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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Government Information (Public
Access) Bill 2009
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The Government Information (Information Commissioner) Bill 2009 and the
Government Information (Public Access) (Consequential Amendments and Repeal)
Bill 2009 are cognate with this Bill.
Overview of Bill
The object of this Bill is to provide for access to be given to government information
on the basis of a presumption in favour of the disclosure of government information
unless there is an overriding public interest against disclosure.
Principal features of the new arrangements for access to government information are
as follows:
(a) mandatory proactive release of certain government information (open access
information) is required and proactive release of other government
information is authorised,
(b) informal release of government information in response to an informal request
is also authorised,
(c) a formal access application will be able to be made for access to government
information and there will be a legally enforceable right to be provided with
b2009-025-20.d31
Government Information (Public Access) Bill 2009
Explanatory note
access to government information pursuant to the access application process
provided by the Bill,
(d) access will not be provided to government information if there is an overriding
public interest against disclosure (that is, if there are public interest
considerations against disclosure and, on balance, those considerations
outweigh the public interest considerations in favour of disclosure),
(e) the Bill limits the public interest considerations that can be taken into account
as public interest considerations against disclosure of information and
provides that there is a general public interest in favour of the disclosure of
government information,
(f) the Bill provides that for certain government information (such as Cabinet
information) it is to be conclusively presumed that there is an overriding
public interest against disclosure,
(g) agency decisions about access applications are reviewable by a process of
internal review, review by the Information Commissioner (to be appointed
under the Government Information (Information Commissioner) Bill 2009)
and review by the Administrative Decisions Tribunal.
The Bill replaces the Freedom of Information Act 1989, which is repealed by the
Government Information (Public Access) (Consequential Amendments and Repeal)
Bill 2009.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.
Clause 3 states the object of the proposed Act, requires that the proposed Act be
interpreted and applied so as to further that object and requires the discretions
conferred by the proposed Act to be exercised so as to facilitate and encourage access
to government information.
Clause 4 contains definitions of key terms used in the proposed Act. Schedule 4
contains other definitions. The clause defines government information to mean
information contained in a record held by an agency.
Explanatory note page 2
Government Information (Public Access) Bill 2009
Explanatory note
Part 2 Open government information--general
principles
Division 1 Ways of accessing government information
Clause 5 provides that there is a presumption in favour of the disclosure of
government information, unless there is an overriding public interest against
disclosure.
Clause 6 requires an agency to make the government information that is its open
access information publicly available, unless there is an overriding public interest
against disclosure of the information.
Clause 7 authorises an agency to make any government information held by the
agency publicly available, unless there is an overriding public interest against
disclosure of the information.
Clause 8 authorises an agency to release government information held by it to a
person in response to an informal request by the person (that is, a request that is not
an access application), unless there is an overriding public interest against disclosure
of the information.
Clause 9 provides that a person who makes an access application for government
information has a legally enforceable right to be provided with access to the
information in accordance with Part 4 (Access applications) of the proposed Act,
unless there is an overriding public interest against disclosure of the information.
Clause 10 provides that the proposed Act is not intended to prevent or discourage the
publication or giving of access to government information as permitted or required
by or under any other Act or law and does not affect the operation of any other Act
or law that requires government information to be made available to the public or that
enables a member of the public to obtain access to government information.
Clause 11 provides for the proposed Act to override a provision of any other Act or
statutory rule that prohibits the disclosure of information, other than a provision of a
law listed in Schedule 1 as an overriding secrecy law (for which it is to be
conclusively presumed that there is an overriding public interest against disclosure).
Division 2 Public interest considerations
Clause 12 provides that there is no limit on the public interest considerations in
favour of the disclosure of government information that may be taken into account
for the purpose of determining whether there is an overriding public interest against
disclosure of government information, and that there is a general public interest in
favour of the disclosure of government information.
Clause 13 provides that there is an overriding public interest against disclosure of
government 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.
Explanatory note page 3
Government Information (Public Access) Bill 2009
Explanatory note
Clause 14 provides that it is to be conclusively presumed that there is an overriding
public interest against disclosure of any of the government information described in
Schedule 1. It also provides that the public interest considerations listed in the Table
to the clause are the only other considerations that may be taken into account as
public interest considerations against disclosure for the purpose of determining
whether there is an overriding public interest against disclosure of government
information.
Clause 15 states the general principles that are to apply to a determination as to
whether there is an overriding public interest against disclosure of government
information.
Division 3 Assistance and oversight
Clause 16 requires an agency to provide advice and assistance, so far as it would be
reasonable to expect the agency to do so, to a person who requests or proposes to
request access to government information.
Clause 17 provides for the general functions of the Information Commissioner in
connection with the operation of the proposed Act.
Part 3 Open access information
Division 1 Preliminary
Clause 18 lists the government information held by an agency that is to be the
agency's open access information and that is required to be made publicly available
by the agency under clause 6 (Mandatory proactive release of certain government
information). Open access information includes the agency's current publication
guide, its policy documents, its disclosure log of access applications and its register
of government contracts with the private sector.
Clause 19 provides that Part 3 does not apply to an agency in respect of any
functions of the agency listed in Schedule 2 (Excluded information of particular
agencies).
Division 2 Publication guides
Clause 20 requires each agency to have a publication guide.
Clause 21 requires an agency to adopt its first publication guide within 6 months
after the commencement of the proposed section and review its publication guide and
adopt a new publication guide at intervals of not more than 12 months.
Clause 22 requires an agency to notify (and, if required, consult with) the
Information Commissioner before adopting or amending a publication guide, and
authorises the Information Commissioner to develop guidelines and model
publication guides for the assistance of agencies in connection with publication
guides.
Explanatory note page 4
Government Information (Public Access) Bill 2009
Explanatory note
Division 3 Policy documents
Clause 23 contains a definition of an agency's policy documents.
Clause 24 deals with the effect of an agency's policy documents not being publicly
available when required.
Division 4 Disclosure log of access applications
Clause 25 requires each agency to keep a record (called its disclosure log) that
records details of access applications that an agency decided by providing access to
information applied for.
Clause 26 lists the information that is to be recorded in a disclosure log.
Division 5 Government contracts with private sector
Clause 27 requires each agency to keep a register (its government contracts
register) of government contracts with the private sector that records information
about each government contract to which the agency is a party that has (or is likely
to have) a value of $150,000 or more (class 1 contracts).
Clause 28 provides for how the value of a contract is to be determined.
Clause 29 lists the details to be included in the government contracts register for
class 1 contracts.
Clause 30 requires further details to be included in the government contracts register
for certain significant contracts (class 2 contracts).
Clause 31 provides that a copy of the contract must be included in the government
contracts register, if it is a class 2 contract that has (or is likely to have) a value of
$5 million or more (a class 3 contract).
Clause 32 provides that commercial-in-confidence information and certain other
confidential information is not required to be included in the government contracts
register.
Clause 33 requires particulars in the government contracts register to be amended to
reflect any material variation made to a contract that would affect the particulars that
are required to be included in the register.
Clause 34 provides for the minimum period for which information in an agency's
government contracts register must be made publicly available as open access
information.
Clause 35 provides for the publication of an agency's government contracts register
on the NSW Government tenders website.
Clause 36 requires an agency to obtain the opinion of the Chairperson of the State
Contracts Control Board in relation to any disagreement between a party to a
government contract and the agency as to the way in which the agency has
interpreted its obligations under the proposed Division.
Explanatory note page 5
Government Information (Public Access) Bill 2009
Explanatory note
Clause 37 limits the information that is required to be included in an agency's
government contracts register to information that the agency holds or that it is
reasonably practical for the agency to obtain.
Clause 38 provides that the proposed Division does not apply to a government
contract entered into by the Department of State and Regional Development that
involves the provision of industry support.
Clause 39 provides that a State owned corporation or a subsidiary of a State owned
corporation is not required to include any details of a government contract in its
government contracts register if the contract is entered into in the course of activities
engaged in by the corporation or subsidiary in a market in which it is in competition
with any other person.
Clause 40 provides that the proposed Division does not require Landcom to include
any details of a government contract in its government contracts register, if the
contract is a contract for the sale of land.
Part 4 Access applications
Division 1 Making an access application
Clause 41 lists the formal requirements for a valid access application for government
information.
Clause 42 permits an applicant to include other information in an access application.
Clause 43 prevents an access application being made to an agency for access to
government information that is excluded information of the agency (ie information
relating to a function of the agency specified in Schedule 2).
Division 2 Transfer, amendment or withdrawal of access
applications
Clause 44 authorises an agency that receives an access application to transfer the
application to another agency either by agency-initiated transfer or by
applicant-initiated transfer.
Clause 45 requires the consent of the other agency for an agency-initiated transfer of
an access application to another agency and provides for the circumstances in which
such a transfer is permitted.
Clause 46 requires the agreement of the applicant and the agency to which the
application was made to an applicant-initiated transfer of an access application to
another agency and requires that it appear that the information relates more closely
to the functions of the other agency.
Clause 47 requires an agency that transfers an application to give notice of the
transfer to the applicant.
Clause 48 provides for the effect of the transfer of an access application.
Explanatory note page 6
Government Information (Public Access) Bill 2009
Explanatory note
Clause 49 provides for the circumstances in which an applicant is permitted to
amend their access application.
Clause 50 allows an applicant to withdraw an access application.
Division 3 Process for dealing with access applications
Clause 51 requires an agency to decide whether an access application that it receives
is a valid access application and to notify the applicant of its decision.
Clause 52 deals with how an invalid access application can be validated and the
obligations that an agency has to assist an applicant to make a valid access
application.
Clause 53 limits the obligation of an agency to provide access to government
information in response to an access application to information held by the agency
when the application is received. An agency is required to undertake such reasonable
searches as may be necessary to find any of the government information applied for
that was held by the agency when the application was received.
Clause 54 requires an agency to consult with a person before providing access to
information in response to an access application, if it appears that the person may
reasonably be expected to have concerns about the disclosure of the information and
that those concerns may reasonably be expected to be relevant to the question of
whether there is a public interest consideration against disclosure of the information.
Clause 55 authorises an agency, in determining whether there is an overriding public
interest against disclosure of information in response to an access application, to
consider personal factors of the application (such as the applicant's identity and
relationship with other persons) as factors in favour of providing the applicant with
access to the information.
Clause 56 provides for an access applicant to request that all or specified
information concerning their application not be made publicly available in the
agency's disclosure log.
Division 4 Deciding access applications
Clause 57 requires an agency to decide an access application and notify the applicant
of the decision within 20 working days after the agency receives the application,
subject to a limited right of the agency to extend this period by up to 15 working days.
Clause 58 deals with the various ways in which an agency can decide an access
application.
Clause 59 provides for when an agency can decide that information is already
available to an access applicant.
Clause 60 sets out the reasons for which an agency can decide to refuse to deal with
an access application.
Clause 61 requires an agency to provide reasons for its decision to refuse to provide
access to information.
Explanatory note page 7
Government Information (Public Access) Bill 2009
Explanatory note
Clause 62 requires an agency to include in a notice of its decision to provide access
to information any processing charges that are payable and how those charges have
been calculated.
Clause 63 provides that if an agency does not decide an access application within
time, the agency is deemed to have decided to refuse to deal with the application.
Division 5 Processing charges and advance deposits
Clause 64 allows an agency to impose a processing charge for dealing with an
access application at a rate of $30 per hour for each hour of processing time.
Clause 65 provides for a 50% reduction in the processing charge payable by an
applicant suffering financial hardship.
Clause 66 provides for a 50% reduction in the processing charge payable by an
applicant, if the agency is satisfied that the information applied for is of special
benefit to the public generally.
Clause 67 provides that an agency cannot impose a processing charge for the first 20
hours of processing time if an access application is made for personal information
about the applicant.
Clause 68 allows an agency to require an applicant to make an advance payment of
a processing charge (an advance deposit).
Clause 69 limits the advance deposit that can be required from an applicant to 50%
of the estimated total processing charge for dealing with the application.
Clause 70 allows an agency to refuse to deal further with an access application if the
applicant does not pay the advance deposit within the required time.
Clause 71 provides for a refund to be made to an applicant of any amount paid as an
advance deposit that exceeds the total processing charges payable for dealing with
the application.
Division 6 How access is provided
Clause 72 sets out the ways in which access to government information can be
provided.
Clause 73 prevents an agency from imposing any conditions on the use or disclosure
of information when the agency provides access to the information.
Clause 74 allows an agency to delete from a copy of a record to which access is to
be provided information that the agency refuses to provide access to or information
that is not relevant to the application.
Clause 75 allows an agency to provide access to information by creating a new
record of that information.
Clause 76 provides that an agency may provide access to information that is in
addition to the information applied for.
Explanatory note page 8
Government Information (Public Access) Bill 2009
Explanatory note
Clause 77 provides that an entitlement to access to information granted pursuant to
an access application must be exercised within 6 months (or a longer period allowed
by the agency).
Clause 78 deals with when an agency may defer providing access to information.
Clause 79 provides that an agency does not have to comply with a subpoena or other
court order to produce a document to a person if that document has already been
provided to the person in response to an access application by that person.
Part 5 Review of decisions
Division 1 Reviewable decisions
Clause 80 sets out the decisions of an agency in respect of an access application that
are reviewable decisions.
Clause 81 provides that the review period within which a person may apply for a
review of a reviewable decision when more than one reviewable decision is made on
an access application and those decisions are made at different times is extended to
the end of the review period for the last of those decisions.
Division 2 Internal review by agency
Clause 82 gives a person aggrieved by a reviewable decision the right to apply for a
review (an internal review) of the decision by the agency that made the decision.
Clause 83 provides that an aggrieved person must apply for an internal review
within 20 days of being notified of the decision, unless the agency agrees to accept
the application out of time.
Clause 84 provides that an internal review is done by a person in the agency, who is
not less senior than the person who made the original decision, making a new
decision.
Clause 85 provides that a $40 fee is payable for an internal review.
Clause 86 requires an agency to conduct an internal review and notify the applicant
of its decision within 15 working days after the agency receives the application,
subject to a limited right of the agency to extend this period by up to 10 working days.
Clause 87 provides that there is no processing charge for an internal review.
Clause 88 provides that there cannot be an internal review of a decision made on the
internal review of a reviewable decision.
Division 3 Review by Information Commissioner
Clause 89 gives a person aggrieved by a reviewable decision the right to apply for a
review of the decision by the Information Commissioner.
Clause 90 requires a person to apply for a review of the decision by the Information
Commissioner within 8 weeks after being notified of the reviewable decision.
Explanatory note page 9
Government Information (Public Access) Bill 2009
Explanatory note
Clause 91 provides that the Information Commissioner must not, while conducting
a review under the proposed Division, disclose any information for which there is an
overriding public interest against disclosure.
Clause 92 provides that, after conducting a review, the Information Commissioner
may make recommendations to the agency concerned about the decision.
Clause 93 provides that, after conducting a review, the Information Commissioner
may recommend that the agency reconsider its original decision and make a new
decision.
Clause 94 provides that, after conducting a review, the Information Commissioner
may make a recommendation against a decision of an agency that there is an
overriding public interest against disclosure.
Clause 95 provides that, after conducting a review, the Information Commissioner
may make recommendations to the agency concerned about its procedures for
dealing with access applications.
Clause 96 provides for the circumstances in which the Information Commissioner
may refuse to review a decision.
Clause 97 places the onus on an agency to justify its decision in any review by the
Information Commissioner, unless the review is of a decision to provide access to
information, in which case the onus is on the applicant to establish that there is an
overriding public interest against disclosure.
Clause 98 provides that a matter is not to be the subject of review by the Information
Commissioner while it is or has been the subject of proceedings before the
Administrative Decisions Tribunal (the ADT).
Clause 99 provides that the Information Commissioner may refer a decision that is
subject to a review under the proposed Division to the ADT with the consent of the
applicant for review.
Division 4 Review by Administrative Decisions Tribunal
Clause 100 gives a person aggrieved by a reviewable decision the right to apply for
a review of the decision by the ADT (an ADT review), whether or not the decision
has been internally reviewed or reviewed by the Information Commissioner.
Clause 101 requires a person to apply for a review of the decision by the ADT within
8 weeks after being notified of the reviewable decision, or if the decision has been
reviewed by the Information Commissioner, within 4 weeks after being notified of
the Information Commissioner's decision, whichever gives the longer period to
apply.
Clause 102 provides that the procedures for internal review in the Administrative
Decisions Tribunal Act 1997 do not apply to reviewable decisions under the
proposed Act.
Clause 103 provides that certain provisions of the Administrative Decisions
Tribunal Act 1997 do not apply to an application for ADT review.
Explanatory note page 10
Government Information (Public Access) Bill 2009
Explanatory note
Clause 104 gives the Information Commissioner, and any person who could be
aggrieved by a decision of the ADT, a right to appear and be heard in proceedings
before the ADT in relation to ADT reviews.
Clause 105 places the onus on an agency to justify its decision in any ADT review,
unless the review is of a decision to provide access to information, in which case the
onus is on the applicant to establish that there is an overriding public interest against
disclosure.
Clause 106 sets out the procedure to be followed for ADT reviews of decisions that
relate to Cabinet or Executive Council information.
Clause 107 provides that the ADT must not disclose any information for which there
is an overriding public interest against disclosure and must conduct ADT reviews in
private if necessary to prevent disclosure of such information.
Clause 108 provides that the ADT may make an order giving an agency more time
to deal with an access application that is subject to ADT review, if the decision is a
decision that was deemed to be a refusal to provide access to information because the
agency did not make the decision within time.
Clause 109 provides that the ADT may refuse to review a decision, if satisfied that
the application for review is frivolous, vexatious, misconceived or lacking in
substance.
Clause 110 provides that the ADT may make a restraint order against a person who
repeatedly makes access applications that lack merit. A person against whom a
restraint order is made is prevented from making an access application without the
approval of the ADT.
Clause 111 provides that the ADT may refer any matter to the Information
Commissioner that the ADT considers is indicative of a systemic issue in relation to
the determination of access applications by a particular agency or agencies generally.
Clause 112 provides that if the ADT is of the opinion that an officer of an agency has
failed to exercise in good faith his or her functions under the proposed Act, the ADT
must bring the matter to the attention of the Minister responsible for the agency.
Part 6 Protections and offences
Division 1 Protections
Clause 113 provides that an action for defamation or breach of confidence cannot be
brought against the Crown, an agency or an officer of an agency in respect of a
decision to disclose government information, if the person who made the decision
believed in good faith that the proposed Act permitted or required the decision to be
made.
Clause 114 provides that a person (and any other person concerned) who makes a
decision to disclose government information is not guilty of an offence under the
proposed Act, if the person believed in good faith that the proposed Act permitted or
required the decision to be made.
Explanatory note page 11
Government Information (Public Access) Bill 2009
Explanatory note
Clause 115 protects persons involved in the administration of the proposed Act
acting in good faith from personal liability.
Division 2 Offences
Clause 116 provides that an officer of an agency who makes a reviewable decision
knowing it is contrary to the requirements of the proposed Act is guilty of an offence,
which has a maximum penalty of 100 penalty units (currently $11,000).
Clause 117 provides that a person who directs an officer of an agency to make a
reviewable decision that the person knows is not required or permitted under the
proposed Act or who directs an officer to act in a manner that the person knows is
contrary to the requirements of the proposed Act is guilty of an offence, which has a
maximum penalty of 100 penalty units (currently $11,000).
Clause 118 provides that a person who influences an officer of an agency to make a
reviewable decision that the person knows is not required or permitted under the
proposed Act is guilty of an offence, which has a maximum penalty of 100 penalty
units (currently $11,000).
Clause 119 provides that a person who knowingly misleads or deceives an officer of
an agency for the purpose of gaining access to government information is guilty of
an offence, which has a maximum penalty of 100 penalty units (currently $11,000).
Clause 120 provides that a person who destroys, conceals or alters government
information for the purpose of preventing the disclosure of the information as
authorised or required under the proposed Act is guilty of an offence, which has a
maximum penalty of 100 penalty units (currently $11,000).
Part 7 Miscellaneous
Clause 121 requires government contracts with the private sector to include
provision that will give the contracting agency an immediate right of access to certain
information in the records of the private sector contractor, so as to include that
information as information held by the agency for the purposes of an access
application.
Clause 122 provides that the proposed Act binds the State and all other Australian
jurisdictions.
Clause 123 provides that the proposed Act does not affect the operation of the State
Records Act 1998.
Clause 124 limits the powers of the Ombudsman under the Ombudsman Act 1974 so
that the powers do not extend to investigating the conduct of any person or body in
relation to a decision that is reviewable under the proposed Act.
Clause 125 sets out the requirements for agencies, Ministers and the Minister
administering the proposed Act to prepare and submit annual reports about their
obligations under the proposed Act.
Clause 126 sets out the notice requirements for agencies under the proposed Act.
Explanatory note page 12
Government Information (Public Access) Bill 2009
Explanatory note
Clause 127 enables an agency to waive, reduce or refund any fee or charge payable
under the proposed Act.
Clause 128 provides that proceedings for offences against the proposed Act or the
regulations are to be dealt with summarily before a Local Court and may only be
taken by or with the authority of the Director of Public Prosecutions or the Attorney
General.
Clause 129 is a regulation-making power.
Clause 130 provides for the review of the proposed Act after 5 years.
Clause 131 provides that the Joint Committee to be established under the
Government Information (Information Commissioner) Bill 2009 is to review
Schedules 1 and 2 and the Table to clause 14 in consultation with the Information
Commissioner.
Clause 132 provides that the Regulation set out in Schedule 5 is taken to be a
regulation made under the proposed Act, and deals with the operation of the statutory
rule making process and staged repeal process in respect of the Regulation.
Schedule 1 Information for which there is conclusive
presumption of overriding public
interest against disclosure
Schedule 1 describes the information for which there is a conclusive presumption of
an overriding public interest against disclosure, including information the disclosure
of which is prohibited by an overriding secrecy law, Cabinet and Executive Council
information, information protected by legal professional privilege and documents
affecting law enforcement and public safety.
Schedule 2 Excluded information of particular
agencies
Schedule 2 lists government information for which an access application cannot be
made, including judicial and prosecutorial information and complaints handling and
investigative information.
Schedule 3 Savings, transitional and other
provisions
Part 1 of Schedule 3 to the proposed Act provides for the making of savings and
transitional regulations consequent on the enactment of the proposed Act and the
proposed Government Information (Information Commissioner) Act 2009 and
Government Information (Public Access) (Consequential Amendments and Repeal)
Act 2009.
Explanatory note page 13
Government Information (Public Access) Bill 2009
Explanatory note
Part 2 of Schedule 3 contains savings and transitional provisions consequent on the
enactment of the proposed Act and the repeal of the Freedom of Information Act
1989 by the proposed Government Information (Public Access) (Consequential
Amendments and Repeal) Act 2009.
Schedule 4 Interpretative provisions
Schedule 4 contains definitions of terms used in the proposed Act and other
interpretative provisions.
Schedule 5 Government Information (Public Access)
Regulation 2009
Schedule 5 contains a proposed regulation that is taken to be made under the
proposed Act. The Regulation prescribes additional information as open access
information of local authorities and imposes additional requirements on local
authorities concerning the providing of access to open access information.
Explanatory note page 14
First print
New South Wales
Government Information (Public
Access) Bill 2009
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Object of Act 2
4 Interpretation 2
Part 2 Open government information--general principles
Division 1 Ways of accessing government information
5 Presumption in favour of disclosure of government
information 4
6 Mandatory proactive release of certain government
information 4
7 Authorised proactive release of government information 4
8 Informal release of government information 5
9 Access applications 6
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Government Information (Public Access) Bill 2009
Contents
Page
10 Disclosure and access under other laws 6
11 Act overrides secrecy provisions in other legislation 6
Division 2 Public interest considerations
12 Public interest considerations in favour of disclosure 6
13 Public interest test 7
14 Public interest considerations against disclosure 7
15 Principles that apply to public interest determination 10
Division 3 Assistance and oversight
16 Agencies to provide advice and assistance 10
17 Role of Information Commissioner 11
Part 3 Open access information
Division 1 Preliminary
18 What constitutes open access information 12
19 Excluded functions of particular agencies 12
Division 2 Publication guides
20 Agencies must have publication guide 12
21 Adoption and review of publication guide 13
22 Role of Information Commissioner 13
Division 3 Policy documents
23 What constitutes an agency's policy documents 13
24 Effect of policy documents not being publicly available 14
Division 4 Disclosure log of access applications
25 Requirement for disclosure log 14
26 Required information about access applications 14
Division 5 Government contracts with private sector
27 Register of government contracts valued at $150,000 or
more 15
28 Value of contract 15
29 Information to be entered in register--class 1 contracts 16
30 Additional information for class 2 contracts 16
31 Register to include copy of class 3 contract 17
32 Confidential information not required to be included in
register 18
33 Variations to contracts 18
34 Minimum public access period for information on register 18
35 Register to be published on Government tenders website 19
Contents page 2
Government Information (Public Access) Bill 2009
Contents
Page
36 Disputes 19
37 Agency obligation to find information 19
38 Exception for industry support contracts 20
39 Exception for SOCs--competitive neutrality 20
40 Exception for Landcom--contracts for sale of land 20
Part 4 Access applications
Division 1 Making an access application
41 How to make an access application 21
42 Inclusion of additional information in applications 21
43 Access application cannot be made for excluded
information 22
Division 2 Transfer, amendment or withdrawal of access
applications
44 Ways in which applications can be transferred 22
45 Agency-initiated transfer 22
46 Applicant-initiated transfer 22
47 Notice of transfer of application 23
48 Effect of transfer of application 23
49 Amendment of application 23
50 Withdrawal of application 24
Division 3 Process for dealing with access applications
51 Initial decision as to validity of application 24
52 Agency assistance with invalid applications 25
53 Searches for information held by agency 26
54 Consultation on public interest considerations 26
55 Consideration of personal factors of application 27
56 Applicant can object to inclusion in disclosure log 28
Division 4 Deciding access applications
57 Required period for deciding application 29
58 How applications are decided 30
59 Decision that information already available to applicant 31
60 Decision to refuse to deal with application 31
61 Notice of decision to refuse to provide access 32
62 Notice of processing charges 32
63 Deemed refusal if application not decided within time 32
Division 5 Processing charges and advance deposits
64 Processing charge for dealing with access application 33
65 Discounted processing charge--financial hardship 33
Contents page 3
Government Information (Public Access) Bill 2009
Contents
Page
66 Discounted processing charge--special public benefit 34
67 Waiver of processing charge for personal information
application 34
68 Advance deposit for payment of processing charge 34
69 Maximum advance deposit 35
70 Result of failing to pay advance deposit 35
71 Refund of advance deposit 36
Division 6 How access is provided
72 Forms of access 36
73 Access to be unconditional 37
74 Deletion of information from copy of record to be
accessed 37
75 Providing access by creating new record 37
76 Providing access to information not applied for 38
77 Period within which access rights must be exercised 38
78 Deferral of access 38
79 Provision of information subject to subpoena 39
Part 5 Review of decisions
Division 1 Reviewable decisions
80 Which decisions are reviewable decisions 40
81 Extended review period where more than one decision
made 40
Division 2 Internal review by agency
82 Right of internal review 41
83 Time within which internal review can be applied for 41
84 Conduct of internal review 41
85 Fee for internal review 42
86 Required period for determination of internal review 42
87 No processing charges for internal review 42
88 No internal review of decision on internal review 42
Division 3 Review by Information Commissioner
89 Right to have decision reviewed by Information
Commissioner 43
90 Time limit for applying for review by Information
Commissioner 43
91 Disclosure of public interest information 43
92 Recommendations on review 43
93 Recommendation for reconsideration of matter by
agency 43
94 Recommendation as to public interest against disclosure 44
Contents page 4
Government Information (Public Access) Bill 2009
Contents
Page
95 Recommendation as to general procedure of agency 44
96 Information Commissioner may refuse to review decision 44
97 Onus on agency to justify decisions 45
98 No review of decisions reviewed by ADT 45
99 Referral of agency decision to ADT 45
Division 4 Review by Administrative Decisions Tribunal
100 Review of decision by ADT 45
101 Time for applying for ADT review 46
102 No internal review under ADT Act 46
103 Operation of other ADT Act provisions 46
104 Right of appearance before ADT 47
105 Onus on agency to justify decisions 47
106 Decisions about Cabinet and Executive Council
information 47
107 Procedure for dealing with public interest considerations 48
108 Delayed decisions 48
109 ADT may refuse to review decision 49
110 Orders to restrain making of unmeritorious access
applications 49
111 Referral of systemic issues to Information Commissioner 50
112 Report on improper conduct 50
Part 6 Protections and offences
Division 1 Protections
113 Protection in respect of actions for defamation or breach
of confidence 51
114 Protection in respect of certain criminal actions 51
115 Personal liability 51
Division 2 Offences
116 Offence of acting unlawfully 52
117 Offence of directing unlawful action 52
118 Offence of improperly influencing decision on access
application 52
119 Offence of unlawful access 52
120 Offence of concealing or destroying government
information 52
Part 7 Miscellaneous
121 Provision of information by private sector contractors 53
122 Act binds the Crown 53
123 State Records Act not affected 53
124 Powers of Ombudsman 54
Contents page 5
Government Information (Public Access) Bill 2009
Contents
Page
125 Reports to Parliament 54
126 Requirements for notices given by agencies 55
127 Waiver, reduction or refund of fees and charges 55
128 Nature of proceedings for offences 55
129 Regulations 55
130 Review of Act 56
131 Review of public interest provisions by Joint Committee 56
132 Government Information (Public Access) Regulation 2009 57
Schedule 1 Information for which there is conclusive
presumption of overriding public interest
against disclosure 58
Schedule 2 Excluded information of particular agencies 65
Schedule 3 Savings, transitional and other provisions 68
Schedule 4 Interpretative provisions 70
Schedule 5 Government Information (Public Access)
Regulation 2009 79
Contents page 6
New South Wales
Government Information (Public
Access) Bill 2009
No , 2009
A Bill for
An Act to facilitate public access to government information.
See also the Government Information (Information Commissioner) Bill 2009 and the
Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009.
Clause 1 Government Information (Public Access) Bill 2009
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Government Information (Public Access) Act 2009. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Object of Act 7
(1) In order to maintain and advance a system of responsible and 8
representative democratic Government that is open, accountable, fair 9
and effective, the object of this Act is to open government information 10
to the public by: 11
(a) authorising and encouraging the proactive public release of 12
government information by agencies, and 13
(b) giving members of the public an enforceable right to access 14
government information, and 15
(c) providing that access to government information is restricted 16
only when there is an overriding public interest against 17
disclosure. 18
(2) It is the intention of Parliament: 19
(a) that this Act be interpreted and applied so as to further the object 20
of this Act, and 21
(b) that the discretions conferred by this Act be exercised, as far as 22
possible, so as to facilitate and encourage, promptly and at the 23
lowest reasonable cost, access to government information. 24
4 Interpretation 25
(1) Key definitions 26
In this Act: 27
access application means an application for access to government 28
information under Part 4 that is a valid access application under that 29
Part. 30
agency means any of the following: 31
(a) a Government Department, 32
(b) a Minister (including a Minister's personal staff), 33
(c) a public authority, 34
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Government Information (Public Access) Bill 2009 Clause 4
Preliminary Part 1
(d) a public office, 1
(e) a local authority, 2
(f) a court, 3
(g) a person or entity that is an agency pursuant to regulations under 4
clause 5 of Schedule 4. 5
Note. Schedule 4 contains definitions of Government Department, public 6
authority, local authority, public office and court. The Information 7
Commissioner publishes a list of agencies and their contact details. 8
government information means information contained in a record held 9
by an agency. 10
(2) Other interpretative provisions 11
Expressions used in this Act that are defined in Schedule 4 have the 12
meanings set out in that Schedule. 13
Page 3
Clause 5 Government Information (Public Access) Bill 2009
Part 2 Open government information--general principles
Part 2 Open government information--general 1
principles 2
Division 1 Ways of accessing government information 3
5 Presumption in favour of disclosure of government information 4
There is a presumption in favour of the disclosure of government 5
information unless there is an overriding public interest against 6
disclosure. 7
6 Mandatory proactive release of certain government information 8
(1) An agency must make the government information that is its open 9
access information publicly available unless there is an overriding 10
public interest against disclosure of the information. 11
Note. Part 3 lists the information that is open access information. 12
(2) Open access information is to be made publicly available free of charge 13
on a website maintained by the agency (unless to do so would impose 14
unreasonable additional costs on the agency) and can be made publicly 15
available in any other way that the agency considers appropriate. 16
(3) At least one of the ways in which an agency makes open access 17
information publicly available must be free of charge. Access provided 18
in any other way can be charged for. 19
(4) An agency must facilitate public access to open access information 20
contained in a record by deleting matter from a copy of the record to be 21
made publicly available if inclusion of the matter would otherwise 22
result in there being an overriding public interest against disclosure of 23
the record and it is practicable to delete the matter. 24
(5) An agency must keep a record of the open access information (if any) 25
that it does not make publicly available on the basis of an overriding 26
public interest against disclosure. The record is to indicate only the 27
general nature of the information concerned. 28
7 Authorised proactive release of government information 29
(1) An agency is authorised to make any government information held by 30
the agency publicly available unless there is an overriding public 31
interest against disclosure of the information. 32
(2) The information that an agency decides to make publicly available is to 33
be made publicly available in any manner that the agency considers 34
appropriate, either free of charge or at the lowest reasonable cost to the 35
agency. 36
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Government Information (Public Access) Bill 2009 Clause 8
Open government information--general principles Part 2
(3) An agency must, at intervals of not more than 12 months, review its 1
program for the release of government information under this section to 2
identify the kinds of government information held by the agency that 3
should in the public interest be made publicly available and that can be 4
made publicly available without imposing unreasonable additional 5
costs on the agency. 6
(4) An agency can facilitate public access to government information 7
contained in a record by deleting matter from a copy of the record to be 8
made publicly available if inclusion of the matter would otherwise 9
result in there being an overriding public interest against disclosure of 10
the record. 11
(5) The functions of an agency under this section may only be exercised by 12
or with the authority (given either generally or in a particular case) of 13
the principal officer of the agency. 14
8 Informal release of government information 15
(1) An agency is authorised to release government information held by it to 16
a person in response to an informal request by the person (that is, a 17
request that is not an access application) unless there is an overriding 18
public interest against disclosure of the information. 19
(2) An agency can release government information in response to an 20
informal request subject to any reasonable conditions that the agency 21
thinks fit to impose. 22
(3) An agency cannot be required to disclose government information 23
pursuant to an informal request and cannot be required to consider an 24
informal request for government information. 25
(4) An agency can decide by what means information is to be released in 26
response to an informal request. 27
(5) An agency can facilitate public access to government information 28
contained in a record by deleting matter from a copy of the record to be 29
released in response to an informal request if inclusion of the matter 30
would otherwise result in there being an overriding public interest 31
against disclosure of the record. 32
(6) The functions of an agency under this section may only be exercised by 33
or with the authority (given either generally or in a particular case) of 34
the principal officer of the agency. 35
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Clause 9 Government Information (Public Access) Bill 2009
Part 2 Open government information--general principles
9 Access applications 1
(1) A person who makes an access application for government information 2
has a legally enforceable right to be provided with access to the 3
information in accordance with Part 4 (Access applications) unless 4
there is an overriding public interest against disclosure of the 5
information. 6
(2) An agency is not subject to the direction or control of any Minister in 7
the exercise of the agency's functions in dealing with a particular access 8
application. 9
(3) The function of making a reviewable decision in connection with an 10
access application made to an agency may only be exercised by or with 11
the authority (given either generally or in a particular case) of the 12
principal officer of the agency. 13
10 Disclosure and access under other laws 14
(1) This Act is not intended to prevent or discourage the publication or 15
giving of access to government information as permitted or required by 16
or under any other Act or law that enables a member of the public to 17
obtain access to government information. 18
(2) This Act does not affect the operation of any other Act or law that 19
requires government information to be made available to the public or 20
that enables a member of the public to obtain access to government 21
information. 22
11 Act overrides secrecy provisions in other legislation 23
This Act overrides a provision of any other Act or statutory rule that 24
prohibits the disclosure of information (whether or not the prohibition 25
is subject to specified qualifications or exceptions), other than a 26
provision of a law listed in Schedule 1 as an overriding secrecy law. 27
Note. For overriding secrecy laws it is conclusively presumed that there is an 28
overriding public interest against disclosure of the information. Other secrecy 29
laws are to be taken into account as considerations against disclosure in 30
determining whether there is an overriding public interest against disclosure. 31
See section 14. 32
Division 2 Public interest considerations 33
12 Public interest considerations in favour of disclosure 34
(1) There is a general public interest in favour of the disclosure of 35
government information. 36
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Government Information (Public Access) Bill 2009 Clause 13
Open government information--general principles Part 2
(2) Nothing in this Act limits any other public interest considerations in 1
favour of the disclosure of government information that may be taken 2
into account for the purpose of determining whether there is an 3
overriding public interest against disclosure of government 4
information. 5
Note. The following are examples of public interest considerations in favour of 6
disclosure of information: 7
(a) Disclosure of the information could reasonably be expected to promote 8
open discussion of public affairs, enhance Government accountability or 9
contribute to positive and informed debate on issues of public 10
importance. 11
(b) Disclosure of the information could reasonably be expected to inform the 12
public about the operations of agencies and, in particular, their policies 13
and practices for dealing with members of the public. 14
(c) Disclosure of the information could reasonably be expected to ensure 15
effective oversight of the expenditure of public funds. 16
(d) The information is personal information of the person to whom it is to be 17
disclosed. 18
(e) Disclosure of the information could reasonably be expected to reveal or 19
substantiate that an agency (or a member of an agency) has engaged in 20
misconduct or negligent, improper or unlawful conduct. 21
(3) The Information Commissioner can issue guidelines about public 22
interest considerations in favour of the disclosure of government 23
information, for the assistance of agencies. 24
13 Public interest test 25
There is an overriding public interest against disclosure of government 26
information for the purposes of this Act if (and only if) there are public 27
interest considerations against disclosure and, on balance, those 28
considerations outweigh the public interest considerations in favour of 29
disclosure. 30
14 Public interest considerations against disclosure 31
(1) It is to be conclusively presumed that there is an overriding public 32
interest against disclosure of any of the government information 33
described in Schedule 1. 34
(2) The public interest considerations listed in the Table to this section are 35
the only other considerations that may be taken into account under this 36
Act as public interest considerations against disclosure for the purpose 37
of determining whether there is an overriding public interest against 38
disclosure of government information. 39
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Clause 14 Government Information (Public Access) Bill 2009
Part 2 Open government information--general principles
(3) The Information Commissioner can issue guidelines about public 1
interest considerations against the disclosure of government 2
information, for the assistance of agencies, but cannot add to the list of 3
considerations in the Table to this section. 4
Table 5
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information
could reasonably be expected to have one or more of the following effects (whether in a particular case or
generally):
(a) prejudice collective Ministerial responsibility,
(b) prejudice Ministerial responsibility to Parliament,
(c) prejudice relations with, or the obtaining of confidential information from, another government,
(d) prejudice the supply to an agency of confidential information that facilitates the effective
exercise of that agency's functions,
(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given,
in such a way as to prejudice a deliberative process of government or an agency,
(f) prejudice the effective exercise by an agency of the agency's functions,
(g) found an action against an agency for breach of confidence or otherwise result in the disclosure
of information provided to an agency in confidence,
(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review
conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or
not commenced and whether or not completed).
2 Law enforcement and security
There is a public interest consideration against disclosure of information if disclosure of the information
could reasonably be expected to have one or more of the following effects (whether in a particular case or
generally):
(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information
from an informant,
(b) prejudice the prevention, detection or investigation of a contravention or possible contravention
of the law or prejudice the enforcement of the law,
(c) increase the likelihood of, or prejudice the prevention of, preparedness against, response to, or
recovery from, a public emergency (including any natural disaster, major accident, civil
disturbance or act of terrorism),
(d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any
person,
(e) endanger the security of, or prejudice any system or procedure for protecting, any place,
property or vehicle,
(f) facilitate the commission of a criminal act (including a terrorist act within the meaning of the
Terrorism (Police Powers) Act 2002),
(g) prejudice the supervision of, or facilitate the escape of, any person in lawful custody,
(h) prejudice the security, discipline or good order of any correctional facility.
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Government Information (Public Access) Bill 2009 Clause 14
Open government information--general principles Part 2
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information
could reasonably be expected to have one or more of the following effects:
(a) reveal an individual's personal information,
(b) contravene an information protection principle under the Privacy and Personal Information
Protection Act 1998 or a Health Privacy Principle under the Health Records and Information
Privacy Act 2002,
(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation
to current or future proceedings,
(d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to
procedural fairness,
(e) reveal false or unsubstantiated allegations about a person that are defamatory,
(f) expose a person to a risk of harm or of serious harassment or serious intimidation,
(g) in the case of the disclosure of personal information about a child--the disclosure of
information that it would not be in the best interests of the child to have disclosed.
4 Business interests of agencies and other persons
There is a public interest consideration against disclosure of information if disclosure of the information
could reasonably be expected to have one or more of the following effects:
(a) undermine competitive neutrality in connection with any functions of an agency in respect of
which it competes with any person or otherwise place an agency at a competitive advantage or
disadvantage in any market,
(b) reveal commercial-in-confidence provisions of a government contract,
(c) diminish the competitive commercial value of any information to any person,
(d) prejudice any person's legitimate business, commercial, professional or financial interests,
(e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose,
conduct or results (whether or not commenced and whether or not completed).
5 Environment, culture, economy and general matters
There is a public interest consideration against disclosure of information if disclosure of the information
could reasonably be expected to have one or more of the following effects:
(a) endanger, or prejudice any system or procedure for protecting, the environment,
(b) prejudice the conservation of any place or object of natural, cultural or heritage value, or reveal
any information relating to Aboriginal or Torres Strait Islander traditional knowledge,
(c) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any
animal or other living thing, or threaten the existence of any species,
(d) damage, or prejudice the ability of the Government or an agency to manage, the economy,
(e) expose any person to an unfair advantage or disadvantage as a result of the premature disclosure
of information concerning any proposed action or inaction of the Government or an agency.
6 Secrecy provisions
(1) There is a public interest consideration against disclosure of information if disclosure of the
information by any person could (disregarding the operation of this Act) reasonably be expected
to constitute a contravention of a provision of any other Act or statutory rule (of this or another
State or of the Commonwealth) that prohibits the disclosure of information, whether or not the
prohibition is subject to specified qualifications or exceptions.
(2) The public interest consideration under this clause extends to consideration of the policy that
underlies the prohibition against disclosure.
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Clause 15 Government Information (Public Access) Bill 2009
Part 2 Open government information--general principles
7 Exempt documents under interstate Freedom of Information legislation
(1) There is a public interest consideration against disclosure of information communicated to the
Government of New South Wales by the Government of the Commonwealth or of another State
if notice has been received from that Government that the information is exempt matter within
the meaning of a corresponding law of the Commonwealth or that other State.
(2) The public interest consideration under this clause extends to consideration of the policy that
underlies the exemption.
(3) In this clause, a reference to a corresponding law is a reference to:
(a) the Freedom of Information Act 1982 of the Commonwealth, or
(b) a law of any other State that is prescribed by the regulations as a corresponding law for
the purposes of this clause.
15 Principles that apply to public interest determination 1
A determination as to whether there is an overriding public interest 2
against disclosure of government information is to be made in 3
accordance with the following principles: 4
(a) Agencies must exercise their functions so as to promote the 5
object of this Act. 6
(b) Agencies must have regard to any relevant guidelines issued by 7
the Information Commissioner. 8
(c) The fact that disclosure of information might cause 9
embarrassment to, or a loss of confidence in, the Government is 10
irrelevant and must not be taken into account. 11
(d) The fact that disclosure of information might be misinterpreted or 12
misunderstood by any person is irrelevant and must not be taken 13
into account. 14
(e) In the case of disclosure in response to an access application, it is 15
relevant to consider that disclosure cannot be made subject to any 16
conditions on the use or disclosure of information. 17
Division 3 Assistance and oversight 18
16 Agencies to provide advice and assistance 19
(1) An agency must provide advice and assistance to a person who requests 20
or proposes to request access to government information, for the 21
purpose of assisting the person to access, or seek access to, information 22
that is or may be made publicly available. 23
(2) An agency must provide the following specific advice and assistance to 24
a person who requests access to government information: 25
(a) advice as to whether or not the information is publicly available 26
from the agency and (if it is) how the information can be 27
accessed, 28
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Government Information (Public Access) Bill 2009 Clause 17
Open government information--general principles Part 2
(b) advice on how to make an access application for the information 1
if the information is not publicly available from the agency but 2
appears likely to be held by the agency, 3
(c) if the information appears unlikely to be held by the agency but 4
appears likely to relate to the functions of some other agency, the 5
contact details of the other agency, 6
(d) the contact details of the Information Commissioner and advice 7
on the availability of and how to access any information 8
published by the Information Commissioner that it appears may 9
be relevant to the person's request. 10
(3) An agency is only required to provide advice and assistance under this 11
section that it would be reasonable to expect the agency to provide. 12
17 Role of Information Commissioner 13
The Information Commissioner has the following functions in 14
connection with the operation of this Act: 15
(a) to promote public awareness and understanding of this Act and to 16
promote the object of this Act, 17
(b) to provide information, advice, assistance and training to 18
agencies and the public on any matters relevant to this Act, 19
(c) to assist agencies in connection with the exercise of their 20
functions under this Act, including by providing services to assist 21
with the lodgment, handling and processing of access 22
applications, 23
(d) to issue guidelines and other publications for the assistance of 24
agencies in connection with their functions under this Act, 25
(e) to issue guidelines and other publications for the assistance of the 26
public in connection with their rights under this Act (including 27
rights of review), 28
(f) to review decisions of agencies pursuant to Part 5, 29
(g) to monitor, audit and report on the exercise by agencies of their 30
functions under, and compliance with, this Act, 31
(h) to make reports and provide recommendations to the Minister 32
about proposals for legislative and administrative changes to 33
further the object of this Act. 34
Page 11
Clause 18 Government Information (Public Access) Bill 2009
Part 3 Open access information
Part 3 Open access information 1
Division 1 Preliminary 2
18 What constitutes open access information 3
The following government information held by an agency is the 4
agency's open access information that is required to be made publicly 5
available by the agency under section 6 (Mandatory proactive release of 6
certain government information): 7
(a) the agency's current publication guide (see Division 2), 8
(b) information about the agency contained in any document tabled 9
in Parliament by or on behalf of the agency, other than any 10
document tabled by order of either House of Parliament, 11
(c) the agency's policy documents (see Division 3), 12
(d) the agency's disclosure log of access applications (see 13
Division 4), 14
(e) the agency's register of government contracts (see Division 5), 15
(f) the agency's record (kept under section 6) of the open access 16
information (if any) that it does not make publicly available on 17
the basis of an overriding public interest against disclosure, 18
(g) such other government information as may be prescribed by the 19
regulations as open access information. 20
19 Excluded functions of particular agencies 21
This Part does not apply to an agency in respect of any functions of the 22
agency listed in Schedule 2 (Excluded information of particular 23
agencies). 24
Division 2 Publication guides 25
20 Agencies must have publication guide 26
(1) An agency (other than a Minister) must have a guide (its publication 27
guide) that: 28
(a) describes the structure and functions of the agency, and 29
(b) describes the ways in which the functions (including, in 30
particular, the decision-making functions) of the agency affect 31
members of the public, and 32
(c) specifies any arrangements that exist to enable members of the 33
public to participate in the formulation of the agency's policy and 34
the exercise of the agency's functions, and 35
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Government Information (Public Access) Bill 2009 Clause 21
Open access information Part 3
(d) identifies the various kinds of government information held by 1
the agency, and 2
(e) identifies the kinds of government information held by the 3
agency that the agency makes (or will make) publicly available, 4
and 5
(f) specifies the manner in which the agency makes (or will make) 6
government information publicly available, and 7
(g) identifies the kinds of information that are (or will be) made 8
publicly available free of charge and those kinds for which a 9
charge is (or will be) imposed. 10
(2) An agency must make government information publicly available as 11
provided by its publication guide. 12
(3) The Director-General of the Department of Local Government may, in 13
consultation with the Information Commissioner, adopt mandatory 14
provisions for inclusion in the publication guide of local authorities. 15
The publication guide of a local authority must include any such 16
mandatory provision unless the Director-General otherwise approves in 17
a particular case. 18
21 Adoption and review of publication guide 19
An agency must adopt its first publication guide within 6 months after 20
the commencement of this section and must review its publication guide 21
and adopt a new publication guide at intervals of not more than 22
12 months. An agency may update and amend its publication guide at 23
any time. 24
22 Role of Information Commissioner 25
(1) An agency must notify the Information Commissioner before adopting 26
or amending a publication guide and must, if requested to do so by the 27
Information Commissioner, consult with the Information 28
Commissioner on the proposed publication guide or amendment. 29
(2) The Information Commissioner can issue guidelines and model 30
publication guides for the assistance of agencies in connection with 31
publication guides. 32
Division 3 Policy documents 33
23 What constitutes an agency's policy documents 34
An agency's policy documents are such of the following documents as 35
are used by the agency in connection with the exercise of those 36
functions of the agency that affect or are likely to affect rights, 37
privileges or other benefits, or obligations, penalties or other detriments, 38
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Clause 24 Government Information (Public Access) Bill 2009
Part 3 Open access information
to which members of the public are or may become entitled, eligible, 1
liable or subject (but does not include a legislative instrument): 2
(a) a document containing interpretations, rules, guidelines, 3
statements of policy, practices or precedents, 4
(b) a document containing particulars of any administrative scheme, 5
(c) a document containing a statement of the manner, or intended 6
manner, of administration of any legislative instrument or 7
administrative scheme, 8
(d) a document describing the procedures to be followed in 9
investigating any contravention or possible contravention of any 10
legislative instrument or administrative scheme, 11
(e) any other document of a similar kind. 12
24 Effect of policy documents not being publicly available 13
(1) A person is not to be subjected to any prejudice because of the 14
application of the provisions of an agency's policy document to any act 15
or omission of the person if, at the time of the act or omission: 16
(a) the policy document was not publicly available as required by 17
this Act, and 18
(b) the person was not aware of those provisions, and 19
(c) the person could lawfully have avoided the prejudice had the 20
person been aware of those provisions. 21
(2) This section does not apply to any matter forming part of an agency's 22
policy document that is not made publicly available as a result of being 23
deleted as required by this Act from copies of the policy document that 24
are made publicly available. 25
Division 4 Disclosure log of access applications 26
25 Requirement for disclosure log 27
An agency must keep a record (called its disclosure log) that records 28
information about access applications made to the agency that the 29
agency decides by deciding to provide access (to some or all of the 30
information applied for) if the information is information that the 31
agency considers may be of interest to other members of the public. 32
26 Required information about access applications 33
(1) The information about an access application that is required to be 34
recorded in an agency's disclosure log is as follows: 35
(a) the date the application was decided, 36
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Government Information (Public Access) Bill 2009 Clause 27
Open access information Part 3
(b) a description of the information to which access was provided in 1
response to the application, 2
(c) a statement as to whether any of the information is now available 3
from the agency to other members of the public and (if it is) how 4
it can be accessed. 5
(2) No details are required to be recorded in the disclosure log until the 6
access application has been decided. 7
(3) An agency is not required to include in its disclosure log information 8
about any application: 9
(a) for personal information about the applicant (the applicant being 10
an individual), or 11
(b) in respect of which any factors particular to the applicant were 12
otherwise a consideration in the agency's determination of the 13
public interest in connection with the disclosure of the 14
information to the applicant. 15
Division 5 Government contracts with private sector 16
27 Register of government contracts valued at $150,000 or more 17
(1) An agency is to keep a register of government contracts (its government 18
contracts register) that records information about each government 19
contract to which the agency is a party that has (or is likely to have) a 20
value of $150,000 or more (class 1 contracts). 21
(2) Information about a class 1 contract must be entered in the register 22
within 60 days after the contract becomes effective. 23
(3) A contract becomes effective: 24
(a) when it is entered into by or on behalf of the agency concerned, or 25
(b) if the contract contains a provision to the effect that one or more 26
conditions are to be met before the obligations of the parties 27
under the contract are enforceable--when the condition or 28
conditions have been met (and not when the contract is entered 29
into by the agency). 30
28 Value of contract 31
The value of a contract is whichever of the following values is 32
appropriate to the kind of contract concerned: 33
(a) the total estimated value of the project, 34
(b) the total estimated value of the goods or services over the term of 35
the contract, 36
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Clause 29 Government Information (Public Access) Bill 2009
Part 3 Open access information
(c) the value of the real property transferred, 1
(d) the rent for the term of the lease. 2
29 Information to be entered in register--class 1 contracts 3
The following information about a class 1 contract is to be entered in the 4
government contracts register: 5
(a) the name and business address of the contractor, 6
(b) particulars of any related body corporate (within the meaning of 7
the Corporations Act 2001 of the Commonwealth) in respect of 8
the contractor, or any other private sector entity in which the 9
contractor has an interest, that will be involved in carrying out 10
any of the contractor's obligations under the contract or will 11
receive a benefit under the contract, 12
(c) the date on which the contract became effective and the duration 13
of the contract, 14
(d) particulars of the project to be undertaken, the goods or services 15
to be provided or the real property to be leased or transferred 16
under the contract, 17
(e) the estimated amount payable to the contractor under the 18
contract, 19
(f) a description of any provisions under which the amount payable 20
to the contractor may be varied, 21
(g) a description of any provisions with respect to the renegotiation 22
of the contract, 23
(h) in the case of a contract arising from a tendering process, the 24
method of tendering and a summary of the criteria against which 25
the various tenders were assessed, 26
(i) a description of any provisions under which it is agreed that the 27
contractor is to receive payment for providing operational or 28
maintenance services. 29
30 Additional information for class 2 contracts 30
(1) Additional information is required to be entered in the government 31
contracts register for class 1 contracts to which any of the following 32
paragraphs applies (class 2 contracts): 33
(a) there has not been a tender process, the proposed contract has not 34
been made publicly available and the terms and conditions of the 35
contract have been negotiated directly with the contractor, 36
(b) the proposed contract (whether or not made publicly available) 37
has been the subject of a tendering process and the terms and 38
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Government Information (Public Access) Bill 2009 Clause 31
Open access information Part 3
conditions of the contract have been substantially negotiated with 1
the successful tenderer, 2
(c) the obligations of one or more parties under the contract to 3
maintain or operate infrastructure or assets could continue for 4
10 years or more, 5
(d) the contract involves a privately financed project as defined by 6
guidelines published by the Treasury (as in force from time to 7
time), 8
(e) the contract involves a transfer of a significant asset of the agency 9
concerned to another party to the contract in exchange for the 10
transfer of an asset to the agency. 11
(2) The additional information required to be entered in the register for 12
class 2 contracts is as follows: 13
(a) particulars of future transfers of significant assets to the State at 14
zero, or nominal, cost to the State, including the date of their 15
proposed transfer, 16
(b) particulars of future transfers of significant assets to the 17
contractor, including the date of their proposed transfer, 18
(c) the results of any cost-benefit analysis of the contract conducted 19
by the agency, 20
(d) the components and quantum of the public sector comparator if 21
used, 22
(e) if relevant, a summary of information used in the contractor's full 23
base case financial model (for example, the pricing formula for 24
tolls or usage charges), 25
(f) if relevant, particulars of how risk, during the construction and 26
operational phases of a contract to undertake a specific project 27
(such as construction, infrastructure or property development), is 28
to be apportioned between the parties, quantified (where 29
practicable) in net present-value terms and specifying the major 30
assumptions involved, 31
(g) particulars as to any significant guarantees or undertakings 32
between the parties, including any guarantees or undertakings 33
with respect to loan agreements entered into or proposed to be 34
entered into, 35
(h) particulars of any other key elements of the contract. 36
31 Register to include copy of class 3 contract 37
If a class 2 contract has (or is likely to have) a value of $5 million or 38
more (a class 3 contract), the register must include a copy of the 39
class 3 contract. 40
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Clause 32 Government Information (Public Access) Bill 2009
Part 3 Open access information
32 Confidential information not required to be included in register 1
(1) A requirement of this Division to include information or a copy of a 2
contract in the government contracts register does not require the 3
inclusion of: 4
(a) the commercial-in-confidence provisions of a contract, or 5
(b) details of any unsuccessful tender, or 6
(c) any matter that could reasonably be expected to affect public 7
safety or security, or 8
(d) a copy of a contract, a provision of a contract or any other 9
information in relation to a contract that is of such a nature that 10
its inclusion in a record would result in there being an overriding 11
public interest against disclosure of the record. 12
(2) If an agency does not include a copy of a contract in the register, or 13
includes only some of the provisions of a contract in the register, 14
because of this section, the agency must include in the register: 15
(a) the reasons why the contract or those provisions have not been 16
included in the register, and 17
(b) a statement as to whether it is intended that the contract or those 18
provisions will be included in the register at a later date and, if so, 19
when it is likely that they will be included, and 20
(c) if some but not all of the provisions of the contract have been 21
included in the register, a general description of the types of 22
provisions that have not been included. 23
33 Variations to contracts 24
(1) If a material variation is made to a contract that would affect the 25
particulars that are required to be included in the government contracts 26
register in relation to the contract, the particulars included in the register 27
are to be amended to reflect the variation within 60 days after the 28
variation becomes effective. 29
(2) If a material variation is made to a contract a copy of which is required 30
to be included in the register, a copy of the variation or the varied 31
provisions is to be included in the register within 60 days after the 32
variation becomes effective. 33
34 Minimum public access period for information on register 34
(1) Information (including a copy of a contract) required to be included in 35
the government contracts register in relation to a contract is only 36
required to be made publicly available as open access information for 37
the public access period. 38
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Government Information (Public Access) Bill 2009 Clause 35
Open access information Part 3
(2) The public access period is whichever is the longer of the following 1
periods: 2
(a) 30 days, 3
(b) the period until the project to which the contract relates is 4
complete, the goods and services concerned have been provided 5
under the contract, the term of the lease has expired or the real 6
property has been transferred. 7
35 Register to be published on Government tenders website 8
(1) A copy of an agency's government contracts register is to be published 9
on the Government tenders website (that is, the website with the URL 10
of https://tenders.nsw.gov.au or such other internet website as the 11
Premier may authorise for the purposes of this section). 12
(2) Each of the following agencies is not required to have a copy of its 13
government contracts register published on the Government tenders 14
website but is required to have a copy of the register published on any 15
website of the agency: 16
(a) a State owned corporation or a subsidiary of a State owned 17
corporation, 18
(b) a local authority, 19
(c) a university. 20
(3) A copy of an agency's government contracts register is also to be made 21
publicly available in any other manner in which the agency decides to 22
make its open access information publicly available. 23
36 Disputes 24
(1) If a person other than an officer of the agency (including, for example, 25
a party to a government contract) disagrees with the way in which an 26
agency has interpreted its obligations under this Division, the agency is 27
to obtain the opinion of the Chairperson of the State Contracts Control 28
Board in relation to the matter. 29
(2) This section does not apply to: 30
(a) a State owned corporation or a subsidiary of a State owned 31
corporation, or 32
(b) a local authority, or 33
(c) a university. 34
37 Agency obligation to find information 35
Information is required to be included in an agency's government 36
contracts register only to the extent that the agency holds the 37
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Clause 38 Government Information (Public Access) Bill 2009
Part 3 Open access information
information or it is reasonably practical for the agency to obtain the 1
information. 2
38 Exception for industry support contracts 3
This Division does not require the Department of State and Regional 4
Development to include any information about or a copy of a 5
government contract in its government contracts register if the contract 6
involves the provision of industry support. 7
39 Exception for SOCs--competitive neutrality 8
This Division does not require a State owned corporation or a subsidiary 9
of a State owned corporation to include any information about or a copy 10
of a government contract in its government contracts register if the 11
contract relates to activities engaged in by the corporation or subsidiary 12
in a market in which it is in competition with any other person. 13
40 Exception for Landcom--contracts for sale of land 14
This Division does not require Landcom to include any information 15
about or a copy of a government contract in its government contracts 16
register if the contract is a contract for the sale of land. 17
Note. Any exception under this Division from the requirement to include information about or 18
a copy of a contract on a government contracts register does not of itself constitute grounds 19
for refusing an access application. 20
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Government Information (Public Access) Bill 2009 Clause 41
Access applications Part 4
Part 4 Access applications 1
Division 1 Making an access application 2
41 How to make an access application 3
(1) An application or other request for government information is not a 4
valid access application unless it complies with the following 5
requirements (the formal requirements) for access applications: 6
(a) it must be in writing sent to or lodged at an office of the agency 7
concerned, 8
(b) it must clearly indicate that it is an access application made under 9
this Act, 10
(c) it must be accompanied by a fee of $30, 11
(d) it must state a postal address in Australia as the address for 12
correspondence in connection with the application, 13
(e) it must include such information as is reasonably necessary to 14
enable the government information applied for to be identified. 15
(2) An agency may, with the approval of the Information Commissioner, 16
approve additional facilities for the making of an access application or 17
the payment of an application fee. An application made to any agency 18
by use of such a facility is considered to have been lodged at an office 19
of the agency and a fee paid by use of such a facility is considered to 20
have accompanied the application. 21
(3) An access application is not considered to have been received by an 22
agency until it is actually received by the agency. 23
42 Inclusion of additional information in applications 24
An access application can include any of the following: 25
(a) submissions by the applicant as to any public interest 26
considerations that the applicant thinks the agency should take 27
into account in determining whether or not there is an overriding 28
public interest against disclosure of the information, 29
(b) a request for a discount on processing charges for the application 30
(including relevant supporting information, such as evidence of 31
hardship or special public interest), 32
(c) any other information that the applicant thinks may be relevant. 33
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Clause 43 Government Information (Public Access) Bill 2009
Part 4 Access applications
43 Access application cannot be made for excluded information 1
(1) An access application cannot be made to an agency for access to 2
excluded information of the agency. 3
Note. Information is excluded information of an agency if it relates to any 4
function specified in Schedule 2 in relation to the agency. 5
(2) An application for government information is not a valid access 6
application to the extent that the application is made in contravention of 7
this section. 8
Division 2 Transfer, amendment or withdrawal of access 9
applications 10
44 Ways in which applications can be transferred 11
An agency that receives an access application for government 12
information can transfer the application to another agency either by 13
agency-initiated transfer or by applicant-initiated transfer, as 14
provided by this Division. 15
Note. A decision to transfer an application to another agency is reviewable 16
under Part 5. 17
45 Agency-initiated transfer 18
(1) An agency-initiated transfer of an access application to another agency 19
requires the consent of that other agency and cannot be done unless: 20
(a) the other agency is known to hold the information applied for and 21
the information relates more closely to the functions of that other 22
agency, or 23
(b) the agency that receives the application decides that it does not 24
hold the information and the other agency is known or reasonably 25
expected to hold the information. 26
(2) An agency-initiated transfer cannot be done more than 10 working days 27
after the application was received. 28
46 Applicant-initiated transfer 29
(1) An applicant-initiated transfer of an access application to another 30
agency cannot be done unless the applicant and the agency to which the 31
application was made agree that the application should be transferred 32
and it appears that the information relates more closely to the functions 33
of the other agency. 34
(2) The consent of the other agency is not required for an applicant-initiated 35
transfer and it does not matter whether the agency that is to transfer the 36
application holds the information (or knows whether it holds the 37
information). 38
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Government Information (Public Access) Bill 2009 Clause 47
Access applications Part 4
47 Notice of transfer of application 1
An agency that transfers an application must give notice of the transfer 2
to the applicant, advising of the date of transfer and the agency to which 3
it was transferred. 4
48 Effect of transfer of application 5
(1) The agency that transfers an application is not required to refund or 6
transfer the application fee to the other agency but cannot impose any 7
processing charges. 8
(2) The agency that transfers an application has no obligation to decide the 9
application. 10
(3) An application that is transferred to an agency is deemed to have been 11
received by that agency (on the date that it is received by that agency) 12
as an application made by the applicant to that agency, and is to be 13
acknowledged accordingly by that agency. 14
(4) The agency to which an application is transferred is not entitled to 15
charge an application fee for the application but is entitled to impose 16
processing charges in accordance with this Act. 17
49 Amendment of application 18
(1) An access application may be amended by the applicant at any time 19
before the agency decides the application. Notice of the amendment 20
must be received by the agency before the agency decides the 21
application. 22
(2) An amendment to reduce the scope of the information applied for does 23
not require the consent of the agency but any other amendment cannot 24
be made without the consent of the agency. 25
Note. A decision by an agency to refuse to consent to an amendment is not a 26
reviewable decision (but a fresh access application can be made). 27
(3) The agency must give notice to the applicant confirming the amendment 28
of an access application and the date on which it was amended if the 29
amendment requires the consent of the agency or the amendment was 30
not made by the applicant in writing. 31
(4) An amendment to reduce the scope of the information applied for does 32
not prevent the agency from imposing a processing charge in respect of 33
time spent before the amendment is made in dealing with any aspect of 34
the access application that the amendment makes unnecessary. 35
(5) The amendment of an access application does not affect the period 36
within which the application is required to be decided and does not 37
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Clause 50 Government Information (Public Access) Bill 2009
Part 4 Access applications
entitle the applicant to a refund or reduction of any application fee or 1
advance deposit already paid. 2
Note. The period within which an application is required to be decided can be 3
extended by agreement between the agency and applicant. 4
50 Withdrawal of application 5
(1) A person who has made an access application may withdraw it at any 6
time before notice of the agency's decision on the application is given 7
to the person. 8
(2) The withdrawal of an application does not entitle the applicant to a 9
refund of any application fee or advance deposit already paid. 10
(3) The agency must give notice to the applicant confirming the withdrawal 11
of an access application and the date on which it was withdrawn if the 12
withdrawal was not made by the applicant in writing. 13
Division 3 Process for dealing with access applications 14
51 Initial decision as to validity of application 15
(1) When an agency receives an application for access to government 16
information that it appears is intended to be an access application, the 17
agency is to decide whether the application is a valid access application 18
and is to notify its decision to the applicant by either: 19
(a) acknowledging receipt of the application as a valid access 20
application, or 21
(b) notifying the applicant that the application is not a valid access 22
application. 23
Note. An application is not a valid access application if it is an application for 24
excluded information of the agency or does not comply with the formal 25
requirements for access applications. 26
(2) An agency's decision as to the validity of an application must be made 27
and notified to the applicant as soon as practicable after the agency 28
receives the application and in any event within 5 working days after the 29
application is received. 30
Note. The decision is reviewable under Part 5. 31
(3) An acknowledgement of receipt of a valid access application must 32
include the following: 33
(a) the date by which the application is required to be decided 34
(subject to any suspension or extension of the time for deciding 35
an application), 36
(b) a statement that the application will be deemed to have been 37
refused if not decided by the required date, 38
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Government Information (Public Access) Bill 2009 Clause 52
Access applications Part 4
(c) a statement that information about the application may be made 1
public in the agency's disclosure log and that the applicant may 2
object to this (but this statement is not required if the agency 3
considers it unlikely that information about the application will 4
be included in the disclosure log), 5
(d) such details of rights of review in connection with access 6
applications as the Information Commissioner may from time to 7
time direct. 8
(4) Acknowledging receipt of an application as a valid access application 9
does not prevent the agency from subsequently deciding that the 10
application is not a valid access application. 11
(5) An agency's decision that an application is not a valid access 12
application is presumed to be correct, subject to any review of the 13
decision under Part 5. 14
52 Agency assistance with invalid applications 15
(1) The notification of an agency's decision that an application is not a valid 16
access application must: 17
(a) include a statement of the reason why the application is not a 18
valid access application (including reference to the relevant 19
provisions of this Act), and 20
(b) if a reason is non-payment of the required application fee, invite 21
the applicant to pay the fee, and 22
(c) if a reason is failure to provide required information, invite the 23
applicant to provide the information, and 24
(d) notify the applicant of the right of review under Part 5 that applies 25
in relation to a decision that an application is not a valid access 26
application. 27
(2) The application becomes a valid access application if the applicant pays 28
the required fee or provides the required information (as appropriate), 29
and is then deemed to have been made when the fee or information was 30
received by the agency. 31
(3) An agency must provide advice and assistance, so far as it would be 32
reasonable to expect the agency to do so, to assist an applicant to 33
provide such information as may be necessary to enable the applicant to 34
make a valid access application. 35
(4) If the agency waives payment of the required application fee (and the 36
application would have been valid had the fee been paid) the application 37
becomes a valid access application and is deemed to have been made 38
when the fee was waived. 39
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Clause 53 Government Information (Public Access) Bill 2009
Part 4 Access applications
(5) An applicant is entitled to a refund of any application fee that 1
accompanied an invalid access application (unless the application 2
subsequently becomes valid). 3
53 Searches for information held by agency 4
(1) The obligation of an agency to provide access to government 5
information in response to an access application is limited to 6
information held by the agency when the application is received. 7
(2) An agency must undertake such reasonable searches as may be 8
necessary to find any of the government information applied for that 9
was held by the agency when the application was received. 10
(3) The obligation of an agency to undertake reasonable searches extends 11
to searches using any resources reasonably available to the agency 12
including resources that facilitate the retrieval of information stored 13
electronically. 14
(4) An agency is not required to search for information in records held by 15
the agency in an electronic backup system unless a record containing 16
the information has been lost to the agency as a result of having been 17
destroyed, transferred, or otherwise dealt with, in contravention of the 18
State Records Act 1998 or contrary to the agency's established record 19
management procedures. 20
(5) An agency is not required to undertake any search for information that 21
would require an unreasonable and substantial diversion of the agency's 22
resources. 23
54 Consultation on public interest considerations 24
(1) An agency must take such steps (if any) as are reasonably practicable to 25
consult with a person before providing access to information relating to 26
the person in response to an access application if it appears that: 27
(a) the information is of a kind that requires consultation under this 28
section, and 29
(b) the person may reasonably be expected to have concerns about 30
the disclosure of the information, and 31
(c) those concerns may reasonably be expected to be relevant to the 32
question of whether there is a public interest consideration 33
against disclosure of the information. 34
(2) Information relating to a person is of a kind that requires consultation 35
under this section if the information: 36
(a) includes personal information about the person, or 37
(b) concerns the person's business, commercial, professional or 38
financial interests, or 39
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Government Information (Public Access) Bill 2009 Clause 55
Access applications Part 4
(c) concerns research that has been, is being, or is intended to be, 1
carried out by or on behalf of the person, or 2
(d) concerns the affairs of a government of the Commonwealth or 3
another State (and the person is that government). 4
Note. The requirement to consult extends to consultation with other agencies 5
and other governments. See the definition of person in Schedule 4. 6
(3) If consultation is required concerning the release of personal 7
information about a deceased person, that consultation is to be done by 8
consultation with a close relative of the deceased. 9
(4) The purpose of consultation under this section is to ascertain whether 10
the person has an objection to disclosure of some or all of the 11
information and the reasons for any such objection. 12
(5) The agency must take any objection to disclosure of information that the 13
agency receives in the course of consultation into account in the course 14
of determining whether there is an overriding public interest against 15
disclosure of government information. 16
(6) If consultation establishes that a person objects to the disclosure of 17
information but the agency decides to provide access to the information 18
in response to the application, access is not to be provided until the 19
agency has first given the objector notice of the agency's decision to 20
provide access to the information and notice of the objector's right to 21
have that decision reviewed, and is not to be provided while review 22
rights on the decision are pending. 23
(7) Review rights on a decision are pending while the objector is entitled to 24
apply for a review of the decision under Part 5 (ignoring any period that 25
may be available by way of extension of time to apply for review), or 26
any review duly applied for is pending. 27
55 Consideration of personal factors of application 28
(1) In determining whether there is an overriding public interest against 29
disclosure of information in response to an access application, an 30
agency is entitled to take the following factors (the personal factors of 31
the application) into account as provided by this section: 32
(a) the applicant's identity and relationship with any other person, 33
(b) the applicant's motives for making the access application, 34
(c) any other factors particular to the applicant. 35
(2) The personal factors of the application can also be taken into account as 36
factors in favour of providing the applicant with access to the 37
information. 38
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Clause 56 Government Information (Public Access) Bill 2009
Part 4 Access applications
(3) The personal factors of the application can be taken into account as 1
factors against providing access if (and only to the extent that) those 2
factors are relevant to the agency's consideration of whether the 3
disclosure of the information concerned could reasonably be expected 4
to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 5
or 7) of the Table to section 14. 6
(4) An applicant is entitled to provide any evidence or information 7
concerning the personal factors of the application that the applicant 8
considers to be relevant to the determination of whether there is an 9
overriding public interest against disclosure of the information applied 10
for. 11
(5) An agency may, as a precondition to providing access to information to 12
an applicant, require the applicant to provide evidence concerning any 13
personal factors of the application that were relevant to a decision by the 14
agency that there was not an overriding public interest against 15
disclosure of the information. 16
(6) An agency is under no obligation to inquire into, or verify claims made 17
by an access applicant or any other person about, the personal factors of 18
the application but is entitled to have regard to evidence or information 19
provided by the applicant or other person. 20
Note. An agency is not entitled to impose any conditions on the use or 21
disclosure of information when the agency provides access to the information in 22
response to an access application. See section 73. 23
56 Applicant can object to inclusion in disclosure log 24
(1) An access applicant can object to the inclusion in the agency's 25
disclosure log of all or specified information concerning the application. 26
The objection can be made as part of the application or separately and 27
can include reasons for the objection. 28
(2) An applicant is not entitled to object to the inclusion of information on 29
an agency's disclosure log except on one or more of the following 30
grounds: 31
(a) the information includes personal information about the 32
applicant (or a deceased person for whom the applicant is the 33
personal representative), 34
(b) the information concerns the applicant's business, commercial, 35
professional or financial interests, 36
(c) the information concerns research that has been, is being, or is 37
intended to be, carried out by or on behalf of the applicant, 38
(d) the information concerns the affairs of a government of the 39
Commonwealth or another State (and the applicant is that 40
government). 41
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Government Information (Public Access) Bill 2009 Clause 57
Access applications Part 4
(3) An agency's acknowledgement of receipt of an access application is to 1
include the following statements about the inclusion of information in 2
the agency's disclosure log (unless the agency considers it unlikely that 3
information about the application will be included in the disclosure log): 4
(a) a statement that information concerning the application will be 5
included in the agency's disclosure log and that the applicant can 6
object to this, 7
(b) a statement about the right of review under Part 5 of a decision by 8
the agency to include information in its disclosure log despite the 9
applicant's objection. 10
(4) If an access applicant has objected to the inclusion of information in the 11
agency's disclosure log, the agency's notice of decision of the access 12
application must indicate: 13
(a) the agency's decision about whether the applicant was entitled to 14
object, and 15
(b) (if the agency has decided that the applicant was entitled to 16
object) the agency's decision on whether to include the 17
information in its disclosure log. 18
Note. The agency's decisions are reviewable under Part 5. 19
(5) An agency that decides that the applicant was not entitled to object to 20
the inclusion of information in the agency's disclosure log is entitled to 21
immediately include the information in the disclosure log. 22
(6) An agency that decides that the applicant was entitled to object to the 23
inclusion of information in the agency's disclosure log but decides to 24
include the information despite the objection must not include the 25
information while the objector is entitled to apply for a review of the 26
agency's decision under Part 5 (ignoring any period that may be 27
available by way of extension of time to apply for review), or any 28
review duly applied for is pending. 29
Division 4 Deciding access applications 30
57 Required period for deciding application 31
(1) An agency must decide an access application and give the applicant 32
notice of the agency's decision within 20 working days (the decision 33
period) after the agency receives the application. 34
(2) The decision period can be extended by up to 10 working days for either 35
or both of the following reasons (with a maximum extension under this 36
subsection of 15 working days for any particular access application): 37
(a) consultation with another person is required under a provision of 38
this Act, 39
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Clause 58 Government Information (Public Access) Bill 2009
Part 4 Access applications
(b) records are required to be retrieved from a records archive. 1
Note. The decision period can only be extended to allow for mandatory 2
consultation, not just consultation that the agency chooses to do. 3
(3) The regulations can also provide for the extension (and further 4
extension) of the decision period. 5
(4) The decision period can also be extended (and further extended) by 6
agreement with the applicant. 7
Note. A decision by an agency to refuse to agree to extending the decision 8
period is not a reviewable decision. 9
(5) The agency must as soon as practicable after the decision period is 10
extended (and in any case within 5 working days after it is extended) 11
give the applicant notice of any extension of the decision period 12
(including any extension by agreement with the applicant), indicating 13
the date on which the extended decision period will end. 14
(6) An access application is considered to have been decided within time if 15
the agency decides the application and gives the applicant notice of the 16
agency's decision within the decision period. The decision period is 17
also referred to in other provisions of this Act as the period within which 18
an application is required to be decided. 19
58 How applications are decided 20
(1) An agency decides an access application for government information 21
by: 22
(a) deciding to provide access to the information, or 23
(b) deciding that the information is not held by the agency, or 24
(c) deciding that the information is already available to the applicant 25
(see section 59), or 26
(d) deciding to refuse to provide access to the information because 27
there is an overriding public interest against disclosure of the 28
information, or 29
(e) deciding to refuse to deal with the application (see section 60), or 30
(f) deciding to refuse to confirm or deny that information is held by 31
the agency because there is an overriding public interest against 32
disclosure of information confirming or denying that fact. 33
Note. These decisions are reviewable under Part 5. 34
(2) More than one decision can be made in respect of a particular access 35
application, so as to deal with the various items of information applied 36
for. 37
(3) If an agency finds that information or additional information is held by 38
the agency after deciding an access application, the agency can make a 39
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Government Information (Public Access) Bill 2009 Clause 59
Access applications Part 4
further decision that replaces or supplements the original decision, but 1
cannot be required to make a further decision in such a case. The further 2
decision can be made even if the period within which the application is 3
required to be decided has expired. 4
59 Decision that information already available to applicant 5
(1) An agency can decide that information is already available to an 6
applicant only if the information is: 7
(a) made publicly available by the agency or some other agency in 8
accordance with a legislative instrument other than this Act, 9
whether or not availability of the information is by inspection 10
only and whether or not availability is subject to a charge, or 11
(b) available to the applicant from, or for inspection at, the agency 12
free of charge in accordance with this Act or the agency's policies 13
and practices, or 14
(c) contained in a document that is usually available for purchase. 15
(2) An agency is not required to provide access to information that the 16
agency has decided is already available to the applicant, but notice of 17
the decision must indicate how the information can be accessed by the 18
applicant. 19
60 Decision to refuse to deal with application 20
(1) An agency may refuse to deal with an access application (in whole or in 21
part) for any of the following reasons (and for no other reason): 22
(a) dealing with the application would require an unreasonable and 23
substantial diversion of the agency's resources, 24
(b) the agency has already decided a previous application for the 25
information concerned (or information that is substantially the 26
same as that information) made by the applicant and there are no 27
reasonable grounds for believing that the agency would make a 28
different decision on the application, 29
(c) the applicant has failed to pay an advance deposit that is payable 30
in connection with the application, 31
Note. See section 70. 32
(d) the information is or has been the subject of a subpoena or other 33
order of a court for the production of documents and is available 34
to the applicant as a result of having been produced in compliance 35
with the subpoena or other order. 36
(2) In deciding whether dealing with an application would require an 37
unreasonable and substantial diversion of an agency's resources, the 38
agency is not required to have regard to any extension by agreement 39
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Clause 61 Government Information (Public Access) Bill 2009
Part 4 Access applications
between the applicant and the agency of the period within which the 1
application is required to be decided. 2
(3) In deciding whether dealing with an application would require an 3
unreasonable and substantial diversion of an agency's resources, the 4
agency is entitled to consider 2 or more applications (including any 5
previous application) as the one application if the agency determines 6
that the applications are related and are made by the same applicant or 7
by persons who are acting in concert in connection with those 8
applications. 9
(4) Before refusing to deal with an access application because dealing with 10
it would require an unreasonable and substantial diversion of an 11
agency's resources, the agency must give the applicant a reasonable 12
opportunity to amend the application. The period within which the 13
application is required to be decided stops running while the applicant 14
is being given an opportunity to amend the application. 15
(5) Notice of an agency's decision to refuse to deal with an access 16
application must state the agency's reasons for the refusal. 17
(6) An applicant is not entitled to a refund of the application fee when the 18
agency refuses to deal with the application. 19
61 Notice of decision to refuse to provide access 20
Notice of an agency's decision to refuse to provide access to 21
information because there is an overriding public interest against 22
disclosure of the information must state the following: 23
(a) the agency's reasons for its decision, 24
(b) the findings on any material questions of fact underlying those 25
reasons, together with a reference to the sources of information 26
on which those findings are based, 27
(c) the general nature and the format of the records held by the 28
agency that contain the information concerned. 29
62 Notice of processing charges 30
Notice of an agency's decision to provide access to information must 31
state whether any processing charges will be payable for access to the 32
information and indicate how those charges have been calculated. 33
63 Deemed refusal if application not decided within time 34
(1) If an agency does not decide an access application within time, the 35
agency is deemed to have decided to refuse to deal with the application 36
and any application fee paid by the applicant is to be refunded. 37
Note. A deemed decision to refuse to deal with an application is reviewable 38
under Part 5. 39
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Government Information (Public Access) Bill 2009 Clause 64
Access applications Part 4
(2) The deemed refusal to deal with an application does not prevent the 1
agency from continuing to deal with the application and subsequently 2
deciding the application and giving notice of its decision (a late 3
decision) on the application. 4
(3) The obligation to refund an application fee to the applicant is not 5
affected by the making of the late decision and the late decision does not 6
entitle the agency to payment of an application fee. 7
(4) No processing charge can be imposed for dealing with an access 8
application if the application was not decided within time (whether or 9
not a late decision is made on the application). 10
Division 5 Processing charges and advance deposits 11
64 Processing charge for dealing with access application 12
(1) An agency may impose a charge (a processing charge) for dealing with 13
an access application at a rate of $30 per hour for each hour of 14
processing time for the application. 15
Note. The decision to impose a processing charge is reviewable under Part 5. 16
(2) The processing time for an application is the total amount of time to be 17
spent by any officer of the agency in: 18
(a) dealing with the application (including consideration of the 19
application, searching for records, consultation, decision-making 20
and any other function exercised in connection with deciding the 21
application), or 22
(b) providing access in response to the application (based on the 23
lowest reasonable estimate of the time that will need to be spent 24
in providing that access). 25
(3) The application fee of $30 paid by an applicant counts as a payment 26
towards any processing charge payable by the applicant. 27
(4) Access to government information granted in response to an access 28
application may be made conditional on payment of any processing 29
charge imposed for dealing with the application. 30
65 Discounted processing charge--financial hardship 31
(1) An applicant is entitled to a 50% reduction in a processing charge 32
imposed by an agency if the agency is satisfied that the applicant is 33
suffering financial hardship. 34
Note. The discount applies only to the processing charge, not the application 35
fee. If a 50% reduction in processing charge applies, the application fee will pay 36
for the first 2 hours of processing time (not just the first hour). See section 64. 37
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Clause 66 Government Information (Public Access) Bill 2009
Part 4 Access applications
(2) The agency may refuse to allow the discount if satisfied that the 1
applicant is making the application on behalf of another person in order 2
to obtain the discount for that person. 3
(3) The regulations may prescribe circumstances that constitute financial 4
hardship. 5
Note. A decision to refuse to reduce a processing charge is reviewable under 6
Part 5. 7
66 Discounted processing charge--special public benefit 8
(1) An applicant is entitled to a 50% reduction in a processing charge 9
imposed by an agency if the agency is satisfied that the information 10
applied for is of special benefit to the public generally. 11
Note. The discount applies only to the processing charge, not the application 12
fee. If a 50% reduction in processing charge applies, the application fee will pay 13
for the first 2 hours of processing time (not just the first hour). See section 64. 14
A decision to refuse to reduce a processing charge is reviewable under Part 5. 15
(2) If the information applied for was not publicly available at the time the 16
application was received but the agency makes the information publicly 17
available either before or within 3 working days after providing access 18
to the applicant, the applicant is entitled to a full waiver of the 19
processing charge imposed by the agency. 20
(3) The Information Commissioner may, for the assistance of agencies, 21
publish guidelines about reductions in processing charges under this 22
section. 23
67 Waiver of processing charge for personal information application 24
If an access application is made for personal information about the 25
applicant (the applicant being an individual), the agency cannot impose 26
any processing charge for the first 20 hours of processing time for the 27
application. 28
Note. This does not limit an agency's power to reduce, waive or refund 29
processing charges under section 127. 30
68 Advance deposit for payment of processing charge 31
(1) An agency may by notice to an applicant require the applicant to make 32
an advance payment of a processing charge (as an advance deposit). 33
Note. The decision to require an advance deposit is reviewable under Part 5. 34
(2) The period within which the application is required to be decided stops 35
running from when the decision to require an advance deposit is made 36
until payment of the advance deposit is received by the agency. 37
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Government Information (Public Access) Bill 2009 Clause 69
Access applications Part 4
(3) The notice requiring an advance deposit must: 1
(a) include a statement of the processing charges for work already 2
undertaken by the agency in dealing with the application, and 3
(b) include a statement of the estimated processing charges for work 4
expected to be required to be undertaken by the agency in dealing 5
with the application, and 6
(c) specify a date by which the advance deposit must be paid (being 7
a date at least 4 weeks after the date the notice is given), and 8
(d) include a statement that if the advance deposit is not paid by the 9
due date the agency may refuse to deal further with the 10
application and that this will result in any application fee and 11
advance deposit already paid being forfeited. 12
(4) An agency can extend the date by which an advance deposit must be 13
paid and is to give the applicant notice of any extension (indicating the 14
new date by which the advance deposit must be paid). 15
69 Maximum advance deposit 16
(1) The maximum advance deposit that can be required is 50% of the 17
amount that the agency estimates to be the total processing charge for 18
dealing with the application (ignoring any reduction in processing 19
charge to which the applicant may be entitled). 20
Note. An applicant can pay the full amount of the agency's estimate of the total 21
processing charge in advance if the applicant wants to, but the applicant cannot 22
be required to pay more than 50% of the estimate as an advance deposit. 23
(2) More than one advance deposit can be required so long as the total of 24
the advance deposits required does not exceed the maximum advance 25
deposit. 26
70 Result of failing to pay advance deposit 27
(1) An agency may refuse to deal further with an access application if the 28
applicant has failed to pay an advance deposit within the time required 29
for payment (unless the applicant has applied for review under Part 5 of 30
the decision to require the advance deposit within the time required for 31
payment of the advance deposit). 32
Note. The decision to refuse to deal further with an access application is 33
reviewable under Part 5. 34
(2) An agency must give notice to the applicant of its decision to refuse to 35
deal further with the application. 36
(3) The review under Part 5 of a decision to refuse to deal further with an 37
application for failure to pay an advance deposit is to be a review of both 38
the decision to refuse to deal further with the application and the 39
Page 35
Clause 71 Government Information (Public Access) Bill 2009
Part 4 Access applications
decision to impose the advance deposit (unless the decision to impose 1
the advance deposit has already been reviewed under that Part). 2
71 Refund of advance deposit 3
(1) An applicant is entitled to a refund of advance deposits paid by the 4
applicant to the extent (if any) that the advance deposits paid exceed the 5
total processing charges payable for dealing with the application. 6
(2) An applicant is entitled to a refund of any advance deposit paid if the 7
agency does not decide the access application within time. 8
Note. An agency cannot impose a processing charge if it does not decide an 9
application within time. 10
Division 6 How access is provided 11
72 Forms of access 12
(1) Access to government information in response to an access application 13
may be provided in any of the following ways: 14
(a) by providing a reasonable opportunity to inspect a record 15
containing the information, 16
(b) by providing a copy of a record containing the information, 17
(c) by providing access to a record containing the information, 18
together with such facilities as may be necessary to enable the 19
information to be read, viewed or listened to (as appropriate to 20
the kind of record concerned), 21
(d) by providing a written transcript of the information in the case of 22
information recorded in an audio record or recorded in shorthand 23
or other encoded format. 24
(2) The agency must provide access in the way requested by the applicant 25
unless: 26
(a) to do so would interfere unreasonably with the operations of the 27
agency or would result in the agency incurring unreasonable 28
additional costs, or 29
(b) to do so would be detrimental to the proper preservation of the 30
record, or 31
(c) to do so would involve an infringement of copyright, or 32
(d) there is an overriding public interest against disclosure of the 33
information in the way requested by the applicant. 34
Note. Decisions about how to provide access are reviewable under Part 5. 35
Page 36
Government Information (Public Access) Bill 2009 Clause 73
Access applications Part 4
73 Access to be unconditional 1
(1) An agency is not entitled to impose any conditions on the use or 2
disclosure of information when the agency provides access to the 3
information in response to an access application. 4
(2) A condition may be imposed as to how a right of access may be 5
exercised (such as a condition that prevents an applicant making notes 6
from or taking a copy of a record that is made available for inspection) 7
but only to avoid there being an overriding public interest against 8
disclosure of the information. 9
(3) A condition may be imposed that access to medical or psychiatric 10
information will only be provided to a medical practitioner nominated 11
by the applicant and not to the applicant personally. 12
Note. Access can also be made conditional on the payment of processing 13
charges (s 64) and on the provision of evidence of identity or other personal 14
factors relevant to the agency's decision to provide access (s 55). 15
74 Deletion of information from copy of record to be accessed 16
An agency can delete information from a copy of a record to which 17
access is to be provided in response to an access application (so as to 18
provide access only to the other information that the record contains) 19
either because the deleted information is not relevant to the information 20
applied for or because (if the deleted information was applied for) the 21
agency has decided to refuse to provide access to that information. 22
75 Providing access by creating new record 23
(1) An agency is not prevented from providing access in response to an 24
access application to government information held by the agency by 25
making and providing access to a new record of that information. 26
(2) An agency's obligation to provide access to government information in 27
response to an access application does not require the agency to do any 28
of the following: 29
(a) make a new record of information held by the agency, 30
(b) update or verify information held by the agency, 31
(c) create new information, or produce a new record of information, 32
by deduction, inference or calculation from information held by 33
the agency or by any other use or application of information held 34
by the agency. 35
Page 37
Clause 76 Government Information (Public Access) Bill 2009
Part 4 Access applications
76 Providing access to information not applied for 1
An agency is authorised to provide access to government information in 2
response to an access application that is in addition to the information 3
applied for, unless there is an overriding public interest against 4
disclosure. 5
77 Period within which access rights must be exercised 6
(1) When an agency decides to provide access to government information 7
the applicant has a period of 6 months (the access period) to access the 8
information. 9
(2) The access period starts from when notice of the decision to grant access 10
is given to the applicant (even if access is conditional on payment of any 11
processing charge). If the agency has decided to defer providing access, 12
the access period starts from the end of the deferral. 13
(3) The agency may extend and further extend the access period in a 14
particular case by notice to the applicant. 15
(4) An access applicant's entitlement to access lapses at the end of the 16
access period. 17
78 Deferral of access 18
(1) An agency that has decided to provide access to government 19
information in response to an access application may defer providing 20
that access if: 21
(a) the information is contained in a record (or a draft of or extract 22
from a record) that, by or under this Act or some other legislative 23
instrument, is required to be published but is yet to be published, 24
or 25
(b) the information is contained in a record (or a draft of or extract 26
from a record) that has been prepared for presentation to 27
Parliament, or that has been designated by the responsible 28
Minister for the agency as appropriate for presentation to 29
Parliament, but is yet to be presented, or 30
(c) the information is contained in a record (or a draft of or extract 31
from a record) that has been prepared for submission to a 32
particular person or body, or that has been designated by the 33
responsible Minister for the agency as appropriate for submission 34
to a particular person or body, but is yet to be submitted. 35
Note. A decision to defer access is reviewable under Part 5. 36
(2) Access may be deferred only until the record has been so published, 37
presented or submitted. 38
Page 38
Government Information (Public Access) Bill 2009 Clause 79
Access applications Part 4
(3) If access is to be deferred, the notice of decision of the access 1
application given to the applicant must state that access is to be deferred 2
and state the date on which access will be provided or (if that date is not 3
known) describe the event following which access will be provided and 4
the expected date of that event. 5
(4) If access to information is deferred for more than 12 months, the 6
applicant is entitled to make a further access application for the 7
information. No application fee or processing charge is payable in 8
respect of the further application and access pursuant to the further 9
application cannot be deferred under this section. 10
79 Provision of information subject to subpoena 11
(1) An agency need not comply with a requirement of a subpoena or other 12
order of a court for the production of a document that the person who 13
requested the issue of the subpoena or applied for the order has been 14
given access to by the agency in response to an access application made 15
by the person. 16
(2) This section does not apply if the court that issued the subpoena or order 17
specifically orders to the contrary. 18
Page 39
Clause 80 Government Information (Public Access) Bill 2009
Part 5 Review of decisions
Part 5 Review of decisions 1
Division 1 Reviewable decisions 2
80 Which decisions are reviewable decisions 3
The following decisions of an agency in respect of an access application 4
are reviewable decisions for the purposes of this Part: 5
(a) a decision that an application is not a valid access application, 6
(b) a decision to transfer an access application to another agency, as 7
an agency-initiated transfer, 8
(c) a decision to refuse to deal with an access application (including 9
such a decision that is deemed to have been made), 10
(d) a decision to provide access or to refuse to provide access to 11
information in response to an access application, 12
(e) a decision that government information is not held by the agency, 13
(f) a decision that information applied for is already available to the 14
applicant, 15
(g) a decision to refuse to confirm or deny that information is held by 16
the agency, 17
(h) a decision to defer the provision of access to information in 18
response to an access application, 19
(i) a decision to provide access to information in a particular way in 20
response to an access application (or a decision not to provide 21
access in the way requested by the applicant), 22
(j) a decision to impose a processing charge or to require an advance 23
deposit, 24
(k) a decision to refuse a reduction in a processing charge, 25
(l) a decision to refuse to deal further with an access application 26
because an applicant has failed to pay an advance deposit within 27
the time required for payment, 28
(m) a decision to include information in a disclosure log despite an 29
objection by the access applicant (or a decision that the access 30
applicant was not entitled to object). 31
81 Extended review period where more than one decision made 32
When more than one reviewable decision is made in respect of a 33
particular access application and those decisions are made at different 34
times, the period (the review period) within which a person may apply 35
for a review under this Part of any of those decisions is extended to the 36
end of the review period for the last of those decisions. 37
Page 40
Government Information (Public Access) Bill 2009 Clause 82
Review of decisions Part 5
Division 2 Internal review by agency 1
82 Right of internal review 2
(1) A person aggrieved by a reviewable decision of an agency is entitled to 3
a review of the decision by the agency that made the decision (which is 4
referred to in this Part as an internal review). 5
(2) Internal review of a decision is not available if the decision is made by 6
the principal officer of the agency or if the agency is a Minister. 7
(3) An internal review can be limited to a particular aspect of a reviewable 8
decision (such as by being limited to particular information to which the 9
decision relates). 10
(4) There is to be no internal review of a decision that is or has been the 11
subject of review by the Information Commissioner under this Part 12
except internal review conducted on the recommendation of the 13
Information Commissioner. 14
(5) There is to be no internal review of a decision that is or has been the 15
subject of review by the ADT under this Part. 16
83 Time within which internal review can be applied for 17
(1) Internal review of a decision cannot be applied for more than 18
20 working days after notice of the decision is given to the access 19
applicant or (in the case of the deemed refusal by an agency to deal with 20
an access application) more than 20 working days after the deemed 21
refusal. 22
(2) An agency can agree to accept an application for internal review out of 23
time. 24
(3) An agency must acknowledge receipt of an application for internal 25
review by notice to the applicant for review given as soon as practicable 26
after the agency receives the application and in any event within 27
5 working days after the application is received. 28
84 Conduct of internal review 29
(1) An internal review is to be done by making a new decision, as if the 30
decision being reviewed (the original decision) had not been made, 31
with the new decision being made as if it were being made when the 32
access application to which the review relates was originally received. 33
(2) An internal review is not to be done by the person who made the original 34
decision and is not to be done by a person who is less senior than the 35
person who made the original decision. 36
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Clause 85 Government Information (Public Access) Bill 2009
Part 5 Review of decisions
85 Fee for internal review 1
(1) A fee of $40 is payable by the applicant for an internal review. 2
(2) No fee is payable for internal review of a decision to refuse to deal with 3
an access application if the decision arises because the agency did not 4
decide the access application within time (and as a result is deemed to 5
have refused to deal with the application). 6
86 Required period for determination of internal review 7
(1) An agency must make its decision on an internal review and give the 8
applicant notice of the agency's decision within 15 working days (the 9
review period) after the agency receives the application for internal 10
review. 11
(2) The review period can be extended by up to 10 working days if 12
consultation is required with another person with whom the agency has 13
not previously consulted in relation to the application. 14
(3) The agency must (before the review period ends) give the applicant 15
notice of any extension of the review period and indicate the date on 16
which the extended review period will end. 17
(4) The review period can also be extended by agreement with the applicant 18
for review. 19
(5) If a decision on the internal review is not made within the review period, 20
the agency is deemed to have made that decision by making the original 21
decision again, and the applicant for review is entitled to a refund of any 22
fee paid to the agency for the review. 23
87 No processing charges for internal review 24
(1) An agency is not entitled to impose any processing charges for work 25
done in connection with an internal review. 26
(2) This section does not affect any requirement to pay a processing charge 27
imposed in connection with the original decision (unless the decision on 28
the internal review otherwise requires). 29
88 No internal review of decision on internal review 30
A person is not entitled to an internal review of a decision made on the 31
internal review of a reviewable decision. 32
Page 42
Government Information (Public Access) Bill 2009 Clause 89
Review of decisions Part 5
Division 3 Review by Information Commissioner 1
89 Right to have decision reviewed by Information Commissioner 2
(1) A person aggrieved by a reviewable decision of an agency is entitled to 3
have the decision reviewed by the Information Commissioner under this 4
Division. 5
(2) When the aggrieved person is the access applicant, the decision is not 6
required to be the subject of internal review by the agency under this 7
Part before it can be reviewed by the Information Commissioner. In any 8
other case the decision is required to be the subject of internal review 9
before it can be reviewed by the Information Commissioner. 10
(3) The Information Commissioner may exercise any function of the 11
Information Commissioner under the Government Information 12
(Information Commissioner) Act 2009 for the purposes of or in 13
connection with the review of a reviewable decision of an agency. 14
(4) Conduct of an agency that constitutes a reviewable decision of the 15
agency cannot be the subject of a complaint to the Information 16
Commissioner under section 17 of the Government Information 17
(Information Commissioner) Act 2009. 18
90 Time limit for applying for review by Information Commissioner 19
An application for the review of a decision by the Information 20
Commissioner must be made within 8 weeks after notice of the decision 21
to which the review relates is given to the applicant. 22
91 Disclosure of public interest information 23
The Information Commissioner must not, in the exercise of functions in 24
connection with a review under this Division, disclose any information 25
for which there is (or for which an agency claims there is) an overriding 26
public interest against disclosure. 27
92 Recommendations on review 28
(1) On a review of a decision under this Division, the Information 29
Commissioner may make such recommendations to the agency about 30
the decision as the Information Commissioner thinks appropriate. 31
(2) The recommendations specifically provided for by this Division do not 32
limit the recommendations that the Information Commissioner can 33
make. 34
93 Recommendation for reconsideration of matter by agency 35
(1) The Information Commissioner may recommend that the agency 36
reconsider the decision that is the subject of the Information 37
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Clause 94 Government Information (Public Access) Bill 2009
Part 5 Review of decisions
Commissioner's review and make a new decision as if the decision 1
reviewed had not been made. 2
(2) The agency may, pursuant to such a recommendation, reconsider the 3
decision and make a new decision, whether or not the decision has 4
already been the subject of internal review by the agency. 5
(3) The agency's reconsideration of a decision is to be by way of internal 6
review of the decision (under Division 2) unless the decision has 7
already been internally reviewed, in which case the agency is to 8
reconsider the decision and make a new decision. 9
(4) Unlike an internal review, the reconsideration of a decision that is not 10
an internal review: 11
(a) can be done by the person who made the original decision, and 12
(b) can be the reconsideration of a decision made by the principal 13
officer of the agency. 14
(5) The reconsideration of a decision that is not an internal review cannot 15
be done by a person who is less senior than the person who made the 16
original decision. 17
(6) A fee of $40 is payable (by the person who applied for the Information 18
Commissioner's review) for the internal review of a decision pursuant 19
to a recommendation of the Information Commissioner. 20
Note. No fee is payable for any other reconsideration of a matter pursuant to a 21
recommendation of the Information Commissioner. 22
94 Recommendation as to public interest against disclosure 23
The Information Commissioner may make a recommendation against a 24
decision of an agency that there is an overriding public interest against 25
disclosure of government information. 26
95 Recommendation as to general procedure of agency 27
The Information Commissioner may make a recommendation that any 28
general procedure of an agency in relation to dealing with access 29
applications be changed to conform to the requirements of this Act or to 30
further the object of this Act. 31
96 Information Commissioner may refuse to review decision 32
The Information Commissioner may refuse to review or to deal further 33
with a review of a decision of an agency if the Information 34
Commissioner is satisfied that: 35
(a) the application for review is frivolous, vexatious, misconceived 36
or lacking in substance, or 37
Page 44
Government Information (Public Access) Bill 2009 Clause 97
Review of decisions Part 5
(b) the review would require an unreasonable and substantial 1
diversion of the resources of the Information Commissioner, or 2
(c) the applicant for review has failed without reasonable excuse to 3
co-operate with the Information Commissioner in connection 4
with the review, or 5
(d) the applicant for review cannot by reasonable efforts be contacted 6
by the Information Commissioner. 7
97 Onus on agency to justify decisions 8
(1) In any review under this Division concerning a decision made under this 9
Act by an agency, the burden of establishing that the decision is justified 10
lies on the agency, except as otherwise provided by this section. 11
(2) If the review is of a decision to provide access to government 12
information in response to an access application, the burden of 13
establishing that there is an overriding public interest against disclosure 14
of information lies on the applicant for review. 15
(3) If the review is of a decision to refuse a reduction in a processing charge, 16
the burden of establishing that there is an entitlement to the reduction 17
lies on the applicant for review. 18
98 No review of decisions reviewed by ADT 19
A decision is not to be the subject of review by the Information 20
Commissioner under this Division if the decision is or has been the 21
subject of review by the ADT. 22
99 Referral of agency decision to ADT 23
The Information Commissioner may, with the consent of the applicant 24
for review, refer a decision of an agency that is the subject of a review 25
by the Information Commissioner under this Division to the ADT for 26
review. 27
Division 4 Review by Administrative Decisions Tribunal 28
100 Review of decision by ADT 29
A person who is aggrieved by a reviewable decision of an agency may 30
apply to the ADT for a review of the decision (referred to in this 31
Division as ADT review). 32
Note. A reviewable decision does not have to be internally reviewed or 33
reviewed by the Information Commissioner before it can be the subject of ADT 34
review. 35
Page 45
Clause 101 Government Information (Public Access) Bill 2009
Part 5 Review of decisions
101 Time for applying for ADT review 1
(1) An application for ADT review must be made within 8 weeks after 2
notice of the decision to which the review relates is given to the 3
applicant (unless subsection (2) gives a longer period to apply for ADT 4
review). 5
(2) If the decision is the subject of review by the Information 6
Commissioner, an application for ADT review can be made at any time 7
up to 4 weeks after the applicant is notified of the completion of the 8
Information Commissioner's review. 9
(3) If an application for ADT review of a decision is made while the 10
decision is the subject of review by the Information Commissioner, the 11
Information Commissioner's review is to end. 12
(4) The ADT may, on application by a person wanting to make an 13
application for ADT review out of time, extend the time for the making 14
of such an application by the person if the ADT is of the opinion that the 15
person has provided a reasonable excuse for the delay in making the 16
application. 17
(5) An application to extend the time for the making of an application for 18
ADT review must be in writing unless the ADT dispenses with the 19
requirement in a particular case. 20
(6) The time for making an application for ADT review may be extended 21
under this section even if that time has expired. 22
102 No internal review under ADT Act 23
(1) The procedure for internal review of a decision provided for by this Part 24
applies to the exclusion of section 53 (Internal reviews) of the ADT Act 25
in the case of a decision that is a reviewable decision under that Act. 26
(2) A reference in the ADT Act to internal review of a reviewable decision 27
under that Act is, in its application to a reviewable decision under this 28
Part, to be read as a reference to internal review of the decision under 29
this Part. 30
103 Operation of other ADT Act provisions 31
The provisions of section 58 (Duty of administrator to lodge material 32
documents with Tribunal where decision reviewed) and Division 2 33
(Effect of pending applications on reviewable decisions) of Part 3 of 34
Chapter 5 of the ADT Act do not apply to an application for ADT 35
review under this Division. 36
Page 46
Government Information (Public Access) Bill 2009 Clause 104
Review of decisions Part 5
104 Right of appearance before ADT 1
(1) The Information Commissioner has a right to appear and be heard in any 2
proceedings before the ADT (and proceedings on an appeal in respect 3
of any such proceedings) in relation to a review under this Division. 4
(2) Any person who could be aggrieved by a decision of the ADT on a 5
review under this Division has a right to appear and be heard in any 6
proceedings before the ADT in relation to the review. 7
105 Onus on agency to justify decisions 8
(1) In any review under this Division concerning a decision made under this 9
Act by an agency, the burden of establishing that the decision is justified 10
lies on the agency, except as otherwise provided by this section. 11
(2) If the review is of a decision to provide access to government 12
information in response to an access application, the burden of 13
establishing that there is an overriding public interest against disclosure 14
of information lies on the applicant for review. 15
(3) If the review is of a decision to refuse a reduction in a processing charge, 16
the burden of establishing that there is an entitlement to the reduction 17
lies on the applicant for review. 18
106 Decisions about Cabinet and Executive Council information 19
(1) On an ADT review of a decision by an agency that there is an overriding 20
public interest against disclosure of information because the 21
information is claimed to be Cabinet or Executive Council information 22
(as described in Schedule 1), the ADT is limited to deciding whether 23
there were reasonable grounds for the agency's claim and is not 24
authorised to make a decision as to the correct and preferable decision 25
on the matter. 26
(2) If the ADT is not satisfied, by evidence on affidavit or otherwise, that 27
there were reasonable grounds for the claim, it may require the 28
information to be produced in evidence before it. 29
(3) If the ADT is still not satisfied after considering the evidence produced 30
that there were reasonable grounds for the claim, the ADT is to reject 31
the claim when determining the review application and may then 32
proceed to make a decision as to the correct and preferable decision on 33
the matter. 34
(4) The ADT is not to reject the claim unless it has given the Minister 35
administering this Act a reasonable opportunity to appear and be heard 36
in relation to the matter. 37
(5) The Minister administering this Act is a party to any proceedings on an 38
application under this section. 39
Page 47
Clause 107 Government Information (Public Access) Bill 2009
Part 5 Review of decisions
107 Procedure for dealing with public interest considerations 1
(1) In determining an application for ADT review, the ADT is to ensure that 2
it does not, in the reasons for its decision or otherwise, disclose any 3
information for which there is an overriding public interest against 4
disclosure. 5
(2) On an ADT review, the ADT must receive evidence and hear argument 6
in the absence of the public, the review applicant and the applicant's 7
representative if in the opinion of the ADT it is necessary to do so to 8
prevent the disclosure of information for which there is an overriding 9
public interest against disclosure. 10
(3) On an ADT review, the ADT must, on the application of the Minister 11
administering this Act or the agency, receive evidence and hear 12
argument in the absence of: 13
(a) the public and the applicant, and 14
(b) the applicant's representative if the ADT is of the opinion that it 15
is necessary to do so to prevent the disclosure of information for 16
which there is, or for which there could be or is claimed to be, an 17
overriding public interest against disclosure. 18
108 Delayed decisions 19
(1) The ADT may on the application of an agency make an order allowing 20
the agency further time to decide an access application if the decision 21
that is the subject of ADT review is a decision the agency is deemed to 22
have made because the access application or internal review concerned 23
was not decided within time (referred to in this section as a deemed 24
refusal decision). 25
(2) Such an order may be made subject to such conditions as the ADT 26
thinks fit, including either of the following conditions: 27
(a) a condition that if a decision is made to provide access to the 28
information concerned during the further time allowed, any 29
charge that would otherwise be payable in connection with 30
providing that access is to be reduced or waived and the applicant 31
for the ADT review may apply to the ADT for an order that the 32
applicant's costs in proceedings on the ADT review are to be paid 33
by the agency, 34
(b) a condition permitting the agency to impose processing charges 35
for work done in connection with the access application (as if the 36
application had been decided within time). 37
(3) If an agency makes a reviewable decision (the subsequent decision) on 38
an access application following a deemed refusal decision on the 39
application and while the deemed refusal decision is the subject of ADT 40
Page 48
Government Information (Public Access) Bill 2009 Clause 109
Review of decisions Part 5
review, the ADT may on application by the applicant deal with the 1
application for ADT review as if it were an application for review of the 2
subsequent decision. 3
109 ADT may refuse to review decision 4
The ADT may refuse to review or to deal further with a review of a 5
decision of an agency if the ADT is satisfied that the application for 6
review is frivolous, vexatious, misconceived or lacking in substance. 7
110 Orders to restrain making of unmeritorious access applications 8
(1) The ADT may order that a person is not permitted to make an access 9
application without first obtaining the approval of the ADT if the ADT 10
is satisfied that the person has made at least 3 access applications (to one 11
or more agencies) in the previous 2 years that lack merit. Such an order 12
is a restraint order. 13
(2) An access application is to be regarded as lacking merit if: 14
(a) the agency decided the application by refusing to deal with the 15
application in its entirety, or 16
(b) the agency decided the application by deciding that none of the 17
information applied for is held by the agency, or 18
(c) the access applicant's entitlement to access lapsed without that 19
access being provided (including as a result of failure to pay any 20
processing charge payable). 21
(3) A restraint order may be made to apply to all access applications made 22
by the person the subject of the order or may be limited by reference to 23
particular kinds of information or particular agencies. 24
(4) A person who is subject to a restraint order cannot apply to the ADT for 25
approval to the making of an access application by the person without 26
first serving notice of the application for approval on the agency 27
concerned and the Information Commissioner. 28
(5) An application for a restraint order against a person may be made by an 29
agency that receives an access application from the person (whether or 30
not the agency has decided the application) or by the Minister or the 31
Information Commissioner. 32
(6) The ADT may order that a person who is the subject of a restraint order 33
is not permitted to apply to the ADT for approval to make an access 34
application if the ADT is satisfied that the person has repeatedly made 35
applications for approval that are lacking in substance. 36
(7) While a restraint order is in force against a person, any application for 37
government information made to an agency in contravention of the 38
order is not a valid access application. 39
Page 49
Clause 111 Government Information (Public Access) Bill 2009
Part 5 Review of decisions
111 Referral of systemic issues to Information Commissioner 1
The ADT may refer any matter to the Information Commissioner that 2
the ADT considers is indicative of a systemic issue in relation to the 3
determination of access applications by a particular agency or by 4
agencies generally. 5
112 Report on improper conduct 6
If the ADT is of the opinion as a result of an ADT review that an officer 7
of an agency has failed to exercise in good faith a function conferred on 8
the officer by or under this Act, the ADT may bring the matter to the 9
attention of the Minister who appears to the ADT to have responsibility 10
for the agency. 11
Page 50
Government Information (Public Access) Bill 2009 Clause 113
Protections and offences Part 6
Part 6 Protections and offences 1
Division 1 Protections 2
113 Protection in respect of actions for defamation or breach of confidence 3
(1) If government information is disclosed pursuant to a decision under this 4
Act, and the person by whom the decision is made believes in good 5
faith, when making the decision, that this Act permits or requires the 6
decision to be made: 7
(a) no action for defamation or breach of confidence lies against the 8
Crown, an agency or an officer of an agency by reason of the 9
making of the decision or the disclosure of information, and 10
(b) no action for defamation or breach of confidence in respect of any 11
publication involved in, or resulting from, the disclosure of 12
information lies against the author of a record containing the 13
information or any other person by reason of the author or other 14
person having supplied the record to an agency. 15
(2) Neither the giving of access to information pursuant to a decision under 16
this Act nor the making of such a decision constitutes, for the purposes 17
of the law relating to defamation or breach of confidence, an 18
authorisation or approval of the publication of a record containing the 19
information or its contents by the person to whom the information is 20
disclosed. 21
114 Protection in respect of certain criminal actions 22
If government information is disclosed pursuant to a decision under this 23
Act, and the person by whom the decision is made believes in good 24
faith, when making the decision, that this Act permits or requires the 25
decision to be made, neither the person by whom the decision is made 26
nor any other person concerned in disclosing the information is guilty 27
of an offence merely because of the making of the decision or the 28
disclosing of information. 29
115 Personal liability 30
No matter or thing done by an agency or officer of an agency, or by any 31
person acting under the direction of an agency or officer of an agency, 32
if the matter or thing was done in good faith for the purposes of 33
executing this Act, subjects the officer or person so acting, personally 34
to any action, liability, claim or demand. 35
Page 51
Clause 116 Government Information (Public Access) Bill 2009
Part 6 Protections and offences
Division 2 Offences 1
116 Offence of acting unlawfully 2
An officer of an agency must not make a reviewable decision in relation 3
to an access application that the officer knows to be contrary to the 4
requirements of this Act. 5
Maximum penalty: 100 penalty units. 6
117 Offence of directing unlawful action 7
A person (the offender) must not: 8
(a) direct an officer of an agency who is required to make a decision 9
in relation to an access application to make a reviewable decision 10
that the offender knows is not a decision permitted or required to 11
be made by this Act, or 12
(b) direct a person who is an officer of an agency involved in an 13
access application to act in a manner that the offender knows is 14
otherwise contrary to the requirements of this Act. 15
Maximum penalty: 100 penalty units. 16
118 Offence of improperly influencing decision on access application 17
A person (the offender) who influences the making of a decision by an 18
officer of an agency for the purpose of causing the officer to make a 19
reviewable decision that the offender knows is not the decision 20
permitted or required to be made by this Act is guilty of an offence. 21
Maximum penalty: 100 penalty units. 22
119 Offence of unlawful access 23
A person who in connection with an access application knowingly 24
misleads or deceives an officer of an agency for the purpose of 25
obtaining access to government information is guilty of an offence. 26
Maximum penalty: 100 penalty units. 27
120 Offence of concealing or destroying government information 28
A person who destroys, conceals or alters any record of government 29
information for the purpose of preventing the disclosure of the 30
information as authorised or required by or under this Act is guilty of an 31
offence. 32
Maximum penalty: 100 penalty units. 33
Page 52
Government Information (Public Access) Bill 2009 Clause 121
Miscellaneous Part 7
Part 7 Miscellaneous 1
121 Provision of information by private sector contractors 2
(1) An agency that enters into a contract (a government contract) with a 3
private sector entity (the contractor) under which the contractor is to 4
provide services to the public on behalf of the agency must ensure that 5
the contract provides for the agency to have an immediate right of 6
access to the following information contained in records held by the 7
contractor: 8
(a) information that relates directly to the performance of the 9
services by the contractor, 10
(b) information collected by the contractor from members of the 11
public to whom it provides, or offers to provide, the services, 12
(c) information received by the contractor from the agency to enable 13
it to provide the services. 14
Note. A reference in this Act to government information held by an agency 15
includes information held by a private sector entity to which the agency has an 16
immediate right of access. See clause 12 of Schedule 4. This means that an 17
access application can be made to the agency for that information. 18
(2) A government contract is not required to provide for the agency to have 19
an immediate right of access to any of the following information: 20
(a) information that discloses or would tend to disclose the 21
contractor's financing arrangements, financial modelling, cost 22
structure or profit margins, 23
(b) information that the contractor is prohibited from disclosing to 24
the agency by provision made by or under any Act (of this or 25
another State or of the Commonwealth), 26
(c) information that, if disclosed to the agency, could reasonably be 27
expected to place the contractor at a substantial commercial 28
disadvantage in relation to the agency, whether at present or in 29
the future. 30
Note. The contractor may be entitled to be consulted by the agency under 31
section 54 (Consultation on public interest considerations) in relation to an 32
access application made to the agency for information held by the contractor. 33
122 Act binds the Crown 34
This Act binds the State and, in so far as the legislative power of the 35
Parliament of New South Wales permits, the other States, the Territories 36
and the Commonwealth. 37
123 State Records Act not affected 38
This Act does not affect the operation of the State Records Act 1998. 39
Page 53
Clause 124 Government Information (Public Access) Bill 2009
Part 7 Miscellaneous
124 Powers of Ombudsman 1
The powers of the Ombudsman under the Ombudsman Act 1974 do not 2
extend to investigating the conduct of any person or body in relation to 3
a decision of an agency that is a reviewable decision under Part 5 of this 4
Act. 5
125 Reports to Parliament 6
(1) Each agency (other than a Minister) must, within 4 months after the end 7
of each reporting year, prepare an annual report on the agency's 8
obligations under this Act for submission to the Minister responsible for 9
the agency. A copy of the report is to be provided to the Information 10
Commissioner. 11
(2) Each Minister must, on or before 31 August each year, furnish the 12
Minister administering this Act with such information concerning the 13
Minister's obligations as an agency under this Act as the Minister 14
administering this Act may require. 15
(3) The Minister administering this Act must, on or before 31 December 16
each year, prepare an annual report on the obligations of each Minister 17
as an agency under this Act. A copy of the report is to be provided to the 18
Information Commissioner. 19
(4) An annual report under this section must be tabled in each House of 20
Parliament by the relevant Minister as soon as practicable after it is 21
prepared unless it is included in an annual report prepared for the 22
purposes of the Annual Reports (Departments) Act 1985 or the Annual 23
Reports (Statutory Bodies) Act 1984. 24
(5) The annual report referred to in subsection (3) may be included in the 25
annual report for the Department of Premier and Cabinet prepared for 26
the purposes of the Annual Reports (Departments) Act 1985. 27
(6) The regulations may make provision for: 28
(a) the information to be included in annual reports, and 29
(b) the form in which annual reports are to be prepared. 30
(7) In this section, a reference to the reporting year of an agency is a 31
reference to: 32
(a) the financial year of the agency for the purposes of the Annual 33
Reports (Departments) Act 1985 or the Annual Reports 34
(Statutory Bodies) Act 1984, or 35
(b) if the agency does not have a financial year for the purposes of 36
either of those Acts, the year ending 30 June. 37
Page 54
Government Information (Public Access) Bill 2009 Clause 126
Miscellaneous Part 7
126 Requirements for notices given by agencies 1
(1) The following requirements apply to any notice or notification that an 2
agency is required to give under this Act: 3
(a) it must be in writing, 4
(b) it must include the date of the decision or other action of the 5
agency with which the notice or notification is concerned, 6
(c) it must include a statement that gives details of any right of 7
review provided by this Act in respect of any decision of the 8
agency with which the notice or notification is concerned 9
(including details of the period within which any such right of 10
review must be exercised), 11
(d) it must include the contact details of an officer of the agency to 12
whom inquiries can be directed in connection with the decision 13
or other action of the agency with which the notice or notification 14
is concerned, 15
(e) it must not disclose any information for which there is an 16
overriding public interest against disclosure. 17
(2) A notice or notification under this Act that is given by an agency to a 18
person by being posted to the person at the postal address provided by 19
the person for correspondence in connection with the matter concerned 20
is considered to have been given to the person when it is posted by the 21
agency. 22
127 Waiver, reduction or refund of fees and charges 23
An agency is entitled to waive, reduce or refund any fee or charge 24
payable or paid under this Act in any case that the agency thinks 25
appropriate, subject to the regulations. 26
128 Nature of proceedings for offences 27
(1) Proceedings for an offence under this Act or the regulations may be 28
dealt with summarily before a Local Court. 29
(2) Proceedings for an offence under this Act or the regulations may only 30
be taken by or with the authority of the Director of Public Prosecutions 31
or the Attorney General. 32
129 Regulations 33
(1) The Governor may make regulations, not inconsistent with this Act, for 34
or with respect to any matter that by this Act is required or permitted to 35
be prescribed or that is necessary or convenient to be prescribed for 36
carrying out or giving effect to this Act. 37
Page 55
Clause 130 Government Information (Public Access) Bill 2009
Part 7 Miscellaneous
(2) In particular, the regulations may make provision for or with respect to 1
the following: 2
(a) the manner in which agencies are to make government 3
information publicly available, 4
(b) the manner in which an access application can be made, 5
(c) the adoption and amendment of publication guides by agencies 6
(including the obligations of agencies to consult with the 7
Information Commissioner in connection with publication guides 8
and the adoption of model publication guides developed by the 9
Information Commissioner), 10
(d) information to be given to applicants for government 11
information, 12
(e) the circumstances in which and the extent to which an agency 13
must or may waive, reduce or refund any fee or charge payable 14
under this Act. 15
(3) The Minister is to consult with the Information Commissioner before 16
recommending the making of a regulation under this Act. 17
130 Review of Act 18
(1) The Minister administering this Act is to review this Act to determine 19
whether the policy objectives of the Act remain valid and whether the 20
terms of the Act remain appropriate for securing those objectives. 21
(2) The Minister is to consult with the Information Commissioner on a 22
review under this section and the Information Commissioner may assist 23
the Minister and provide advice in connection with the review. 24
(3) The review is to be undertaken as soon as possible after the period of 25
5 years from the date of assent to this Act. 26
(4) A report on the outcome of the review is to be provided to the Minister 27
administering this Act and tabled in each House of Parliament within 28
12 months after the end of the period of 5 years. 29
131 Review of public interest provisions by Joint Committee 30
(1) The Joint Committee is to keep the following provisions of this Act 31
under review to determine whether the policy objectives of those 32
provisions remain valid and whether the content of those provisions 33
remains appropriate for securing those objectives: 34
(a) Schedule 1 (Information for which there is conclusive 35
presumption of overriding public interest against disclosure), 36
(b) Schedule 2 (Excluded information of particular agencies), 37
Page 56
Government Information (Public Access) Bill 2009 Clause 132
Miscellaneous Part 7
(c) Table to section 14 (Public interest considerations against 1
disclosure). 2
(2) The Joint Committee is to consult with the Information Commissioner 3
on any review under this section and the Information Commissioner 4
may assist the Joint Committee and provide advice in connection with 5
the review. 6
(3) The Joint Committee may report to both Houses of Parliament on any 7
change that the Joint Committee considers should be made to the 8
provisions reviewed under this section. 9
132 Government Information (Public Access) Regulation 2009 10
(1) Schedule 5 is taken to be and has effect as a regulation made under this 11
Act. 12
(2) Part 2 of the Subordinate Legislation Act 1989 does not apply to the 13
regulation set out in Schedule 5 (but applies to any amendment or repeal 14
of the regulation). 15
(3) For the purposes of section 10 of the Subordinate Legislation Act 1989, 16
the regulation set out in Schedule 5 is taken to have been published on 17
the day on which this section commences. 18
(4) Sections 39, 40 and 41 of the Interpretation Act 1987 do not apply to the 19
regulation set out in Schedule 5 (but apply to any amendment or repeal 20
of the regulation). 21
(5) Schedule 5 is repealed on the day following the day on which this 22
section commences. 23
Note. The continued effect of the regulation set out in Schedule 5 is unaffected 24
by the repeal of Schedule 5. See section 30 of the Interpretation Act 1987. 25
Page 57
Government Information (Public Access) Bill 2009
Schedule 1 Information for which there is conclusive presumption of overriding public
interest against disclosure
Schedule 1 Information for which there is conclusive 1
presumption of overriding public 2
interest against disclosure 3
(Section 14) 4
1 Overriding secrecy laws 5
It is to be conclusively presumed that there is an overriding public 6
interest against disclosure of information the disclosure of which is 7
prohibited by any of the following laws (which are referred to in this Act 8
as overriding secrecy laws), whether or not the prohibition is subject to 9
specified qualifications or exceptions and whether or not a breach of the 10
prohibition constitutes an offence: 11
Assisted Reproductive Technology Act 2007--Part 3 (Central ART 12
donor register) 13
Bail Act 1978--section 36C (Certain information not to be published or 14
broadcast) 15
Biofuel (Ethanol Content) Act 2007--section 21 (Secrecy) 16
Casino, Liquor and Gaming Control Authority Act 2007--section 17 17
(Secrecy) 18
Charter of Budget Honesty (Election Promises Costing) Act 2006-- 19
section 14 (Confidentiality of information or documents relating to 20
Treasury costing of election promises) 21
Child Protection (Offenders Registration) Act 2000--section 21E 22
(Prohibited disclosure of information concerning registrable persons) 23
Crimes (Administration of Sentences) Act 1999--regulations under 24
section 256 (Victims Register) 25
Crimes (Forensic Procedures) Act 2000--section 109 (Disclosure of 26
information) 27
Crimes (Sentencing Procedure) Act 1999--sections 51B (Certain 28
information not to be published or broadcast) and 100H (Certain 29
information not to be published or broadcast) 30
Criminal Procedure Act 1986--regulations under section 351 31
(Regulations with respect to the provision or disclosure of information 32
in connection with intervention programs) 33
Criminal Records Act 1991--section 13 (Unlawful disclosure of 34
information concerning spent convictions) 35
Dust Diseases Tribunal Act 1989--section 32I (Information about 36
claims) 37
Page 58
Government Information (Public Access) Bill 2009
Information for which there is conclusive presumption of overriding public Schedule 1
interest against disclosure
Education Act 1990--provision made by or under section 18A 1
(Publication of results of certain tests and other matters) or Division 2 2
of Part 5A (Health and safety risks at schools arising from student 3
behaviour) 4
Health Administration Act 1982--Divisions 6B (Quality assurance 5
committees) and 6C (Root cause analysis teams) of Part 2, and 6
section 23 (Specially privileged information) 7
Health Care Complaints Act 1993 8
Independent Commission Against Corruption Act 1988 9
Jury Act 1977 10
Police Act 1990--section 169A (Identity of complainant not to be 11
disclosed) 12
Police Integrity Commission Act 1996 13
Police Regulation 2008--clause 53 (Secrecy as to complaints about 14
conduct) 15
Protected Disclosures Act 1994--section 22 (Confidentiality guideline) 16
Public Lotteries Act 1996--section 80 (Secrecy) 17
Royal Commission (Police Service) Act 1994 18
State Records Act 1998--section 73 (Authority's duty of 19
confidentiality) but only in respect of information to which a person 20
gains access in the exercise of functions under that Act as a result of the 21
information having been acquired in the course of the administration of 22
another Act mentioned in this Schedule 23
Totalizator Act 1997--section 105 (Secrecy) 24
Witness Protection Act 1995 25
2 Cabinet information 26
(1) It is to be conclusively presumed that there is an overriding public 27
interest against disclosure of information (referred to in this Act as 28
Cabinet information) contained in any of the following documents: 29
(a) a document that contains an official record of Cabinet, 30
(b) a document prepared for the dominant purpose of its being 31
submitted to Cabinet for Cabinet's consideration (whether or not 32
the document is actually submitted to Cabinet), 33
(c) a document prepared for the purpose of its being submitted to 34
Cabinet for Cabinet's approval for the document to be used for 35
the dominant purpose for which it was prepared (whether or not 36
the document is actually submitted to Cabinet and whether or not 37
the approval is actually given), 38
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Government Information (Public Access) Bill 2009
Schedule 1 Information for which there is conclusive presumption of overriding public
interest against disclosure
(d) a document prepared after Cabinet's deliberation or decision on 1
a matter that would reveal or tend to reveal information 2
concerning any of those deliberations or decisions, 3
(e) a document prepared before or after Cabinet's deliberation or 4
decision on a matter that reveals or tends to reveal the position 5
that a particular Minister has taken, is taking, will take, is 6
considering taking, or has been recommended to take, on the 7
matter in Cabinet, 8
(f) a document that is a preliminary draft of, or a copy of or part of, 9
or contains an extract from, a document referred to in 10
paragraphs (a)-(e). 11
(2) Information contained in a document is not Cabinet information if: 12
(a) public disclosure of the document has been approved by the 13
Premier or Cabinet, or 14
(b) 10 years have passed since the end of the calendar year in which 15
the document came into existence. 16
(3) Information is not Cabinet information merely because it is contained in 17
a document attached to a document referred to in subclause (1). 18
(4) Information is not Cabinet information to the extent that it consists 19
solely of factual material unless the information would: 20
(a) reveal or tend to reveal information concerning any Cabinet 21
decision or determination, or 22
(b) reveal or tend to reveal the position that a particular Minister has 23
taken, is taking or will take on a matter in Cabinet. 24
(5) In this clause, Cabinet includes a committee of Cabinet and a 25
subcommittee of a committee of Cabinet. 26
3 Executive Council information 27
(1) It is to be conclusively presumed that there is an overriding public 28
interest against disclosure of information (referred to in this Act as 29
Executive Council information) contained in any of the following 30
documents: 31
(a) a document that contains an official record of the Executive 32
Council, 33
(b) a document prepared for the purpose of being submitted to the 34
Executive Council (whether or not that is the only or the 35
dominant purpose for which it was prepared and whether or not 36
the document is actually submitted to the Executive Council), 37
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Government Information (Public Access) Bill 2009
Information for which there is conclusive presumption of overriding public Schedule 1
interest against disclosure
(c) a document prepared after the Executive Council's deliberation 1
or advice on a matter that would reveal or tend to reveal 2
information concerning that deliberation or advice, 3
(d) a document that is a preliminary draft of, or a copy of or part of, 4
or contains an extract from, a document referred to in 5
paragraphs (a)-(c). 6
(2) Information contained in a document is not Executive Council 7
information if: 8
(a) public disclosure of the document has been approved by the 9
Governor or the Premier, or 10
(b) 10 years have passed since the end of the calendar year in which 11
the document came into existence. 12
(3) Information is not Executive Council information merely because it is 13
contained in a document attached to a document referred to in 14
subclause (1). 15
(4) Information is not Executive Council information to the extent that it 16
consists solely of factual material unless the information would reveal 17
or tend to reveal information concerning any deliberation or advice of 18
the Executive Council. 19
4 Contempt 20
It is to be conclusively presumed that there is an overriding public 21
interest against disclosure of information the public disclosure of which 22
would, but for any immunity of the Crown: 23
(a) constitute contempt of court, or 24
(b) contravene any order or direction of a person or body having 25
power to receive evidence on oath, or 26
(c) infringe the privilege of Parliament. 27
5 Legal professional privilege 28
(1) It is to be conclusively presumed that there is an overriding public 29
interest against disclosure of information that would be privileged from 30
production in legal proceedings on the ground of client legal privilege 31
(legal professional privilege), unless the person in whose favour the 32
privilege exists has waived the privilege. 33
(2) An agency in whose favour legal professional privilege exists is 34
required to consider whether it would be appropriate for the agency to 35
waive that privilege before the agency refuses to provide access to 36
government information on the basis of this clause. 37
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Government Information (Public Access) Bill 2009
Schedule 1 Information for which there is conclusive presumption of overriding public
interest against disclosure
(3) A decision that an agency makes under subclause (2) is not a reviewable 1
decision under Part 5. 2
6 Excluded information 3
(1) It is to be conclusively presumed that there is an overriding public 4
interest against disclosure of information that is excluded information 5
of an agency, other than information that the agency has consented to 6
the disclosure of. 7
(2) Before an agency decides an access application by refusing to provide 8
access to information on the basis that it is excluded information of 9
another agency, the agency is required to ask the other agency whether 10
the other agency consents to disclosure of the information. 11
(3) A decision that an agency makes to consent or to refuse to consent to the 12
disclosure of excluded information of the agency is not a reviewable 13
decision under Part 5. 14
7 Documents affecting law enforcement and public safety 15
It is to be conclusively presumed that there is an overriding public 16
interest against disclosure of information contained in any of the 17
following documents: 18
(a) a document created by the former Information and Intelligence 19
Centre of the Police Service or the former State Intelligence 20
Group, 21
(b) a document created by the Counter Terrorism and Special Tactics 22
Command of the NSW Police Force, the former Counter 23
Terrorist Co-ordination Command of the NSW Police Force, the 24
former Protective Security Group of the Police Service, the 25
former Special Branch of the Police Service or the former Bureau 26
of Criminal Intelligence, 27
(c) a document created by the State Crime Command of the NSW 28
Police Force in the exercise of its functions concerning the 29
collection, analysis or dissemination of intelligence, 30
(d) a document created by the Corrections Intelligence Group of the 31
Department of Corrective Services in the exercise of its functions 32
concerning the collection, analysis or dissemination of 33
intelligence, 34
(e) a document created by the Drug Intelligence Unit of the 35
Department of Juvenile Justice in the exercise of its functions 36
concerning the collection, analysis or dissemination of 37
intelligence. 38
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Government Information (Public Access) Bill 2009
Information for which there is conclusive presumption of overriding public Schedule 1
interest against disclosure
8 Transport safety 1
(1) It is to be conclusively presumed that there is an overriding public 2
interest against disclosure of information that would disclose: 3
(a) matter relating to an investigation or inquiry under section 65, 67 4
or 69 of the Rail Safety Act 2008, or 5
(b) matter relating to an investigation or inquiry into a transport 6
accident or incident under section 46BA or 46BC of the 7
Passenger Transport Act 1990. 8
(2) Despite subclause (1) (a), information about a matter referred to in that 9
paragraph ceases to be covered by this clause: 10
(a) in the case of information relating to an inquiry under section 65 11
into a matter that is not also the subject of an investigation under 12
section 67 or an inquiry under section 69, if the inquiry under 13
section 65 is included in a list forwarded to the Minister under 14
that section, or 15
(b) in the case of information relating to an investigation under 16
section 67 or an inquiry under section 69, when the report into the 17
investigation or inquiry is tabled before both Houses of 18
Parliament. 19
(3) Despite subclause (1) (b), information about a matter referred to in that 20
paragraph ceases to be covered by this clause when the report into the 21
investigation or inquiry is tabled before both Houses of Parliament. 22
9 Adoption 23
It is to be conclusively presumed that there is an overriding public 24
interest against disclosure of information that would disclose: 25
(a) matter relating to adoption procedures under the Adoption Act 26
2000, or 27
(b) matter relating to the receipt of an amended or original birth 28
certificate or of prescribed information under the Adoption 29
Act 2000. 30
10 Care and protection of children 31
It is to be conclusively presumed that there is an overriding public 32
interest against disclosure of information contained in a report to which 33
section 29 of the Children and Young Persons (Care and Protection) 34
Act 1998 applies. 35
11 Ministerial Code of Conduct 36
It is to be conclusively presumed that there is an overriding public 37
interest against disclosure of information the disclosure of which would 38
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Government Information (Public Access) Bill 2009
Schedule 1 Information for which there is conclusive presumption of overriding public
interest against disclosure
disclose information contained in the Register of Interests kept by or on 1
behalf of the Premier pursuant to the Code of Conduct for Ministers of 2
the Crown adopted by Cabinet. 3
12 Aboriginal and environmental heritage 4
(1) It is to be conclusively presumed that there is an overriding public 5
interest against disclosure of information contained in a document that 6
is the subject of a declaration referred to in section 161 of the National 7
Parks and Wildlife Act 1974. 8
(2) It is to be conclusively presumed that there is an overriding public 9
interest against disclosure of information that is matter that the 10
Director-General under the Threatened Species Conservation Act 1995 11
has determined should not be disclosed to the public under section 146 12
of that Act. 13
(3) It is to be conclusively presumed that there is an overriding public 14
interest against disclosure of information that is matter that the 15
Scientific Committee under the Threatened Species Conservation Act 16
1995 has recommended to the Minister should not be disclosed to the 17
public under section 146A of that Act and the Minister has accepted that 18
recommendation. 19
(4) It is to be conclusively presumed that there is an overriding public 20
interest against disclosure of information contained in a plan of 21
management or draft plan of management for an area of community 22
land under Division 2 of Part 2 of Chapter 6 of the Local Government 23
Act 1993 that is the subject of a resolution of confidentiality referred to 24
in section 36DA (2) of that Act (which relates to the disclosure of the 25
nature and location of a place or an item of Aboriginal significance). 26
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Government Information (Public Access) Bill 2009
Excluded information of particular agencies Schedule 2
Schedule 2 Excluded information of particular 1
agencies 2
Note. Information that relates to a function specified in this Schedule in relation to an agency 3
specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to 4
be conclusively presumed that there is an overriding public interest against disclosure of 5
excluded information of an agency (unless the agency consents to disclosure). Section 43 6
prevents an access application from being made to an agency for excluded information of the 7
agency. 8
1 Judicial and prosecutorial information 9
A court--judicial functions. 10
The office of Director of Public Prosecutions--prosecuting functions. 11
2 Complaints handling and investigative information 12
The office of Auditor-General--investigative, audit and reporting 13
functions. 14
The Independent Commission Against Corruption--corruption 15
prevention, complaint handling, investigative and reporting functions. 16
The office of Inspector of the Independent Commission Against 17
Corruption--operational auditing, complaint handling, investigative 18
and reporting functions. 19
The Judicial Commission of New South Wales (including the Conduct 20
Division)--complaint handling, investigative and reporting functions. 21
The office of Ombudsman--complaint handling, investigative and 22
reporting functions (including any functions of the Ombudsman under 23
the Community Services (Complaints, Reviews and Monitoring) 24
Act 1993). 25
The office of Information Commissioner--review, complaint handling, 26
investigative and reporting functions. 27
The office of Legal Services Commissioner--complaint handling, 28
investigative, review and reporting functions. 29
The Health Care Complaints Commission--complaint handling, 30
investigative, complaints resolution and reporting functions (including 31
any functions exercised by the Health Conciliation Registry and any 32
function concerning the provision of information to a registration 33
authority (within the meaning of the Health Care Complaints Act 1993) 34
relating to a particular complaint). 35
The Child Death Review Team--all functions. 36
The Police Integrity Commission--corruption prevention, complaint 37
handling, investigative and reporting functions. 38
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Schedule 2 Excluded information of particular agencies
The office of Inspector of the Police Integrity Commission-- 1
operational auditing, complaint handling, investigative and reporting 2
functions. 3
The office of Privacy Commissioner--complaint handling, 4
investigative and reporting functions. 5
The New South Wales Crime Commission--investigative and reporting 6
functions. 7
The President of the Anti-Discrimination Board--complaint handling, 8
investigative and reporting functions in relation to a complaint that is in 9
the course of being dealt with by the President. 10
The Department of Local Government (including the Director-General 11
and other Departmental representatives)--complaint handling and 12
investigative functions conferred by or under any Act on that 13
Department. 14
3 Competitive and market sensitive information 15
The Treasury Corporation--borrowing, investment and liability and 16
asset management functions. 17
The SAS Trustee Corporation--investment functions. 18
Any body or office that exercises functions under the National 19
Electricity (NSW) Law (including functions under the National 20
Electricity Code referred to in that Law) on behalf of National 21
Electricity Market Management Company Limited (ACN 072 010 327) 22
(NEMMCO) or any successor to NEMMCO--those functions. 23
The Corporation constituted under the Superannuation Administration 24
Authority Corporatisation Act 1999--functions exercised in the 25
provision of superannuation scheme administration services, and 26
related services, in respect of any superannuation scheme that is not a 27
State public sector superannuation scheme. 28
The Workers Compensation Nominal Insurer established under the 29
Workers Compensation Act 1987--functions relating to the issuing of 30
policies of insurance to employers and the calculation of premiums (but 31
only in relation to individual employers), the management of specific 32
claims and to asset and funds management and investment. 33
4 Other information 34
The office of Public Trustee--functions exercised in the Public 35
Trustee's capacity as executor, administrator or trustee. 36
The Department of Education and Training--functions relating to the 37
storing of, reporting on or analysis of information with respect to the 38
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Government Information (Public Access) Bill 2009
Excluded information of particular agencies Schedule 2
ranking or assessment of students who have completed the Higher 1
School Certificate for entrance into tertiary institutions. 2
Universities--functions relating to dealing with information with 3
respect to the ranking or assessment of students who have completed the 4
Higher School Certificate for entrance into tertiary institutions. 5
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Government Information (Public Access) Bill 2009
Schedule 3 Savings, transitional and other provisions
Schedule 3 Savings, transitional and other 1
provisions 2
Part 1 General 3
1 Regulations 4
(1) The regulations may contain provisions of a savings or transitional 5
nature consequent on the enactment of the following Acts: 6
this Act 7
Government Information (Information Commissioner) Act 2009 8
Government Information (Public Access) (Consequential Amendments 9
and Repeal) Act 2009 10
(2) Any such provision may, if the regulations so provide, take effect from 11
the date of assent to the Act concerned or a later date. 12
(3) To the extent to which any such provision takes effect from a date that 13
is earlier than the date of its publication on the NSW legislation website, 14
the provision does not operate so as: 15
(a) to affect, in a manner prejudicial to any person (other than the 16
State or an authority of the State), the rights of that person 17
existing before the date of its publication, or 18
(b) to impose liabilities on any person (other than the State or an 19
authority of the State) in respect of anything done or omitted to 20
be done before the date of its publication. 21
Part 2 Provisions consequent on enactment of this 22
Act 23
2 Definition 24
In this Part: 25
FOI Act means the Freedom of Information Act 1989 as in force 26
immediately before its repeal. 27
3 FOI access applications 28
(1) The FOI Act continues to apply (as if it had not been repealed) to and in 29
respect of: 30
(a) an application under that Act for access to an agency's 31
documents or a Minister's documents that was made or 32
determined before the repeal of that Act, and 33
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Government Information (Public Access) Bill 2009
Savings, transitional and other provisions Schedule 3
(b) any determination made in respect of any such application 1
(whether made before or after the repeal of that Act). 2
(2) A provision of an Act amended by the Government Information (Public 3
Access) (Consequential Amendments and Repeal) Act 2009 has effect in 4
relation to an application under the FOI Act referred to in subclause (1) 5
as if the provision had not been amended by that Act. 6
(3) An application to an agency for access to government information that 7
is made within the period of 12 months after the repeal of the FOI Act 8
that states that it is made under or for the purposes of the FOI Act is 9
deemed to state that it is made under this Act and is to be dealt with 10
accordingly. 11
4 FOI amendment of records applications 12
(1) The FOI Act continues to apply (as if it had not been repealed) to and in 13
respect of: 14
(a) an application under that Act for amendment of an agency's 15
records that was made or determined before the repeal of that 16
Act, and 17
(b) any determination made in respect of any such application 18
(whether made before or after the repeal of that Act). 19
(2) A provision of an Act amended by the Government Information (Public 20
Access) (Consequential Amendments and Repeal) Act 2009 has effect in 21
relation to an application under the FOI Act referred to in subclause (1) 22
as if the provision had not been amended by that Act. 23
(3) An application to an agency for amendment of the agency's records that 24
is made within the period of 12 months after the repeal of the FOI Act 25
that states that it is made under or for the purposes of that Act (or Part 4 26
of that Act) is deemed to state that it is made under Part 6A of the 27
Privacy and Personal Information Protection Act 1998 and is to be 28
dealt with accordingly. 29
5 Register of government contracts 30
(1) Division 5 (Government contracts with private sector) of Part 3 does not 31
apply to a government contract entered into by or on behalf of an agency 32
before 1 January 2007 (being the date of commencement of section 15A 33
of the FOI Act). 34
(2) Division 5 of Part 3 does not apply to a government contract entered into 35
by a SOC or local authority before the commencement of this clause. 36
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Government Information (Public Access) Bill 2009
Schedule 4 Interpretative provisions
Schedule 4 Interpretative provisions 1
1 Definitions 2
In this Act: 3
access applicant means the applicant under an access application. 4
access application--see section 4. 5
ADT means the Administrative Decisions Tribunal established by the 6
ADT Act. 7
ADT Act means the Administrative Decisions Tribunal Act 1997. 8
agency--see section 4. 9
commercial-in-confidence provisions of a contract means any 10
provisions of the contract that disclose: 11
(a) the contractor's financing arrangements, or 12
(b) the contractor's cost structure or profit margins, or 13
(c) the contractor's full base case financial model, or 14
(d) any intellectual property in which the contractor has an interest, 15
or 16
(e) any matter the disclosure of which would place the contractor at 17
a substantial commercial disadvantage in relation to other 18
contractors or potential contractors, whether at present or in the 19
future. 20
contractor, in relation to a government contract entered into by an 21
agency, means the person with whom the agency has entered into the 22
contract. 23
court includes: 24
(a) a tribunal, a Magistrate and a coroner, and 25
(b) a registry or other office of a court and the members of staff of 26
that registry or other office. 27
disclose information includes make information available and release or 28
provide access to information. 29
Note. See also the definition of reveal. 30
disclosure log means a disclosure log kept by an agency under Part 3 31
(Open access information). 32
excluded information of an agency specified in Schedule 2 means 33
information that relates to any function specified in that Schedule in 34
relation to the agency. 35
exercise a function includes perform a duty. 36
function includes a power, authority or duty. 37
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Interpretative provisions Schedule 4
government contract means any of the following contracts between an 1
agency and a private sector entity: 2
(a) a contract under which a party agrees to undertake a specific 3
project (such as a construction, infrastructure or property 4
development project), 5
(b) a contract under which a party agrees to provide specific goods 6
or services (such as information technology services), other than 7
a contract of employment, 8
(c) a contract under which a party agrees to transfer real property to 9
another party to the contract, 10
(d) a lease of real property. 11
Government Department means a Department under the Public Sector 12
Employment and Management Act 2002. 13
government information--see section 4. 14
Information Commissioner means the Information Commissioner 15
under the Government Information (Information Commissioner) Act 16
2009. 17
Joint Committee means the Joint Committee under the Government 18
Information (Information Commissioner) Act 2009. 19
judicial functions, in relation to a court, means such of the functions of 20
the court as relate to the hearing or determination of proceedings before 21
it, and includes: 22
(a) in relation to a Magistrate--such of the functions of the 23
Magistrate as relate to the conduct of committal proceedings, and 24
(b) in relation to a coroner--such of the functions of the coroner as 25
relate to the conduct of inquests and inquiries under the Coroners 26
Act 1980. 27
legislative instrument means a Public Act or an instrument made under 28
a Public Act. 29
local authority means a council or county council within the meaning 30
of the Local Government Act 1993. 31
open access information--see Part 3. 32
person includes an agency, the government of another jurisdiction 33
(including a jurisdiction outside Australia) and an agency of the 34
government of another jurisdiction. 35
Note. This definition does not limit the definition of person in the Interpretation 36
Act 1987, which includes an individual, a corporation and a body corporate or 37
politic. 38
personal information--see clause 4. 39
principal officer of an agency means the head or chief executive officer 40
(however designated) of the agency or the person of greatest seniority 41
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Government Information (Public Access) Bill 2009
Schedule 4 Interpretative provisions
in the agency, and includes the Minister in the case of an agency that is 1
a Minister. 2
private sector entity means any person or body (whether incorporated 3
or unincorporated) who or which is not an agency. 4
public authority--see clause 2. 5
public office--see clause 3. 6
record--see clause 10. 7
reveal information means to disclose information that has not already 8
been publicly disclosed (otherwise than by unlawful disclosure). 9
reviewable decision means a decision of an agency that is a reviewable 10
decision under Part 5. 11
State includes Territory. 12
State owned corporation or SOC means a State owned corporation 13
under the State Owned Corporations Act 1989. 14
working day means any day that is not a Saturday, Sunday or public 15
holiday. 16
2 Public authorities 17
(1) In this Act, public authority means: 18
(a) a statutory body representing the Crown, or 19
(b) a body (whether incorporated or unincorporated) established or 20
continued for a public purpose by or under the provisions of a 21
legislative instrument, or 22
(c) the NSW Police Force, or 23
(d) the Teaching Service, or 24
(e) a State owned corporation, or 25
(f) a wholly-owned subsidiary of the Crown in right of the State or 26
of a public authority, or 27
(g) a body declared to be a public authority by a regulation under this 28
clause. 29
(2) The regulations may declare any of the following bodies to be a public 30
authority: 31
(a) a body (whether incorporated or unincorporated) established for 32
a public purpose otherwise than by or under the provisions of a 33
legislative instrument, 34
(b) a body (whether incorporated or unincorporated) that is 35
established by the Governor or by a Minister or that is an 36
incorporated company or association over which a Minister is in 37
a position to exercise direction or control. 38
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Interpretative provisions Schedule 4
(3) None of the following is a public authority for the purposes of a 1
provision of this Act: 2
(a) an incorporated company or association (unless declared to be a 3
public authority for the purposes of the provision by a regulation 4
under this clause), 5
(b) the Legislative Council or the Legislative Assembly or a 6
committee of either or both of those bodies, 7
(c) a Royal Commission or a Special Commission of Inquiry, 8
(d) a local authority. 9
(4) An unincorporated body that is a board, council, committee, 10
subcommittee or other body established or continued by or under the 11
provisions of a legislative instrument for the purpose of assisting, or 12
exercising functions connected with, an agency is not to be regarded as 13
a separate public authority and instead is to be regarded as part of and 14
included in the agency. 15
(5) A regulation declaring a body to be a public authority may declare a 16
body to be a public authority either generally or for the purposes only of 17
specified provisions of this Act. 18
3 Public offices 19
(1) In this Act, public office means: 20
(a) an office established or continued for a public purpose by or 21
under the provisions of a legislative instrument, or 22
(b) any other office to which an appointment is made by the 23
Governor or by a Minister that is declared by the regulations to 24
be a public office. 25
(2) None of the following is a public office for the purposes of this Act: 26
(a) the office of Governor, Lieutenant-Governor or Administrator of 27
the State, 28
(b) the office of a member of the Legislative Council or the 29
Legislative Assembly or of a committee of either or both of those 30
bodies, 31
(c) the office of President of the Legislative Council or Speaker of 32
the Legislative Assembly or Chair of a committee of either or 33
both of those bodies, 34
(d) the office of a Minister of the Crown, Parliamentary Secretary or 35
member of the Executive Council, 36
(e) an office the duties of which the person performs as an officer of 37
an agency, 38
(f) the office of a judicial officer of a court, 39
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Government Information (Public Access) Bill 2009
Schedule 4 Interpretative provisions
(g) an office of member of an agency, 1
(h) an office established or continued by or under the provisions of a 2
legislative instrument for the purposes of an agency, 3
(i) an office established or continued by or under the provisions of a 4
legislative instrument for the purposes of a body that is excluded 5
from the definition of public authority by clause 2 (3). 6
4 Personal information 7
(1) In this Act, personal information means information or an opinion 8
(including information or an opinion forming part of a database and 9
whether or not recorded in a material form) about an individual 10
(whether living or dead) whose identity is apparent or can reasonably be 11
ascertained from the information or opinion. 12
(2) Personal information includes such things as an individual's 13
fingerprints, retina prints, body samples or genetic characteristics. 14
(3) Personal information does not include any of the following: 15
(a) information about an individual who has been dead for more than 16
30 years, 17
(b) information about an individual (comprising the individual's 18
name and non-personal contact details) that reveals nothing more 19
than the fact that the person was engaged in the exercise of public 20
functions, 21
(c) information about an individual that is of a class, or is contained 22
in a document of a class, prescribed by the regulations for the 23
purposes of this subclause. 24
5 Regulations may include persons and entities as agencies 25
(1) The regulations may declare a person or entity that is not otherwise an 26
agency to be an agency (a deemed agency) for the purposes of all or 27
specified provisions of this Act and the Government Information 28
(Information Commissioner) Act 2009 in relation to all or specified 29
agency functions of the person or entity. 30
(2) A function of a person or entity is an agency function if it is: 31
(a) a function of a kind that is or was ordinarily exercised by an 32
agency, or 33
(b) a function of an agency that the person or entity is exercising 34
pursuant to a contract or other arrangement with the agency. 35
(3) A deemed agency is an agency only in respect of information that 36
relates to the exercise by the deemed agency of the agency functions in 37
respect of which it is declared to be an agency and only while the 38
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Government Information (Public Access) Bill 2009
Interpretative provisions Schedule 4
deemed agency exercises those functions (or for such shorter period as 1
may be provided by the regulations). 2
(4) A regulation under this clause may provide that information relating to 3
any specified function of a deemed agency is excluded information of 4
the agency under this Act. 5
(5) The regulations under clause 6 may also declare that a deemed agency 6
is not to be regarded as a separate agency and instead is to be regarded 7
for the purposes of this Act as part of and included in another specified 8
agency. 9
(6) The Minister must, before recommending the making of a regulation 10
under this clause, consult with the person or entity concerned and with 11
any agency with which the person or entity has a contract or other 12
arrangement for the exercise of the functions concerned. 13
Note. The Minister is also required to consult with the Information 14
Commissioner. See section 129 (3). 15
6 Regulations may declare agency to be part of another agency 16
(1) The regulations may declare that a specified agency (the subsidiary 17
agency) is not to be regarded as a separate agency and instead is to be 18
regarded for the purposes of this Act as part of and included in another 19
specified agency (the parent agency). 20
(2) An access application made to the parent agency specifically for 21
government information held by the subsidiary agency can be dealt with 22
by the parent agency as an access application only for government 23
information held by the subsidiary agency and not for government 24
information otherwise held by the parent agency. 25
7 References to the Government 26
A reference in this Act to the Government includes, where appropriate, 27
a reference to an agency. 28
8 Bodies forming part of agencies 29
A reference in this Act to an agency includes a reference to any body 30
that forms part of the agency or that exists mainly for the purpose of 31
enabling the agency to exercise its functions. 32
9 Officer of an agency 33
A reference in this Act to an officer of an agency includes a reference to 34
a member of the agency, the principal officer of the agency and any 35
other person employed within the agency or as a member of staff of the 36
agency, and in the case of an agency that is a Minister, includes a 37
reference to the Minister. 38
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Schedule 4 Interpretative provisions
10 Meaning of "record" 1
(1) In this Act: 2
record means any document or other source of information compiled, 3
recorded or stored in written form or by electronic process, or in any 4
other manner or by any other means. 5
(2) A reference in this Act to a record includes a reference to a copy of the 6
record. 7
(3) For the purposes of the definition of record in this Act, the knowledge 8
of a person is not a record. 9
11 Government information held by Minister 10
A reference in this Act to government information held by an agency is, 11
when the agency is a Minister, a reference to government information 12
held by the Minister in the course of the exercise of official functions in, 13
or for any official purpose of, or for the official use of, the office of 14
Minister of the Crown. 15
12 Government information held by agency 16
(1) A reference in this Act to government information held by an agency is 17
a reference to: 18
(a) information contained in a record held by the agency, or 19
(b) information contained in a record held by a private sector entity 20
to which the agency has an immediate right of access, or 21
(c) information contained in a record in the possession or custody of 22
the State Records Authority (or that the Authority has in the 23
custody or possession of some other person) to which the agency 24
has an immediate right of access, other than a record that is 25
withheld from public access under section 59 of the State 26
Records Act 1998, or 27
(d) information contained in a record that is in the possession, or 28
under the control, of a person in his or her capacity as an officer 29
or member of staff of the agency (including, in the case of a 30
Minister, the personal staff of the Minister). 31
(2) Information that would be regarded as government information held by 32
an agency because the agency has access to a record that contains the 33
information is not to be regarded as government information held by the 34
agency if the public generally has access to the record (for example, 35
because the record is available on the Internet). 36
(3) Information contained in a record that genuinely forms part of the 37
library material held by an agency is not government information held 38
by the agency. 39
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Interpretative provisions Schedule 4
13 Records in certain agencies 1
(1) A record that is held by: 2
(a) the State Records Authority, or 3
(b) the Australian Museum, or 4
(c) the Museum of Applied Arts and Sciences, or 5
(d) the State Library, or 6
(e) any other prescribed agency, 7
but that was originally created or received by another agency is taken to 8
be held by that other agency. 9
(2) A record that is held by an agency referred to in subclause (1) and that 10
relates to the affairs of a Royal Commission or a Special Commission 11
of Inquiry is taken to be held by the Minister administering the Royal 12
Commissions Act 1923 or the Minister administering the Special 13
Commissions of Inquiry Act 1983, as appropriate. 14
(3) Information contained in a record held by an agency that is a public 15
archive is not government information for the purposes of this Act if: 16
(a) the record was not created by an agency in relation to the 17
functions of an agency, and 18
(b) the record is held in the public archive subject to a condition 19
imposed by the person or body (not being an agency) by whom it 20
has been placed in the possession of the archive prohibiting its 21
disclosure to members of the public generally or to certain 22
members of the public or restricting its disclosure to certain 23
members of the public. 24
(4) In this clause, public archive includes: 25
(a) each of the agencies referred to in subclause (1), and 26
(b) a library that forms part of a university, college of advanced 27
education or college of technical and further education. 28
14 Defunct agencies 29
(1) When an agency (the former agency) ceases to exist: 30
(a) any government information taken to be held by the former 31
agency is instead taken to be held by the successor agency, and 32
(b) an access application made to the former agency is taken to have 33
been made to the successor agency, and 34
(c) a decision under this Act made by the former agency is taken to 35
have been made by the successor agency. 36
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Schedule 4 Interpretative provisions
(2) The successor agency to a former agency is: 1
(a) another agency on which the former agency's functions have 2
devolved, or 3
(b) if the former agency's functions have devolved on 2 or more 4
other agencies--the agency on which have devolved the 5
functions to which the government information concerned most 6
closely relates, or 7
(c) if the former agency's functions have not devolved on another 8
agency--such other agency as the Minister administering this 9
Act may, after consultation with the responsible Minister for that 10
agency, nominate. 11
(3) For the purpose of enabling an application or determination to be dealt 12
with under this Act: 13
(a) an agency to which an application is to be taken to have been 14
made, or 15
(b) an agency by which a determination is to be taken to have been 16
made, 17
is, if the agency did not exist at the time the application or determination 18
was in fact made, taken to have been in existence at that time. 19
15 References in other Acts--information not required to be disclosed 20
A reference in any other Act or statutory rule to information that an 21
agency would not be required to disclose under this Act is a reference 22
to information that the agency would not be required to disclose in 23
response to an access application made to the agency under this Act. 24
16 Notes 25
Notes included in this Act do not form part of this Act. 26
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Schedule 5 Government Information (Public Access) 1
Regulation 2009 2
(Section 132) 3
Part 1 Preliminary 4
1 Name of Regulation 5
This Regulation is the Government Information (Public Access) 6
Regulation 2009. 7
2 Definitions 8
(1) In this Regulation: 9
LGA means the Local Government Act 1993. 10
the Act means the Government Information (Public Access) Act 2009. 11
(2) Notes included in this Regulation do not form part of this Regulation. 12
Part 2 Open access information of local authorities 13
3 Additional open access information 14
The government information listed in Schedule 1 that is held by a local 15
authority is prescribed as open access information of the local authority. 16
Note. The fact that information is open access information does not create an 17
obligation to keep records indefinitely and does not interfere with records 18
management practices and procedures of local authorities that are consistent 19
with the State Records Act 1998. 20
4 Additional ways in which open access information is to be made 21
available 22
(1) A local authority must make its open access information publicly 23
available by: 24
(a) making the information available for inspection free of charge by 25
any person at the office of the local authority during ordinary 26
office hours, and 27
(b) providing a copy of a record containing the information (or 28
providing the facilities for making a copy of a record containing 29
the information) to any person either free of charge or for a 30
charge not exceeding the reasonable cost of photocopying. 31
(2) This clause does not prevent a local authority from archiving records 32
that contain open access information in accordance with the authority's 33
records management practices and procedures. The authority is required 34
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to retrieve archived records and make the information available in 1
accordance with this clause in response to a request for access as soon 2
as reasonably practicable after the request is made. 3
(3) This clause extends to open access information of a local authority that 4
is open access information listed in section 18 of the Act (and is not 5
limited to information listed in Schedule 1). 6
Schedule 1 Additional open access information-- 7
local authorities 8
(Clause 3) 9
1 Information about local authority 10
(1) Information contained in the current version and the most recent 11
previous version of the following records is prescribed as open access 12
information: 13
(a) the model code prescribed under section 440 (1) of the LGA and 14
the code of conduct adopted under section 440 (3) of the LGA, 15
(b) code of meeting practice, 16
(c) annual report, 17
(d) annual financial reports, 18
(e) auditor's report, 19
(f) management plan, 20
(g) EEO management plan, 21
(h) policy concerning the payment of expenses incurred by, and the 22
provision of facilities to, councillors, 23
(i) annual reports of bodies exercising functions delegated by the 24
local authority, 25
(j) any codes referred to in the LGA. 26
(2) Information contained in the following records (whenever created) is 27
prescribed as open access information: 28
(a) returns of the interests of councillors, designated persons and 29
delegates, 30
(b) agendas and business papers for any meeting of the local 31
authority or any committee of the local authority (but not 32
including business papers for matters considered when part of a 33
meeting is closed to the public), 34
(c) minutes of any meeting of the local authority or any committee 35
of the local authority, but restricted (in the case of any part of a 36
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meeting that is closed to the public) to the resolutions and 1
recommendations of the meeting, 2
(d) Departmental representative reports presented at a meeting of the 3
local authority in accordance with section 433 of the LGA. 4
(3) Information contained in the current version of the following records is 5
prescribed as open access information: 6
(a) land register, 7
(b) register of investments, 8
(c) register of delegations, 9
(d) register of graffiti removal work kept in accordance with 10
section 13 of the Graffiti Control Act 2008, 11
(e) register of current declarations of disclosures of political 12
donations kept in accordance with section 328A of the LGA, 13
(f) the register of voting on planning matters kept in accordance with 14
section 375A of the LGA. 15
2 Plans and policies 16
Information contained in the current version and the most recent 17
previous version of the following records is prescribed as open access 18
information: 19
(a) local policies adopted by the local authority concerning 20
approvals and orders, 21
(b) plans of management for community land, 22
(c) environmental planning instruments, development control plans 23
and contributions plans made under the Environmental Planning 24
and Assessment Act 1979 applying to land within the local 25
authority's area. 26
3 Information about development applications 27
(1) Information contained in the following records (whenever created) is 28
prescribed as open access information: 29
(a) development applications (within the meaning of the 30
Environmental Planning and Assessment Act 1979) and any 31
associated documents received in relation to a proposed 32
development including the following: 33
(i) home warranty insurance documents, 34
(ii) construction certificates, 35
(iii) occupation certificates, 36
(iv) structural certification documents, 37
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(v) town planner reports, 1
(vi) submissions received on development applications, 2
(vii) heritage consultant reports, 3
(viii) tree inspection consultant reports, 4
(ix) acoustics consultant reports, 5
(x) land contamination consultant reports, 6
(b) records of decisions on development applications (including 7
decisions made on appeal), 8
(c) a record that describes the general nature of the documents that 9
the local authority decides are excluded from the operation of this 10
clause by subclause (2). 11
(2) This clause does not apply to so much of the information referred to in 12
subclause (1) (a) as consists of: 13
(a) the plans and specifications for any residential parts of a 14
proposed building, other than plans that merely show its height 15
and its external configuration in relation to the site on which it is 16
proposed to be erected, or 17
(b) commercial information, if the information would be likely to 18
prejudice the commercial position of the person who supplied it 19
or to reveal a trade secret. 20
(3) A local authority must keep the record referred to in subclause (1) (c). 21
4 Approvals, orders and other documents 22
Information contained in the following records (whenever created) is 23
prescribed as open access information: 24
(a) applications for approvals under Part 1 of Chapter 7 of the LGA 25
and any associated documents received in relation to such an 26
application, 27
(b) applications for approvals under any other Act and any associated 28
documents received in relation to such an application, 29
(c) records of approvals granted or refused, any variation from local 30
policies with reasons for the variation, and decisions made on 31
appeals concerning approvals, 32
(d) orders given under Part 2 of Chapter 7 of the LGA, and any 33
reasons given under section 136 of the LGA, 34
(e) orders given under the authority of any other Act, 35
(f) records of building certificates under the Environmental 36
Planning and Assessment Act 1979, 37
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(g) plans of land proposed to be compulsorily acquired by the local 1
authority, 2
(h) compulsory acquisition notices, 3
(i) leases and licences for use of public land classified as community 4
land. 5
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