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The Office of the Information Commissioner developed this presentation for the public and non-government organisations.

Transcript of Oic presentation public_may2010

  • 1. Right to informationin NSW

2. Current status of the OIC

  • The Office of the Information Commissioner (OIC) is now established in
  • The inaugural Information Commissioner, Deirdre ODonnell, was appointed on 10 May 2010
  • The OIC is at 1 Castlereagh Street, Sydney
  • OIC website updated regularly with information andtools for the public and government agencies.

3. Timing of theGIPA Act

  • From 1 July 2010, a new Right to Information law, theGovernment Information (Public Access) Act 2009( GIPA Act ), will replace: - theFreedom of Information Act 1989( FOI Act ) and- Chapter 4, Part 2 (sections 12, 12A, 12B and 13) of theLocalGovernment Act 1993( LGA Act ).
  • TheFOI Actwill not be repealed until theGIPA Actisactivated on 1 July 2010. There are transitionalprovisions dealing with the change fromFOI to GIPA.

4. Aims of theGIPA Act

  • TheGIPA Actaims to:- create new rights to information that are designed to meet community expectations of more open and transparentgovernment- encourage the routine and proactive release ofgovernment information.

5. Ways to access information

  • The four ways to access government information are:

4. Formal access application Inlimited circumstances , access to information will require a formal access application. People have a right to access information in this way unless theGIPA Actprovides a reason to withhold the information. (s.9 and Pt. 4,GIPA Act ) 3. Informal release Agencies areencouragedto 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 releaseAgencies 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 ofopen access information Agencies must publish certain information on their website, free of charge.(s.6 and s.18,GIPA Act ) 6. Presumption in favour of disclosure

  • Under theGIPA 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 isanoverriding public interest against disclosure (s.5,GIPA Act ).
  • There are no limits to the public interest factorsthat you can take into account in favour of disclosure there are examples in theGIPA Act(s.12) butthese are not exhaustive.

7. Public interest considerationsagainst disclosure

  • There is a conclusive presumption of an overriding public interest against disclosure of information in Schedule 1
  • Theonlyother public interest factors that may be taken intoconsideration against disclosure are listed in the table ins.14 of theGIPA Act . This is an exhaustive list.

8. Conclusive presumption of an overriding public interest against disclosure

  • There is a conclusive presumption of anoverriding public interest against disclosurefor 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 1GIPA Act ).

9. 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 accountabilityor contribute to positive and informed debate on issues of publicimportance
  • inform the public about the operations of agencies and theirpolicies and practices for dealing with the public
  • ensure effective oversight of the expenditure ofpublic funds
  • reveal or substantiate that an agency (or amember of an agency) has engaged in
  • misconduct or negligent, improper
  • or unlawful conduct.

10. 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 theGIPA 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 inSchedule 1), and
  • - Exempt documents under interstate Freedom ofInformation legislation.

11. 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 anoverriding public interest against disclosureand the informationshould not be released - However, if theoverriding public interest against disclosure can beovercome by deleting part of the record (eg. the personal informationof someone other than the applicant) and it is practicable to doso, 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 accessinformation, delete the relevant information and makethe rest of the document publicly available .

12. 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 madepublicly available because of an overriding public interestagainst disclosure
  • - the information set out in Schedule 1 of Schedule 5of theGIPA Act .

13. 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 its 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 chargenot exceeding the reasonable cost of photocopying(cl.4 of Schedule 5,GIPA Act ).

14. 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 ofcharge or at the lowest reasonable cost to the agency (s.7(2),GIPAAct ). - Certain parts of a document can be deleted, if including thedeleted information would create an overriding public interestagainst disclosure (s.7(4),GIPA Act ). - Programs for the proactive release of informationmust be reviewed at least annually (s.7(3),GIPAAct ).

15. 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 ).

16. 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),GIPAAct )
  • 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.

17. Formal access applications

  • When might a person be directed to make a formal access ap