The biggest reform in the history of the FOI regime in NSW is not far away. The legislation to reform FOI was passed by the NSW Parliament in 2009 and assented to on 26 June 2009. The legislation is available here (and is collectively referred to as GIPA):
- Government Information (Public Access) Act 2009 (the GIPA Act)
- Government Information (Information Commissioner) Act 2009
- Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009
However, these Acts have not yet commenced. It is expected that the new regime will commence in early 2010. Until that time, the current Freedom of Information Act 1989 (NSW) will continue to apply.
The GIPA Act will ultimately replace the Freedom of Information Act 1989 (NSW) and in doing so introduces a new right to information system. The GIPA system is focussed on making government information more readily available. It provides a presumption in favour of disclosure such that a government agency must release information unless there is an overriding public interest against disclosure.
In addition, the Office of the Information Commissioner (OIC) is a new statutory office that has been established by the NSW Government as a result of the FOI reforms and as contemplated by the new GIPA Act. Maureen Tangney is the acting Information Commissioner and is busily preparing information and materials to assist NSW public sector agencies and local councils prepare for the GIPA regime. The role of the OIC is to administer and provide independent oversight of the new 'Right to Information' system. Its role is to promote public awareness and understanding of GIPA and provide information, advice, assistance and training to agencies and the public. The OIC will also monitor agencies' functions and may report to the Minister for the GIPA about proposals for legislative or administrative change. In carrying out their functions, the OIC has broad powers to investigate, including requiring agencies to provide information, and to conduct inquiries.
In terms of FOI, we have recently been involved in advising the OIC in relation to its preparations for the commencement of the new FOI regime under the GIPA and to assist NSW agencies and local councils to prepare for the new FOI regime. These reforms will have a significant impact on NSW government agencies and local councils (for example, Schedule 5 which contains the Government Information (Public Access) Regulation 2009 provides that the government information listed in Schedule 1 of the GIPA Regulation that is held by a local authority is prescribed as open access information of the local authority).
Under the GIPA Act, there are four ways in which the public will be able to access government information unless there is an overriding public interest against disclosure, namely:
- Mandatory proactive release
- Authorised proactive release
- Informal release
- Access application
There are only limited and specific interests against disclosure that an agency can take into account. These are:
- law enforcement and security
- individual rights, judicial processes and natural justice
- responsible and effective government
- business interests
- environment, culture, economy and other matters
- secrecy and exemption provisions in other laws./li>
The GIPA Act provides a list of excluded information that, in the public interest, must not be disclosed.
Importantly, there are a range of penalties that can be applied under the GIPA Act for the following conduct:
- an officer knowingly deciding a formal access application contrary to the requirements of the GIPA Act
- directing an officer to make a decision he or she knows is not permitted or required by the GIPA Act
- improperly influencing a decision on an access application
- knowingly misleading or deceiving an officer for the purpose of obtaining access to government information
- concealing, destroying or altering information for the purpose of preventing the release of information.
We would encourage those persons involved in FOI within NSW government agencies or local councils to familiarise themselves with the GIPA regime and the OIC's website. It contains useful information to assist you with your preparation of the internal infrastructure required to support the GIPA regime. Some of the following information will assist you to prepare for GIPA and can be found on OIC's website, namely:
- Fact Sheets;
- Preparing for GIPA Checklist - the OIC has developed a Principal Officer's Checklist which highlights key steps agencies should take to be ready for the commencement of the GIPA Act;
- Templates for Agencies - templates of forms and correspondence for each of the main stages of processing Right to Information applications:
- Knowledge updates - the OIC has developed Knowledge Updates for government agencies and local councils. This initial set provides detailed information on the upcoming transition between the Freedom of Information Act 1989 and the GIPA Act and applying the public interest test.
Additional resources will become available on OIC's website as we move closer to the GIPA commencement date.
Ashley Tsacalos, a Partner in the Sydney office of Norton Rose, has been following the reforms to the FOI legislation closely. If you seek further information in relation to the proposed changes to FOI, please feel free to contact him.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.