AS if obtaining information surrounding state and local government determinations in this state wasn't already sufficiently difficult, a decision last month by the NSW Civil and Administrative Tribunal that documents submitted to a council may be subject to copyright and cannot be reproduced has added more mud to the murky waters of government transparency.
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Commercial in confidence and cabinet in confidence are the usual suspects that the good people of NSW are well acquainted with when trying to access information concerning the decisions, activities, expenditure and shenanigans of elected representatives and their bureaucrats. Many of these representatives would prefer that the business of government remain on a need to know basis. And who needs to know? Well, it depends who is asking and what they're asking.
For example, most NSW Cabinet ministers were not shown the documents outlining the business case for the stadiums policy. Yet the convention of Cabinet solidarity required all Cabinet ministers to endorse a position without knowing detail surrounding the policy. This scarcity of information tactic appeared to demonstrate that the NSW Premier either wanted to minimise the risk of leaks on the controversial policy or that the business case had holes that you could drive a truck through.
Certainly, with an election no too far away, there was to be no revisiting the bad circus caused by Cabinet minute copy 71 - the leaked document found in the back of a filing cabinet that proved the NSW government ignored advice from its own experts regarding numerous aspects relating to Newcastle's light rail implementation. Just on the light rail - which will surely face its biggest test to date on Thursday as thousands move to-and-from the Nobbys Anzac Day dawn service - how horrendously woeful is the whopping advertising signage concealing some of the carriages of that service.
These massive adverts are characteristic of contemporary cityscapes and a constant reminder that the march of commercialising space is unremitting. On the bright side, at least the posters don't yet carry the image of the omnipresent Queenslander and his blonde youth brigade threatening to make Australia great again. Let's hope Aussies won't have to take it anymore after the May 18 federal election.
Cabinet documents are given 'public interest immunity' that protects them in most cases from being produced under compulsion in legal proceedings but arguing that a document is Cabinet information is not enough to have the document prohibited from disclosure, according to the Government Information (Public Access) Act 2009.
The act provides for a presumption in favour of publicly disclosing government information, as well as various reasons against the disclosure of documents. There is a conclusive presumption against disclosure if the information is Cabinet information. The act prescribes which information qualifies as Cabinet information, and while government agencies may decide to withhold documents as Cabinet information, that doesn't always stand up on appeal. If you have the time, money and energy to go the tug-of-war.
Commercial in confidence needs no explanation. It's wheeled out in NSW more often than John Howard in a marginal seat.
Tired? Confused? Because it appears that's exactly what government agencies want. Good luck if you are a community group or citizen seeking a document government doesn't want you to have. You'll need a legal practitioner with the skills of a plumber to negotiate the maze of blockages you are likely to encounter.
Last month the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal upheld a decision by the Kiama Council that providing copies of plans, drawings and reports relating to a development application for an abattoir would be a breach of copyright. The applicant, who lived adjacent to the planned abattoir, wanted to see the details and sought copies of the plans.
Kiama Council told the applicant there was an overriding public interest against disclosure. On appeal, Kiama Council decided to allow access to some documents, including a viewing of some documents whose reproduction would infringe copyright.
Surely the "view only" approach - because of potential copyright infringement - will become a common hurdle for those seeking information from government and their agencies. Proponents of developments or anything with a tinge of potential controversy will start bunging copyright notices on documents.
Copyright joins Cabinet in confidence, commercial in confidence, incomprehensible decisions around what is in the public interest and occasional ridiculously prohibitive processing charges as another nail in the coffin of government and agency transparency that the GIPA Act optimistically promised - a decade ago - to deliver to the people of NSW.