Act amendments - information for agencies (PDF, 72kb)
The Government Information (Public Access) Amendment Act 2012 was passed by Parliament on 14 March 2012, amending certain provisions of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). It also amends other legislation.
The provisions of the Act came into effect on 19 March 2012.
This knowledge update outlines the legislative changes made to the GIPA Act to assist agencies prepare for the amendment. Generally speaking, the amendments are minor and technical in nature. They do not modify the object of the GIPA Act.
What changes have been made to the GIPA Act?
Amendment is made to various sections of the legislation. These are outlined below in the section order they appear in the GIPA Act:
Open access information and copyright
Section 6(6) of the GIPA Act now provides that nothing under section 6 or the regulations requires or permits an agency to make open access information available (in any way) that would constitute an infringement of copyright.
Copyright infringement however should be interpreted differently to an overriding public interest against disclosure – in the sense that the former may simply restrict information from being released in a particular way (ie on a website), rather than access being prevented altogether. Agencies must therefore still make their open access information available in any way they can (eg for viewing over the counter), and should list any information on their websites that can only be inspected at the agency’s office due to the restrictions set out in section 6(6).
Publication guides renamed
The GIPA Act now refers to “agency information guides” (replacing all references to “publication guides”), as a way to better reflect the content of the guides. Only the title has changed, with the content requirements under section 20(1) of the GIPA Act remaining the same.
All agencies (other than a Minister) should update and amend their existing publication guide (and website links) to reflect the name change to agency information guide as soon as reasonably practicable. The annual review date for agency information guides will continue to be 31 July each year as directed by the Information Commissioner.
Recording of information in the disclosure log
Section 26(2) of the GIPA Act prescribes the time when agencies are required to record details about an access application in the disclosure log if an objection is made under section 56 of the GIPA Act.
Section 56 of the GIPA Act sets out the grounds for making an objection to the inclusion of information in a disclosure log.
Provided no section 56 objection has been received prior to an access application being decided, agencies are still required to record details in the disclosure log once the access application has been decided.
If a section 56 objection is made before the access application is decided, insertion of section 26(2)(b) prevents details being recorded in the disclosure log until the relevant review periods expire. This includes the period during which the objector is entitled to apply for a review, and while any review duly applied for is pending.
Our knowledge update Good practice for disclosure logs provides further details about when applicants are entitled to object to the inclusion of information in an agency’s disclosure log under section 56 of the Act.
There has never been a requirement to include in a disclosure log information about an application for the applicant’s own personal information. An amendment to section 26(3) extends this to applications for personal information about any individual. An agency considering recording information in its disclosure log about a third party who was consulted under section 54 of the Act, is now required by section 54(2A)(a) and (b) to give written notice to that person confirming their right to object to this decision, and their right to review under Part 5 of the Act.
Consequent amendments have been made to sections 56(1), 56(2)(a), (b), (c) and (d), 56(5) and 56(6) of the GIPA Act to refer to an authorised objector rather than just to the “access applicant”. Review of a decision to include information in a disclosure log under section 80(m) is also amended to refer to an “authorised objector”.
Standardisation of time
Amendment is made to standardise time frames in the GIPA Act to refer to working days instead of days or weeks. The following sections are affected:
- section 27(2) now requires information about a class 1 contract to be entered in an agency’s government contracts register within 45 working days after the contract becomes effective;
- section 33 now requires variations made to a contract (affecting the particulars included in the government contracts register) to be amended and/or included in the register within 45 working days after the variation becomes effective.
- section 34(2)(a) now sets the (minimum) public access period for information to be included in the government contracts register as 20 working days;
- section 68(3)(c) now requires agencies to specify a date by which an advance deposit for payment of processing charge must be paid as being a date at least 20 working days after the date the notice is given;
- section 90 now sets the time limit to apply for external review by the Information Commissioner as within 40 working days after notice of the decision to which the review relates is given to the applicant;
- section 101(1) now sets the time limit to apply to the Administrative Decisions Tribunal for external review to be within 40 working days after notice of the decision to which the review relates is given to the applicant;
- if the decision is subject to review by the Information Commissioner, section 101(2) now provides that an application for ADT review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner’s review.
Agencies should update all templates that refer to timeframes used to communicate with applicants throughout the decision making process. Relevant online content published on agency websites should also be updated to reflect the changes.
The amending legislation inserts clause 8 into Schedule 3 to the GIPA Act about the application of changes to time periods. Agencies are required to follow the time periods for processing applications from the date the amendments take effect (irrespective of the date an access application was received).
Changes to time periods however do not apply to a matter arising before the amendment’s commencement if the change would deny a person the right to take an action available to them prior to that amendment.
Formal requirements to make an access application
As part of making a valid access application, applicants can now state any postal address under section 41(1)(d) as the address for correspondence, rather than requiring an Australian postal address.
Effect of waiver, reduction or refund of application fee
Insertion of section 51A(1) into the GIPA Act allows agencies to treat an access application as valid if the applicant has not paid the $30 application fee required by section 41(1)(c), because the agency either waived or reduced the fee before the application was made.
Similarly, insertion of section 51A(2) allows agencies to waive or reduce the application fee after the application was lodged. Here the application becomes valid on the date the agency waives the fee or the applicant pays the reduced fee (providing it would have been valid had the required application fee been paid).
As a result, section 52(4) of the Act is repealed.
Proof of identity
When considering the personal factors of an application, section 55(5) now enables agencies to request proof of identity from the applicant as a precondition to providing access to requested information (if the application involves certain personal factors about the applicant). Agencies should interpret this as effective immediately, since the change extends to access applications made before amendment of this section (see clause 7(1) in Schedule 3 to the GIPA Act).
Decision to refuse to deal with application
Insertion of section 60(1)(b)(b1) enables agencies to refuse to provide access to information if an applicant has already been provided with the information under the GIPA Act or the former Freedom of Information Act 1989 (NSW) (FOI Act).
Right of internal review
Section 82(2) now prevents an applicant from seeking internal review of a reviewable decision also made by a member of a Minister’s personal staff. The aggrieved person therefore needs to seek external review by the Information Commissioner or the ADT.
Right of review by Information Commissioner
Amendment to section 89(2) provides clarity around the right to have a decision reviewed by the Information Commissioner. As before, if the aggrieved person is the access applicant, seeking internal review is not required before the Information Commissioner can externally review the decision. However, section 89(2) now makes provision for an aggrieved person to have a decision externally reviewed by the Information Commissioner if internal review of the decision is not available. This would be relevant in situations, for example, where a third party objected to the release of their personal information and the Principal Officer of the agency had made the original decision.
Reconsideration of matter by agency (s 93)
Where the Information Commissioner recommends reconsideration of a decision under section 93 of the GIPA Act, amendment to subsection (6) now states the agency cannot impose any charges as part of making its redetermination (including by way of an internal review). This means the $40 fee is no longer payable for the internal review of a decision pursuant to a recommendation of the Information Commissioner under section 93.
Requirements for notices given by agencies
The insertion of section 126(1)(1A) enables notices that an agency gives in response to an access application to be given by post (at the address provided under section 41(1)(d)), or such other method as may be agreed between the agency and the person concerned. This would enable, for example, an agency to communicate its decision of an access application to a person via email.
The OIC recommends that agencies clarify the preferred method of corresponding at an early stage in dealing with an application, and confirm that understanding in writing.
Annual report prepared on obligations of Ministers
Section 125(5) of the GIPA Act has been amended to enable the Minister administering the Act (that is, the Attorney General) to include the annual report required to be prepared on the obligations of each Minister (as an agency under the Act) in the annual report of the Department of Justice – prepared for the purposes of the Annual Reports (Departments) Act 1985.
While this change does not impact upon agency obligations and how they are required to apply the provisions of the legislation, it is useful to highlight that this information will no longer be found in the annual report of the Department of Premier and Cabinet.
Access to criminal records under Schedule 1
A new subclause under clause 1 of Schedule 1 of the GIPA Act now provides that there is no conclusive presumption of an overriding public interest against disclosure in relation to the disclosure of a spent conviction (within the meaning of the Criminal Records Act 1991) to the person who was convicted. This change effectively helps facilitate access to a person’s own personal information, reflected by amendment to the Criminal Records Act 1991 (NSW) which now provides that it is not an offence for an agency (that has a record of a spent conviction) to make information about the conviction available to the person who was convicted.
Legal professional privilege - Schedule 1
Clause 5(2) of Schedule 1 has been amended to make it clear that, where an agency receives an application for information over which another can claim legal professional privilege, the first agency can refuse the application with no requirement that the second agency consider whether to waive privilege. While this is an option now afforded to agencies through the rewording of clause 5(2), the OIC however considers that the most appropriate way of dealing with this situation is by transferring the application to the relevant agency, as this would prevent the applicant from having to make a new application to the relevant agency. For further information see our fact sheet on Legal Professional Privilege.
Amendment to Schedule 4 interpretative provisions
Insertion of clause 6A in Schedule 4 to the GIPA Act now provides that the Regulation may declare that a specified office, branch or other part of an agency is for the purposes of the GIPA Act to be regarded as being a separate agency to the agency of which it forms part.
For background context around the amendments to the GIPA Act, agencies may find it useful to refer to the explanatory note provided by the Government Information (Public Access) Amendment Bill 2011, accessible via the Parliament of New South Wales website.
For more information
Contact the Information and Privacy Commission NSW (IPC):
Freecall: 1800 472 679