The Government Information (Public Access) Act 2009 (NSW) (GIPA Act) is an important tool for the media and public in NSW to obtain access to government information, promoting transparency and accountability in government decision-making and performance of its functions.
The NSW Information Commissioner and CEO of the Information and Privacy Commission NSW (IPC), Elizabeth Tydd, recently announced the release by the IPC of a treasure trove of statistics on the 2018/19 operation of the GIPA Act in its ninth annual Report on the Operation of the GIPA Act (the “Report”).
The Report, released and tabled in NSW Parliament on 18 March 2020, comprehensively addresses NSW Government’s management of public information and compliance with the GIPA Act during 2018/2019. The data is drawn from over 240 government departments and agencies, local councils, universities, ministers and their staff, and state-owned corporations in NSW, all of whom are covered by the right to information legislation.
The Report demonstrates that New South Wales government agencies have increased the amount of information they release in responding to requests for government information from the public and have demonstrated enhanced compliance across most regulatory areas, but on average haven’t become any quicker at doing so. The detail in the Report provides important guidance to policy makers and agency heads and promotes greater transparency for the NSW community.
What is the GIPA Act?
The object of the GIPA Act, which replaced the Freedom of Information Act 1989 (NSW), is to maintain and advance a system of responsible and representative government that is open, accountable, fair and effective by:
- authorising and encouraging the proactive public release of government information by agencies;
- giving members of the public an enforceable right to access government information; and
- ensuring that access to government information is restricted only when there is an overriding public interest against disclosure.
The GIPA Act has four pathways for information release and access:
- Mandatory proactive release: NSW public sector agencies are required to release a prescribed set of information to the public, known as open access information. This information must be made publicly available online and free of charge.
- Authorised proactive release: agencies are authorised and encouraged to make information available unless there is an overriding public interest against disclosure. Through this pathway, agencies have a responsibility to promote policies and practices that ensure as much information as possible is made publicly available.
- Informal release: agencies are permitted to release government information in response to an informal request for information, unless there is an overriding public interest against disclosure. This pathway promotes the general release of government information.
- Formal access applications: citizens have the right to apply for, and access, most government information unless there is an overriding public interest against disclosure. A formal process must be followed by applicants and agencies. The IPC Disclosure Log documents information the IPC releases in response to access applications, and which may be of interest to other members of the public.
Key Findings of the Report
The Report’s data broadly demonstrates enhanced compliance by government agencies in most regulatory areas targeted by the IPC. With the Report showing that 75% of applications were by members of the public or by legal representatives, the active public interest in the release of government information is clear.
Positive trends indicate:
- Overall release rates of government information have increased to 70%, a slight increase from 68% in 2017/18. Consistent with previous years, applicants were more likely to be granted access in part than access in full.
- There was 100% compliance by departments with mandatory proactive release requirements for Agency Information Guides (AIG), which is the first time 100% compliance has been reached. Agencies other than departments recorded a lower overall compliance rate of 85%, which was still a moderate increase compared to 78% for the 2017/18 results.
- There is an increased ability to electronically lodge GIPA applications, which Tydd championed the need for to promote effective processing of applications in her 2017/18 Report. The GIPA Act was amended in November 2018 to give government agencies the option to accept electronic lodgements, but the NSW government has been criticised for not making it mandatory for agencies to accept them.
- 93% of agencies reported having conducted a review of their program for the release of government information, a significant jump from 74% in 2017/18 and the highest level reported to date.
- Only 6% of total applications received were refused wholly or partly because of a conclusive presumption of overriding public interest against disclosure (CPOPIAD), which is consistent with previous years. Legal professional privilege remains the most applied CPOPIAD, followed by the care and protection of children, then excluded information.
The Report also revealed the following negative trends:
- A significant spike in decisions not made within the statutory timeframe – “deemed refusals” – from 3% reported in 2015/16 to 8% in 2018/19. In the Report, Tydd notes that, “The impact on citizens is to curtail the fundamental right to access information.”
- Although decision-making within the statutory time frame was consistent at 87% in 2018/19, there is a downward trend in timeliness since 2015/17 when 93% of applications were decided within time in the government sector.
- There was a decrease in the rate of invalid applications from 15% of all formal applications in 2017/18 to 12% (1,895 applications) in 2018/19, yet the rate remains high. The continuing high number of invalid applications is concerning as the GIPA Act requires agencies to provide advice and assistance to help an applicant make a valid application. The decrease may be attributable to IPC resources such as their checklist for framing information access applications.
Three Fundamental Changes to Government
As well as analysing GIPA Act compliance, the Report also identifies three new fundamental changes as now permanent features of government:
- Digital government and data application, where the increasing adoption of technology should promote and enable faster, more effective and lower cost access to information and services. In the context of machine-enhanced decision making, it is also important to ensure accountability and the preservation of information access rights.
- Increasing partnership and outsourcing arrangements, where the GIPA Act importantly recognises that citizens’ rights do not diminish under these arrangements. Preserving accountability, transparency and citizen engagement within these arrangements can be achieved through express contractual provisions that secure the right to access information.
- Administrative arrangements and service delivery models that transcend agencies and sectors, with the government increasingly implementing a ‘single point of service’ model to deliver services. An example of this is Service NSW becoming the single contact point for licensing, permits, registrations, and payment of fines. Legal rights are not displaced under new service delivery models and the IPC is aware of the increasing need to raise awareness of the obligation to protect and promote information access rights and the principles of open government.
The data in the Report is mostly positive, showing that there have been improvements in information access systems, policies and procedures within agencies to deal with the proactive release of government information. The IPC appears to be vigilantly promoting information access rights in NSW, as seen through the comprehensive GIPA guides and fact sheets they provide for citizens and public sector agencies. The May 2019 launch of the Information Access Agency Self-Assessment Tool, which enables agencies to assess their compliance against key information access requirements, also highlights the IPC’s active steps to improve agency compliance with information releases.
For those interested in keeping a close eye on the information access landscape in NSW, the IPC has published an online, interactive Agency GIPA Dashboard to facilitate agency and community access to this data. The GIPA Dashboard is updated to take account of changes advised by agencies, so is the most up-to-date and accurate source of data on agency GIPA operations until the IPC’s next report.
Authors: Lesley Sutton, Nikhil Shah, Dal Lim
Our COVID-19 hub collates important articles and legal advice on various aspects of COVID-19 on how it may impact your business.