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As CVC and the IPC grapple, translucent is the new transparent

Geoff Helisma|

Trying to get a straight answer about who is responsible for compelling Clarence Valley Council (CVC) to comply with the NSW Information Privacy Commission’s (IPC) directive, to upload councillors’ and designated staff’s disclosures of interest, is, ironically, anything but transparent.

The Independent put a series of questions to the IPC in an attempt to clear away any confusion about the matter, including:

  • How many local governments across NSW have complied with uploading disclosures at this time?
  • Does the LGNSW decision to object and write to various ministers for their support mean that there is a ‘state of grace’ in the interim period before a government decision or action is taken on the matter?
  • Given that CVC has once again declined to upload the disclosures by, to some extent, relying on the LGNSW decision, what action is the IPC intending to take?
  • If push comes to shove, how will the IPC enforce its will?
  • Is it a conflict of interest for the GM to advise councillors, given he is also compelled to upload his disclosure?

The IPC declined to directly answer any of the questions and instead largely reiterated the relevant legislation and guidelines contained within the GIPA Act, deferring to the Office of Local Government (OLG).

In an emailed response, the IPC said the OLG was “responsible for local government across NSW”.

“The [OLG] has a policy, legislative, investigative and program focus in matters ranging from Local Government finance, infrastructure, governance, performance, collaboration and community engagement,” the email stated.

“The Office [OLG] strives to work collaboratively with the Local Government sector and is the key adviser to the NSW Government on Local Government matters.

“On 26 September 2019 OLG released a circular to all councils on the Guideline which stated:

“Councils should review the positions they currently identify as designated persons in light of Guideline 1 by applying the principles set out in the attachment to this circular.

“OLG will be able to give more information on its role.”

The Independent posed the same questions to the OLG, which responded via email: “The Information Commissioner is responsible for enforcement of requirements under the Government Information (Public Access) Act 2009.

“This includes any failure by councils to comply with publishing requirements for disclosures of interest.

“Therefore, this is a matter for the Information Commissioner.”

The IPC’s statement reads: “A resolution made by elected officials cannot displace the legislated obligations under the GIPA Act and [be] placed on decision makers who are accountable under the GIPA Act.

“The IPC’s process of consultation, advice and assistance has been directed to assist Councils and individual decision makers to act lawfully and in compliance with Guideline 1 on the disclosure of information by councillors and designated persons.

“That process has been extensive, ongoing and directed toward ensuring that both elected officials and decision makers understand their obligations under the GIPA Act and act lawfully.

“The Information Commissioner is also empowered to promote compliance with the legislation through powers including: investigatory powers, examination of the conduct of individuals relevant to the five offences created under the GIPA Act; referral to other investigative agencies and provision of reports to the NSW Parliament.

“Accordingly, the conduct of both individual decision makers and agencies broadly can also be considered and dealt with to ensure that the exercise of any function under the GIPA Act is lawful and promotes the object of the GIPA Act.

“The impact of any relevant council resolution upon individual decision making – by both the principal officer or their delegate – will inform any compliance action taken by the Information Commissioner.”

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