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Say goodbye to “FOI” and hello “GIPA” –  The Freedom of Information Act 1989 (NSW) has changed to The Government Information (Public Access) Act 2009 (NSW)

Published on July 14, 2017 by Greg McAllister

The Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”) replaced the more commonly recognised Freedom of Information Act 1989 (NSW) on 1 July 2010.  The GIPA Act, like its predecessor, was established to provide a process for providing the public with access to information from New South Wales public sector agencies.

Most statutory bodies have a form for making a formal GIPA Act request on their website.  Where there is no such form, you can lodge your own application.  For an application to be valid you must ensure that, among other things, you lodge your request with the correct agency, that you are clear and specific about the information you wish to obtain, and that you pay the relevant application fee (currently $30.00).  Once the application has been accepted as valid, the statutory body will have 20 working days to respond to your request (noting that extensions are available).

Refusing Access

Although section 12 of the GIPA Act provides for a public interest consideration in favour of releasing government documents to members of the public, a statutory body may refuse access to requested information for a range of reasons.  For example, a statutory body can refuse to deal with an application that would require an unreasonable substantial diversion of the agency’s resources (section 60 of the GIPA Act).  A statutory body may also refuse access on the basis that there is an overriding public interest against the disclosure of the requested information (section 14 of the GIPA Act).  Section 14 of the GIPA Act sets out an exhaustive list of public interest conditions that may be considered before a decision to disclose information is made, and schedule 1 of the GIPA Act sets out numerous classes of information where it is conclusively presumed that there is an overriding public interest against disclosure.

Overriding Public Interest

The test for whether there is an overriding public interest against disclosure requires a balancing of the considerations for and against disclosure.  If the considerations are evenly balanced, a presumption in favour of disclosure applies.  Importantly, when an agency is considering whether there is an overriding public interest against disclosure, it is not to take into consideration that the disclosure might cause embarrassment to, or loss of confidence in, the government or an agency, or that the information, once disclosed, might be misinterpreted or misunderstood by any person.

Inspecting Documents

If an agency has elected to provide you with information, it can do so by giving you the opportunity to inspect and review the documents (including providing access to facilities to facilitate inspection) or provide you with a copy of the documents.  It should be noted that information provided to you by an agency may be redacted in order to preserve the identity of third parties, or to otherwise deny access to information that is not relevant or is not required to be disclosed under the GIPA Act.

Using Information

Once you have been granted access to information pursuant to a GIPA Act application, an agency is not able to impose a condition on the use of that information.  If an applicant were to request the same documents pursuant to a subpoena or an order for discovery, the documents would be subject to an implied undertaking not use them for a collateral or ulterior purpose (see Harman v Secretary of State for the Home Department [1983] 1 AC 280 and rule 21.7 of the Uniform Civil Procedure Rules 2005 (NSW)).  

While a GIPA Act application can be made by a member of the public without legal assistance, we recommended that you seek legal assistance if you intend to make a GIPA ACT application, particularly if the information is connected to a potential claim which may be available to you.

Greg McAllister – Solicitor

The information contained in this article is not to be taken as legal advice. Please contact us if you require specific information or advice.

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