New access to government information laws: same same but different

By Jodie Wauchope of Gadens Lawyers, Sydney

Overview: GIPA Act

The Government Information (Public Access) Act (GIPA Act) introduces a new regime for the way companies, property owners and citizens obtain information from councils and government authorities (called ‘agencies’ in the GIPA Act).   

Key reforms include the establishment of a new Office of the Information Commissioner, a single access to information system (no more applications under the Local Government Act), broader contract disclosure requirements, and changed timelines and assessment criteria for applications and access to information.

The GIPA Act was passed last year and will commence ‘early’ this year.  Government authorities are gearing up for its introduction, and the new Office of the Information Commissioner is up and running.

Information publicly available

The GIPA Act contains a presumption in favour of the disclosure of government information, unless there is an overriding public interest against disclosure. 

Certain information, called ‘open access information’, must be available free of charge (unless not in the public interest).  Open access information includes policies, publications, a register of all contracts over $150,000 in value (which includes copies of contracts with a value of over $5 million) and other information the authority decides to make publicly available.

In addition, local councils are required to make specific information available (see section below).

Despite the overarching open access principle, it is not ‘access all areas’.  Access to information may be denied on the basis of the public interest test (too complex to discuss in this overview) or if the information is specifically excluded.  Some information is declared to have a conclusive presumption of overriding public interest against disclosure. Also, specific authorities or authorities’ functions are excluded from access applications.

If the agency refuses access to the information the applicant can request a review of the decision by the agency, the Information Commissioner or, if not satisfied with those, the Administrative Decisions Tribunal.

Contracts with state or local government

Private sector entities (whether companies or individuals) which contract with government agencies will be required to make some information accessible and available to the agency.  An access application can be made to the agency for information held by the contractor.

Information required to be made available by contractors includes information:

• relating directly to the performance of the services by the contractor

• information collected by the contractor from members of the public to whom it provides, or offers to provide, the services

• information received by the contractor from the agency to enable it to provide the services.

      Some information is excluded from being required to be provided, including:

• information that discloses or would tend to disclose the contractor’s financing arrangements, financial modelling, cost structure or profit margins; or that the contractor is prohibited from disclosing to the agency under any Act (of this or another State or of the Commonwealth); or that, if disclosed to the agency, could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency.

Contracts with agencies (including local government) with a value of $150,000 or over will all be listed on a public register. Contracts with a value over $5 million will be available.

Access to local council information

The GIPA Act contains a broad presumption in favour of disclosure, ‘unless there is an overriding public interest against disclosure’.  This means there is a general requirement that councils should make information available to the public.

Specific information listed as open access information is to be available for inspection or copied free of charge (or a reasonable photocopying charge can apply). 

This replaces the current access system, under s12 of the Local Government Act, which will no longer operate. The current system suffers from a lack of clarity in relation to some information and no clear appeal rights. 

In addition the GIPA Act provides a clear right of public access to most documents associated with development applications. 

In relation to development applications, councils must provide access to:

• development applications and any associated documents received in relation to a proposed development

• records of decisions on development applications (including decisions made on appeal),

Development application documents specifically include:

• home warranty insurance documents

• construction, occupation and structural certificates

• town planner, heritage , tree inspection , acoustic, contamination consultant reports (note the absence of traffic consultant reports, but arguably these would be caught by the broad requirement)

• submissions received on development applications.

Plans showing residential components of buildings, and prejudicial commercial information are excluded (other than plans which show external height and configuration).  If council decides to exclude any particular documents under these exclusions it must keep a record describing the document.

Councils must keep a record that describes the general nature of the documents that the local authority decides are excluded.

Making an application

Information can be obtained by an informal request, or a formal access application. An agency is not required to disclose information pursuant to an informal request, and there is no appeal right if refused.

A formal application must be in writing, include specified information and include a $30 fee.  The advantage in lodging a formal application is that time limits and appeal rights apply.  The application must be dealt with within 20 days (or an additional 15 days in some cases, such as where the records are archived).

This publication is provided to clients and correspondents for their information on a complimentary basis. The information provided is a general guide only and Gadens Lawyers accept no responsibility for people relying on this publication.