For a standout example of what is wrong with freedom of information in NSW you cannot go past the Ombudsman's new report into the Office of the Board of Studies.

Over 120 pages the deputy Ombudsman, Chris Wheeler, has shredded the office over its handling of freedom-of-information applications made by former students seeking details of the standardised marking system that determines the marks 67,000 students are awarded each year in the higher school certificate exams.

Wheeler was called in by students in 2007 to resolve a dispute that goes back to 2001, when a new HSC was introduced and several students tried to find out their actual, or raw, marks. His starting point reflects the fundamental reason we have freedom-of-information laws: a belief that open access to information is the best way to ensure systems work as intended.

Wheeler figured that with mortal, fallible humans awarding 40 million marks in each HSC, cock-ups were inevitable. The best way to spot them and fix them was to let people understand how the marking system worked. Without the information the students sought, the marking system was a classic ''black box'' where ''students answers (or performances) go in one end, and their final marks come out the other''.

The Office of the Board of Studies and its board took the opposite view: ''The confidentiality of the information was something so precious and integral to the current HSC system that all attempts to access that information had to be warded off.''

Like many agencies, it said the information was too complex for anyone but it to understand, and making it public would cause unnecessary confusion, before finally relenting.

While that trust-us approach is worrying, it is not surprising. Of more concern is how hard the office fought the students and the Ombudsman when he took up their complaints. Wheeler has devoted a chapter of his report to criticising the way the office and the board responded to his involvement.

It is clear the inquiry was a dogfight from the outset.

The Ombudsman's office held 19 separate hearings as he struggled to get even the basic facts. The office challenged every point, including Wheeler's right to include in his final report the chapter criticising its behaviour on the grounds this was not the subject of his investigation.

Happily, the Ombudsman ignored these and other complaints in his withering assessment that describes the office's behaviour as adversarial, defensive, combative, obfuscatory, technical, legalistic, uncooperative as well as being in breach of the law.

The Office of the Board of Studies refused to provide the Ombudsman with 66 key documents, including all the legal advice it took from the Crown Solicitor's Office when refusing the students's FOI requests, on the grounds these documents were confidential and protected by legal professional privilege.

Wheeler says that as the public sector exists to serve the public, any claim of legal professional privilege should be justified by its service to the public interest. The office made no such claim. It refused to hand over the documents because it could refuse.

''It does not appear that there has been any meaningful consideration by the [office] as to whether there was any genuine public interest served by claiming legal privilege,'' Wheeler said.

It was precisely the behaviour of agencies such as Office of the Board of Studies that prompted the Parliament to pass a new freedom-of-information law, the Government Information (Public Access) Act. This act, which comes into force early next year, will be overseen by an Information Commissioner.

There is much to like about the new law, especially the principle that all government information is to be made public unless there is an overriding public interest against disclosure.

But as the Ombudsman's investigation shows so clearly, it is not the law that will make a difference; it is the attitudes of people who administer it, the Board of Studies bosses and a hundred other agencies.

Unless their attitudes change there will be no improvement. They will simply spend more taxpayers' money on more advice from the Crown Solicitor on how to refuse requests, and then refuse access to the advice on the grounds it is legally privileged.

http://www.smh.com.au/opinion/society-and-culture/people-not-laws-block-freedom-of-information-20091004-ghu7.html