Checklist for reporting a public interest disclosure (PID) alleging a government information contravention

The checklist below ensures that sufficient information is submitted for the Information Commissioner (IC) to decide on action to take.

You can make a disclosure to the Information Commissioner under the PID Act

The Public Interest Disclosures Act 2022 (PID Act) provides protection for a public official making a disclosure to the Information Commissioner that:

1. is made in accordance with the Government Information (Information Commissioner) Act 2009 (GIIC Act); and
2. is a disclosure of information that the person making the disclosure honestly believes, on reasonable grounds, shows or tends to show that a public authority or another public official has engaged, is engaged or proposes to engage in government information contravention.

Note: A decision of an agency that is reviewable under the Government Information (Public Access) Act 2009 (GIPA Act) cannot be the subject of a complaint to the Commissioner (even if the person is out of time to apply for review of the decision). See section 89 (4) of the GIPA Act.

What is a government information contravention?

There is no one easy definition of what is a government information contravention. The PID Act describes it as conduct of a kind that constitutes a failure to exercise functions in accordance with any provision of the GIPA Act.

Examples of what may be a failure to exercise functions include:

• charging a fee for open access information, which should be free of charge
• imposing conditions on the release of information under a formal access application
• failure to publish an open access policy
• intentionally overlooked documents that are clearly covered by an access application
• destroying, concealing or altering records to prevent them from being released
• knowingly making decisions that are contrary to the GIPA Act
• directing a person to make a decision that is contrary to the GIPA Act.

In making a complaint about a government information contravention, a complainant may identify the complaint under one of the offence provisions in the GIPA Act. It is preferable to describe the issue with as much detail as possible and where appropriate summarise of the conduct or the agency or public official rather than linking it to a specific offence provision.

What is an offence under the GIPA Act?

A person may make an allegation that an individual or individuals has committed one of the offences under the GIPA Act. There are five offences in sections 116 to 120 of the GIPA Act. These offences have penalties identified in the Act (100 penalty units – $11,000). The standard of proof for these offences is more than a balance of probabilities – it is a criminal standard, of beyond a reasonable doubt.

The offences are about the behaviour or conduct of persons and public officials, either by way of deliberate conduct or taking action or, alternatively, deliberately or knowingly not taking action.

See the IPC fact sheet on offences under the GIPA Act and fact sheet on safeguards to address misuse of the GIPA Act.

What is not a government information contravention and therefore not a matter that the Information Commissioner can deal with as a complaint?

• Reviewable decision under the GIPA Act
• Complaint about internal open access policy – for example that an internal policy relating to staff was not published on agency website under section 23 of the GIPA Act
• Complaint that searches were not undertaken
• Opinion that an agency is not following policy
• Complaint that recommendations by Information Commissioner in review were not adopted by the agency
• Decision by Tribunal in relation to external review about how the agency searched for the information may not mean that agency was engaged in an information contravention
• If the Tribunal has considered evidence and made a finding in relation to conduct of the agency in the handling of an access matter
• Opinion that a record should have been created does not necessarily mean it was created, and is not evidence that a record was destroyed.

These may go to agency processes or procedures and the Information Commissioner may, in considering the complaint, provide some guidance to the agency in relation to processes, or take other actions to address these issues, including referring to other agencies where appropriate.

How does the IPC manage reports or complaints about government information contraventions?

The Information Commissioner will apply the following principles in assessing a report or complaint made about government information contraventions:

• Impartiality
• Procedural Fairness
• Confidentiality
• Communication
• Standard of proof 
• Rules of evidence.

The IPC deals with all matters in a professional, objective, unbiased and fair manner.

Protection

Confidentiality is one of the main protections available under the PID Act. A complaint made to the Information Commissioner will be treated confidentially.

The Information Commissioner or her delegate will keep the identity of a person who makes a public interest disclosure confidential, where this is practical and appropriate. However, there may be circumstances where it may be necessary for information to be disclosed that may identify the person who has reported wrongdoing. In this situation, we will always discuss this with you prior to us taking any action.

Receiving a report or complaint

All complaints and reports received are carefully considered by the IPC and decisions are made about appropriate action. Following a report or complaint about government information contraventions the IPC will:

• register the matter on a database
• acknowledge receipt of the matter
• ask the complainant for more information if necessary
• if the matter is within the IPC’s jurisdiction, conduct an assessment, and then determine the action on the report or complaint.

Action on a report or complaint

Following assessment, further action to address the issues may include:

• investigate, either agency systems policies and practices under section 21 of the Government Information (Information Commissioner) Act 2009 (GIIC Act); or a complaint under section 22 of the GIIC Act
• develop advice for the agency concerned, or all agencies if the matter is about systemic problems and there is a gap in the guidance available to agencies on the systemic problems
• refer the matter to another agency if it is outside the authority of the IPC
• take no action because the matter complained about is a reviewable decision under the GIPA Act.

Importantly, while not all complaints are investigated, all complaints are recorded so further action can be taken if a pattern of complaints or non-compliance emerges in the future in relation to the agency complained about.

Advising the complainant

The IPC aims to notify the individual who submitted the allegations of government information contravention of the planned action and reasons as soon as possible. Wherever possible the person who has made the complaint will be kept informed about how the IPC is dealing with the matter.

Investigate

If an investigation is required under either section 21 or 22 of the GIIC Act the Information Commissioner is required to:

• give notice of the decision to investigate;
• give the complainant and the agency an opportunity to make submissions on the subject matter of the investigation;
• in the case where there may be adverse comments about a person or agency, that person or agency is informed and is also given an opportunity to make submissions;
• prepare a report on the investigation and may provide the report to the Minister responsible for the agency, the principal officer of the agency, and the complainant.

Outcomes

Outcomes of an investigation must be reported in terms of sections 21 and 24.

The IPC may refer the outcome of an investigation into a complaint about conduct that may constitute an offence to the Director of Public Prosecutions. This is because under section 128 of the GIPA Act proceedings for the offences under the GIPA Act may only brought by or with the authority of the Director of Public Prosecutions or the Attorney General.