Australia: The Journey from 'Freedom of Information' to 'Government Information Public Access' in NSW

Last Updated: 23 February 2010
Article by Ashley Tsacalos

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):

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:

  1. Mandatory proactive release
  2. Authorised proactive release
  3. Informal release
  4. 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:

  1. an officer knowingly deciding a formal access application contrary to the requirements of the GIPA Act
  2. directing an officer to make a decision he or she knows is not permitted or required by the GIPA Act
  3. improperly influencing a decision on an access application
  4. knowingly misleading or deceiving an officer for the purpose of obtaining access to government information
  5. 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:

  1. Fact Sheets;
  2. 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;
  3. Templates for Agencies - templates of forms and correspondence for each of the main stages of processing Right to Information applications:
  4. 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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ashley Tsacalos
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.