Using this package

1. Your Rights to information are changing Public Module 1What these changes mean to you and how you can access government informationNote: changes have been made to these slides to reflect the amendments to the GIPA Act in March 2012. Please contact us for an archive copy of the original slides reflecting the pre-2012 GIPA Act amendments.

2. Using this package This package introduces you to the new ‘right to information’ law that started in NSW on 1 July 2010. It will take you through your new rights to access government information. To make best use of this package, view it in slide show mode. You might find it useful to read through each main slide first and then come back to the menu slide (each main screen has aback to menuoption) Sometimes there will be extra text or examples available. Just click your mouse on the underlined word to look at extra information of interest to you. Then click on return < to go back to the original slide.

3. Topics covered What is the GIPA Act and who is the Information Commissioner? What is government information? What do government agencies have to think about to decide how best to make information available to the public How do I get government information? Will this cost me? What if the information is not available when I look for it? What do I need to do to make an informal request? Making a formal access application Is any government information excluded from release? How will I get access to the information? What about my personal information? Do I have any review rights? How can I complain about my dealings with a government agency? Who can I get further help from? Feedback

4. What is the GIPA Act and who is the Information Commissioner? The Government Information (Public Access) Act 2009 or GIPA Act creates new rights to government information. The GIPA Act: Responds to expectations in the community for more open and transparent government Applies to all NSW government agencies Requires all NSW government agencies to release routinely and proactively a range of government information on their websites, and in other accessible formats Means that formal applications for access to information should only be needed as a last resort This package will explore the different ways you can obtain information from a government agency and explain how the Information Commissioner can help you understand your rights under this new system. Back to menu

5. Welcome from the Information Commissioner The new right to information laws promote openness, accountability and transparency and will make government agencies more proactive in providing information to the public. Informing the public of their new rights to access government information is a priority in my role as NSW’s inaugural Information Commissioner. In the biggest change to freedom of information in New South Wales in 20 years, the new Government Information (Public Access) Act 2009 (GIPA Act) replaced the Freedom of Information Act 1989 (NSW) from 1 July 2010. Back to menu

6. What is government information? Government information is anything contained in a recordheld by a government agency. Back to menu

7. Why do people request government information? There are all sorts of reasons why people request government information. It may be for: general interest personal information support for a legal case research and analysis information contained in reports or media stories. Back to menu

8. Who can ask for government information? Anyone can ask for government information. This includes: Members of the public wanting access to general information eg. Individuals wanting to know if specific information is held about them on a government ‘record’eg. Organisations who help or advocate for other people to access information eg. Academics or students doing research eg. Special interest groups seeking information eg. Media agencies for their stories or reports eg. Or even government agencies seeking information about other government agencies eg. Back to menu

9. What do government agencies have to think about to decide how best to make information available to the public A main aim of the new right to information system in NSW is for agencies to release information without the need for formal applications, and the GIPA Act says there is a general public interest in favour of disclosure of government information unless there is an overriding public interest against disclosure. The public interest test involves three steps: 1. Identifying the relevant public interest factors in favour of disclosure 2. Identifying any relevant public interest factors against disclosure 3. Assessing whether the public interest against disclosure outweighs the public interest in favour of disclosure. Back to menu

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

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

12. How do I get government information? Thereare four key ways you can access information from a government agency. The first way is to look at the agency’s website to see if the information you want is already available. Some types of information must be available on government websites free of charge. This will include: Their policy documents A agency information guide A register of private sector entities with whom the agency has contracts A disclosure log A record of information that the agency will not disclose because of an overriding public interest against disclosure Documents about the agency tabled in Parliament Back to menu

13. Open access information This kind of information is called open access information. It is mandatory for agencies to release this information on their websites, unless there is an overriding public interest against disclosure. Here is an example of how this open access information maylook on a website. Back to menu

14. Proactive release Agencies are also encouraged under the GIPA Act to release as much information as possible, either free of charge, or at the lowest reasonable cost. This is called proactive release and is the second way to obtain government information. Back to menu

15. Will this cost me? Agencies are required to publish specific open accessinformation free of charge. You can print this from their website or ask them to send you a copy by mail or email. You may also request this information in an accessible or alternative format such as translated into a community language or printed in larger font. Examples of this kind of information could be a publication the agency offers, a copy of a media release, or their annual report. Agencies are encouraged to make as much other information as possible publicly available under proactive release. This is to be free of charge or at the lowest reasonable cost (if it costs the agency to get copies made and sent to you). You should be told of any cost to you when you ask for the information. Back to menu

16. What if the information is not available when I look for it? If you have no luck after looking at the agency’s website, contact the government agency directly and ask for the information. This is the third way to get government information and is called an informal release of information. The GIPA Act gives authority for other information to be released when informally requested. The agency’s website will provide a contact number and email for general enquiries. They will also provide their address. You may use any of these for your enquiry. Also ask if the agency has a “Right to Information Officer” you can speak to, as each agency will need to make someone specifically responsible for some of their day-to-day obligations under the GIPA Act. Back to menu

17. What will they tell me? If the information you ask for is open access information that is already available, the agency should tell you where and how you can get the information. If the information is not available, they will need to decide whether to give it to you informally, ask you to put in a formal access application or whether the information should now be available as part of “proactive release” of information. This will depend on the type of information you are asking for. Back to menu

18. What do I need to do to make an informal request? You need to ask for something specific. Go to the agency and say you would like to make an informal request for information. The person to help you will often be the Right to Information Officer. Here is an example of making an informal request. Agencies are encouraged under the GIPA Act to release information without the need for a formal application. With informal requests for information, the agency may release the information to you with conditions. For example, if you want to look at a photograph that is the agency does not have permission to reproduce, the agency may give you “view only” access and not let you photocopy it. Back to menu

19. Can a government agency say ‘no’ to my informal request? Yes, a government agency can deny a request for informal release of government information. Before releasing information the agency will first check there is not an overriding public interest against disclosure. They look to see whether the public interest reasons for disclosure outweigh the public interest reasons against disclosure. This is applying the public interest test. For example Back to menu

20. Can any material be deleted from the information I receive? An agency may first delete some material from the record. This may be done so the public can get access to information that otherwise might have been excluded due to an overriding public interest against disclosure. This also might be done to remove personal information of an another person. If an agency declines to release information under an informal request, there is no right of appeal but you can, as the fourth option to access information, chose to make a formal application Back to menu

21. Making a formal access application In some situations, a formal access application may be necessary. Since agencies are encouraged to release as much information as possible, this should be a last resort. It may be necessary where, for example, a large amount of information needs to be retrieved, or the information relates to a third person and the agency must consult before making a decision. An agency can only consider your formal access application if it is valid. Back to menu

22. How do I make sure my formal application is “valid”? To be valid a formal application for access to government information must: Be in writing State it is made under the Government Information (Public Access) Act 2009 (NSW) orGIPA Act Give a postal address for return correspondence Provide enough detail for the agency to identify what information you want Enclose the application fee of $30 Back to menu

23. Making a ‘good application’ To help the agency respond to your formal access application, you should: Work out exactly why you need the information you are asking for Know what information you want and be able to clearly describe it to others Be as specific as possible. If will help if you can list dates, people, events, locations etc to help identify the exact information you want. Remember agencies hold a lot of information. The more specific you can be, the more likely it is you will get a timely response. Back to menu

24. What will happen if my formal application is not valid? An agency has up to five working days from the day they receive your application to consider it and let you know whether it is valid or not. If your application is valid, the agency must tell you the date it must make a decision about your application. If it is not valid, the agency must tell you why and give you reasonable assistance to make a valid application. You can also get help from the Office of the Information Commissioner with your formal application. Back to menu

25. How will my application be handled by the agency? If your access application is valid, the agency will take steps to see if it has the information you want. The agency must make a reasonable search for the information. If it doesn’t hold the information, your application may need to be transferred to another agency. The agency may need to talk to other people, businesses or government bodies to find the information. The agency will make a decision to give you access to the information or not using the public interest test. Back to menu

26. What else can I expect? You must be told within 20 working days of the agency receiving your application, what the decision is, unless you agree to extend this time. If the agency needs to consult with a third party or retrieve records from archives they can extend this time by between 10 and 15 working days without seeking your agreement. What if I send my application to the wrong agency? If the agency does not decide on your formal access application within the 20 working days, it is considered refused. Your application fee must be returned to you and you must be told that you have rights of review. Back to menu

27. Will there be extra costs for my formal access application? There may be costs with processing your formal application for information. The agency must tell you about the charges when they tell you whether they have decided to provide access to the information. Processing costs $30 per hour and covers the time needed to deal with your application. Your $30 application fee counts towards your processing charge. An agency may ask you to pay up to 50% of the anticipated processing charge before they start the work. They have to ask for this in writing and give you at least 20 working days to pay. Back to menu

28. Will there be extra costs for my formal access application continued You will get a refund of any advance deposit that exceeded the actual processing charge for dealing with the application. If the agency does not respond to your application within time, you can also get a refund of any advance deposit. If you do not pay this advance deposit, the agency can refuse to deal further with your formal application as long as they tell you. If your request is for access to your own personal informationthe first 20 hours of processing time are free. Back to menu

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

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

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

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

33. Is any government information excluded from release continued Some particular agencies have specific functions where information relating to that function is also excluded information. You cannot make a formal access application for this excluded information of the agency. You can see a list of these specific exempt functions of particular agencies in schedule 2 to the GIPA Act Back to menu

34. Are there any other reasons an agency may refuse to deal with my application? An agency may refuse to deal with the whole application, or a part of the application, if: Dealing with it would use an unreasonable and substantial amount of the agency’s resources (and then you must be given the opportunity to amend your request) You have already made an application for the same information before and there are no reasonable reasons why the agency would make a different decision this time You have already received the information under a subpoena You have not paid the advance deposit. What’s not an OK reason for refusal? Back to menu

35. How will I get access to the information? If your formal access application is approved, you need to be either given a copy of the information you request or given a reasonable opportunity to come to the agency and inspect the information. You may specify the way you want to access the information and the agency should do what they reasonably can to provide this. You have up to six months to take up your rights to access the information. The agency cannot put conditions on how you use information gained through a formal access application. The agency can put conditions on how you access the information (e.g. you can view and take notes but not copy) but only to avoid an overriding public interest against disclosure. Back to menu

36. Will other people get access to the information released to me? This is possible. If the agency thinks this information may be of interest to other members of the public, they will record it on the “disclosure log” on their website so other people can access it also. You can object to the information being recorded on the disclosure log if for example it includes personal or business information. Back to menu

37. What about my personal information? Personal information is information or an opinion about a person that can identify the person. Government agencies may hold information about you that can identify you. The Privacy and Personal Information Protection Act protects personal information and the Health Records Information and Privacy Act protects information about your health and medical records. See the website of Privacy NSW for more information. Back to menu

38. How can I access my own personal information? Under the GIPA Act, start with an informal request to the relevant agency for your personal information. The agency should do what they can to release the information to you this way or tell you why a formal access application is required. The Privacy and Personal Information Protection Act and the Health Records Information and Privacy Actmay also give you options to access your personalor health information. For more see Your Privacy on the NSW Privacy website. Back to menu

39. What about others accessing my personal information? How is my privacy protected? Before disclosing information, an agency must think about whether you would be concerned about the release of the information and weigh up the public interest concerns for and against release. The agency may remove your personal information from the document before releasing it. If your information is removed, you do not need to be consulted. If the agency does not remove your personal information it must: Consult with you and take into account any objections you have before release the information. If the agency decides to release the information anyway, they must: Tell you about it first and let you have the right to have their decision reviewed Not release the information while you have the right to seek this review. Back to menu

40. What about information about my business? If a formal access application covers your business information, an agency must consult you to see whether you object to the information being released. Any objections must relate to one of more of the public interest considerations against disclosure. The agency will not release the information if the public interest considerations against disclosure outweigh the public interest considerations for disclosure. If the agency decides to release your business information, and you still have objections, you have a right to have this decision reviewed. The information can not be released while you have the right to seek this review. Back to menu

41. Do I have any review rights? Yes, you have a number of review rights under the GIPA Act. If you are refused access to information, you can seek: An Internal Review A Review by the Information Commissioner A Review by the Administrative Decisions Tribunal If you are the applicant, you can choose which review option to take. If you are not the applicant, for example, you are a third party whose information will be released, you must seek an internal review first. Back to menu

42. How can I complain about my dealings with a government agency? You can complain about your dealings with a government agency in accessing information to the Information Commissioner. The Information Commissioner has the authority to investigate (either formally or informally) and take actions to assist in resolving the complaint. Contact the Office of the Information Commissioner by email, telephone or by mail to raise your complaint. Back to menu

43. Who can I get further help from? To learn more about your rights to accessing government information and view other resources, visit the website of the Office of the Information Commissioner (OIC): www.oic.nsw.gov.au or call on 1800 INFOCOM (1800 463 626) or visit us during business hours at: Level 11, 1 Castlereagh St, Sydney or email our general enquiries area atoicinfo@oic.nsw.gov.au Back to menu

44. What is the role of the Office of the Information Commissioner? Our role is to: Promote public awareness of the new right to information system Provide information, advice, assistance and training to agencies and the general public Issue guidelines to assist agencies and the public on various matters Monitor agencies’ compliance with the GIPA Act. Back to menu

45. Feedback Thank you for completing this e-learning package. We welcome your feedback. Our resources will continue to be tailored to respond to issues and needs identified through this feedback. If you would like to tell us what you thought of this presentation introducing you to your new rights to access government information, please ring the OIC on 1800 INFOCOM (1800 463 626) or email us on oicinfo@oic.nsw.gov.au. Or open and save this evaluation form. After you have completed it, please email it back to us as an attachment to:oicinfo@oic.nsw.gov.au. Back to menu