On 1 July 2010 new right to information legislation came into effect, the Government Information (Public Access) Act 2009 (NSW) (GIPA), repealing and replacing the Freedom of Information Act 1989 (NSW) (FOI Act).
As part of this reform, the GIPA Act:
- upholds rights to information that are designed to meet community expectations of more open and transparent government;
- maintains there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure;
- authorises and encourages government agencies to proactively release government information;
- makes it possible for government agencies to release information informally, without the need to submit a formal access application;
- requires that a government agency must release information unless there is an overriding public interest against disclosure;
- provides applicants with review rights around information access decisions.
Release of information by Council under the GIPA Act will be determined by the public interest test. As provided by section 13 of the Act, there is an overriding public interest against disclosure of information if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
You can find out more about right to information, the public interest test and the ways to access government information under the GIPA Act on the NSW Office of the Information Commissioner (OIC) website at www.oic.nsw.gov.au. The OIC is an independent statutory authority responsible for overseeing the provisions of the GIPA Act. Please note the OIC does not and is unable to provide legal advice to stakeholders.
Accessing Council Information
There are four ways in which government information is available under the GIPA Act:
- Mandatory release: Certain information, referred to as open access information, must be published on the agency's website, free of charge.
- Proactive release: Beyond mandatory release, agencies are encouraged (and authorised) to release as much government information as possible.
- Informal request: Agencies are encouraged to informally release information, by excusing the need for a formal application (and fee) to be submitted.
- Formal application: This is the last resort if information is not accessible in any of the above 3 ways. Decisions made in response to formal applications can be reviewed.
How can I get council information?
Open access information
Council is required to publish the following open access information under section 18 of the GIPA Act:
- current publication guide
- documents tabled in parliament
- policy documents
- disclosure log of access applications
- register of government contracts
- record of open access information not publicly available
- other information as prescribed by the regulations as open access (see below)
Council is required to publish the following additional open access information under Schedule 1 to the Government Information (Public Access) Regulation 2009 (NSW) (GIPA Regulation):
• Information about council
• Council Plans and Policies
• Information about development applications
• Information about approvals, orders and other documents
Under section 7(3) of the GIPA Act, Council is required to review its proactive release program at least every 12 months, to identify any information we hold that should in the public interest be made publicly available. Clear here to access the information Council has made proactively available.
The informal release provisions under section 8 of the GIPA Act provides Council with the authority to release information without the need for a formal access application.
Information can be informally requested from Council by contacting the Right to Information Officer.
Please note the GIPA Act provides no statutory timeframe by which informal requests must be decided within. Council is not required to disclose government information pursuant to an informal request and is also not required to consider an informal request for government information (s8(3)). Council can decide however by what means information is to be released in response to an informal request (s8(4)).
Making a formal access application
If information can't be accessed through any of the above avenues, a formal access application can be submitted to Council. Council will request a formal application be made for information only as a last resort, likely necessary if an applicant asks for a large volume of information, if providing access would involve an unreasonable diversion of resources on behalf of Council (i.e. extensive search, retrieval from archives), or if the information sought involves personal or business information about third parties that must be consulted before the information can be released.
Section 41 of the GIPA Act lists the formal requirements for making a valid access application:
- it must be in writing sent to or lodged at Council;
- it must clearly indicate that it is an access application made under the GIPA Act;
- it must be accompanied by a $30 application fee;
- it must state a postal address in Australia as the address for correspondence in connection with the application;
- it must include such information as is reasonably necessary to enable the government information applied for to be identified.
Upon receipt of a valid access application, Council must give the applicant notice of its decision within 20 working days, although this time can be extended under section 57(2) to consult with third parties or retrieve information from archives. Processing charges at a rate of $30 per hour may also apply as part of deciding the application.
Applicants aggrieved with a reviewable decision set out under section 80 of the GIPA Act have the right to request a review of that decision. This fact-sheet outlines available review rights under the GIPA Act. http://www.oic.nsw.gov.au
Where can I get more information about right to information?
- Go to www.oic.nsw.gov.au
- Email firstname.lastname@example.org
- Mail GPO Box 7011, Sydney NSW 2001
- Visit Level 11, 1 Castlereagh Street, Sydney NSW 2000
- Call 1800 INFOCOM (1800 463 626) between 9am to 5pm, Monday to Friday (excluding public holidays).