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Office of the Board of Studies – Government Information (Public Access) (GIPA) – Guidelines

Contents

What is Government Information (Public Access)?

From 1 July 2010, the new Government Information (Public Access) Act 2009 (the Act) has replaced the Freedom of Information Act 1989 (NSW), bringing about the biggest change to rights to government information in New South Wales in 20 years.

The new GIPA Act will ensure that our government is more transparent and accountable. Under the new law, state and local government agencies will proactively release more information. The Act applies to all NSW government agencies, including local councils, state-owned corporations, Ministers and their staff.

The new right to information system in New South Wales aims to foster responsible and representative government that is open, accountable, fair and effective. You have a right to request a review of a decision regarding the release of information if you disagree with any of the following as set out under the Government Information (Public Access) Act 2009 (the Act):

  • a decision that an application is not a valid access application
  • a decision to transfer an access application to another agency, as an agency-initiated transfer
  • a decision to refuse to deal with an access application (including such a decision that is deemed to have been made)
  • a decision to provide access or to refuse to provide access to information in response to an access application
  • a decision that government information is not held by the agency
  • a decision that information applied for is already available to the applicant
  • a decision to refuse to confirm or deny that information is held by the agency
  • a decision to defer the provision of access to information in response to an access application
  • a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)
  • a decision to impose a processing charge or to require an advance deposit
  • a decision to refuse a reduction in a processing charge
  • a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment
  • a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).

How do I request information?

Every day government and other public bodies respond to requests for general information from the public. This process will still be your first avenue of access to the information you wish to see.

To make a Government Information (Public Access) request, however, take the following steps:

The formal requirements state that an access application must:

  • be in writing
  • specify it is made under the Act
  • be accompanied by the $30 fee; and
  • provide sufficient detail to enable the agency to identify the information requested.

In making an application, a person may include any other additional information they think is relevant to the public interest test and may request a discount of processing charges. An access application may be amended or withdrawn at any time. An application will be invalid if it seeks access to excluded information of an agency or does not meet the formal requirements for an access application. Where an invalid application is made, agencies must notify the applicant of the fact (with reasons) and assist the applicant in making it valid.

What is public interest test?

The new right to information system in New South Wales aims to foster responsible and representative government that is open, accountable, fair and effective. Under the Government Information (Public Access) Act 2009 (the 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. This means that they must weigh the factors in favour of disclosure against the public interest factors against disclosure. Unless there is an overriding public interest against disclosure, agencies must provide the information.

There are some limited exceptions to this general rule, for example where dealing with an application would constitute a significant and unreasonable diversion of an agency’s resources.

Applying the public interest test

The public interest test involves three steps:

  1. Identifying the relevant public interest considerations for disclosure
  2. Identifying any relevant public interests against disclosure; and
  3. Assessing whether the public interest against disclosure outweighs the public interest in favour of disclosure.

Step 1: Identify relevant public interest considerations for disclosure

The Act provides examples of factors that agencies may consider in favour of disclosure:

  • Promoting open discussion of public affairs, enhancing government accountability or contributing to positive and informed debate on issues of public importance
  • Informing the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public
  • Ensuring effective oversight of the expenditure of public funds
  • The information is personal information of the person to whom it is to be disclosed
  • Revealing or substantiating that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

This is not an exhaustive list and agencies may identify other factors in favour of disclosure. The Information Commissioner may also issue guidelines on additional considerations favouring disclosure.

Step 2: Identify relevant public interests against disclosure

The Act provides an exhaustive list of public interest considerations against disclosure. These are the only considerations against disclosure that agencies may consider in applying the public interest test.

Considerations are grouped under the following headings:

  • Responsible and effective government
  • Law enforcement and security
  • Individual rights, judicial processes and natural justice
  • Business interests of agencies and other persons
  • Environment, culture, economy and general matters
  • Secrecy provisions (in legislation other than those listed in Schedule 1)
  • Exempt documents under interstate Freedom of Information legislation.

The Act says that in applying the public interest test, agencies are not to take into account that:

  • disclosure might cause embarrassment to, or loss of confidence in, the government or an agency
  • any information disclosed might be misinterpreted or misunderstood by any person.

Agencies must consider any submissions made by an applicant in relation to public interest considerations, as well as any factors personal to the applicant.

Step 3: Assess whether the public interest against disclosure outweighs the public interest in favour of disclosure, giving appropriate weight to each consideration

The identification of one or even several public interest considerations against disclosure is not sufficient justification to refuse to provide information. Agencies will make their decision after balancing the relevant considerations for and against disclosure. In each case, agencies will consider a range of factors, including:

  • The nature and context of the information
  • In the case of an informal or formal request, any factors special to the applicant
  • The relative weight of public interest considerations for and against disclosure.

Agencies should refuse to disclose information only where, on balance, there is an overriding public interest against disclosure. Where considerations on balance favour disclosure, or are evenly balanced, the presumption in favour of disclosure stands, and information should be published or released.

Presumption against disclosure in some cases

The ‘balancing’ approach to the public interest test applies in most circumstances. However, in relation to 12 categories of information, there is always an overriding public interest against disclosure. These are:

  1. Information subject to an overriding secrecy law (26 specifically named Acts)
  2. Cabinet information
  3. Executive Council information
  4. Information subject to the direction or order of a court or other body with the power to receive evidence on oath, or to Parliamentary privilege
  5. Information subject to legal professional privilege
  6. ‘Excluded information’ (judicial and prosecutorial information, information about complaints handling and investigative functions, competitive and market sensitive information, information in relation to specific functions of the Public Trustee, and information about the ranking and assessment of students completing the HSC)
  7. Documents affecting law enforcement and public safety
  8. Specific information relating to transport safety
  9. Specific information relating to adoption procedures and records
  10. Specific reports concerning the care and protection of children
  11. Information contained in the Register of Interests kept in relation to the Ministerial Code of Conduct
  12. Specific information relating to Aboriginal and environmental heritage.

Generally, agencies must not publish and must refuse requests to disclose information in the above categories. Formal applications for ‘excluded information’ are invalid under the Act.

What will the agency do when it receives my request?

Acknowledgement of receipt

Agencies must acknowledge receipt of an application within five working days and, if the application is valid, acknowledge receipt to the applicant and advise:

  • the date by which a decision must be made
  • that an application will be deemed to have been refused if not decided by that date
  • information about the disclosure log and rights to object to inclusion of details about the application; and
  • details of review rights, as directed by the Information Commissioner.

Time for deciding

Agencies must make a decision, and notify the applicant of it, within 20 working days. This time can be extended by 10 to 15 days where consultation with a third party is required or information must be retrieved from archived records. The decision can also be extended by agreement with the applicant.

How will I receive the information that I have requested?

If the information you request is in written form, the agency can let you know when and where you can see the document or provide you with a copy. If you have asked for access to information that is not in written form, such as video tapes, sound recordings or photographs, arrangements will be made for you to hear or view the material.

How much will it cost me to make a request for information?

Charges fall into two categories – application fees and processing fees.

Application fees
A $30 fee covers applications for both personal and non-personal information.
Processing fees
Processing fees cover time for locating the information, decision-making, consultation where necessary and any photocopying. A fee of $30 an hour covers processing for both personal and non-personal information. However, you are entitled to up to 20 hours of free processing time for a request about your personal affairs. There is no upper limit on fees.
Rebates
Rebates of 50 percent are offered on processing fees:
  • for pensioners with the Health Benefit Card as well as those with an equivalent income who are under financial hardship
  • for non-profit organisations under financial hardship
  • special public interest
  • for children.

You generally have three options to have a decision reviewed:

1. Internal review

You have 20 working days after the notice of a decision has been posted to you to ask for an internal review.

If a Minister or the principal officer of an agency made the decision, you cannot ask for an internal review, but you can ask for an external review (see below).

The review must be carried out by a more senior officer than the person who made the original decision. The review decision must be made as if it were a fresh application.

There is a $40 fee for an internal review application except if the decision is ‘deemed refusal’ because the agency did not process your application in time.

In this case, you cannot be charged any review fee. The agency must acknowledge your application within five working days of receiving it. The agency must decide the internal review within 15 working days (this can be extended by 10 days if the agency has to consult with a third party or by agreement with you).

2. External review by the Information Commissioner

If you disagree with any of the decisions listed above, you can ask for a 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 for review by the Information Commissioner.

You have 40 working days from being notified of the decision to ask for a review by the Information Commissioner.

On reviewing the decision, the Information Commissioner can make recommendations about the decision to the agency.

Note: You cannot ask the Information Commissioner to review a decision that has already been reviewed by the Administrative Decisions Tribunal.

3. External review by the Administrative Decisions Tribunal

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

You have up to 40 working days 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 Information Commission’s review outcome to apply to the ADT.

Further information

  • Go to www.oic.nsw.gov.au
  • Email oicinfo@oic.nsw.gov.au
  • Mail GPO Box 7011, Sydney NSW 2001
  • Call 1800 INFOCOM (1800 463 626) between 9 am and 5 pm, Monday to Friday (excluding public holidays).

If you have a hearing or speech impairment, you can call the Office of the Information Commissioner through the National Relay Service (NRS) on 133 677 or, if you want to talk to Office of the Information Commissioner with the assistance of an interpreter, you can call the Translating and Interpreting Service (TIS) on 131 450. NRS and TIS are free services.

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