,” she says. “In some cases public servants claim they don’t have the resources to process the requests. This is completely unacceptable and is forcing more and more appeals to NCAT.”
A spokeswoman for the NSW Department of Justice said she could not comment on individual cases but a review concluded last year that the state's FoI laws were "well-supported and are operating efficiently".
"However, it also made a number of recommendations to provide greater clarity about the operation and objectives of the GIPA Act and [Government Information (Information Commissioner)] GIIC Act, to benefit from agencies and applicants, and to help ensure the Acts continue to promote open government in NSW," she said. "The report is currently under consideration by the NSW government."
Matthew Mason-Cox, a Liberal Upper House MP, said in April the state government had developed a “perverse culture of secrecy” that threatened the public’s confidence in its decision-making over issues such as the Powerhouse Museum and redevelopment of football stadiums.
Concerns have also been raised about government secrecy at a federal level.
Dinnen delivered her first judgement in September 2017 that appeared to vindicate the Herald’s efforts to access information that the law presumes should be made available.
“In circumstances where the information is sought by the Applicant for the purpose of investigative journalism into the funding of and by Destination NSW, I consider that the public interest considerations in favour of disclosure carry significant weight … ,” she said.
Shoebridge says the tribunal’s judgment had highlighted flaws in the agency’s handling of the FoI request. “What really annoyed me when I read the decision was just how amateur they were in saying no,” he said. “They were not just arrogant and dismissive, but they were also incompetent.”
In her latest decision, delivered last week, Dinnen appeared to agree with this assessment, raising the possibility of referring the agency to the NSW Ombudsman or Information Commissioner “in relation to systemic agency issues of compliance” with FoI laws.
So will DNSW finally tell NSW taxpayers how it spends their money?
A DNSW spokeswoman said the agency was considering its position.
The Sydney Morning Herald
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