Informal release of information

Informal release of information (PDF, 88kb)

The Government Information (Public Access) Act 2009 (NSW) (GIPA Act) provides for government information to be released in four ways:

  1. Mandatory proactive release
  2. Authorised proactive release
  3. Informal release, and
  4. Release subject to a formal access application.

The Information and Privacy Commission (IPC) has released guidance material on the type of open access information agencies must make available on a mandatory and proactive basis, and has produced templates to assist agencies to deal with formal access applications.

For guidance regarding open access information, see GIPA Act sections 6 and 18 and the examples provided in the open access information fact sheet.

In relation to the procedures for dealing with formal applications, see GIPA Act Part 4 and the templates provided on the IPC website.

The GIPA Act provides agencies with a considerable discretion concerning the information they may consider releasing informally. To assist agencies with the ‘informal release’ provisions of the GIPA Act, this knowledge update deals with:

  • what ‘informal’ release means
  • the circumstances when agencies should consider releasing information informally
  • what might be considered ‘reasonable conditions’ on informal release
  • how the release may be authorised, and
  • whether informal release should be recorded.

This update includes an example of a hypothetical agency that exercises a range of functions and holds a variety of information.

We have chosen to use a broad hypothetical example that has relevance across portfolios. Agencies may draw guidance from the example to suit their own circumstances. The example is not intended to limit the type of information that can, or should, be given out informally.

Informal release of information

Section 8 of the GIPA Act provides:

   (1)  An agency is authorised to release government information held by it to a person in response to an informal request by the person (that is, a request that is not an access application) unless there is an overriding public interest against disclosure of the information.

   (2)  An agency can release government information in response to an informal request subject to any reasonable conditions that the agency thinks fit to impose.

   (3)  An agency cannot be required to disclose government information pursuant to an informal request and cannot be required to consider an informal request for government information.

   (4)  An agency can decide by what means information is to be released in response to an informal request.

   (5)  An agency can facilitate public access to government information contained in a record by deleting matter from a copy of the record to be released in response to an informal request if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record.

   (6)  The functions of an agency under this section may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.

The discretion given to agencies under section 8 in terms of whether they release information, and the conditions they impose on release, need to be exercised in accordance with the objects of the GIPA Act as set out in section 3:

   (1)  In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

          (a)  authorising and encouraging the proactive public release of government information by agencies, and

          (b)  giving members of the public an enforceable right to access government information, and

          (c)  providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)   It is the intention of Parliament:

          (a)  that this Act be interpreted and applied so as to further the object of this Act, and

          (b)  that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

What does informal mean?

Informal release will occur when an agency gives out information in response to a request, without requiring the person requesting it to lodge a formal application under Part 4 of the GIPA Act.

Section 8 removes the red tape from disclosing information, and can be applied and interpreted flexibly. Agencies can decide how information is released: by phone, email, letter, fax, or in person. Most agencies already release information in this way. This practice will not change, and is indeed encouraged, under the GIPA Act. However, agencies may now choose to release additional information informally, that previously might have required a formal request under the Freedom of Information Act 1989 (FOI Act).

Informal release is not limited to particular documents or types of information.

Section 8 can cover the informal release of open access information that is done every day, such as when front counter staff distribute brochures or provide information over the phone in response to requests from members of the public. It can also cover requests for other, more specific information, such as personal records or copies of correspondence (see below for the authorisation requirements for informal release).

Protection from liability

Staff of agencies who decide to release information informally, and who believe in good faith that the decision is permitted or required by the GIPA Act, are not exposed to any personal liability, or to any action in defamation or breach of confidence, that may result from the disclosure (see sections 113 and 115). Section 114 also protects staff from criminal liability that may arise merely because of a decision to disclose information made in good faith under the GIPA Act.

When should agencies consider releasing information informally?

Agencies may release any information informally unless there is an overriding public interest that would prevent this. It is not possible or desirable to prescribe in advance the circumstances in which information should be released informally. This will depend on the context of each request, and will be different for each agency.

However, some general guidance may be helpful. Some relevant questions for agencies to ask themselves regarding informal release of information include:

  • Is it in the public interest to release the information to the person or organisation requesting it?
  • If an individual requests the information, is it his or her personal information?
  • Can any sensitive information, including information about a third party, be easily deleted, allowing the rest to be released?
  • Could a summary of the information be easily and quickly prepared if it is not possible to release all of the information?
  • Is the information relatively simple to search for and obtain?

If the answer to any of these questions is ‘yes’, and there is no overriding public interest against disclosure, then agencies should consider releasing the information in the most appropriate format without requiring a formal application.

Agencies retain the discretion to require a formal application to be lodged in appropriate circumstances. Some examples may include where:

  • searching for and retrieving the information sought would require a significant diversion of resources
  • the material contains information about a third party that cannot be deleted easily or without rendering the information useless, and consultation would need to occur, or
  • the material is sensitive in nature and requires careful balancing of public interests.

What conditions might be considered reasonable?

Section 8 assists agencies to impose ‘reasonable conditions’ on the informal release of information. This is a benefit to agencies that they do not have when releasing information under a formal access application.

The conditions that may reasonably be imposed will depend greatly on the circumstances and context of each request.

Three frequently asked questions about ‘reasonable conditions’ are:

  • Would a reasonable condition include charging for photocopying or imposing other processing charges?
  • Can an agency place conditions on how information may be accessed or used?
  • Is it reasonable to place a time limit on meeting informal requests?

Charges

The GIPA Act is very specific in setting out the circumstances in which fees and charges may be imposed. However, section 8 is silent on the question of charges. Therefore, there is no legislative authority to charge for the informal release of information under section 8.

Where it is not feasible to release the information for free, for example where the volume is too great, or the request is not specific enough, agencies could consider inviting the person making the request to view the documents, and provide access to photocopying facilities that the person may use at his or her expense.

Where the information would involve significant cost to obtain and disclose, a further option would be to suggest that a formal application be lodged. While this would require the applicant to pay a fee and may incur processing charges, the applicant would have the right to seek review of decisions about access and charges in accordance with Part 5 of the GIPA Act. This right does not exist in relation to informal release.

Conditions on access and use

Section 8(4) provides that agencies are able to decide how information is released in response to an informal request. It may be reasonable in some circumstances for agencies to limit the way in which the information may be accessed or used. For example, where material is subject to copyright, it would be reasonable for an agency to permit ‘view only’ access, and not permit photocopying.

Time limits

In accordance with the objects of the GIPA Act, agencies should endeavour to meet requests for information promptly. However, where providing the information in response to an informal request would take staff away from their other duties for a significant amount of time, it may be reasonable to impose a time limit beyond which a formal application may be required.

Time limits should be interpreted and applied flexibly, however, and adjusted depending on factors such as:

  • the size of the agency
  • the number of staff at work on that day, and
  • whether the person making the request has any special needs.

If an agency decides that meeting an informal request for information would take an unreasonable amount of time, it should explain to the person making the request that a formal application would be the best way to proceed. Agencies should also point out that although this would involve charges, it would also enable the information request to be considered in greater depth, and provide a right of review.

Authority to release information

Under section 8, an employee releasing information informally under the GIPA Act must be authorised to do so by the principal officer of that agency. That authorisation may be general or specific.

Authorisations under section 8 may constitute a formal delegation, but do not have to be in this form. For example, if a job description requires a person to provide information and assistance to the public or to other agencies, then this serves as a general authorisation to release certain types of information informally.

In certain situations, agencies may wish to authorise specific staff to release particular types of information. An example may be authorising a division head to approve the informal release of correspondence.

Authorisations can take the form that best suits each agency. The key factor is that managers and staff discuss how they will release information they hold informally to ensure that everyone is confident of their obligations under section 8.

Can agencies suggest that a formal application be dealt with informally?

Yes. If an agency receives an access application, they may contact the applicant and suggest that the request could be dealt with informally. The agency would need to explain to the applicant that this would mean they did not have to pay an application fee, but that they would not have any review rights.

Should agencies record the information released informally?

Agencies are not required to report under the GIPA Act on the information they release informally, and the IPC is not currently planning to ask for any statistics or other details.

However, agencies may decide to keep their own records concerning the information they release informally and any conditions attached to release. They may choose to do this to monitor the type of requests they receive so that any information requested repeatedly may be released proactively.

 Agencies should keep in mind that any records generated regarding informal release will need to comply with the requirements of the State Records Act 1998 (NSW) (see http://www.records.nsw.gov.au).

What if there are repeated requests for the same information?

If agencies receive repeated requests for the same type of information, it is a good indication that this information is of general interest to the public. Agencies may wish to disclose it proactively, subject to any overriding public interest considerations. This would save time and agency resources dealing with the same types of requests over and over again, and satisfy the public interest in favour of disclosure.

For more information

Contact the Information and Privacy Commission NSW (IPC)

Freecall: 1800 472 679

Email: ipcinfo@ipc.nsw.gov.au

 

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