Managing the public s rights to government information Agency

Managing the public’s rights to government information Agency Module 2 a

Instructions for using this package 1. It is expected the Agency Module 1 – GIPA introduction will have been completed prior to participating in this module. 2. To make best use of this e-package, view it in slide show mode. 3. 4. 5. At times there will be extra text or examples shown by highlighted and underlined text. Just click your mouse on the underlined word to see the extra information that is of interest to you. Then click on return < to go back to the original slide. There will be review questions to consider throughout the package and a quiz at the end. If your staff do not have access to the Internet, you may save and post this package to your own intranet with appropriate acknowledgement to the Information Commissioner.

Purpose This module has been designed to provide specific, practical information and support for agencies to meet the new rights to information requirements of the GIPA Act. The GIPA Act is designed to meet community expectations for more open and transparent government.

Topics covered 1. Open access information or mandatory release 2. Proactive release of information 3. Informal requests for information 4. Formal access applications 5. Identity protection & privacy issues 6. Reviewable decisions and rights of review 7. Protections and offences under the GIPA Act 8. Tools to assist and where to from here 9. Quiz For further information on contracts see Agency Module 2 b and for specific information for local government see Agency Module 2 c

Section 1 Open access information or mandatory release Back to menu

What is open access information? The GIPA Act requires proactive information disclosure by all NSW government agencies. Open access information is the information that agencies must publish and make otherwise publicly available either free of charge or at the lowest reasonable cost to the agency. Back to menu

What does open access mean for you? The GIPA Act: • Sets out what information has to be published and maintained on your website (called ‘mandatory proactive release of open access information’), and • Authorises you to proactively release (i. e. make publicly available) other government information unless there is an overriding public interest against disclosure of this information. Back to menu

What the legislation says about open access information Section 18 of the GIPA Act lists the open access information that all agencies, including local councils, must publish. • Your policy documents (e. g. those that affect the rights, privileges or obligations of the public – s 23) • • An agency information guide A register of contracts (e-learning module 2 b covers more on contracts) A disclosure log A record of information you have not disclosed because of an overriding public interest against disclosure (the nature of the information and reasons not disclosed) • Any documents about your agency tabled in Parliament (your annual report, and other reports ) Here is an example of how this open access information might look on your website. Back to menu

What the legislation says about open access information Section 6 requires all agencies (including local councils) to have their open access information publicly available on their website unless this would impose an unreasonable additional cost on the agency. If this is the case, you must make sure the information is freely available in some other format. You may charge for open access information, as long as it is available for free in at least one format. Back to menu

Review question What other formats, beyond your website, might your open access information be made freely available to the public? Review your ideas here! Back to menu

Practical things you can think about & do • Establish a website and/or have new link/page on your website for “Open Access Information” • Review the information you already make publicly available • Review what sort of information you are regularly asked for (might be useful to see if you can proactively release this in some format) and establish a proactive release plan • Set up a review timetable and process – e. g. you have six months to adopt your agency information guide from date of commencement of the Act and your agency information guide is to be reviewed and updated at least every 12 months • Remember to keep the information on your website current and accessible e. g. include a contents section, archive material periodically (but make sure you can easily retrieve it). Back to menu

Tools to assist IPC web resources: • Good Practice for Creating Agency Information Guides knowledge update • Optional “Right to Information Web Button” for your webpage to help make your open access information easy to find (contact IPC directly for copy) • Good practice for disclosure logs knowledge update Back to menu

Section 2 Proactive release of information Back to menu

What is proactive release of information? • Proactive release of government information is a key principle of the GIPA Act. Section 7(1) of the GIPA Act authorises agencies, including local councils, to make any government information held by the agency publicly available unless there is an overriding public interest against disclosure of the information. Back to menu

How to be proactive in releasing government information ü Consider what information (in addition to policy documents and other information required to be released as open access information) may be released ü Consider removing those parts of the information for which there may be an overriding public interest against disclosure and release the remainder – Section 7 (4) ü Review all newly created information with a view to considering whether this information should be proactively released on your website, or available by some other means ü Have an established internal process to authorise this. Back to menu

How to be proactive in releasing government information continued ü Every 12 months, review and identify the kinds of information that should (in the public interest) be made available without imposing unreasonable additional costs. ü Ensure all staff have completed the Agency Module 1 – GIPA introduction (If your staff do not have access to the Internet, you may save and post this package to your own intranet with appropriate acknowledgement to the Office of the Information Commissioner) and are familiar with the Public Interest Test. Back to menu

Remember the public interest test The public interest test involves three steps: 1. Identifying the relevant public interest factors for 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 There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (Section 5). Back to menu

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. Return< Back to menu

Review question “We have been collecting data on how many complaints about noise and other disturbances have been received about the hotels and registered clubs in our local government area. Are we required to release this? ” What would you think about, if you were the relevant agency, in deciding whether, and how, to release this information? Review your ideas here! Back to menu

Practical things you can think about & do! • Regularly identify information your agency holds that can be proactively released • Where you can’t publish information on your website, use the website to say what information is available, how it can be accessed and who to contact to obtain access • If you can’t release government information for free, list the estimated costs for release of information and make this available on your web • Maintain a record of information released in response to informal requests and look at proactively releasing it Back to menu

Section 3 Informal requests for information Back to menu

What is an informal request? • An informal request for release of information includes what you do every day when you provide information over the telephone, or at the counter, or by email, and so on without requiring the person asking for the information to complete a formal application form • It could also be a one-off request for particular information that needs a specifically authorised person to release • • The GIPA Act encourages agencies to release more information in this way with a formal access application being considered only as a last resort The kind of information you are most likely to consider disclosing in response to an informal request includes routine information, personal information of the individual request it, and small amounts of information that is easy for you to locate and provide. Back to menu

What sort of information can be released in response to an informal request? • Any government information can be released unless there is an overriding public interest against disclosure (Section 8(1) of the GIPA Act). You therefore have to consider the public interest test in dealing with an informal request for information • Where information has not already been released and there is no overriding public interest against disclosure, you are encouraged to release it informally • Where there is an overriding public interest against disclosure, consider whether this could be addressed by deleting parts of the information and then releasing it Back to menu

What else do I need to think about in providing informal access to information? • • Remember you can facilitate release of information by deleting certain parts of the document, if including the information would have meant there was an overriding public interest against disclosure (Section 8(5) of the GIPA Act) You can impose conditions on the release of the information (you can not do this with a formal request) • • • You cannot charge for informal access to information • Check that you are authorised by the principal officer of your agency to release information informally. You can release the information in whatever form you chose You do not have to agree to an informal request (but if you say no the person still has a right to a formal access application) Back to menu

At what point might a formal access application become necessary? • The request covers so much information, it will take significant resources to provide the information • The request is about access to sensitive information • You need to consult third parties before you could consider releasing the information Back to menu

Review question “Someone has contacted me asking for some information that isn’t up on our website. It’s not required open access information and I’m pretty busy. Can I just ask them to send in a formal access application before giving them the information? ” What would you think about before suggesting someone make a formal access application? What do you need to consider or do before releasing information informally? Review your ideas here! Back to menu

Things to consider before suggesting someone make a formal access application • Check whether the information is already publicly available • Is the request for the person’s own personal information? • Is it easy to find and release? (These might be reasons to release informally) • Is there likely to be an overriding public interest against disclosure? • Is it likely to require significant resources to deal with it? • Have you provided this information previously to the person • Will 3 rd parties have to be consulted? (These might be reasons why the formal access application would be likely to be requested) Back to menu

Review question You are approached by a person wanting access to reports prepared earlier by your agency on the possible future use of a community space. Other parties have contributed information to these reports, including their business information, and you are not certain you still have current contact details for these third parties. What would you think about in deciding whether to release this information, and if so, in what format? Review your ideas here! Back to menu

Tools to assist IPC web resources • Informal release of information knowledge update Back to menu

Section 4 Formal access applications Back to menu

Dealing with a formal access application Agencies need to have staff with the delegated authority to deal with formal access applications. These people may be known as Right to Information Officers, or be in positions assigned responsibility to deal with requests for information. The IPC issues guidance to Right to Information Officers, including templates, to assist them in this role. Other staff may need to assist the Right to Information Officer in responding to a request for information. This could involve searching for and collating information. An agency must first decide whether the formal access application is valid or not (Section 51 of the GIPA Act). Back to menu

How to tell if a formal access application is valid? To be valid, a formal application for access to government information must: • Be in writing • State that it is made under the Government Information (Public Access) Act 2009 (NSW) or GIPA Act • Give an Australian postal address for return correspondence • Provide enough detail for the agency to identify what information the applicant wants • Enclose the application fee of $30 Back to menu

What do we do if the application is not valid? An agency has up to five working days from the day they receive the application to consider it and let the applicant know whether it is valid or not. If the application is valid, the applicant must be told the date by which you must make a decision about their application. If it is not valid, you must tell the applicant why and give them reasonable assistance to make a valid application. See under templates on the IPC website for examples of precedent documents you can use. Back to menu

What do we have to do with the application? If the formal access application is valid, you need to take steps to see if your agency has the information requested. The agency must make a reasonable search for the information. If you don’t hold the information, the application may need to be transferred to another agency. You may also need to talk to other people, businesses or government bodies to find the information. You need to make a decision about whether to give access to the information or not using the public interest test. Back to menu

What time frames do we have to handle the application? You must tell the applicant within 20 working days of the agency receiving the application, what the decision is, unless the applicant has agreed to extend this time. If you need to consult with a third party or retrieve records from archives, you can extend this time by between 10 and 15 days. What if we don’t handle the application in time? What do we do if the application is not for us but another government agency? Back to menu

Can we charge beyond the $30 application fee for handling formal access applications? You can charge processing costs for handling a formal request for information. You must tell the applicant about the charges when you tell them of the decision to provide access to the information. Processing fees of $30 per hour may be charged to cover the time needed to deal with the application. The $30 application fee counts towards first hour of the processing. If the applicant’s request is for access to their own personal information the first 20 hours of processing time are to be free. Back to menu

Fee for handling formal access applications (continued) 1. You may ask the applicant to pay up to 50% of the anticipated processing charge before you start the work. 2. You have to ask for this in writing and give the applicant at least four weeks to pay. The 20 day time period for making a decision stops running while you are waiting for the deposit. 3. If the applicant does not pay this advance deposit, you can refuse to deal further with the formal application as long as you tell the applicant. 4. You must give a refund of any advance deposit that exceeds the actual processing charge for dealing with the application. 5. If you do not respond to the application within time, you must refund of any advance deposit. Back to menu

What if the applicant says they cannot pay? An agency must give a 50% reduction in the processing fee if the applicant can show they 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

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

What are reasons we might refuse a formal access application? Under the GIPA Act, people have a right to any information they request through a formal access application, unless there is an overriding public interest against disclosure. The only other reasons an agency may refuse to deal with the whole application, or a part of the application, is if: • Dealing with it would use an unreasonable and substantial amount of your agency’s resources (and then you must give the applicant the opportunity to amend their request) • Your agency doesn’t hold the information Back to menu

What are reasons we might refuse a formal access application? (cont’d) • The applicant has already made an application for the same information before and there are no reasonable reasons why your agency would make a different decision this time • The information is already available to the applicant • The applicant has failed to pay the advance deposit. This is set out in sections 58 -60 of the GIPA Act. Back to menu

Review question “What does reasonable search or unreasonable diversion of resources mean? ” Is this anything in the GIPA Act to guide you? What factors would affect your decision? Review your ideas here! Back to menu

Are there any reasons we can’t use to refuse a formal access application? Agencies may not refuse an application because disclosure of the information: • Will cause embarrassment to or loss of confidence in the government • May be misinterpreted or misunderstood. Back to menu

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 to the GIPA Act 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

It is presumed some information will not be released Some information in these categories cannot be released: 1. Overriding secrecy laws 2. Cabinet information 3. Executive Council Information 4. Contempt (e. g. of Court or Parliament) 5. Legal Professional Privilege (unless waived) 6. Excluded information 7. Law enforcement and public safety 8. Transport safety 9. Adoption 10. Some reports regarding the care and protection of children 11. The Registers of Interest kept under the Ministerial Code of Conduct 12. Aboriginal and environmental heritage.

Is any government information excluded from release (cont’d) Information relating to specific functions of particular agencies is listed in Schedule 2 to the GIPA Act as excluded information. A formal access application cannot be made for this excluded information. Back to menu

In what ways can we grant access? If the formal access application is approved, you need to provide the applicant with either a copy of the information requested or give a reasonable opportunity for them to come to your premises and inspect the information. Under Section 72, the applicant may specify the way they want to access the information and, if so, you agency should do what you reasonably can to provide this, unless: 1. Would interfere with unreasonably with the operations of the agency or incur unreasonable costs Back to menu

In what ways can we grant access (cont’d) 2. Would be detrimental to proper preservation of the record; 3. Would infringe copyright; or 4. There is an overriding public interest against disclosure The applicant has up to six months to take up their rights to access the information. Decisions regarding how to provide access to information are reviewable. You cannot put conditions on how the applicant uses information gained through a formal access application. Back to menu

Should we release information granted access under a formal access application to anyone else? It is possible. Your agency should think about whether the information may be of interest to other members of the public, and if so, record it in the “disclosure log” on your website so other people can access it also. The disclosure log should not reveal any personal information. However, the person who made the formal access application can object to the information being recorded on the disclosure log if, for example, they believe it will disclose personal or business information. Back to menu

Tools to assist 1. There are various templates available on the IPC website. 2. Role of the Right to Information Officer knowledge update 3. The IPC has developed an online case management & reporting system to assist with processing access applications and recording data for reporting purposes. We encourage agencies to use this. You should contact the IPC directly on 1800 IPC NSW (1800 472 769) or email IPC [email protected] nsw. gov. au to gain access to this tool. Back to menu

Practical things you can think about & do! • Document the searches you carry out for access applications as this will help you prepare for and respond to any internal or external reviews. (The file running sheet available under templates for agencies on IPC’s website may assist here) • Develop your own pro forma application form (feel free to use the template available on IPC’s website) that clearly states what is required to make an application valid and includes your relevant contact details for right to information requests

Review question You are a local council. You receive a formal access application asking, under the GIPA Act, for all information held on trees in your council area. The $30 application fee and a return address are provided. Is this a valid application? How would you respond? Review your ideas here! Back to menu

Section 5 Identity protection and privacy issues Back to menu

How does the GIPA Act define ‘personal information’? Government agencies may hold information about people that can identify them. Personal information is: “information or an opinion…about an individual (whether living or dead) whose identity is apparent or can reasonable be ascertained from the information or the opinion. ” GIPA Act, Sch 4 [1] Back to menu

Is my own identity in agency documents considered as personal information? The definition of personal information in the GIPA Act does not include “information about an individual (comprising the individual’s name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions. ” GIPA Act, Sch 4, [3] (b) Back to menu

What other legislation applies to protecting people’s identity and personal information? The Privacy and Personal Information Protection Act protects personal information and the Health Records Information & Privacy Act protects information about a person’s health and medical records. See the IPC website for more information www. ipc. nsw. gov. au For staff of local government agencies, Section 739 of the Local Government Act, sets out provisions for the protection of privacy. Back to menu

How do I ensure I protect a person’s privacy? When is consultation necessary? Before disclosing information, you must think about whether the person involved would be likely to be concerned about the release of the information, and weigh up the public interest concerns for and against release. You may remove any personal information from the document before releasing it. If an individual’s personal information is removed, then you do not need to consult them. If your agency does not remove an individual’s personal information and the information is not otherwise public, and the person would be likely to be concerned, you must: • Consult with the individual and take into account any objections they have before releasing the information. Back to menu

How do I ensure I protect a person’s privacy? When is consultation necessary continued? If your agency decides to release the information anyway, you must: 1. Tell the individual about it first and provide time for them to seek a review of your decision (20 days) 2. Not release the information until the person’s review rights have been exhausted, or the time period to seek a review has expired. Back to menu

What about people’s business information? The same applies as for personal information. If a formal access application covers someone’s business information, your agency must consult the relevant person or business to see whethere any objections to the information being released. Any objections must relate to one of more of the limited public interest factors against disclosure. Back to menu

What about people’s business information (cont’d) You cannot release the information if the public interest reasons against disclosure outweigh the public interest reasons for disclosure. If you decide to release the business information, and the relevant person or business still has objections, they have a right to have this decision reviewed. The information cannot be released until these review rights have been exhausted or the time period to seek a review has expired. Back to menu

Things to remember, & remind your staff! ! Draft versions of documents and all materials controlled and saved in your agency systems may be accessible to the public. ! The content of emails, network drives (including personal drives) are information and therefore subject to public release. ! What you do in your role as a public official is not considered as personal information. This means your name is accessible information (but not your personal contact details). ! If the information being requested contains the personal information of another party, then you must either remove that information, or consult with the third party and use their views to help you weigh up the public interest considerations for and against release of the information. Back to menu

Review question “I have a formal access application for information about a third person, what do I need to do? ” What would you think, and/or do, before deciding whether to release this information? Review your ideas here! Back to menu

Section 6 Reviewable decisions and rights of review Back to menu

What kinds of decisions are reviewable? Anyone has a right to request a review of a decision regarding the release of government information. A range of reviewable agency decisions is set out in the GIPA Act (Part 5, Division 1). Back to menu

What are the rights of review? There a number of review rights under the GIPA Act. If you refuse someone access to information, they can seek a number of options: 1. An Internal Review 2. A Review by the Information Commissioner 3. A Review by the NSW Civil and Administrative Tribunal If the person seeking the review was the applicant for access to the information, they can choose which review option to take. If the person seeking the review was not the applicant, for example, a third party whose information will be released, they must seek an internal review first. Back to menu

Review by the NSW Civil and Administrative Tribunal (NCAT) If the person is not satisfied by the decision of the Information Commissioner or the internal review, or does not want either option, they ask the NSW Civil and Administrative Tribunal (NCAT) to review the decision. If the Information Commissioner has already reviewed the decision, the person has four weeks from being told of the Information Commissioner’s recommendation to apply to the NCAT. If the person has chosen not to have a review by the Information Commissioner, they have eight weeks from being told of the agency’s decision to seek a review by the NCAT. Return<

What must we do with a request for an internal review? An agency must acknowledge receipt of an application for an internal review within 5 working days of receiving it. An officer not less senior than the person who made the original decision must carry out the review. The agency must decide the internal review within 15 working days of receiving the application (this can be extended by a further 10 days if the agency has to consult with third parties, or by agreement with the applicant) Back to menu

Review question “I think applicants need to pay a fee when requesting an internal review on a formal access application decision. I don’t know what the fee is. I have someone whose formal access application was deemed to have been refused because we didn’t decide whether to release the information or not within required the time period. What do I charge? ” What do you think? How would you check? Review your ideas here! Back to menu

Section 7 Protections and offences under the GIPA Act Back to menu

What are the protections for staff who make decisions under the GIPA Act? There are protections in the GIPA Act (Part 6, Division 1, sections 113 -115) for the person making decisions permitted or required by the Act if the decisions are made in good faith. These protections include: • Protection against actions for defamation or breach of confidence • Protection in respect of certain criminal actions • No action for personal liability Back to menu

What offences are there under the GIPA Act? Sections 116 -120 outline actions that are considered offences under the GIPA Act and the maximum penalty that may apply. You may not: • Make a reviewable decision on an access application that you know to be unlawful • Direct an officer of your agency to act in a manner or make a decision in relation to an access application that you know to be unlawful • Improperly influence a decision on an access application • Knowingly mislead or deceive an officer for the purposes of unlawfully obtaining access to government information • Conceal or destroy government information (including by altering records) for the purpose of preventing the disclosure of the information. Back to menu

Section 8 Tools to assist & where to from here! Back to menu

A summary of what’s new! • There are four ways to access government information, only one way requires a formal application (sections 6 -9) • There is a presumption in favour of disclosure of all government information unless there is an overriding public interest against disclosure (section 5) • There is a public interest that helps you weigh up and decide if there is an overriding public interest against disclosure (section 13) • Agencies have to publish certain information as open access information. Back to menu

What’s available to assist you? A number of tools and other resources available on the IPC website have been referred to throughout this e-package. Have a look at the IPC website (www. ipc. nsw. gov. au) for further information and resources. This website is regularly updated. or call on 1800 IPC NSW (1800 472 769) or visit us during business hours at Level 11, 1 Castlereagh St, Sydney or email our general enquiries section at [email protected] nsw. gov. au. AND complete Agency Module 2 b – The contract register & contract disclosures Back to menu

What is the role of the Information and Privacy Commission NSW (IPC)? Our role under the GIPA Act 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

How to check if you are compliant? Refer to the resources on IPC's website: • GIPA Compliance Resources These resources are designed to assist you with understanding the processes and practices for complying with the GIPA Act. References are made to relevant sections of the legislation and practical tips and flowcharts are also included Back to menu

Quiz 1. Your agency has its own discretion to waive, reduce or refund any fee or charge payable or paid under the GIPA Act if you think appropriate? True or False Back to menu

Response to quiz question 1 Answer: True Section 127 covers the waiver, reduction or refund of fees and charges Back to menu

Quiz 2. All information released under a formal access application must be published on the disclosure log? True or False Back to menu

Response quiz question 2 Answer: False After information has been released under a formal access application, consider if the information would be of public interest and if so, publish in the disclosure log (after the review period for the application has ended). Back to menu

Quiz 3. Your agency has the authority to proactively release information unless it is excluded information or there is an overriding public interest against disclosure Back to menu

Response quiz question 3 Answer: True Section 7 of the GIPA Act provides for proactive release of information. Back to menu

Quiz 4. Which of the following is NOT a possible reason for refusing a formal access application: a) The applicant has failed to pay their advance deposit b) Dealing with it would be an unreasonable and substantial diversion of your resources c) Releasing the information would cause embarrassment to your agency d) The applicant has already made the same application to you previously. Back to menu

Response quiz question 4 Answer: C Releasing the information would cause embarrassment to your agency is not a reason to refuse a formal access application Section 60 outlines the reasons why an agency may refuse to deal with an access application. Back to menu

Quiz 5. You would need to ask someone to make a formal access application when: a) You know your agency does not hold the information requested b) Providing the information requested would require consultation with a third party c) You are not interested in responding directly to the person asking for the information d) You would like to make $30 for your agency. Back to menu

Response quiz question 5 Answer: b If you need to consult third parties before you can consider releasing information, it may be appropriate to seek a formal access application. The other options are not appropriate reasons for requiring a formal application. Back to menu

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 e-learning exploring the responsibilities of government agencies under the new rights to government information legislation, please ring the IPC on 1800 IPC NSW (1800 472 769) or email us on [email protected] 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: [email protected] nsw. gov. au. Back to menu