frequently asked questions

Here we answer some questions that may arise about the Right to Information system in New South Wales.

Please note that while every effort is made to ensure that the information provided is accurate, it is not a substitute for legal advice. If you require specific information in relation to an application for information you may wish to get legal advice.

What is the Government Information (Public Access) Act 2009 (NSW) (GIPA Act)?

The Government Information (Public Access) Act 2009 (NSW) replaces the Freedom of Information Act 1989 (NSW), and introduces a new right to information system.

The new system is focussed on making government information more readily available. 
This means that a government agency must release information unless there is an overriding public interest against disclosure.

The GIPA Act commenced 1 July 2010.

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What is ‘government information’?

Government information is anything held in a record by an agency, on behalf of an agency by a government contractor, or by the State Records Authority. 

A record means any document or other source of information compiled, recorded or stored in written or electronic form. 

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Do all government agencies have to release information?

Yes. All NSW government agencies, including government departments, government Ministers and their personal staff, public authorities and offices, local councils and courts have to release information as set out in the GIPA Act.

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What is the OIC?

The OIC is the Office of the Information Commissioner whose role is to administer and provide independent oversight of the new right to information’ system. 

The Information Commissioner is strictly independent of other government agencies, with the Joint Parliamentary Committee of the Office of the Ombudsman and the Police Integrity Commission exercising certain oversight functions.

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What can the Information Commissioner do?

The Information Commissioner’s role is to promote public awareness and understanding of the GIPA Act and provide information, advice, assistance and training to agencies and the public.  The Commissioner also monitors agencies’ functions and may report to the Minister for the GIPA Act about proposals for legislative or administrative change. 

The Information Commissioner may issue guidelines to assist agencies and the public on various matters, including:

  • public interest considerations in favour of disclosure
  • public interest considerations against disclosure of government information
  • agencies’ functions
  • the public’s rights, including rights of review
  • publication guides, including model publication guides, or
  • reductions in processing charges.

Agencies must have regard to these guidelines when applying the public interest test.

In carrying out these roles, the Commissioner has broad powers to investigate, including requiring agencies to provide information, and to conduct inquiries.

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Who is the Information Commissioner?

New South Wales' inaugural Information Commissioner is Ms Deirdre O'Donnell.
 
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How can I contact the Office of the Information Commissioner?

If you have any queries or would like further information, you may contact the Office of the Information Commissioner:

  • by email: oicinfo@oic.nsw.gov.au or
  • by telephone (freecall number): 1800 INFOCOM (1800 463 626)
  • by post: GPO BOX 7011, Sydney 2001
  • website: www.oic.nsw.gov.au
  • or visit us at Level 11, 1 Castlereagh Street, Sydney 2000
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How do I get government information?

There are four ways in which government information is available.

  1. Mandatory release:
    You can search the agency’s website. Certain information must be disclosed on an agency’s website, free of charge.  This includes the agency's policy documents, current publication guide, disclosure log and register of government contracts.
  2. Proactive release:
    You can ask the agency what information they will make available to the public, in addition to the information contained on their website. Agencies are encouraged to release as much government information as possible, in an appropriate way and free of charge (or at the lowest reasonable cost).
  3. Informal request:
    You can ask for specific information. Agencies are encouraged to release information without the need for a formal application, unless there are good reasons to require one.
  4. Formal application:
    This is the last resort, if you haven’t been able to get the information you need in any other way. You can formally request specific information. In limited circumstances, access to information will require a formal access application.
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What is ‘personal information’?

‘Personal information’ in the GIPA Act is information or opinion about a person who can be identified from that information or opinion.

Information held by government agencies may identify you.  If this is the case, the Privacy and Personal Information Protection Act protects your personal information.  The Health Records Information and Privacy Act protects a specific type of personal information, including information about your physical or mental health, disability, provision of health services or genetic information.

More information on the privacy principles and protections is available on the website of Office of the Privacy Commissioner NSW.

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How can I access my own personal information? 

You can access your personal information that is held by an agency in several ways.

  • Under the GIPA Act the first step is to make an informal request for your information. Agencies should make every effort to release your personal information in this way. In some circumstances you may need to make a formal access application to the agency concerned (see FAQ How do I get ‘government information’?) .
  • You may apply for access under the Privacy and Personal Information Protection Act, under Information Protection Principle 7.
  • You may apply for access to your health information under the Health Records Information and Privacy Act .
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How can I amend my own personal information?

If you think that your personal or health information held by an agency is incorrect, you can ask the agency to correct it under:

  • Information Protection Principle 8 in the Privacy and Personal Information Protection Act or
  • Health Privacy Principle 8 under the Health Records Information and Privacy Act (if you wish to correct your health information).

For further information on your rights under the Privacy and Personal Information Protection Act and Health Records Information and Privacy Act, you may access the website of Office of the Privacy Commissioner NSW.

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How is my privacy protected under the GIPA Act?

Government information sometimes identifies people.  Under the GIPA Act a record that would reveal an individual’s personal information would not generally be disclosed unless there are strong public interest considerations in favour of disclosure.  

Under the GIPA Act, personal information does not include the individual’s name and non-personal contact details that shows the person was exercising public functions (see FAQ What is ‘personal information’?).

In deciding whether to disclose personal information about you to a person applying for access to information, the agency must consider whether you are likely to be concerned about the release of the information and whether those concerns are relevant to the public interest.  If so they must:

  • consult with you, and
  • take into account any objections you may have to the release of the information.

If the agency consults you and decides to release the information anyway they:

  • must tell you of this decision and your right to have it reviewed, and
  • must not release the information while you still have the right to seek review.

You may also wish to contact the Office of the Privacy Commissioner, which publishes fact sheets about the handling of personal information and health information.

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Who can make a formal application for information?

Any person can make a formal application for access to information held by an agency.  This should be the last resort, after the informal avenues have been tried.

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How do I make a formal application for information? How much does it cost?

A valid formal application for access to government information must:

  • be in writing
  • state that it is made under the GIPA Act
  • have an Australian postal address for return correspondence
  • provide enough details to help the agency identify the information you want ,and
  • enclose the application fee of $30. 

Applicants may be entitled to a 50 per cent reduction of processing charges on financial hardship grounds, or if the information requested is of special benefit to the public generally.

You may be asked to pay a processing charge. Processing costs $30 per hour and covers time needed to deal effectively with the application.

Agencies may ask an 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.

If you seek access to your own personal information, the first 20 hours of processing time are free of charge.

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What do I do if I can’t afford to pay the fees?

You can apply for a 50 per cent reduction in processing costs on the grounds of financial hardship, or ask for a waiver of the fee if the information will be of special benefit to the public generally.

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How will an agency process my application?

Agencies have up to five days from the day they receive your application to consider it and let you know whether or not it is valid.

If your access application is valid the agency will take steps to see if it has the information you want.  The agency may need to consult other people, businesses or government bodies to find the information.

When the agency has finished consulting, it must provide you with the information unless there is an overriding public interest against disclosure (public interest test) or the information is excluded. 

If the agency decides your application is not valid it must tell you why.  The agency must provide you with reasonable assistance to make a valid application.

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How long will my application take?

You must be notified of the decision on your application within 20 working days, unless you agree to extend the time.

An agency may also extend the time by 10-15 days where consultation with a third party is required or if it needs to retrieve records from archives.

If access is deferred by an agency then the agency must notify you and include the reason for deferral and the date on which you will be given access. A decision to defer access is reviewable (review rights).

If the agency does not decide your access application within 20 days, it is considered “refused”. Your application fee must be refunded and you may seek internal or external review (see review rights) of this refusal. 

This will not apply if an extension of time has been arranged or payment of an advance deposit is pending.

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Is any government information excluded?

The GIPA Act provides a list of excluded information that, in the public interest, must not be disclosed.  The list includes information that is required to be kept restricted under witness protection legislation, information about the identity of jurors, and details on the child protection offenders register.

Can an agency refuse my request for information? What are my review rights?

Agencies can refuse your request if:

  • the information you have asked for is already publicly available, 
  • you have not paid a deposit, 
  • your request would take an unreasonable amount of time to process, or
  • there is an overriding public interest against disclosure.

You have three options if you have been refused access to information:

  • Internal review: You can apply to the agency for an internal review.  This review must be carried out by an officer who is no less senior than the original decision maker and there is a $40 fee.
  • Review by the Information Commissioner: If you are not satisfied with the internal review, or do not want one, you can ask for a review by the Information Commissioner. You have eight weeks to ask for this review.
  • Review at the Administrative Decisions Tribunal: If you are not satisfied with the decision of the Information Commissioner or the internal reviewer or if you do not want to take these options you can apply to the Administrative Decisions Tribunal (ADT).

If you have already had a review by the Information Commissioner you have four weeks from notification of the decision to make this application.

If you haven’t had a review by the Information Commissioner you have eight weeks from notification of the decision to make this application.

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Under GIPA will an agency be required to say why they have refused information?

Yes. The notice of an agency's decision to refuse access to information because of an overriding public interest against disclosure must state the following:

  • the agency's reasons for its decision
  • the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings were based, and
  • the general nature and the format of the records held by the agency that contain the information concerned

Will other people have access to the information released to me?

If you receive information after making a formal application, and the agency believes that information may of interest to other members of the public, the agency ordinarily records it on the  “disclosure log” which is made available on the agency’s website

The disclosure log describes the information that was provided to the applicant and, if it is available to other members of the public, how they can access it.

You can object to information being included in the disclosure log if it includes personal information about you or about a deceased person that you personally represent; the information concerns your business, commercial, professional, or financial interests or research undertaken.

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What is in the public interest?

Before releasing government information an agency must compare the public interest in accessing the information to the public information in refusing access to that information.

Agencies can only refuse access to information if the public interest against disclosure outweighs the general public interest in favour of disclosure. 

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What are the public interests against releasing information?

There are only limited and specific interests against disclosure that and agency can take into account. These are:

  • law enforcement and security
  • individual rights, judicial processes and natural justice
  • responsible and effective government
  • business interests
  • environment, culture, economy and other matters, and
  • secrecy and exemption provisions in other laws
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What are the public interests in favour of releasing information?

There is no limit to the matters an agency may take into account in favour of releasing information. 

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Can the Government release information about my business?

An agency may release information about your business in response to an access application, however, the decision will be subject to the public interest test.

If an access application covers your business information, an agency must consult you to see whether or not you object to the information being released.  Your objection must relate to one or more of the five public interest considerations against disclosure set out in the GIPA Act.

If the agency decides that, on balance, the public interests against disclosure outweigh those for disclosure, then they will not release the information.

If an agency decides to release your business information, despite your objection, you have a right have this decision reviewed under the GIPA Act (see FAQ Can an agency refuse my request for information? What are my review rights?).

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What are the penalties for non-compliance? How likely is it that penalties will be applied?

There are a number of offences and penalties listed in Part 6, Division 2 of the GIPA Act. Offences include:

  • knowingly deciding a formal access application contrary to the requirements of the GIPA Act
  • directing an officer of an agency to make a decision that is not permitted or required by the GIPA Act
  • improperly influencing a decision on an access application
  • knowingly misleading or deceiving an officer of an agency for the purpose of obtaining access to government information, and 
  • concealing, destroying or altering information for the purpose of preventing the release of information.

There is a maximum penalty of 100 penalty units (1 penalty unit = $110) for each of these offences.

The OIC is serious about achieving compliance with the GIPA Act. We investigate conduct that we suspect may amount to an offence under the Act and/or refer the matter to the Director of Public Prosecutions (DPP) for potential prosecution.

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What are the protections under the GIPA Act?

There are a range of protections under the GIPA Act. These include:

  • 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, and 
  • 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 GIPA Act.
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What happens if someone makes repeated applications for the same information?

If a person has made at least three access applications within two years that lack merit, the Administrative Decisions Tribunal (ADT) may order that the person must get the ADT’s approval before making another access application.

If a person is subject to such a restraint order they cannot apply to the ADT for approval to make an access application without first serving notice on the agency concerned and the Information Commissioner.

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Does the OIC visit agencies and help them comply?

Yes. In order to promote access to government information, the OIC has developed a three-level compliance program:

  1. Self review by the agency
  2. Compliance review by the OIC
  3. Formal investigation by the OIC

More information about the compliance program is available in the fact sheet, The OIC's approach to monitoring compliance with the GIPA Act.

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How can I complain about my dealings with an agency?

You can complain to the Information Commissioner.

The Commissioner may undertake formal or informal investigations and actions to assist in resolving the complaint.

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What can determine an "unreasonable and substantial diversion of agency resources" when considering and processing an information request?

In relation to formal access applications, the GIPA Act provides discretion for agencies to refuse to search for information or deal with an application where this would require an unreasonable and substantial diversion of the agency’s resources (see s 53(5) and s 60(1)(a)).

Whether a diversion of resources would be unreasonable and substantial depends on the nature of the request and the capacity of the receiving agency. It will therefore vary between agencies and should be evaluated on a case by case basis.

Questions to consider include:

  • The size of the agency.
  • Whether the agency has a dedicated GIPA unit whose core function it is to process information request.
  • Staffing and agency resources for processing GIPA application.
  • The number of active GIPA applications and perceived future demand based on recent trends.
  • The scope and complexity of the request and the volume of information captured by the application.
  • The apparent public interest considerations in favour of releasing the requested information.
  • The age of the information and where it is located, eg, archived off-site or in a back-up system that is not easily searchable .
  • The number and intricacy of necessary third party consultations.
  • The expected time for processing the request from start to finish .

In terms of reasonableness, smaller agencies with no dedicated GIPA unit that receive several large requests for information at the same time may not have the resources or staff to process the applications without significantly impacting on their ability to carry out the core work of the agency.

This will obviously depend on the circumstances. The important thing to remember is that decisions not to search for information, or to refuse to deal with an access application, because of an unreasonable and substantial diversion of resources are reviewable decisions under the GIPA Act.

Therefore, agencies should consider all information requests carefully, be specific with any reasons for refusal based on this ground, and document those reasons clearly.

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Does closed public access to a State record more than 30 years old under the State Records Act 1998 affect my right to request information contained in the record under the Government Information (Public Access) Act 2009 (NSW)?

No. Access is still available under the Government Information (Public Access) Act 2009 (NSW). A record that is not open to public access under Part 6 of the State Records Act 1998 does not affect any entitlement to obtain access to information contained in the record under the GIPA Act.

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