These Fact Sheets are a guide only and are no substitute for legal advice relating to your particular issue. If you need legal advice about your particular issue, please call our FREE Environmental Law Advice Line
The information contained in this fact sheet is current as at 29 September 2006.
10.3 Access to Information
To participate effectively in protecting the environment, it is important for you to get as much information as possible about your issue. A great deal of information is available publicly, such as on public registers.
Laws often provide that the government must give you access to certain information, but the same rules do not apply to private companies or corporations. The first step in seeking information from any level of government is to ask for what you want. Government agencies will also often release information to the public without the necessity to resort to formal processes.
However, where you have difficulties in obtaining information from government agencies, a number of different laws give the public the right to various types of information on planning and environmental matters.
Enforcing Your Legal Rights
Restrictions on access to information are a common problem for environmental campaigners. If you are concerned that you are being improperly denied access to information by a local council or government agency, contact the Environmental Defender's Office for assistance.
10.3.1 What information will I need?
Whether you are campaigning on an environmental issue or participating in public processes for environmental matters, you need as much information as possible about your issue to be effectively involved.
For example, if you are concerned about a development proposal in your area, you will need at the minimum:
a copy of the development application including plans or maps;
a copy of any relevant environmental studies;
the relevant local environmental plan;
any relevant regional environmental plans or state environmental planning policies; and
information about relevant dates (for example, closing date for submissions).
You should also collect information from other sources that will support your views such as information about the ecological or heritage values of the area.
The Environmental Defender's Office can help you to identify the information that you will need.
10.3.2 What information do I have a right to access?
New South Wales and Commonwealth legislation provides that certain information must be available to the public. Most environmental legislation requires that public registers be kept.
Environmental Planning and Assessment Act 1979
The New South Wales Environmental Planning and Assessment Act 1979 provides that all local councils must keep a register of consents and certificates for public inspection free of charge.
The register must include:
development applications;
determinations of development applications, including conditions of consent;
determinations of applications for complying development certificates; and
any decisions on appeal in the Land and Environment Court.
The Environmental Planning and Assessment Regulation 2000 contains detailed lists of the exact information which must be kept in the register, including details of the duration of the consent, date of commencement of works and details of any other approvals such as environmental protection licences.
The development application and supporting documents must be made available to the public for all designated and advertised developments as part of the public consultation process. The notices about the public consultation process will tell you where and when you can access the documents.
Development Applications and Copyright
Councils sometimes refuse to provide copies of documents relating to development applications (for example, environmental impact statements and species impact statements) because they are subject to copyright.
However, the regulations provide that an applicant indemnifies all persons using the development application and documents in accordance with the Act against a claim for breach of copyright.
This means that if you are entitled to a copy of the documents relating to a development application, then the council can not refuse to give them to you on the grounds that they are subject to copyright.
Local Government Act 1993
The New South Wales Local Government Act 1993 requires local governments to make certain information available to the public upon request. This information includes:
development applications and associated documents;
environmental planning instruments, development control plans and plans applying to land within the council's area.
agendas and business papers for council and committee meetings (but not including business papers for matters considered when part of a meeting is closed to the public);
minutes of council and committee meetings, but restricted, in the case of a meeting that is closed to the public, to the resolutions and recommendations of the meeting;
leases and licences for use of public land classified as community land;
plans of management for community land;
the annual report, annual financial reports and auditor's report;
register of investments;
returns of the interests of councilors, designated persons and delegates;
returns as to candidates' campaign donations;
applications for approval to erect a building, and associated documents;
local policies adopted by the council concerning approvals and orders;
records of approvals granted, any variation from local policies with reasons for the variation, and decisions made on appeals concerning approvals;
records of building certificates; and
plans of land proposed to be compulsorily acquired by the council;
See section 12 of the Local Government Act for a full list of information available.
Councils are legally required to make this information available upon request. If you are refused access, you can make a complaint to the Director General of the Department of Local Government or to the New South Wales Ombudsman.
Exemptions apply in relation to some types of information including information of a personal nature or information which relates to the commercial commercial affairs of a business (trade secrets etc).
Documents can be inspected free of charge during office hours at council chambers. You may also take away copies of documents, but the council is allowed to charge reasonable copying fees. Certain documents cannot be copied, such as the residential roll of electors.
Protection of the Environment Operations Act 1997
The Environment Protection Authority (EPA) and any local government or public authority which is authorised to issue environmental protection licences are required to keep a public register with details of all environmental protection licences. For more information on environmental protection licences, see Topic 3.1 – Water, Air and Noise Pollution.
The register must include the details of:
each licence application made and the decision;
each licence issued and any variation of the conditions;
each decision to suspend, revoke or approve the surrender of any such licence;
each environment protection notice or noise control notice issued; and
convictions in prosecutions instituted in relation to the licence.
The EPA register is available online at www.epa.nsw.gov.au/prpoeo. The website is updated within a day of any changes being made. Registers held by the council or any other public authority should be available at its offices.
Environment Protection and Biodiversity Conservation Act 1999
Where Commonwealth approval is needed for an action, the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 provides for initial referral information, environmental assessments and decisions under the Act to be made available on the internet.
This information can be found on the Commonwealth Department of Environment and Heritage website at www.deh.gov.au/epbc. The Environmental Defender's Office also releases a free weekly e-bulletin that contains this information. Subscribe to the bulletin.
Other Legislation
A number of other Acts provide for public registers of certain information, such as the Gene Technology Act 2000, Corporations Act 2001 and the Plantations and Reafforestation Act 1986.
For information about whether any other legislation is relevant to your issue, contact the Environmental Defender's Office.
10.3.3 Making a Freedom of Information Application
Freedom of information legislation exists in both New South Wales and the Commonwealth. It is important to note that freedom of information laws apply to government authorities, not private corporations, non-government organisations or individuals.
Making a freedom of information request costs money and takes time, so you should only make a freedom of information request when necessary and after trying to get the information through other, less formal means.
10.3.3.1 New South Wales
In New South Wales, the Freedom of Information Act 1989 provides that you have a legally enforceable right to:
access records of government ministers, departments and agencies, local government and some other public bodies in accordance with the Act; and
request changes to personal information if it is inaccurate.
Most government bodies are subject to freedom of information requests with a few exceptions, including parts of the Department of Public Prosecutions, the Ombudsman and Treasury.
The Freedom of Information Act also makes certain documents exempt from freedom of information requests. The list of exempt documents is set out in Schedule 1 of the Freedom of Information Act. It includes cabinet documents, documents affecting law enforcement and public safety and documents relating to judicial functions.
If documents relate to intergovernmental affairs, personal affairs, business affairs and the conduct of research, they may not be released without consultation with any interested third parties. The agency must consult with that person or business, and decide whether or not to release the information.
For example, a document relating to the business affairs of a company may not be released if it would disclose information with commercial value and the release of that information could be reasonably expected to destroy or diminish the value of that information. This ground of exemption is often called ‘commercial in confidence'.
Making an Application
All government departments and agencies have a nominated freedom of information officer. The freedom of information officer can help you identify documents and to assist in the rephrasing of applications that may be too broad or demand excessive resources.
Applications must be made in writing and must include:
a statement that the application is being made under the Freedom of Information Act;
sufficient information to enable the documents to be identified;
a return mailing address; and
an application fee (at the time of publication this fee was $30.00).
It is important to identify the information you need as exactly as possible. A broad speculative request can lead to a very costly and time consuming application. The freedom of information officer or the Environmental Defender's Office can, and in the first case must, help you narrow your request.
The application must be sent to the relevant agency's office. If you mistakenly send it to the wrong agency, that agency must help you to identify the correct agency.
You may also specify in the application how you would like to access the documents. For example, viewing the documents or obtaining photocopies. It is often best to see which documents are available before requesting that they be copied, as you may not need all the documents and copying can be expensive.
The agency must make its decision within 21 days of receiving your application, although it may take longer if your application needs to be transferred to a different agency or if consultation with third parties is required. If your application is refused, or you have not heard from them within 21 days, you can seek an internal review of this decision.
How much will it cost?
If your application is accepted, you usually have to pay a processing fee. This will be set out by the agency when they inform you of the result of the application. The fee will vary from agency to agency but is usually $30 per hour. Special concessions apply to requests for personal records.
Individuals or non-profit organisations under financial hardship can claim a reduction of 50% of the fees. You may also be eligible for a reduction in fees if it is in the public interest that the information be made available.
When requesting a reduction in fees, you should include sufficient information to support your claim, such as reasons why the public would benefit from the information being released and how you will publicise the information.
Reviewing a Decision
If your application is refused, only partly granted, or you are unhappy with the fees charged, you can seek an internal review of the decision. This is a review of the decision by a more senior person within the organisation. You have 28 days from the date of the decision in order to lodge an application for internal review.
The application for review should be in writing and addressed to the Principal Officer of the agency. You must specify the decision you want reviewed and include the review fee of $40 or $20 if the original fee was reduced. The agency must then make a decision on your application for review within 14 days. If you do not have a response within 14 days, it is considered to be a refusal.
If you are still not happy with the outcome of the internal review you can seek external review by the NSW Ombudsman, who can investigate the decision and make recommendations.
You can then appeal to the Administrative Decisions Tribunal within 60 days of the Ombudsman's decision or refusal to investigate. If the matter is taken to the tribunal, ordinary legal costs will have to be paid.
10.3.3.2 Commonwealth
The provisions of the Commonwealth Freedom of Information Act 1982 are very similar to New South Wales law.
Every Commonwealth agency is required to have a freedom of information officer who can assist you in your application. You are able to access any documents that relate to your personal records, and any documents dated after 1 December 1977 relating to any other matter.
Certain agencies and documents are exempt from freedom of information requests. These are set out in of the Commonwealth Freedom of Information Act. Exempt agencies include the Australian Government Solicitor, Australian Security Intelligence Organisation, the Australian Broadcasting Corporation and certain sections of the Attorney General's Department.
Exempt documents are also set out in the Commonwealth Freedom of Information Act. These include documents relating to national security, international relations and business affairs (commercial in confidence). As with the State legislation, certain documents are subject to a requirement of consultation with affected third parties.
Making an Application
Applications must be made in writing with the same information as required under the NSW Freedom of Information Act (detailed above). The agency must inform you within 14 that they have received your application and within 30 days whether access has been granted. If access is granted you will either be able to inspect the documents or will be provided with copies. If access is denied, you must be told why.
At the time of publication, the application fee was $30.00. Processing fees also apply. These can be substantial so it is important to define your request as clearly as possible. If the agency decides to charge you, it must provide an estimate of the cost.
You can request a waiver of the fees where the fees would cause financial hardship or where granting access is in the public interest. You can make the request for waiver of the fees at the time of making the application or after your receive notice of the fees.
Reviewing a Decision
If you are unhappy with the decision made, in relation to either access to the documents or the fees charged, you can seek an internal review within 30 days of being notified of the decision.
If you are still dissatisfied you can complain to the Commonwealth Ombudsman or appeal to the Administrative Appeals Tribunal within 60 days of being notified of the internal decision. Further appeal is available to the Federal Court of Australia.
