1. Managing the public’s rights to government information Agency Module 2a

2. Instructions for using this package 1.It is expected the Agency Module 1 – GIPA introduction will have been will have been completed prior to participating in this module.Agency Module 1 – GIPA introduction 2.To make best use of this e-package, view it in slide show mode. 3.At times there will be extra text or examples shown by highlighted and underlined text. Just click your mouse on the underlined word to see the extra information that is of interest to you. Then click on return < to go back to the original slide. 4.There will be review questions to consider throughout the package and a quiz at the end. 5.If your staff do not have access to the Internet, you may save and post this package to your own intranet with appropriate acknowledgement to the Information Commissioner.

3. Purpose This module has been designed to provide specific, practical information and support for agencies to meet the new rights to information requirements of the GIPA Act. The GIPA Act is designed to meet community expectations for more open and transparent government.

4. Topics covered 1. Open access information or mandatory releaseOpen access information or mandatory release 2. Proactive release of informationProactive release of information 3. Informal requests for informationInformal requests for information 4. Formal access applicationsFormal access applications 5. Identity protection & privacy issuesIdentity protection & privacy issues 6. Reviewable decisions and rights of reviewReviewable decisions and rights of review 7. Protections and offences under the GIPA ActProtections and offences under the GIPA Act 8. Tools to assist and where to from hereTools to assist and where to from here 9. QuizQuiz For further information on contracts see Agency Module 2b and for specific information for local government see Agency Module 2c

5. Open access information or mandatory release Section 1 Back to menu

6. What is open access information? The GIPA Act requires proactive information disclosure by all NSW government agencies. Open access information is the information that agencies must publish and make otherwise publicly available either free of charge or at the lowest reasonable cost to the agency. Back to menu

7. What does open access mean for you? The GIPA Act: Sets out what information has to be published and maintained on your website (called ‘mandatory proactive release of open access information’), and Authorises you to proactively release (i.e. make publicly available) other government information unless there is an overriding public interest against disclosure of this information. Back to menu

8. What the legislation says about open access information Section 18 of the GIPA Act lists the open access information that all agencies, including local councils, must publish. Your policy documents (e.g. those that affect the rights, privileges or obligations of the public – s23) An agency information guide A register of contracts (e-learning module 2b covers more on contracts)A register of contracts A disclosure log A record of information you have not disclosed because of an overriding public interest against disclosure (the nature of the information and reasons not disclosed) Any documents about your agency tabled in Parliament (your annual report, and other reports ) Here is an example of how this open access information mightan example look on your website. Back to menu

9. The agency information guide The agency information guide (formally publication guide) describes your structure and functions, and how these functions affect the public. It also provides an easily accessible list of all your policy documents and other information you hold. It may also refer to elsewhere on your website for information on who you are, what you do, where you are located, how to contact you, how to give you feedback and so on. Return <

10. The contract register The government contracts register records information about all contracts you have entered into with private sector entities or individuals with a value of $150,000 or more. This information has to be entered within 45 working days after the contract becomes effective. The amount of information recorded may depend on the nature of the contract. For example, if the contract is valued at $5 million or more, there must be a copy of the contract available. Return <

11. The disclosure log The disclosure log records information you have already disclosed under a formal access application that you think might be of interest to other people as well. The disclosure log is not to reveal information about specific individuals, but information of general interest to the community. The disclosure log is to provide: the date the application was decided; a description of the information; and how the information can be accessed. A person may object to information being published in a disclosure log, but an agency may still publish information on its disclosure log after considering any objections and review right periods have expired. Return <

12. What the legislation says about open access information Section 6 requires all agencies (including local councils) to have their open access information publicly available on their website unless this would impose an unreasonable additional cost on the agency. If this is the case, you must make sure the information is freely available in some other format. You may charge for open access information, as long as it is available for free in at least one format. Back to menu

13. Review question Back to menu What other formats, beyond your website, might your open access information be made freely available to the public? Review your ideas here!

14. Review response Return < You might have suggested printed copies of some information or available for viewing and copying at your premises.

15. Practical things you can think about & do Establish a website and/or have new link/page on your website for “Open Access Information” Review the information you already make publicly available Review what sort of information you are regularly asked for (might be useful to see if you can proactively release this in some format) and establish a proactive release plan Set up a review timetable and process – e.g. you have six months to adopt your agency information guide from date of commencement of the Act and your agency information guide is to be reviewed and updated at least every 12 months Remember to keep the information on your website current and accessible e.g. include a contents section, archive material periodically (but make sure you can easily retrieve it). Back to menu

16. Tools to assist IPC web resources: Good Practice for Creating Agency Information Guides knowledge updateGood Practice for Creating Agency Information Guides Optional “Right to Information Web Button” for your webpage to help make your open access information easy to find (contact IPC directly for copy) Good practice for disclosure logs knowledge update Back to menu

17. Proactive release of information Section 2 Back to menu

18. What is proactive release of information? Proactive release of government information is a key principle of the GIPA Act. Section 7(1) of the GIPA Act authorises agencies, including local councils, to make any government information held by the agency publicly available unless there is an overriding public interest against disclosure of the information. Back to menu

19. How to be proactive in releasing government information Consider what information (in addition to policy documents and other information required to be released as open access information) may be released Consider removing those parts of the information for which there may be an overriding public interest against disclosure and release the remainder – Section 7 (4) Review all newly created information with a view to considering whether this information should be proactively released on your website, or available by some other means Have an established internal process to authorise this. Back to menu

20. How to be proactive in releasing government information continued Every 12 months, review and identify the kinds of information that should (in the public interest) be made available without imposing unreasonable additional costs. Ensure all staff have completed the Agency Module 1 – GIPA introduction (If your staff do not have access to the Internet, you may save and post this package to your own intranet with appropriate acknowledgement to the Office of the Information Commissioner) and are familiar with the Public Interest Test.Agency Module 1 – GIPA introduction Public Interest Test Back to menu

21. Remember the public interest test The public interest test involves three steps: 1.Identifying the relevant public interest factors for disclosurefor disclosure 2.Identifying any relevant public interest factors against disclosureagainst disclosure 3.Assessing whether the public interest against disclosure outweighs the public interest in favour of disclosure There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (Section 5). Back to menu

22. Public interest factors for disclosure There are no limits to the number and type of Public interest factors in favour of disclosure. Examples may include: Promoting open discussion of public affairs, making government more accountable or contributing to discussion on issues of public importance Helping the public learn more about how agencies work and especially their policies and practices for dealing with members of the public Monitoring how public monies are spent by government The information is personal information of the person who is asking for it Showing where an agency or a member of an agency has engaged in misconduct or negligent, improper or unlawful conduct. Back to menu Return<

23. Public interest factors against disclosure The GIPA Act also provides a list of public interest considerations against disclosure. These are the only things agencies can consider in applying the public interest test against disclosure. Public interest considerations against disclosure come under the headings of: Harming responsible and effective government Prejudicing law enforcement and security Damaging individual rights, judicial processes and natural justice Prejudicing business interests of agencies and other persons Endangering environment, culture, economy and general matters Contravening secrecy provisions Exempt documents under interstate Freedom of Information legislation. Back to menu Return<

24. Review question Back to menu “We have been collecting data on how many complaints about noise and other disturbances have been received about the hotels and registered clubs in our local government area. Are we required to release this?” What would you think about, if you were the relevant agency, in deciding whether, and how, to release this information? Review your ideas here!

25. Review response Is this information that you have been asked for previously by members of the public, the media, or other agencies? As a record you hold, its proactive release should be considered and the public interest test applied. You can choose the format in which the information is released. Is this an opportunity for you to promote ‘good’ news or highlight what steps your agency plans to take if the news is not so positive? Return<

26. Practical things you can think about & do! Regularly identify information your agency holds that can be proactively released Where you can’t publish information on your website, use the website to say what information is available, how it can be accessed and who to contact to obtain access If you can’t release government information for free, list the estimated costs for release of information and make this available on your web Maintain a record of information released in response to informal requests and look at proactively releasing it Back to menu

27. Informal requests for information Section 3 Back to menu

28. What is an informal request? An informal request for release of information includes what you do every day when you provide information over the telephone, or at the counter, or by email, and so on without requiring the person asking for the information to complete a formal application form It could also be a one-off request for particular information that needs a specifically authorised person to release The GIPA Act encourages agencies to release more information in this way with a formal access application being considered only as a last resort The kind of information you are most likely to consider disclosing in response to an informal request includes routine information, personal information of the individual request it, and small amounts of information that is easy for you to locate and provide. Back to menu

29. What sort of information can be released in response to an informal request? Any government information can be released unless there is an overriding public interest against disclosure (Section 8(1) of the GIPA Act). You therefore have to consider the public interest test in dealing with an informal request for information Where information has not already been released and there is no overriding public interest against disclosure, you are encouraged to release it informally Where there is an overriding public interest against disclosure, consider whether this could be addressed by deleting parts of the information and then releasing it Back to menu

30. What else do I need to think about in providing informal access to information? Remember you can facilitate release of information by deleting certain parts of the document, if including the information would have meant there was an overriding public interest against disclosure (Section 8(5) of the GIPA Act) You can impose conditions on the release of the information (you can not do this with a formal request) You cannot charge for informal access to information You can release the information in whatever form you chose You do not have to agree to an informal request (but if you say no the person still has a right to a formal access application) Check that you are authorised by the principal officer of your agency to release information informally. Back to menu

31. At what point might a formal access application become necessary? The request covers so much information, it will take significant resources to provide the information The request is about access to sensitive information You need to consult third parties before you could consider releasing the informationconsult third parties Back to menu

32. Consultation with third parties The GIPA Act requires consultation to take place with third parties, prior to releasing the information, when the information concerns: Affairs of a government Personal information about another person other than the applicant The business, commercial, professional or financial interests of a person other than the applicant Research carried out by, or on behalf of, a person other than the applicant. Return<

33. Review question Back to menu “Someone has contacted me asking for some information that isn’t up on our website. It’s not required open access information and I’m pretty busy. Can I just ask them to send in a formal access application before giving them the information?” What would you think about before suggesting someone make a formal access application? What do you need to consider or do before releasing information informally? Review your ideas here!

34. Review response A formal access application should only be considered necessary in limited circumstances where information has otherwise been unable to be released informally. With the authority of the principal officer, an agency is authorised to release government information to a person in response to their informal request unless there is an overriding public interest against disclosure. You may impose reasonable conditions on how this information is accessed, but you cannot charge for information released informally. Return<

35. Things to consider before suggesting someone make a formal access application Check whether the information is already publicly available Is the request for the person’s own personal information? Is it easy to find and release? (These might be reasons to release informally) Is there likely to be an overriding public interest against disclosure? Is it likely to require significant resources to deal with it? Have you provided this information previously to the person Will 3 rd parties have to be consulted? (These might be reasons why the formal access application would be likely to be requested) Back to menu

36. Review question Back to menu You are approached by a person wanting access to reports prepared earlier by your agency on the possible future use of a community space. Other parties have contributed information to these reports, including their business information, and you are not certain you still have current contact details for these third parties. What would you think about in deciding whether to release this information, and if so, in what format? Review your ideas here!

37. Review response You may be concerned about the need to consult third parties before releasing the reports. If the reports have been publicly released earlier, this might not be a difficult. Or under an informal release of the information, you could invite the person to come to your premises and look at the reports. With informal release of information you can impose conditions to facilitate the release of the information. You might consider it appropriate that the person can inspect the relevant documents and take notes, but not photocopy the material. Or you consider it appropriate to remove information that relates to third parties so you do not need to consult them. The person is still welcome to make a formal access application if not satisfied with the release of the information in this manner. Return<

38. Tools to assist IPC web resources Informal release of information knowledge updateInformal release of information Back to menu

39. Formal access applications Section 4 Back to menu

40. Dealing with a formal access application Agencies need to have staff with the delegated authority to deal with formal access applications. These people may be known as Right to Information Officers, or be in positions assigned responsibility to deal with requests for information. The IPC issues guidance to Right to Information Officers, including templates, to assist them in this role.templates Other staff may need to assist the Right to Information Officer in responding to a request for information. This could involve searching for and collating information. An agency must first decide whether the formal access application is valid or not (Section 51 of the GIPA Act). Back to menu

41. How to tell if a formal access application is valid? To be valid, a formal application for access to government information must: Be in writing State that it is made under the Government Information (Public Access) Act 2009 (NSW) or GIPA Act Give an Australian postal address for return correspondence Provide enough detail for the agency to identify what information the applicant wants Enclose the application fee of $30 Back to menu

42. What do we do if the application is not valid? An agency has up to five working days from the day they receive the application to consider it and let the applicant know whether it is valid or not. If the application is valid, the applicant must be told the date by which you must make a decision about their application. If it is not valid, you must tell the applicant why and give them reasonable assistance to make a valid application. See under templates on the IPC website for examples of precedent documents you can use.templates Back to menu

43. What do we have to do with the application? If the formal access application is valid, you need to take steps to see if your agency has the information requested. The agency must make a reasonable search for the information. If you don’t hold the information, the application may need to be transferred to another agency. You may also need to talk to other people, businesses or government bodies to find the information. You need to make a decision about whether to give access to the information or not using the public interest test.public interest test Back to menu

44. What time frames do we have to handle the application? You must tell the applicant within 20 working days of the agency receiving the application, what the decision is, unless the applicant has agreed to extend this time. If you need to consult with a third party or retrieve records from archives, you can extend this time by between 10 and15 days. What if we don’t handle the application in time? What do we do if the application is not for us but another government agency? Back to menu

45. What if we don’t handle the application in time? If your agency does not decide the formal access application within 20 working days, it is considered refused. The application fee must be returned to the applicant and they must be told of their rights of review. Return>

46. What do we do if the application is not for us but another government agency? If the application has not been sent to the right government agency, you can: Send it to the right agency within 10 days of receiving the application, the other agency must agree, and you must let the applicant know, OR Check with the applicant and, if the applicant agrees or requests it, send it to the right agency (you do not need the other agency’s consent). These are called transfers. Return<

47. Can we charge beyond the $30 application fee for handling formal access applications? You can charge processing costs for handling a formal request for information. You must tell the applicant about the charges when you tell them of the decision to provide access to the information. Processing fees of $30 per hour may be charged to cover the time needed to deal with the application. The $30 application fee counts towards first hour of the processing. If the applicant’s request is for access to their own personal information the first 20 hours of processing time are to be free. Back to menu

48. Fee for handling formal access applications (continued) 1.You may ask the applicant to pay up to 50% of the anticipated processing charge before you start the work. 2.You have to ask for this in writing and give the applicant at least four weeks to pay. The 20 day time period for making a decision stops running while you are waiting for the deposit. 3.If the applicant does not pay this advance deposit, you can refuse to deal further with the formal application as long as you tell the applicant. 4.You must give a refund of any advance deposit that exceeds the actual processing charge for dealing with the application. 5.If you do not respond to the application within time, you must refund of any advance deposit. Back to menu

49. What if the applicant says they cannot pay? An agency must give a 50% reduction in the processing fee if the applicant can show they will experience financial hardship or if the application is of special benefit to the public generally (e.g. from a public interest group). Agencies also have a general discretion to waive or reduce fees and charges in any situation they consider appropriate. A fee reduction example Back to menu

50. Fee reduction example An application is received from a small non-government agency advocating for the rights of people with intellectual disabilities. It is anticipated the application will take 3 hours of processing time for the agency. Application fee of $30 (includes first hour of processing)$30.00 Plus remaining 2 hours processing charge+$60.00 Anticipated processing charge$90.00 Less 50% reduction for ‘special benefit to the public’-$45.00 Total to pay=$45.00 Return<

51. Does a transfer impact on timeframes and costs? The original agency keeps the fee but can not levy any processing charges The new agency cannot charge an application fee but can charge for the costs of processing the application The original agency has up to 10 working days from the date the application is received to initiate a transfer of the request to another agency The date the new agency receives the transferred application is now considered as the date the application was made. Back to menu

52. What are reasons we might refuse a formal access application? 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 only other reasons an agency may refuse to deal with the whole application, or a part of the application, is if: Dealing with it would use an unreasonable and substantial amount of your agency’s resources (and then you must give the applicant the opportunity to amend their request) Your agency doesn’t hold the information Back to menu

53. What are reasons we might refuse a formal access application? (cont’d) The applicant has already made an application for the same information before and there are no reasonable reasons why your agency would make a different decision this time The information is already available to the applicant The applicant has failed to pay the advance deposit. This is set out in sections 58-60 of the GIPA Act. Back to menu

54. Review question Back to menu “What does reasonable search or unreasonable diversion of resources mean?” Is this anything in the GIPA Act to guide you? What factors would affect your decision? Review your ideas here!

55. Review response There is no definition for reasonable search or unreasonable diversion of resources in the GIPA Act as each agency is resourced differently. Consider: the type of information being requested, where the information is held, what is involved in accessing the information, would searching and/or retrieving the material divert staff from their primary work for a significant period of time and create an impact on other staff and fulfilling your primary functions? Remember to balance this with the key principle of the GIPA Act that agencies should make every possible effort to comply with formal access applications. Also keep in mind that decisions to not deal with formal access applications are reviewable, including by external agencies. Return<

56. Are there any reasons we can’t use to refuse a formal access application? Agencies may not refuse an application because disclosure of the information: Will cause embarrassment to or loss of confidence in the government May be misinterpreted or misunderstood. Back to menu

57. Is any government information excluded from release? The need for government agencies to weigh up the public interest considerations for release with the public interest considerations against release of government information applies in most circumstances. In the case of some specific information detailed in Schedule 1 to the GIPA Act it is presumed that there will always be an overriding public interest against disclosure under the GIPA Act. However depending on the circumstances, the information may still be available under other laws.GIPA Act Back to menu

58. It is presumed some information will not be released Some information in these categories cannot be released: 1.Overriding secrecy laws 2.Cabinet information 3.Executive Council Information 4.Contempt (e.g. of Court or Parliament) 5.Legal Professional Privilege (unless waived) 6.Excluded information 7.Law enforcement and public safety 8.Transport safety 9.Adoption 10.Some reports regarding the care and protection of children 11.The Registers of Interest kept under the Ministerial Code of Conduct 12.Aboriginal and environmental heritage.

59. Is any government information excluded from release (cont’d) Information relating to specific functions of particular agencies is listed in Schedule 2 to the GIPA Act as excluded information.GIPA Act A formal access application cannot be made for this excluded information. Back to menu

60. In what ways can we grant access? If the formal access application is approved, you need to provide the applicant with either a copy of the information requested or give a reasonable opportunity for them to come to your premises and inspect the information. Under Section 72, the applicant may specify the way they want to access the information and, if so, you agency should do what you reasonably can to provide this, unless: 1.Would interfere with unreasonably with the operations of the agency or incur unreasonable costs Back to menu

61. In what ways can we grant access (cont’d) 2.Would be detrimental to proper preservation of the record; 3.Would infringe copyright; or 4.There is an overriding public interest against disclosure The applicant has up to six months to take up their rights to access the information. Decisions regarding how to provide access to information are reviewable. You cannot put conditions on how the applicant uses information gained through a formal access application. Back to menu

62. Should we release information granted access under a formal access application to anyone else? It is possible. Your agency should think about whether the information may be of interest to other members of the public, and if so, record it in the “disclosure log” on your website so other people can access it also. The disclosure log should not reveal any personal information. However, the person who made the formal access application can object to the information being recorded on the disclosure log if, for example, they believe it will disclose personal or business information. Back to menu

63. Tools to assist 1.There are various templates available on the IPC website. templates 2.Role of the Right to Information Officer knowledge updateRole of the Right to Information Officer 3.The IPC has developed an online case management & reporting system to assist with processing access applications and recording data for reporting purposes. We encourage agencies to use this.case management & reporting system You should contact the IPC directly on 1800 IPC NSW (1800 472 769) or email IPC ipcinfo@ipc.nsw.gov.au to gain access to this tool.ipcinfo@ipc.nsw.gov.au Back to menu

64. Practical things you can think about & do! Document the searches you carry out for access applications as this will help you prepare for and respond to any internal or external reviews. (The file running sheet available under templates for agencies on IPC’s website may assist here) file running sheet Develop your own pro forma application form (feel free to use the template available on IPC’s website) that clearly states what is required to make an application valid and includes your relevant contact details for right to information requeststemplate

65. Review question Back to menu You are a local council. You receive a formal access application asking, under the GIPA Act, for all information held on trees in your council area. The $30 application fee and a return address are provided. Is this a valid application? How would you respond? Review your ideas here!

66. Review response For a formal access application to be valid it must be understandable. What does “held on trees” mean? You could contact the applicant and ask them if they can be more specific about the information so you can consider their request. The timeframe for dealing with the application does not start until the application is understood and assessed as ‘valid’. If the application remains so broad that it would take an unreasonably long time to retrieve the information, it can be refused on those grounds. Again the applicant should first be offered the opportunity to amend the scope of their request (e.g. trees planted by council in the last financial year). Return<

67. Identity protection and privacy issues Section 5 Back to menu

68. How does the GIPA Act define ‘personal information’? Government agencies may hold information about people that can identify them. Personal information is: “information or an opinion…about an individual (whether living or dead) whose identity is apparent or can reasonable be ascertained from the information or the opinion.” GIPA Act, Sch 4 [1] Back to menu

69. Is my own identity in agency documents considered as personal information? The definition of personal information in the GIPA Act does not include “information about an individual (comprising the individual’s name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions.” GIPA Act, Sch 4, [3] (b) Back to menu

70. What other legislation applies to protecting people’s identity and personal information? The Privacy and Personal Information Protection Act protects personal information and the Health Records Information & Privacy Act protects information about a person’s health and medical records.Privacy and Personal Information Protection Act Health Records Information & Privacy Act See the IPC website for more information www.ipc.nsw.gov.auwww.ipc.nsw.gov.au For staff of local government agencies, Section 739 of the Local Government Act, sets out provisions for the protection of privacy. Back to menu

71. How do I ensure I protect a person’s privacy? When is consultation necessary? Before disclosing information, you must think about whether the person involved would be likely to be concerned about the release of the information, and weigh up the public interest concerns for and against release. You may remove any personal information from the document before releasing it. If an individual’s personal information is removed, then you do not need to consult them. If your agency does not remove an individual’s personal information and the information is not otherwise public, and the person would be likely to be concerned, you must: Consult with the individual and take into account any objections they have before releasing the information. Back to menu

72. How do I ensure I protect a person’s privacy? When is consultation necessary continued? If your agency decides to release the information anyway, you must: 1.Tell the individual about it first and provide time for them to seek a review of your decision (20 days) 2.Not release the information until the person’s review rights have been exhausted, or the time period to seek a review has expired. Back to menu

73. What about people’s business information? The same applies as for personal information. If a formal access application covers someone’s business information, your agency must consult the relevant person or business to see whether there are any objections to the information being released. Any objections must relate to one of more of the limited public interest factors against disclosure. public interest factors against disclosure Back to menu

74. Public interest factors against disclosure The GIPA Act also provides a list of public interest considerations against disclosure. These are the only things agencies can consider in applying the public interest test against disclosure. Public interest considerations against disclosure come under the headings of: Harming responsible and effective government Prejudicing law enforcement and security Damaging individual rights, judicial processes and natural justice Prejudicing business interests of agencies and other persons Endangering environment, culture, economy and general matters Contravening secrecy provisions Exempt documents under interstate Freedom of Information legislation. Return<

75. What about people’s business information (cont’d) You cannot release the information if the public interest reasons against disclosure outweigh the public interest reasons for disclosure. If you decide to release the business information, and the relevant person or business still has objections, they have a right to have this decision reviewed. The information cannot be released until these review rights have been exhausted or the time period to seek a review has expired. Back to menu

76. Things to remember, & remind your staff! ! Draft versions of documents and all materials controlled and saved in your agency systems may be accessible to the public. ! The content of emails, network drives (including personal drives) are information and therefore subject to public release. ! What you do in your role as a public official is not considered as personal information. This means your name is accessible information (but not your personal contact details). ! If the information being requested contains the personal information of another party, then you must either remove that information, or consult with the third party and use their views to help you weigh up the public interest considerations for and against release of the information. Back to menu

77. Review question Back to menu “I have a formal access application for information about a third person, what do I need to do?” What would you think, and/or do, before deciding whether to release this information? Review your ideas here!

78. Review response You should look at the public interest reasons for and against disclosure (unless you intend to just delete all personal information) and consult the third party prior to deciding whether to release the information. When a third party is involved in a formal access application, an agency is to take what steps are reasonably practicable to consult with that person before provide access to the information if: It involves personal or business information; It could be expected the person may have concerns about the disclosure of the information These concerns could be relevant to whether there is an overriding public interest against disclosure (such as “individual rights, judicial processes and natural justice; business interests of agencies and other persons”. Continue next slide….

79. Review response (cont’d) If the person, when consulted, objects to the information being released, you must take their objections into consideration when weighing up the public interest reasons for and against disclosure. (Section 54 of the GIPA Act) If you decide to release the information, regardless of the person’s objections, they may seek an internal review of your decision and you cannot release the information during the period of this right of review. Return<

80. Reviewable decisions and rights of review Section 6 Back to menu

81. What kinds of decisions are reviewable? Anyone has a right to request a review of a decision regarding the release of government information. A range of reviewable agency decisions is set out in the GIPA Act (Part 5, Division 1). GIPA Act Back to menu

82. What kinds of decisions are reviewable? (a) A decision that an application is not a valid access application, (b) A decision to transfer an access application to another agency, as an agency-initiated transfer, (c) A decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) A decision to provide access or to refuse to provide access to information in response to an access application, (e) A decision that government information is not held by the agency, (f) A decision that information applied for is already available to the applicant, (g) A decision to refuse to confirm or deny that information is held by the agency, Continue next slide….

83. What kinds of decisions are reviewable? (h) A decision to defer the provision of access to information in response to an access application, (i) A decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) A decision to impose a processing charge or to require an advance deposit, (k) A decision to refuse a reduction in a processing charge, (l) A decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) A decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object). Return<

84. What are the rights of review? There are a number of review rights under the GIPA Act. If you refuse someone access to information, they can seek a number of options: 1.An Internal ReviewInternal Review 2.A Review by the Information CommissionerReview by the Information Commissioner 3.A Review by the NSW Civil and Administrative TribunalReview by the NSW Civil and Administrative Tribunal If the person seeking the review was the applicant for access to the information, they can choose which review option to take. If the person seeking the review was not the applicant, for example, a third party whose information will be released, they must seek an internal review first. Back to menu

85. An internal review This will require someone not less senior than the original decision maker reviewing the decision. It will cost the person $40. Agencies cannot apply an additional processing charge. The person must apply for an internal review within 20 working days of being told of the original decision. No fee applies if the request for a review is because your agency failed to make a decision on the formal access application within the required timeframe and as a result of this, was deemed to have refused the application. Return<

86. Review by the Information Commissioner If the person is not satisfied by the internal review, or does not want one, they can ask the Information Commissioner to review the decision. They have eight weeks from being told of the decision to apply to the Information Commissioner for a review. There is no fee for this review. On reviewing the decision the Information Commissioner can make recommendations about the decision to the agency. The Information Commissioner cannot review a decision that has already been reviewed by the NSW Civil and Administrative Tribunal (NCAT). Return<

87. Review by the NSW Civil and Administrative Tribunal (NCAT) If the person is not satisfied by the decision of the Information Commissioner or the internal review, or does not want either option, they ask the NSW Civil and Administrative Tribunal (NCAT) to review the decision.NSW Civil and Administrative Tribunal If the Information Commissioner has already reviewed the decision, the person has four weeks from being told of the Information Commissioner’s recommendation to apply to the NCAT. If the person has chosen not to have a review by the Information Commissioner, they have eight weeks from being told of the agency’s decision to seek a review by the NCAT. Return<

88. What must we do with a request for an internal review? An agency must acknowledge receipt of an application for an internal review within 5 working days of receiving it. An officer not less senior than the person who made the original decision must carry out the review. The agency must decide the internal review within 15 working days of receiving the application (this can be extended by a further 10 days if the agency has to consult with third parties, or by agreement with the applicant) Back to menu

89. Review question Back to menu “I think applicants need to pay a fee when requesting an internal review on a formal access application decision. I don’t know what the fee is. I have someone whose formal access application was deemed to have been refused because we didn’t decide whether to release the information or not within required the time period. What do I charge?” What do you think? How would you check? Review your ideas here!

90. Review response Section 85 of the GIPA Act sets out the fee for internal review. Normally a fee of $40 is payable by the applicant for an internal review, however no fee is to be charged to the applicant if the decision to refuse to deal with the application came about because the agency failed to consider the application within the timeframes required. Return<

91. Protections and offences under the GIPA Act Section 7 Back to menu

92. What are the protections for staff who make decisions under the GIPA Act? There are protections in the GIPA Act (Part 6, Division 1, sections 113-115) for the person making decisions permitted or required by the Act if the decisions are made in good faith. These protections include: Protection against actions for defamation or breach of confidence Protection in respect of certain criminal actions No action for personal liability Back to menu

93. What offences are there under the GIPA Act? Sections 116-120 outline actions that are considered offences under the GIPA Act and the maximum penalty that may apply. You may not: Make a reviewable decision on an access application that you know to be unlawful Direct an officer of your agency to act in a manner or make a decision in relation to an access application that you know to be unlawful Improperly influence a decision on an access application Knowingly mislead or deceive an officer for the purposes of unlawfully obtaining access to government information Conceal or destroy government information (including by altering records) for the purpose of preventing the disclosure of the information. Back to menu

94. Tools to assist & where to from here! Section 8 Back to menu

95. A summary of what’s new! There are four ways to access government information, only one way requires a formal application (sections 6-9) There is a presumption in favour of disclosure of all government information unless there is an overriding public interest against disclosure (section 5) There is a public interest test that helps you weigh up and decide if there is an overriding public interest against disclosure (section 13) Agencies have to publish certain information as open access information. Back to menu

96. What’s available to assist you? A number of tools and other resources available on the IPC website have been referred to throughout this e-package. Have a look at the IPC website (www.ipc.nsw.gov.au) for further information and resources. This website is regularly updated.www.ipc.nsw.gov.au or call on 1800 IPC NSW (1800 472 769) or visit us during business hours at Level 11, 1 Castlereagh St, Sydney or email our general enquiries section at ipcinfo@ipc.nsw.gov.au.ipcinfo@ipc.nsw.gov.au AND complete Agency Module 2b – The contract register & contract disclosuresAgency Module 2b Back to menu

97. What is the role of the Information and Privacy Commission NSW (IPC)? Our role under the GIPA Act is to: Promote public awareness of the new right to information system Provide information, advice, assistance and training to agencies and the general public Issue guidelines to assist agencies and the public on various matters Monitor agencies’ compliance with the GIPA Act. Back to menu

98. How to check if you are compliant? Refer to the resources on IPC's website: GIPA Compliance Resources These resources are designed to assist you with understanding the processes and practices for complying with the GIPA Act. References are made to relevant sections of the legislation and practical tips and flowcharts are also included Back to menu

99. Quiz 1.Your agency has its own discretion to waive, reduce or refund any fee or charge payable or paid under the GIPA Act if you think appropriate? True or False Back to menu

100. Response to quiz question 1 Answer: True Section 127 covers the waiver, reduction or refund of fees and charges Back to menu

101. Quiz 2.All information released under a formal access application must be published on the disclosure log? True or False Back to menu

102. Response quiz question 2 Answer: False After information has been released under a formal access application, consider if the information would be of public interest and if so, publish in the disclosure log (after the review period for the application has ended). Back to menu

103. Quiz 3.Your agency has the authority to proactively release information unless it is excluded information or there is an overriding public interest against disclosure Back to menu

104. Response quiz question 3 Answer: True Section 7 of the GIPA Act provides for proactive release of information. Back to menu

105. Quiz Back to menu 4.Which of the following is NOT a possible reason for refusing a formal access application: a)The applicant has failed to pay their advance deposit b)Dealing with it would be an unreasonable and substantial diversion of your resources c)Releasing the information would cause embarrassment to your agency d)The applicant has already made the same application to you previously.

106. Response quiz question 4 Back to menu Answer:C Releasing the information would cause embarrassment to your agency is not a reason to refuse a formal access application Section 60 outlines the reasons why an agency may refuse to deal with an access application.

107. Quiz Back to menu 5.You would need to ask someone to make a formal access application when: a)You know your agency does not hold the information requested b)Providing the information requested would require consultation with a third party c) You are not interested in responding directly to the person asking for the information d)You would like to make $30 for your agency.

108. Response quiz question 5 Back to menu Answer:b If you need to consult third parties before you can consider releasing information, it may be appropriate to seek a formal access application. The other options are not appropriate reasons for requiring a formal application.

109. Feedback Thank you for completing this e-learning package. We welcome your feedback. Our resources will continue to be tailored to respond to issues and needs identified through this feedback. If you would like to tell us what you thought of this e-learning exploring the responsibilities of government agencies under the new rights to government information legislation, please ring the IPC on 1800 IPC NSW (1800 472 769) or email us on ipcinfo@ipc.nsw.gov.au. ipcinfo@ipc.nsw.gov.au Or open and save this evaluation form. After you have completed it, please email it back to us as an attachment to: ipcinfo@ipc.nsw.gov.au.evaluation form ipcinfo@ipc.nsw.gov.au Back to menu