On Monday a tribunal member ruled that the education department must release a single line of information within a document it had fought to keep secret since the middle of last year. The document is a draft consultant's report that reviewed the controversial subject of special religious education and ethics classes in NSW schools.

The report by consultancy ARTD was a recommendation of a Legislative Council committee that had been inquiring into the issue. Yet despite the report - which cost taxpayers $300,000 - being handed to the government in December 2015, it wasn't released.

One likely reason is the storm that had blown up around changes to the school enrolment form under then Premier Mike Baird. Fairfax Media had revealed that Baird's office had been in discussions about a proposal by religious groups to erase reference to the availability of ethics classes as an alternative to special religious education from the official enrolment form.

Greens MP David Shoebridge sought a copy of the final and draft reports under the Government Information (Public Access) Act in February, having had an earlier GIPA request knocked back in July last year. When it was refused, Shoebridge appealed to NCAT. The education department released the ARTD report in March and decided to give Shoebridge a redacted version of the draft. Since then it has gradually been forced to redact less and less of the draft report.

On Monday NCAT delivered the final blow, ordering the release of a final line of information. The department had argued that it was exempt from release as it contained "personal and business information of a third party". The episode provides an important insight into how government departments are deciding whether or not they need to release information under the GIPA Act. Put bluntly, it is confirmation that they are misapplying the law, which conveniently delays release of documents in cases that have the capacity to embarrass the government.

A similar case emerged in mid-September when NCAT found in favour of an application by Labor's leader in the upper house, Adam Searle. Searle had applied for the release of documents that recorded details of "health checks" done on the progress of the $2.1 billion CBD and South East light rail project. This is the project that got Premier Gladys Berejiklian in hot water after the auditor general's report showed that as transport minister she had given incorrect reasons for a $549 million cost blowout.

The department refused, arguing the documents contained cabinet information and were therefore exempt from release under the GIPA Act. NCAT, however, ordered the release of some of the documents to Searle. In a likely reflection of how sensitive the issue is now that Berejiklian is Premier, the government has appealed the decision to the full bench.

Both cases raise a legitimate and concerning question: is there is a fundamental flaw in how departments are making decisions about the release of important documents of genuine public interest? Cynics might suggest, with some justification, that the more sensitive the issue the more likely it is that the decision maker will get it wrong in favour of non-disclosure.

There are plenty more examples. And then there are the findings of the NSW Information and Privacy Commissioner. The most recent annual report shows there has been a spike in complaints about GIPA decisions to 58 in 2016-17, a 53 per cent increase from the previous financial year. Shoebridge reckons he has a solution: impose a fine for failure to correctly apply the GIPA Act.

Currently there is no penalty for agencies NCAT finds have misapplied the act - even if there is a pattern of doing so. A hefty fine imposed on the agency, along with a requirement to make the amount and reasons public, would go at least some way to encouraging improved compliance.