Gladys Berejiklian’s office broke law in shredding scandal: watchdog
Gladys Berejiklian’s office broke law in shredding scandal: watchdog

Gladys’s office broke law: watchdog

An NSW watchdog has found Gladys Berejiklian's office breached the State Records act when it shredded policy documents relating to a controversial grants program.

The NSW State Archives and Records Authority (SARA) wrote in a report released Friday that the decision to shred and delete so-called working advice notes relating to the Stronger Communities Fund was in breach of the State Records act.

"The authority finds that the Office of the Premier breached section 21(1) of the State Records Act with the unauthorised disposal of the working advice notes," the SARA wrote.

That section of the act prohibits the disposal of a state record unless approved by the SARA.

A breach carries a maximum penalty of 50 penalty units.

However, the watchdog said it would not pursue legal penalties or action because it "is not consistent with the Authority's regulatory model".

"A prosecution of unauthorised disposal of State records is a labour-intensive activity that is almost certain to bring no improvement to recordkeeping or commitment to improving practices," the report read.

It noted that it was possible the deletion happened outside a two-year timeframe in which legal action would be possible.

"The authority has considered the cost of such novel litigation and the potential benefit and has determined it to be inconsistent with our regulatory model and that such action does not pass a cost/benefit analysis," it wrote.

It said it came to that conclusion partly because the Premier's office had been forthcoming and "eager" to improve record-keeping practices.

The SARA met with representatives from the Premier's office on December 2 last year, and wrote twice to the office asking for information.

The NSW State Archives and Records Authority says Gladys Berejiklian’s office was in breach. Picture: NCA NewsWire / Steve Holland
The NSW State Archives and Records Authority says Gladys Berejiklian’s office was in breach. Picture: NCA NewsWire / Steve Holland

"The Government thanks (the SARA) for its efforts - particularly its recommendations for reform," a spokesman for the NSW government said.

The report was produced in response to a complaint by the NSW Shadow Minister for Local Government, Greg Warren, after a parliamentary inquiry heard a staffer in the Premier's office put documents relating to the grants program through a shredder.

Electronic copies were also deleted, although they were later recovered after a demand from parliament.

The documents represented a crucial link in the decision-making process around a $252 million grants round that went almost exclusively to councils in Coalition-held seats.

The notes made clear the Premier's staff directly decided which projects would be funded under the Stronger Community Fund grants program, a more hands-on level of involvement than Ms Berejiklian and her office had previously let on.

The documents also contained references to other ministers and Liberal members getting involved to steer funding to councils in their electorates.

Opposition Leader Jodi McKay said the fact the Premier's office had been found in breach of the law was "unacceptable".

"There appear to be no depth too low for this government to sink to," Ms McKay said.

"At every step of the way in this scandal we have had revelations of incompetence and coverup."

In its report, the watchdog said the Premier's office didn't adequately make sure record management requirements were followed.

"From the information provided to the authority, it appears that there was little or no oversight or monitoring of ministerial staff compliance with records management requirements," the SARA noted.

The watchdog also found the records management information in a handbook supplied to ministerial staff isn't sufficiently clear in guiding them how to deal with document-keeping.

NSW Opposition Leader Jodi McKay said the fact the Premier’s had been found in breach of the law was “unacceptable”. Picture: NCA NewsWire / Gaye Gerard
NSW Opposition Leader Jodi McKay said the fact the Premier’s had been found in breach of the law was “unacceptable”. Picture: NCA NewsWire / Gaye Gerard

The SARA also wrote in its report it did not find evidence the shredding and deletion were a result of "explicit instruction" by any staffer in the Premier's office.

Mr Warren had asked the watchdog to inquire whether that was the case.

The watchdog said it had to rely on the word of the Premier's office that the staffer who deleted the documents acted of her own volition, because the SARA "lacks investigative power and cannot compel individuals to provide statements of evidence".

The report contains recommendations to update the handbook, and to develop a formal record management program to advise ministerial staffers on the issue.

"The authority noted that the error occurred because the rules were ambiguous, and the advice provided on document classification and disposal was inadequate," the government spokesman said.

The spokesman said the government would support all the recommendations in the report, "including updating the existing retention and disposal advice, which is decades old".

"We also note the authority's view that the disposal of working advice notes was the product of misunderstanding, not an attempt to avoid the rules," the spokesman continued.

"As such, there will also be enhanced training for ministerial staff to ensure they meet their responsibilities under the Act."

The report came after a separate review by the NSW Information and Privacy Commission into the same shredding incident found the Premier's office didn't break the Government Information Public Access Act.

NSW Labor has said it will propose changes to the GIPA act in light of that decision.

The party also said it will seek to review "whether the powers vested in (the SARA) are adequate or need reinforcing", Ms McKay said.

Originally published as Gladys's office broke law: watchdog


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