Right to information in NSW

Current status of the OIC

• The Office of the Information Commissioner (OIC) is now established in• The inaugural Information Commissioner, Deirdre O’Donnell, was appointed

on 10 May 2010• The OIC is at 1 Castlereagh Street, Sydney• OIC website updated regularly with information and

tools for the public and government agencies.

Timing of the GIPA Act

• From 1 July 2010, a new ‘Right to Information’ law, the Government Information (Public Access) Act 2009 (GIPA Act), will replace:

- the Freedom of Information Act 1989 (FOI Act) and - Chapter 4, Part 2 (sections 12, 12A, 12B and 13) of the Local Government Act 1993 (LGA Act).

• The FOI Act will not be repealed until the GIPA Act is activated on 1 July 2010. There are transitional provisions dealing with the change from FOI to GIPA.

Aims of the GIPA Act

• The GIPA Act aims to:

- create new rights to information that are designed to meet community expectations of more open and transparent government

- encourage the routine and proactive release of government information.

Ways to access information• The four ways to access government information are:

4. Formal access application

In limited circumstances, access to information will require a formal access application. People have a right to access information in this way unless the GIPA Act provides a reason to withhold the information.

(s.9 and Pt. 4, GIPA Act)

3. Informal release

Agencies are encouraged to release information in response to a request without the need for a formal application, unless there are good reasons to require one.

(s.8, GIPA Act)

2. Proactive release

Agencies are encouraged to proactively release as much government information as possible, in an appropriate manner and free of charge (or at the lowest reasonable cost).

(s.7, GIPA Act)

1. Mandatory disclosure of open access information

Agencies must publish certain information on their website, free of charge.

(s.6 and s.18, GIPA Act)

Presumption in favour of disclosure

Under the GIPA Act, there is:• a general public interest in favour of the disclosure of government information

(s.12(1), GIPA Act), and • a presumption that government information can be released unless there

is an overriding public interest against disclosure (s.5, GIPA Act).

• There are no limits to the public interest factors that you can take into account in favour of disclosure – there are examples in the GIPA Act (s.12) but these are not exhaustive.

Public interest considerations against disclosure

• There is a conclusive presumption of an overriding public interest against disclosure of information in Schedule 1

• The only other public interest factors that may be taken into consideration against disclosure are listed in the table in s.14 of the GIPA Act. This is an exhaustive list.

Conclusive presumption of an overriding public interest against disclosureThere is a conclusive presumption of an overriding public interest against disclosure for these 12 categories: • Overriding secrecy laws• Cabinet information• Executive Council information• Contempt • Legal professional privilege• Documents affecting law enforcement and public safety• Excluded information (see Schedule 2) • Transport safety• Adoption• Care and protection of children• Ministerial Code of Conduct• Aboriginal and environmental heritage (Schedule 1 GIPA Act).

Public interest test: step 1• Remember: there is a general public interest in favour of disclosure• An agency can take into account as many public interest considerations in favour of disclosure as seem

applicable (s.12(2), GIPA Act). Some examples are:

- the information is the personal information of the applicant

- disclosure could reasonably be expected to:

promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance

inform the public about the operations of agencies and their policies and practices for dealing with the public

ensure effective oversight of the expenditure of public funds

reveal or substantiate that an agency (or a member of an agency) has engaged in

misconduct or negligent, improper

or unlawful conduct.

Public interest test: step 2

Are there public interest considerations against disclosure?

• An agency may only take into account the public interest considerations against disclosure set out in the table at s.14 of the GIPA Act. They 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), and

- Exempt documents under interstate Freedom of Information legislation.

Public interest test: step 3

• Do the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure?

- If they do, then there is an overriding public interest against disclosure and the information should not be released

- However, if the overriding public interest against disclosure can be overcome by deleting part of the record (eg. the personal information of someone other than the applicant) and it is practicable to do so, then an agency:

may – in the case of information released proactively, informally or in response to an access application, and

must – in the case of mandatory open access information, delete the relevant information and make the rest of the document publicly available.

Open access information

• What is ‘open access information’? (ss.6 and 18, GIPA Act) - a current publication guide

- information about a government agency that has been tabled in Parliament by or on behalf that agency

- policy documents

- a disclosure log

- a register of government contracts

- a record of open access information that has not been made publicly available because of an overriding public interest against disclosure

- the information set out in Schedule 1 of Schedule 5 of the GIPA Act.

Open access information

• What does an agency have to do with open access information?

- It must publish open access information unless there is an overriding public interest against disclosure (s.6(1), GIPA Act)

- It must publish open access information on it’s website unless to do so would impose unreasonable additional costs (s.6(2), GIPA Act).

For Local Government authorities:

- It must make open access information available for inspection, free of charge, during normal office hours (cl.4 of Schedule 5, GIPA Act).

- It must provide a copy of open access information, upon request, either free of charge or for a charge not exceeding the reasonable cost of photocopying (cl.4 of Schedule 5, GIPA Act).

Proactive release

• What sort of information can be proactively released?

- Any government information unless there is an overriding public interest against disclosure (s.7(1), GIPA Act).

• How is information proactively released?- on an website, or- available for inspection.

• What else do we need to know about proactive release?

- Information released in this way should be made available either free of charge or at the lowest reasonable cost to the agency (s.7(2), GIPA Act).- Certain parts of a document can be deleted, if including the deleted information would create an overriding public interest against disclosure (s.7(4), GIPA Act).- Programs for the proactive release of information must be reviewed at least annually (s.7(3), GIPA Act).

Informal release

What sort of information can be released in response to an informal request?• Any government information unless there is an overriding interest against disclosure (s.8(1), GIPA

Act).

Informal release

How can information be released informally?• An agency can choose to facilitate access to information by deleting certain parts of a document, if

including the deleted information would create an overriding public interest against disclosure (s.8(5), GIPA Act)

• Information can be released subject to any reasonable conditions

• It can be released in whatever form an agency prefers

• The types of information that are likely to be suitable for informal release include:- routine information- personal information about the applicant- small amounts of information that are easily accessible.

Formal access applications

When might a person be directed to make a formal access application?• If the scope of the information request means that it will take significant agency resources to provide

the information• If the request seeks access to sensitive information• If the GIPA Act requires consultation with third parties to take place before

releasing the information, such as when the information:

- concerns the affairs of a government of the Commonwealth or another State or

- includes personal information about a person other than the applicant

- concerns the business, commercial, professional or financial interests of a person other than the applicant

- concerns research that has been, is being, or is intended to be carried out by or on behalf of a person other than the applicant.

Anyone has a right to request a review of a decision regarding the release of information if they disagree with any of the following agency decisions as set out under the GIPA Act (s.80):

a) a decision that an application is not a valid access applicationb) a decision to transfer an access application to another agency, as an agency-initiated

transferc) a decision to refuse to deal with an access application (including such a decision that is

deemed to have been made)d) a decision to provide access or to refuse to provide access to information in response to an

access applicatione) a decision that government information is not held by the agencyf) a decision that information applied for is already available to the applicantg) a decision to refuse to confirm or deny that information is held by the

agencyh) a decision to defer the provision of access to information in response

to an access application

Review rights

i) 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)

j) a decision to impose a processing charge or to require an advance depositk) a decision to refuse a reduction in a processing chargel) 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 paymentm) 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).

Review rights (cont.)

In general, there are three options to have a decision reviewed:

1. Internal review2. External review by the Information Commissioner3. External review by the Administrative Decisions Tribunal

Internal review An applicant has 20 working days from receiving notice of a decision to ask for an internal review. If a Minister or the principal officer of an agency made the decision, the applicant cannot ask for

an internal review, but they can ask for an external review (see next slide). 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 a ‘deemed refusal’ because the agency did not process the application in time. In this case, the access applicant cannot be charged any review fee.

The agency must acknowledge the 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 the applicant). 

Review rights

External review by the Information Commissioner If a person disagrees with any of the decisions listed in s.80 of the GIPA Act, they can ask for a

review by the Information Commissioner. The person applying for access to information does 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. An applicant has eight weeks 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: An applicant cannot ask the Information Commissioner to review a decision that has already been reviewed by the Administrative Decisions Tribunal.

Review rights

.

External review by the Administrative Decisions Tribunal

If a person disagrees with any of the decisions listed in s.80 of the GIPA Act, they can ask for a review by the Administrative Decisions Tribunal (ADT). They do not have to have the decision reviewed internally, or by the Information Commissioner before applying for review by the ADT.

They have up to eight weeks from being notified of the decision to apply to the ADT for review. However, if they have applied for review by the Information Commissioner, they have four weeks from being notified of the Information Commission’s review outcome to apply to the ADT.

Review rights

What are the protections under the GIPA Act (Part 6, Division 1)?

There is no action for defamation or breach of confidence:

- when a decision to disclose information is made in good faith

No criminal action will be taken:

- when a decision is made or information disclosed in good faith

No action for personal liability is available in relation to any action by an agency, or an officer of an agency, where the action was done in good faith for the purposes of executing the Act.

Protections under GIPA

What are the offences under the GIPA Act (Part 6, Division 2)?

The following offences attract a maximum penalty of 100 penalty units

Acting unlawfully

An officer of an agency must not make a reviewable decision in relation to an access application that the officer knows to be contrary to the requirements of the Act

Directing unlawful action

A person (the offender) must not:

direct an officer of an agency involved in an access application to act in a manner that the offender knows is otherwise contrary to the requirements of the Act

direct an officer of an agency who is required to make a decision in relation to an access application to make a reviewable decision that the offender knows is not a decision permitted or required to be made by the Act or

Improperly influencing a decision on an access application

Offences under GIPA

Unlawful access

A person who in connection with an access application knowingly misleads or deceives an officer of an agency for the purpose of obtaining access to government information is guilty of an offence

Concealing or destroying government information

A person who destroys, conceals or alters any record of government information for the purpose of preventing the disclosure of the information as authorised or required under the Act is guilty of an offence.

Offences under GIPA (cont)

Summary of what’s new

• There are four ways to access government information: only one way requires a formal application (ss.6 - 9, GIPA Act).

• There is a presumption in favour of disclosure of all government information unless there is an overriding public interest against disclosure (OPIAD) (s.5, GIPA Act).

• There is no ‘public interest’ exemption: instead, there is a public interest test to determine whether there is an overriding public interest against disclosure (s.13, GIPA Act).

• Agencies will have to publish a disclosure log and a government contracts register.

• OIC’s aim is to support government agencies with their compliance to the GIPA Act through: issuing advice and guidelines issuing templates, FAQs, knowledge updates and e-learning preparing regulations sharing information.

Supporting government

Contacting the OIC

• free call: 1800 INFOCOM (1800 463 626)

• email: oicinfo@oic.nsw.gov.au

• mail: GPO Box 7011 Sydney 2001

• website: www.oic.nsw.gov.au