Formal Access Applications
The Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") provides a right to apply for access to government information. "Government information" is defined in section 4 of the GIPA Act to mean "...information contained in a record held by an agency."
The basic framework for processing formal access applications is set out in the GIPA Act and includes:
- Provision for a $30 application fee;
- Timeframes for processing applications;
- Consultation with certain third parties who could be affected by a decision to release particular information in response to a formal access application;
- A "public interest test" to be applied by the Government staff member processing the application to determine whether or not, on balance, particular information covered by the scope of the application should be released;
- A charging regime, based on a rate of $30 per hour of processing, with the first 20 hours waived for applications by a person for their own personal information and discounts applicable in certain cases, such as financial hardship or if the information requested has a special public benefit; and
- Review options, for persons aggrieved by certain types of decisions made in relation to access applications.
The University must provide notice to an applicant of the validity of the application as soon as possible after receipt but within 5 working days. If the application is deemed invalid, the Information Access Officer will contact the applicant to discuss what is required in order to correct the application so that it is valid and can be processed under the Act.
The University can refuse to deal with an application, if it meets one or more of the criteria listed in section 60 of the GIPA Act. If the issue is that the application is scoped so broadly that to process the application would "... require an unreasonable and substantial diversion of the agency's resources" (section 60(1)(a)), the Information Access Officer will contact you to try to assist you to re-scope your application so that it does not do this.
The GIPA Act provides a 20 working day processing period for formal applications although this period can be extended in certain circumstances. Some examples of when this might occur are as follows:
- If third party consultation is required or some files that need to be checked for relevant information are in archives, the University can extend the processing period unilaterally by up to 10 working days in each case. If relevant files are in archives and third party consultation is required, the University can extend the processing period by a maximum of 15 working days;
- If agreed with the applicant; and/or
- For certain procedural matters (e.g. until payment of a 50% deposit, if requested, on estimated processing charges).
If you wish to make a formal request for information regarding the University please complete the Government Information Access Application Form below:
To discuss making an application, including matters such as ways to define the scope of your request to ensure you cover the information you are seeking or your eligibility for a discount on or waiver of application fees or processing costs, please contact the Information Access Officer:
- On (02) 6620 3465 by telephone;
- At email@example.com; or
- By mail to: Information Access Officer, PO Box 157, Lismore NSW 2480.
Third party consultation
The University is required by section 54 of the GIPA Act to consult with certain third parties about the potential release of information in response to an access application. These are:
- Any person whose "personal information" (as defined in the GIPA Act) is contained within the information being requested or whose personal information the application concerns;
- Any person or entity whose business, commercial, professional or financial interests the application concerns;
- Any person who is or intends carrying out research about which the application is concerned or has carried out such research; and
- The government of the Commonwealth or another State, where the information requested concerns the affairs of that government.
Although the University is required to consult with the above third parties when processing relevant access applications, the response of a third party is just one consideration in the larger public interest test, as described below. This means that the University may decide to release information regardless of any objections. However, an authorised objector would have review rights under the GIPA Act - and be informed by the University of those review rights - if this occurred.
Further information about third party consultation is available on the Information and Privacy Commission's website.
Public Interest Test
The "public interest test" is set out in Division 2 of Part 2 of the GIPA Act. The Act provides that there is a general public interest in favour of disclosure of government information and that, as such, government information should be disclosed unless there is an overriding public interest against disclosure.
In applying the public interest test to a formal access application, the decision maker first gathers all of the information covered by the scope of the request and then looks at whether there is a conclusive presumption that of an overriding public interest against disclosure of some or all of the information. This is done by checking whether any of the information subject to the request is of a type listed in Schedule 1 of the GIPA Act. With only limited exceptions, those types of information will not be disclosed.
Most of the University's government information, however, is not of a type described in Schedule 1 of the GIPA Act. When this is the case, determining whether or not there is an overriding public interest against its disclosure is done by:
- Identifying any general or specific public interests that apply in favour of disclosure of the information. The decision maker can take into account any matter that they believe is in favour of disclosure, when looking at this;
- Identifying whether one or more of the public interest considerations against disclosure listed in section 14 of the GIPA Act apply; and
- Allocating an appropriate weight to each of the public interest considerations for and against disclosure of particular types or pieces of information.
Based on the above, the decision maker then conducts a weighing up process to determine whether there is an overriding public interest against disclosure of any of the information. The applicant is provided with all of the information that the decision maker believes should be released on the basis of the public interest test as well as a decision letter explaining why the decision maker believes there is an overriding public interest consideration against disclosure of any information being withheld.
An applicant who does not receive all of the information they requested in their access application, whether due to the application of the public interest test or because a decision maker has failed to process the formal application within the statutory time period, can access certain review rights.
The GIPA Act sets out a number of reviewable decisions in relation to formal access applications (section 80 of the GIPA Act). A person aggrieved (i.e. negatively affected) by any one of those decision types can apply to the University for review of the decision, unless the original decision was made by the Vice Chancellor in which case the person can only utilise external review options. A person is also entitled to apply for an internal review if the University failed to respond, within time, to their original access application. An aggrieved person has 20 working days to apply for an internal review, from the date the University provided them with the decision they have been aggrieved by.
There can be no internal review of a decision that is or has been subject to a decision by the Information Commissioner or by the NSW Civil and Administrative Tribunal. Similarly, a decision by a University staff member in conducting an internal review cannot be internally reviewed.
An internal review cannot be conducted by the person who made the original decision and the new decision maker must not have a role any less senior within the University than the original decision maker. An internal review must be completed within 15 days of it being received by the University, although that period can be extended by up to 10 working days if further consultation is required. The University must acknowledge an application for internal review within 5 working days of receiving it.
The GIPA Act provides that the fee to apply for internal review of a decision is $40, except in the case of a deemed refusal (meaning that the original application was not decided within the required or extended timeframe) in which case no fee applies.
If you wish to make a request for internal review please complete the Government Information Internal Review Application Form below:
The GIPA Act provides for two avenues of external review of reviewable decisions:
Review by the NSW Information Commissioner
If the applicant for external review is applying for review of a decision on their access application, they have the right to seek review by the NSW Information Commissioner without accessing internal review rights in the first instance. A third party who the University consulted with about the potential release of information in response to another person's access application, and aggrieved by the University's decision in relation to that other access application, must seek internal review of the decision before going to the Information Commissioner.
Applications for review by the Information Commissioner must be made within 40 working days of receiving the University's decision.
The Information Commissioner has broad investigative and some coercive powers. The Commissioner can make whatever recommendations considered appropriate, including that the University reconsider a decision. If the Information Commission does recommend that the University reconsider a decision and the University decides to adopt that recommendation, no application fee will apply and the decision made will effectively be a fresh original decision - meaning that the applicant could then apply for internal review if they were aggrieved by the new decision, regardless of whether they had already applied for an internal review prior to going to the Information Commissioner for external review. The University can reconsider an application regardless of whether or not it has conducted an internal review.
For more information about the Information Commissioner's powers, see the Information and Privacy Commission of NSW website.
Review by the NSW Civil & Administrative Tribunal ("Tribunal" or "NCAT")
A person dissatisfied with a decision made by the University or the Information Commissioner under the GIPA Act has the right to seek review of that decision by NCAT. Such a review can be sought directly, without first applying for either internal review or review of the decision by the Information Commissioner.
Depending on whether the aggrieved person is applying for review of a University decision or of the Information Commissioner's review, the aggrieved person has either :
- 40 working days from receipt of notice of the University's decision; or
- 20 working days after being notified of the results of the Information Commissioner review,
to apply to NCAT.
The Tribunal has the power to make the "correct and preferable decision" on the merits of the case.
For further information, including current application fees, see: NSW Civil & Administrative Tribunal.