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Crown Solicitor's Office

​​​​​​Government Information (Public Access) Act 2009 update

Kiri Mattes, CSO Senior Solicitor

Extracted summary of a seminar dated 20 August 2014

The Government Information (Public Access) Act 2009 ("the GIPA Act") has been in force for four years. There is now some depth to the case-law dealing with the Act, and we are less reliant on the old freedom of information jurisprudence when considering its terms. Indeed, in the recent case of Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 31 (read decision on NSW Caselaw), the Tribunal was critical of the respondent's reliance on cases under the Freedom of Information Act 1989. This criticism was, perhaps, unfair given that the agency's submissions had been made some 18 months before the date of judgement, at a time when the GIPA Act case law was still relatively sparse. Nevertheless, the Tribunal's observations demonstrate the need for caution in relying too heavily on FOI case law: our first port of call should now be cases dealing with the GIPA Act.

Information Commissioner's s. 37 Report

The Information Commission recently released her first report on the operation of the GIPA Act under s. 37 of the Government Information (Information Commissioner) Act 2009. Having regard to data collected over the first three years of the Act's operation, the Commissioner concluded that the results were "promising" and that agencies appear to be "adopting the Act's operational and strategic intent".

There are some interesting statistics in the report. Notably:

  • In its first three years, there were over 50,000 formal applications lodged under the GIPA Act.
  • Three agencies accounted for 61% of all applications to the government sector: NSW Police (36%); RMS (15%) and WorkCover (10%).
  • 38% of applications sought personal information of the applicant, and a further 17% sought information that was partly personal and partly other information.
  • 87% of applications were determined within the statutory time frame; 3% were determined after 35 days and 10% were deemed refusals.
  • 75% of decisions resulted in information being released in full or part.
  • Of reviews sought under the Act, 71% were internal reviews; 17% were reviews by the Information Commissioner; 6% were reviews by the Administrative Decisions Tribunal and 4% were reviews under s. 93 of the GIPA Act (where the Information Commissioner recommended that the agency reconsider its decision).
  • In 69% of internal reviews, the initial decision was varied.

The public interest test under the GIPA Act

The balance that the GIPA Act seeks to strike between the competing interests of transparency and confidentiality is reflected in the "public interest test" for which s. 13 of the GIPA Act provides. While there is a presumption in favour of disclosure of government information under the GIPA Act (s. 5), information is not to be disclosed where there is an "overriding public interest against disclosure" ("OPIAD"). Section 13 provides that:

"There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure."

This balancing of public interest considerations for and against disclosure lies at the heart of the GIPA Act.

Public interest considerations in favour of disclosure – s. 12

Agencies are sometimes so concerned with the reasons why government information should not be disclosed, that they neglect to consider the public interest considerations in favour of disclosure. It is important not to overlook this aspect of the public interest test: a well-drawn notice of determination should, at the very least, recognise that there is a general public interest in favour of disclosing government information, as reflected in s. 12 (1) of the GIPA Act.

Section 12(2) also provides that more specific public interest considerations in favour of disclosure may be taken into account when considering an application. There is no limitation on the factors that an agency may consider, although some examples of the types of matters that may be relevant are set out in the note to s. 12(2). Some examples of the types of matters that the Tribunal has identified as public interest considerations in favour of disclosure, for the purpose of s. 12(2) of the GIPA Act, include:

  • That disclosure of information could reasonably be expected to inform the public about the system for obtaining AVOs, promote discussion and debate about AVO procedures: AEZ v Commissioner of Police [2013] NSWADT 90 at [50], (read decision on NSW Caselaw).
  • That there is a public interest in disclosing information re development applications, approvals and monitoring for compliance: Leda Developments Pty Limited v Tweed Shire Council [2013] NSWADT 121 (read decision on NSW Caselaw); Donnellan v Kuring-gai Council [2013] NSWADT 115 (read decision on NSW Caselaw).
  • That disclosure of information regarding salaries could reasonably be expected to ensure effective oversight of expenditure of public funds: McLennan v University of New England [2013] NSWADT 113 (read decision on NSW Caselaw).
  • That there was a public interest in the disclosure of CCTV footage alleged to show unlawful conduct: Turner v Corrective Services NSW (No. 2) [2013] NSWADT 232 (read decision on NSW Caselaw).
  • That there is a public interest in parents being aware of the nature of records held about them with respect to their children – Mansfield v Department of Family and Community Services [2014] NSWCATAD 43 (read decision on NSW Caselaw).  

Public interest considerations against disclosure – s. 14

Section 14(1) provides for a conclusive presumption that there is an overriding public interest against disclosure for certain categories of documents listed in Sch. 1. For example, there is a conclusive presumption of an OPIAD with respect to:

  • cabinet documents – Sch. 1, cl. 2 (see recent decision of the Tribunal in D'Adam v NSW Treasury [2014] NSWCATAD 68 (currently subject to appeal)) (read decision on NSW Caselaw); and
  • documents which would be privileged from production in legal proceedings on the grounds of legal professional privilege – Sch. 1, cl. 5  (see Tribunal decision in Colefax v Department of Education and Communities [2013] NSWADT 75, read decision on NSW Caselaw).

Otherwise there may be some public interest considerations against the disclosure of government information. Agencies may only have regard to those considerations set out in the table to s. 14(2) of the GIPA Act. The Table sets out a broad range of considerations, under seven different headings: this update considers recent developments with respect to three of these considerations.   

Section 14 Table (1)(d) – prejudice future supply of confidential information facilitating effective exercise of the agency's functions

A common circumstance where this public interest consideration against disclosure of information applies is where an applicant seeks access to information generated in the course of an internal investigation into allegations or complaints of bullying or misconduct. On a number of occasions the Tribunal has found this consideration applies with respect to information provided by witnesses/employees as part of the investigation: see, for example AMH v Western NSW Local Health District [2013] NSWADT 282 (read decision on NSW Caselaw) and Jenkinson v Department of Education and Communities [2013] NSWADT 280 (read decision on NSW Caselaw).

This consideration against disclosure will apply where the following three elements are satisfied:

  • The information in question is confidential – the confidentiality of information is assessed as at the time at which it was supplied.
  • Prejudice future supply of such information – that is, the disclosure of the information sought is reasonably likely to have the effect of prejudicing the future supply of such information. One factor that may influence whether future supply of information will be prejudiced is whether it is possible for an agency to compel the provision of information (as discussed in Jenkinson at [41]).
  • Facilitates effective exercise of agency's functions – the supply of such information must be necessary for the agency to carry out its functions. The case of Mansfield v FACS [2014] NSWCATAD 43 (read decision on NSW Caselaw) demonstrates the importance of adducing evidence on this element before the Tribunal, see especially at [35].

Section 14, Table (3)(a) - reveal an individual's personal information

One of the findings of the Information Commissioner's Report is that 65% of public interest considerations against disclosure relied upon to withhold material came under Heading 3 of the Table to s. 14 "Individual Rights, Judicial Rights and Natural Justice". While the data is not further broken down into which specific considerations under that heading, I would expect that (3)(a) would be the consideration most relied on.   

Generally speaking, where the disclosure of information could reasonably be expected to reveal personal information, this is a matter which has been given considerable weight by the Tribunal in balancing the public interest. The nature of personal information in issue may impact the weight accorded to this factor, as is demonstrated by comparing the cases of McKinnon v Blacktown City Council [2012] NSWADT (considerable weight accorded where information related to private and family affairs) and Leda Developments Pty Limited v Tweed Shire Council [2013] NSWADT 121 (less weight given to this factor, as the communications were more of a "professional" nature).

Section 14, Table (3)(f) – expose person to a risk of harm or of serious harassment or intimidation

There have been a few interesting cases considered by the Tribunal over the last 12 months, in which agencies relied on this factor. In Jenkinson v DEC [2013] NSWADT 280 (read decision on NSW Caselaw), the Tribunal held that it is not enough that the disclosure of information would simply cause discomfort or tension in the workplace for this factor to apply.  Similarly, in McInnes v DEC [2013] NSWADT 219 (read decision on NSW Caselaw) the Tribunal found the consideration did not apply with respect to withheld information, which included the personal information and contact details of a number of former employees of the Department. The Tribunal made this finding, notwithstanding the fact there were allegations the applicant had approached an individual (his former teacher, who was now an elderly woman) and left correspondence in her mail box, conduct which the Tribunal accepted would have been very intimidating to that individual.

In AMH v Western NSW Local Health District [2013] NSWADT 282 the Tribunal found that this consideration did apply. The applicant, "AMH" had been the subject of complaints of bullying and harassment. She sought access to the complaint file, including details of the individuals who had been interviewed in the investigation. There was evidence before the Tribunal that witnesses had expressed serious concerns about what would happen if their information was revealed to AMH. AMH denied that she had any sinister motive in seeking this material, however, when the name of one witness was inadvertently revealed by the Tribunal in a planning meeting, the applicant was heard to say "Well I will talk with her on Monday".  The Tribunal had regard to this in its deliberations, and determined that, in view of the seriousness of the allegations against AMH, her statement took on a more "sinister and concerning" aspect, and lended considerable weight to concerns that had been expressed by the agency's employees.

Review of the Government Information (Public Access) Act 2009

The Attorney General is currently conducting a review of the GIPA Act, pursuant to s. 130. The purpose of this review is to consider whether the policy objectives of the Act remain valid, and whether the terms of the Act are appropriate for securing these objectives. The review will, in addition, consider the relationship between the GIPA Act and the Privacy and Personal Information Protection Act 1998. Submissions to the review closed at the end of August.