Posted on November 23, 2023 by 1

New Information and Privacy Commission Guidelines for the Disclosure of Interest Returns

The Information and Privacy Commission (IPC) has recently published a report (the report) on the outcome of its follow-up audit on councils, to determine their compliance with the requirement to publish returns of interest lodged by councillors and designated persons on council websites.

This report follows an earlier report and audit findings released by the IPC in 2021, that identified significant compliance failures in relation to Councils’ open access requirements, from which the IPC committed to undertaking the further review now completed. The follow-up report finds that whilst there has been significant improvement in council compliance with publishing this information, a number of councils still remain non-compliant with the mandatory requirements and have failed to take action in response to the concerns raised in the earlier 2021 report.

This report makes seven recommendations for councils to implement, which seek to promote openness, transparency, and accountability in relation to the disclosure of information in returns of interests.

Background

Significant risks of corruption in local councils are generated by potential conflicts of interest between private interests of decision-makers and the public interests those decision-makers are entrusted with.

These risks manifest in many if not all of the functions undertaken by councillors and the council’s key personnel when exercising their powers.

To mitigate this risk, the Model Code of Conduct for Local Councils in NSW (Model Code of Conduct) and Government Information (Public Access) Act 2009 (GIPA Act) and associated Government Information (Public Access) Regulations 2018 (GIPA Reg), mandate the public reporting of councillor’s and other designated individual’s returns of interests. The public disclosure of these interests is central to the accountability of local government, as it facilitates the identification of potential conflicts of interest and the proactive management of those conflicts so as to temper the risk of corruption.

Under part 4 of the Model Code of Conduct, councillors and designated persons are required each year to complete and lodge with the council’s general manager or CEO, a return detailing their pecuniary interests (returns of interest). These returns are prescribed as open access information under Schedule 1 of the GIPA Reg. This means that councils must make the information publicly available, unless there is an overriding public interest against disclosure and pursuant to s6 of the GIPA Act. According to that section, councils are required to make returns available on a relevant website free of charge and they must keep a record of the open access information that is not made publicly available on the basis of a claim of an overriding public interest against disclosure, which indicates the general nature of the information concerned.

Findings

The report found that the vast majority of councils had increased their compliance with the mandatory reporting requirements since the findings of the 2021 report. This includes a 27% increase in the number of councils fully compliant with the open access requirements and 88% of all councils making the returns of interest easily accessible and fully accessible without conditions.

However, the report found that 19% of councils had published returns of interest that were not up to date or had failed to publish returns of interest altogether. The importance of the currency of returns is significant in combatting the risk of corruption. Of further concern is that 6% of these councils had been previously assessed as compliant in the earlier 2021 report, demonstrating the need for councils to remain vigilant in ensuring they are meeting their open access requirements. A significant number of councils, being 12% did not take any action to rectify their non-compliance, with a significant proportion of these councils not publishing returns of interest on their websites; rather they advised community members to make an application or to attend and inspect the returns.

The report also emphasises the need for returns of interests to be easily locatable on council websites, be complete and current, accessible without conditions, and presented in a manner that is clear, logical and searchable. A key concern is the lack of consistency between councils in the organisation of returns on council websites. The report notes that where any of these factors are not met, the objective of the open access requirements is diminished, as members of the general public may not be able to locate or understand a particular return.

Finally, it was found that a significant number of councils automatically redact personal information contained in returns without properly applying the public interest test on a case by case basis, as required under s6(1) of the GIPA Act.  It was also determined that that 70% of councils that had published returns had failed to maintain a record of returns that had not been disclosed as required under s6(5) of the GIPA Act.

Recommendations

To assist councils in improving their compliance with open access requirements, the IPC has offered 7 recommendations.

At a minimum, to ensure councils continue to meet their open access requirements, the IPC has recommended that councils should ensure that returns of interests of both councillors and designated persons are published on their websites.

With regards to accessibility of returns of interests, the IPC makes three recommendations. First, councils should ensure that returns of interest are saved as an individual file and meaningfully labelled. Secondly, councils should not impose additional conditions on members of the general public seeking to access the returns, such as a requirement that a user login or submit a request before being able to access returns. Thirdly, councils should ensure returns are updated and published on council websites every 12 months, in consideration of clause 4.21 of the Model Code of Conduct.

Further, the IPC makes three recommendations concerning information that is not disclosed as a result of an overriding public interest. First, it is recommended that councils should refrain from including a statement that personal information will automatically be redacted in returns of interest forms. Equally, councils should not take a blanket approach to the redaction of personal information in returns but rather conduct an assessment of whether there is an actual overriding public interest against disclosure of the information on a case-by-case basis. Finally, councils should maintain and publish on their website, a record of returns that are not disclosed.

The IPC’s full report can be found here.

If you have any questions regarding this post, please leave a comment below or contact Sue Puckeridge on (02) 8235 9702.