E-learning package for the Government Information (Public Access) Act 2009 (GIPA Act) February 2012 Updated to reflect GIPA Amendment Act 2011

Topics – Module 1 1.IntroductionIntroduction 2.Objectives of the GIPA ActObjectives of the GIPA Act 3.Role of the Information CommissionerRole of the Information Commissioner 4.A snapshot of the GIPA ActA snapshot of the GIPA Act 5.When does the GIPA Act apply?When does the GIPA Act apply? 6.Decision-making under the GIPA ActDecision-making under the GIPA Act 7.Applying the public interest testApplying the public interest test 8.Open access informationOpen access information  Agency information guide  Register of government contracts  What agencies need to do 9.Proactive releaseProactive release  What agencies need to do 10.Informal releaseInformal release  What agencies need to do 11.Formal access applicationsFormal access applications  What agencies need to do 12.Review of agency decisions under the GIPA ActReview of agency decisions under the GIPA Act 13.Overall effect of the GIPA ActOverall effect of the GIPA Act 14.Quick quizQuick quiz 15.Further informationFurther information 16.AppendicesAppendices (To access links, view this presentation in slide show mode)

Introduction The Government Information (Public Access) Act 2009 (GIPA Act) replaced the Freedom of Information Act 1989 (FOI Act). This e-learning package will take you through the changes that the GIPA Act makes. By the end of the e-learning you will understand: the objectives of the GIPA Act the role of the Information Commissioner the key features of the GIPA Act the different ways that information can be released staff responsibilities under the GIPA Act. The e-learning module is intended to provide a basic introduction to the GIPA Act. Links are provided, where relevant, to more detailed information, to sections of the GIPA Act or to other documents created by the Information and Privacy Commission NSW (IPC) This training should take you about 20 minutes to complete. To get the greatest benefit from this package you are encouraged to work through the slides, questions, hyperlinks and appendices in detail and complete the quick quiz. Back to menu

Objectives of the GIPA Act The GIPA Act creates rights to information that are designed to meet community expectations of more open and transparent government. It encourages the routine and proactive release of government information, including information held by providers of goods and services contracted by government agencies. Many agency staff deal with requests for information from the public in some form on a daily basis. This training will help you to: understand the spirit of the GIPA Act and what it means for you in your daily work comply with the GIPA Act. Back to menu

Role of the Information Commissioner The Information and Privacy Commission NSW (IPC) was established to incorporate the roles of the Information Commissioner and the Privacy CommissionerIPC The role of the Information Commissioner is to promote public awareness and understanding of the right to information law, as well as to provide information, support, guidance, assistance and training to agencies and the general public The IPC will continue to publish guidance material for agencies and information for the public on the IPC website The Information Commissioner is also responsible for dealing with complaints about agency conduct under the GIPA Act. Back to menu

A snapshot of the GIPA Act Release of information: The GIPA Act establishes four ways for government information to be made available to the public. 1. Mandatory disclosure of open access information Agencies must publish certain information on their website, free of charge. 2. Proactive release Agencies are encouraged to proactively release as much government information as possible, in an appropriate manner and free of charge (or at the lowest reasonable cost). 3. Informal release Agencies are encouraged to release information in response to a request without the need for a formal application, unless there are good reasons to require one. 4. Formal access application In limited circumstances, access to information will require a formal access application. People have a right to access information in this way unless the GIPA Act provides a reason to withhold the information. Back to menu

When does the GIPA Act apply? Many agency staff release information to the public, often on a routine basis. For example you may be responsible for: dealing with public inquiries at an information counter responding to correspondence or informal requests for information ensuring that your agency’s web page is up to date and contains all relevant information. What information do you release on a routine basis?  Take the time to list all the types of information you or your agency routinely releases. Back to menu

When does the GIPA Act apply (cont’d) The GIPA Act does not change your ability to release information that is routine and not controversial. You should continue to respond to the public and provide or publish information as you would normally. Examples of information that is routine or not controversial: A list of dangerous toys that have been banned from being imported into Australia. A map of locations of permanent speed cameras. The steps required to obtain your learner driver license. The details on how to report a missing person. Back to menu

When does the GIPA Act apply (cont’d) When the information is sensitive or is information that you would not have previously released, think about whether the information should be released under the GIPA Act. The Act encourages proactive and informal release of information by protecting you from liability for decisions about information that are made in accordance with the Act. Examples of information that you may consider releasing informally under the GIPA Act are: a client requests a copy of their personnel file. The file only includes their personal information. The agency may decide to release that information to the individual only, once they have proved their identity. statistical information of the number of car crashes in a particular suburb. Can you think of some examples that would be relevant to your agency?  Write down likely or common circumstances where you or your agency can informally release information. Back to menu

Decision-making under the GIPA Act What do I need to consider when deciding to release information? A ‘public interest test’ applies to decisions to release information under the GIPA Act. There is a general presumption that information can be released unless there is an overriding public interest against disclosure When you receive a request for information that is not routinely disclosed, you will need to step through the public interest test, with its bias in favour of disclosure. Back to menu

Decision-making under the GIPA Act (cont’d) You are protected The GIPA Act protects you from potential civil and criminal liability associated with the release of government information as long as your decision to release the information was made: in good faith, and with the authority of your principal officer (for government departments, the principal officer is your Chief Executive or Secretary). The manner in which information was released (e.g. informally, proactively, in response to a formal access request) does not affect these protections. Back to menu

Decision-making under the GIPA Act (cont’d) Authority to release information Your principal officer can grant general authority to release information under the GIPA Act, for example through: a memo stipulating that all managers are authorised to proactively and informally release information under the GIPA Act, or your job description. Principal officers are encouraged to grant broad authority to proactively release information under the GIPA Act. This can avoid creating ‘bottlenecks’ in the decision-making process that may slow the release of information and frustrate the purpose of the GIPA Act. Generally, only formal requests for information under the GIPA Act should be managed by Right to Information Officers, or staff specifically authorised to process formal requests. Back to menu

Applying the public interest test In dealing with non-routine requests for information under the GIPA Act, you should ask yourself three basic questions: 1.Are there public interest considerations against disclosing the specific information? 2.What are the public interest considerations in favour of disclosing the specific information? 3.Do the public interest considerations against disclosure outweigh those in favour of disclosure? In order to answer the third question you will need to identify the specific considerations both for and against disclosure and balance them to see if there is an overriding public interest against disclosure. Back to menu

Applying the public interest test (cont’d) Public interest considerations The GIPA Act provides a complete list of public interest considerations against disclosure under section 14. These are the only considerations against disclosure that you may consider in applying the public interest test. For an overview click here.section 14here The GIPA Act does not limit the public interest considerations in favour of disclosure that you may take into account, but provides some examples.some examples In making a decision about whether to release information, the GIPA Act prohibits you from taking the following into account:  that disclosure might cause embarrassment to, or loss of confidence in, the government or an agency and  that any information disclosed might be misinterpreted or misunderstood by any person. Back to menu

Applying the public interest test (cont’d) Conclusive presumption of an overriding public interest against disclosure There are 12 categories of information (and detailed content of these categories) listed in Schedule 1 of the GIPA Act that you are not authorised to release. The categories are:Schedule 1 1.Information subject to an overriding secrecy law (26 specifically named Acts) 2.Cabinet information 3.Executive Council information 4.Information subject to the direction or order of a court or other body with the power to receive evidence on oath, or to Parliamentary privilege 5.Information subject to legal professional privilege 6.‘Excluded information’ (judicial and prosecutorial information, information about complaints handling and investigative functions, competitive and market sensitive information, information in relation to specific functions of the NSW Trustee and Guardian, and information about the ranking and assessment of students completing the Higher School Certificate) 7.Documents affecting law enforcement and public safety 8.Specific information relating to transport safety 9.Specific information relating to adoption procedures and records 10.Specific reports concerning the care and protection of children 11.Information contained in the Register of Interests kept pursuant to the Ministerial Code of Conduct 12.Specific information relating to Aboriginal & environmental heritage. Back to menu

Open access information The GIPA Act makes it mandatory for all agencies to publish open access information on their website, unless there is an overriding public interest against disclosure of the information. Open access information includes: information about your agency’s policies, structure and functions documents tabled in Parliament on your agency’s behalf your agency’s policy documents your agency’s agency information guide your agency’s disclosure log, containing details of information released in response to formal applications, where that information may be of interest to other members of the public your agency’s register of government contracts general details of any open access information that is not published because there is an overriding public interest against disclosure. Back to menu

Open access information (cont’d) Some examples of open access information are:  Code of conduct  state and regional environmental planning policies  Equal Employment Opportunities policy  the organisational structure of NSW Health. Back to menu

Open access information (cont’d) Register of government contracts Every agency must publish information about government contracts that have (or will likely have) a value of $150,000 or more. Information about the contract must be entered in the register within 60 days of the contract, or a contract variation, becoming effective. The information that must be published varies depending on the nature of the contract: Details of the contract itself must be published for all contracts valued at $150,000 or more (class 1 contracts). These details are listed in section 29 of the GIPA Act.section 29 Additional information is required for class 2 contracts. Class 2 contracts are defined in section 30(1) of the GIPA Act, and include, for example, contracts where there has been substantial renegotiation of terms after a tender process, or contracts that will be privately financed. The additional information required is listed in section 30(2) of the GIPA Act.section 30(1)section 30(2) For contracts valued at $5 million or above (class 3 contracts), the register must include a copy of the contract. Back to menu

Open access information (cont’d) Register of government contracts Confidential information can be excluded from contracts published in the register. There are additional exceptions for (see Part 3, Division 5 of the GIPA Act) for industry support contracts, government contracts of state owned corporations [state-owned] and Landcom contracts for the sale of land.industry support contractsstate owned corporationscontracts for the sale of land An agency’s register must: with the exception of universities, local councils and state-owned corporations, be published on the NSW Government tenders website, andtenders website be publicly available on the agency’s website or in some other manner. Back to menu

Open access information (cont’d) What do agencies need to do? In order to comply with the mandatory publication of open access information, Senior Managers will need to: review material previously provided for the FOI Statement of Affairs and provide any additional information required by section 20 of the GIPA Act (publication guide) section 20 review the policy documents relevant to your business area and consider whether section 23 of the GIPA Act requires them to be published andsection 23 review the requirements for publication of government contracts in Part 3, Division 5 of the GIPA Act.Part 3, Division 5 Back to menu

Proactive disclosure Under the GIPA Act, agencies are encouraged to proactively release government information in any manner they consider appropriate. The Act indicates that information should be made available either free of charge or at the lowest reasonable cost to the agency. For example: An agency has completed a discussion paper on a new biodiversity strategy. The agency may decide to publish the paper on their website as something which may be of interest to the public. What documents would be usefully placed on your agency’s website? Agencies must review their program for proactive release of information at least every 12 months to identify the kinds of information that the agency should, in the public interest, proactively release. Back to menu

Proactive disclosure (cont’d) What do agencies need to do? In preparation for the GIPA Act, Senior Managers should consider: 1.What kinds of information does your business area hold that could be of interest to the public? 2.Is there an overriding public interest against disclosing this information? 3.Could any overriding public interest against disclosure be overcome by deleting parts of the information? 4.Are there processes you can set up in your business area to prompt people to consider whether information/documents can be proactively released? Other staff: As you prepare documents or information as part of your normal duties, consider whether they could be made publicly available, and notify your Senior Manager of any documents or information that could be published. The GIPA Act encourages agencies to proactively release government information in any manner they consider appropriate. This information should be made available either free of charge or at the lowest reasonable cost to the agency. Back to menu

Informal release If information has not already been publicly released, agencies are encouraged to release it through an informal process, as long as there is no overriding public interest against disclosure. Some considerations that may assist an agency to release the information informally are that agencies can: delete certain parts of a document, if including the deleted information would create an overriding public interest against disclosure release the information subject to reasonable conditions release the information in whatever form they prefer. Back to menu

Informal release (cont’d) For example: A person requests the file that deals with their letter to the Minister regarding bike paths in New South Wales. The file includes the person ’ s letter to the Minister, the response from the Minister (that has already been sent to the applicant), some research information obtained from the internet and a Cabinet Minute regarding the development of new bike paths. You may decide to allow the applicant to have a copy of the file except for the Cabinet Minute, as the rest of the information in the file is either personal information or publicly available. This means that a formal application can be avoided. Back to menu

Informal release (cont’d) However, in some limited circumstances your agency may decide that a formal application is required. This may occur, for example, where the GIPA Act requires consultation with other agencies or third parties to take place before information is released, or where the scope of the request means that it will take significant agency resources to provide the information. What agencies need to do Consider whether the information that has been requested can be released in full or in part without requiring a formal access application. Review the public interest considerations before making a decision under the GIPA Act. Back to menu

Formal access applications In some limited circumstances, people seeking access to government information will need to make a formal request for that information, e.g. where consultation with other agencies or third parties is required, or where the scope of the request means that it will take significant agency resources to provide the information. Under the GIPA Act, people have a right to any information they request through a formal access application, unless there is an overriding public interest against disclosure. The GIPA Act provides strict timeframes for formal access applications. If an application is not decided within time, your agency must refund the application fee, and is not permitted to charge a processing fee for the application. Back to menu

Formal access applications (cont’d) Your agency’s Right to Information Officer (RIO) will most likely deal with formal access applications. Your RIO will ask various people within your agency to search for information in order to respond to these applications. It is essential that you provide information to your RIO in a timely manner, as the application fee must be refunded if an application is not decided within time. When information is released in response to a formal request, agencies should consider whether:  information about the access application should be included in their disclosure log (because other members of the public may be interested in accessing the information)  the information can be made publicly available. Back to menu

Review of agency decisions under the GIPA Act Many decisions made about the release of information under the GIPA Act can be reviewed by the:  agency (internal review)  Information Commissioner, or  NSW Civil and Administrative Tribunal (NCAT). A member of the public who wants an internal review of an agency’s decision must apply within 20 working days of being notified of the decision. Applications to the NCAT or the Information Commissioner must be made within 40 working days of the person being notified of the decision. Applicants can choose which form of review they prefer. The GIPA Act does not require applicants to ask for internal review before seeking a review by the Information Commissioner or the NCAT. However, if an application is made to the NCAT, the Act prevents subsequent applications for internal review or reviews by the Information Commissioner. A third party may also seek a review by the Information Commissioner automatically if internal review is not available, for example, if the Principal Officer of the agency had made the original decision Decisions by agencies not to publish open access information or informally release information are not reviewable. However, the Information Commissioner has broad powers to investigate complaints about these decisions. Back to menu

Overall effect of the GIPA Act What do agencies need to do? Publish an extended range of information (open access information) Encourage and enable proactive and informal release of other information Release routine and non-sensitive information as before Process formal applications for information that cannot be released in any other way. Remember: Members of the public can seek reviews of many of the decisions made under the GIPA Act Decisions made according to the terms of the GIPA Act are protected. Back to menu

Quick quiz 1.What do you do if someone is asking for routine information that is already publicly available? a.Tell the person that it is already available. b.Provide the information or direct the person to the information. c.Ask the person to make a formal application. d.Identify and balance the public interest considerations for and against disclosure, and provide the information if there is no overriding public interest against disclosure. 2.What do you do if someone is asking for his or her personal information? a.Give them the information. b.Provide the information informally, if there are no public interest considerations against disclosure. c.Ask the person to make a formal application. d.Delete the . Back to menu

Quick quiz (cont’d) 3. What do you do if someone is asking for a small amount of information easily accessible to you? a.Give them the information. b.Provide the information informally, if there are no public interest considerations against disclosure. c.Ask the person to make a formal application. d.Delete the What do you do if someone is asking for a lot of information and/or the information is not easily accessible to you? a.Find the information and provide it. b.Identify and balance the public interest considerations for and against disclosure, and provide the information if there is no overriding public interest against disclosure. c.Advise the person that you think they will need to make a formal application and contact your Right to Information Officer (RIO). d.Ignore the request. Back to menu

Quick quiz (cont’d) 5. In what circumstances does the GIPA Act protect your decision about releasing information? a.Never b.If the decision was made in good faith c.If you have a general authority to release information from your principal officer d.Always e.b and c. 6. What do you need to think about before directing someone to make a formal application? a.Is the information already publicly available? b.Is it a request for personal information? c.Can you release the information informally? d.Does the request require a substantial effort to identify and assess the information requested? e.All of the above. Back to menu

Quick quiz (cont’d) 7. Who can you contact if you are unsure about how to deal with a request for information or your obligations under the GIPA Act? a.Your RIO b.The IPC c.Your Senior Manager d.All of the above. 8. Who can review a decision? a.The Information Commissioner b.The Ombudsman c.The NCAT d.The agency that made the original decision e.All of the above f.a, c and d. Back to menu

Quick quiz (cont’d) 9. Information about government contracts must be published when: a.The contract is over $150,000 b.The contract is over $150,000 and it does not fall within one of the exemptions c.The contract is over $250,000 d.The contract is over $250,000 and it does not fall within one of the exemptions. 10. Formal applications should be used: a.As a last resort b.Whenever the information is not already publicly available c.When the applicant has been rude to you d.As often as possible to ensure caution. Back to menu

Answers Thank you for completing the GIPA Act E-learning Module 1 1.b 2.b 3.b 4.c 5.e 6.e 7.d 8.f 9.b 10.a Back to menu

Further information If you have any questions or for assistance please call the IPC on free call: 1800 IPC NSW ( Website: Back to menu

Appendices Public interests against disclosure The GIPA Act provides an exhaustive list of public interest considerations against disclosure under section 14. These are the only considerations against disclosure that you may consider in applying the public interest test.section 14 Considerations are grouped under the following headings:  Responsible and effective government For example, if Police Force NSW have a policy as to the times and locations Random Breath Tests take place, if this was revealed it may prejudice the effective exercise of the agency’s function to detect drunk drivers.  Law enforcement and security For example, if someone requests information about the informant for an offence they have served time in prison for.  Individual rights, judicial processes and natural justice For example, if the information would reveal unsubstantiated claims against a person.  Business interests of agencies and other persons For example, revealing information that a company has developed that would give their competitors an advantage.  Environment, culture, economy and general matters For example, a document details the location of a threatened species of plant. If the location of that tree is revealed, there is a risk that people could find and damage the threatened tree causing it to become extinct. This would be a real public interest consideration against releasing the information.  Secrecy provisions (in legislation other than those listed in Schedule 1)  Exempt documents under interstate Freedom of Information legislation. Back to page

Appendices (cont’d) Some examples The Act allows for consideration of any public interest in favour of disclosure. It provides some examples of factors that you may consider. Examples listed in the GIPA Act are: promoting open discussion of public affairs, enhancing government accountability or contributing to positive and informed debate on issues of public importance informing the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public ensuring effective oversight of the expenditure of public funds the information is personal information of the person to whom it is to be disclosed revealing or substantiating that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. In making a decision about whether to release information, you may consider any other relevant factors that favour disclosure. Back to page