9.2 Access to Information

9.2.1 Overview

Access to information held by government departments and local councils is important in promoting open, accountable government. In the past, access to information has been provided for under Freedom of Information legislation. In 2009, the new Government Information (Public Access) Act 2009 (GIPA Act) was passed and has replaced the Freedom of Information Act 1989 (NSW) as of 1 July 2010.

9.2.1.1 Useful web links

The Office of the Information Commissioner (OIC) website has lots of useful information about the new access to information laws and is able to provide advice directly to the community about accessing information. The OIC has been established as part of the new right to information and is being led by an Information Commissioner.

The OIC is independent of other government agencies.

The role of the Information Commissioner is to promote public awareness and understanding of the new right to information law, and provide information, support, advice, assistance and training to agencies and the general public. The OIC also has the power to review decisions made by government agencies and to deal with complaints.

9.2.2 Government Information (Public Access) Act 2009 (NSW)

The Government Information (Public Access) Act 2009 (NSW) (GIPA Act) replaced the Freedom of Information Act 1989 (NSW) on 1 July 20101 and provides a new framework for accessing information held by government agencies. In brief, there are four different ways to obtain information from government agencies under the GIPA Act:

• Mandatory release - certain information must be disclosed to the public free of charge;
• Proactive release - some information may be disclosed to the public free of charge or for lowest reasonable cost;
• Informal release - members of the public can ask for certain information and such requests may be considered by the government agency; and
• Formal release - it will sometimes be necessary to make a formal application for information and such applications must be considered by a government agency.

All of these methods of obtaining government information are subject to public interest considerations, which means that information may be withheld on the grounds that it is against the public interest to disclose it.

9.2.2.1 Mandatory release

Information that is defined as 'open access' must be made publicly available free of charge, unless there is an overriding public interest against disclosure.2

The GIPA Act provides a list of information that qualifies as 'open access'. This includes information about an agency's structure, functions and policies; general interest disclosure logs; the register of contracts (over $150,000) that an agency has entered into with private sector entities; information in documents tabled in Parliament by an agency; a record of information not made public because of an overriding public interest against disclosure; a list of an agency's major assets, guarantee of service and code of conduct; and a Minister's media releases and information about overseas travel expenses.3

There is also a list of open access information that must be provided by local councils.4 This list includes information about the local council; plans and policies; information about development applications and associated documents (such as environmental assessment reports, town planner reports etc) and approvals; orders and other documents.

9.2.2.2 Proactive release

Government agencies may decide to make information that is not open access information publicly available. This is known as proactive release. Information released this way may be free of charge or at the lowest reasonable cost.5 State and local government agencies are encouraged to make as much information as possible publicly available in an appropriate manner, including on the internet.

9.2.2.3 Informal release

Informal requests may be made in relation to specific information. An agency is not required to provide information in response to an informal request, although it is encouraged to do so under the GIPA Act which authorises State and local government agencies to release information in response to an informal request.6 The agency may impose conditions on the release of such information.

9.2.2.4 Formal release

If a formal access application is made, the person making the application has a legally enforceable right to be provided with the requested information in accordance with the GIPA Act, unless there is an overriding public interest against disclosure.7

A valid formal application must adhere to the requirements in the GIPA Act and be accompanied by a $30 application fee. An application must:

• be in writing sent to or lodged at an office of the agency concerned;
• clearly indicate that it is an access application made under the GIPA Act;
• be accompanied by a fee of $30;
• state a postal address in Australia as the address for correspondence in connection with the application; and
• include such information as is reasonably necessary to enable the government information applied for to be identified.

An access application cannot be made in relation to excluded information.8 Excluded information includes particular information relating to judicial and prosecutorial information, complaints handling and investigative information and competitive and market sensitive information of particular agencies.9

9.2.2.5 Fees

The person making the access application may seek a 50 per cent reduction in processing costs on the grounds of financial hardship, or seek a waiver of the fee entirely if the information will be of special benefit to the public generally.

Otherwise, as well as the $30 application fee, the person making the access application may be asked to pay a processing charge. Processing costs $30 per hour.

Agencies may ask the applicant to pay up to 50 per cent of the expected processing charge in advance. This request must be in writing and the applicant must be given at least four weeks to pay.

However, if an applicant seeks his or her own personal information, the first 20 hours of processing time are free of charge.

9.2.2.6 Public interest

Under the GIPA Act, all government agencies must disclose or release information unless there is an overriding public interest against disclosure. When deciding whether to release information, staff must apply the public interest test, which means they must weigh the factors in favour of disclosure against the public interest factors against disclosure.

The limited and specific public interest considerations that an agency must take into account when deciding whether to release particular information include:

• law enforcement and security;
• individual rights, judicial processes and natural justice;
• responsible and effective government;
• business interests;
• environment, culture, economy and other matters;
• secrecy and exemption provisions in other laws.10

The GIPA Act provides a list of matters that are conclusively presumed to be against the public interest to disclose.11 These matters relate to certain cabinet documents, executive council documents, overriding secrecy laws, contempt, legal professional privilege, excluded information, documents affecting law enforcement and public safety, transport safety, adoption, care and protection of children, ministerial code of conduct documents and certain documents relating to Aboriginal and environmental heritage.

9.2.2.7 Decision and review rights

The relevant government agency is required to assess the validity of a formal access application within five days. A decision must be made within 20 working days unless an extension of time is agreed to. If the access application is not decided upon within 20 working days, it is considered to be refused. The $30 application fee must be refunded and avenues for review may be sought by the applicant.12

There are a number of decisions made by government agencies that are reviewable under the GIPA Act, including a decision to refuse access to information, a decision to refuse a reduction in the processing charge, a decision to refuse to confirm or deny that information is held by the agency and a decision that government information is not held by the agency.13 There are three options for review of a government agency's decision:

• internal review;
• external review by the Information Commissioner; and
• review by the Administrative Decisions Tribunal (ADT).

9.2.2.7.1 Internal review

An internal review may be requested at a cost of $40. You have 20 working days after notice of the decision has been posted to you to ask for an internal review. The review must be carried out by an officer who is no less senior than the original decision maker.14 If the Minister or the principal officer of the agency made the decision, you cannot seek an internal review but you can ask for an external review.

9.2.2.7.2 External review by the Information Commissioner

If you are the person applying for access to information, you do not have to have an internal review of the decision before asking the Information Commissioner to review it. If you are not the access applicant, you must seek an internal review before applying to the Information Commissioner.

Either way, you have eight weeks from being notified of the decision to seek external review.15

9.2.2.7.3 Review by the Administrative Decisions Tribunal

If you disagree with the outcome of internal or external review, you can ask for a review by the Administrative Decisions Tribunal (ADT).16 You do not have to have the decision reviewed internally or by the Information Commissioner before applying to the ADT.

You have up to eight weeks from being notified of the decision to apply to the ADT for review. However, if you have applied for review by the Information Commissioner, you have four weeks from being notified of the outcome of that review to apply to the ADT.

1. The Freedom of Information Act 1989 still applies to applications and determination made before that Act was repealed. Government Information (Public Access) Act 2009, Schedule 3.
2. Government Information (Public Access) Act 2009, s. 6.
3. Government Information (Public Access) Act 2009, s. 18.
4. Government Information (Public Access) Regulation 2009, Schedule 1.
5. Government Information (Public Access) Act 2009, s. 7.
6. Government Information (Public Access) Act 2009, s. 8.
7. Government Information (Public Access) Act 2009, s. 9.
8. Government Information (Public Access) Act 2009, s. 43.
9. Government Information (Public Access) Act 2009, Schedule 2.
10. Government Information (Public Access) Act 2009, s. 14.
11. Government Information (Public Access) Act 2009 (NSW), Schedule 1.
12. Government Information (Public Access) Act 2009, Part 4, Div 4.
13. A list of these decisions can be found in the Government Information (Public Access) Act 2009, s. 80.
14. Government Information (Public Access) Act 2009, Part 5, Div 2.
15. Government Information (Public Access) Act 2009, Part 5, Div 3.
16. Government Information (Public Access) Act 2009, Part 5, Div 4.

This site was last updated Thursday 17 May, 2012
EDO NSW
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