Government Information (Public Access) Act 2009 No 52
Current version for 4 July 2014 to date (accessed 25 November 2014 at 07:04)
Part 4Division 3

Division 3 Process for dealing with access applications

51   Initial decision as to validity of application

(1)  When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either:
(a)  acknowledging receipt of the application as a valid access application, or
(b)  notifying the applicant that the application is not a valid access application.
Note. An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications.
(2)  An agency’s decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received.
Note. The decision is reviewable under Part 5.
(3)  An acknowledgement of receipt of a valid access application must include the following:
(a)  the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application),
(b)  a statement that the application will be deemed to have been refused if not decided by the required date,
(c)  a statement that information about the application may be made public in the agency’s disclosure log and that the applicant may object to this (but this statement is not required if the agency considers it unlikely that information about the application will be included in the disclosure log),
(d)  such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct.
(4)  Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application.
(5)  An agency’s decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.

51A   Effect of waiver, reduction or refund of application fee

(1)  An agency is not to treat an application as being an invalid access application only because of the non-payment of the required application fee if:
(a)  the payment of the fee was waived by the agency before the application was made, or
(b)  the amount of the fee payable was reduced by the agency before the application was made and the reduced fee accompanied the application.
Note. Section 127 enables an agency to waive, reduce or refund a fee payable or paid under this Act for an application fee in any case that the agency thinks appropriate, subject to the regulations.
(2)  If an agency waives payment of the required application fee, or reduces the amount of the fee that is payable, after the application is made (and the application would have been valid had the required application fee been paid):
(a)  in the case of a waived fee—the application becomes a valid access application and is deemed to have been made when the fee was waived, or
(b)  in the case of a reduced fee—the application becomes a valid access application when the reduced fee is paid and is deemed to have been made when the payment is made.
(3)  The refund of an application fee does not affect the validity of an access application that was duly made.

52   Agency assistance with invalid applications

(1)  The notification of an agency’s decision that an application is not a valid access application must:
(a)  include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and
(b)  if a reason is non-payment of the required application fee, invite the applicant to pay the fee, and
(c)  if a reason is failure to provide required information, invite the applicant to provide the information, and
(d)  notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application.
(2)  The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate), and is then deemed to have been made when the fee or information was received by the agency.
(3)  An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application.
(4)  (Repealed)
(5)  An applicant is entitled to a refund of any application fee that accompanied an invalid access application (unless the application subsequently becomes valid).

53   Searches for information held by agency

(1)  The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2)  An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.
(3)  The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4)  An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.
(5)  An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

54   Consultation on public interest considerations

(1)  An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that:
(a)  the information is of a kind that requires consultation under this section, and
(b)  the person may reasonably be expected to have concerns about the disclosure of the information, and
(c)  those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
(2)  Information relating to a person is of a kind that requires consultation under this section if the information:
(a)  includes personal information about the person, or
(b)  concerns the person’s business, commercial, professional or financial interests, or
(c)  concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or
(d)  concerns the affairs of a government of the Commonwealth or another State (and the person is that government).
Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.
(2A)  If the agency considers that information about a person consulted under this section is likely to be included in the agency’s disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements:
(a)  that information concerning the application will be included in the agency’s disclosure log and that the person can object to this,
(b)  that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person’s objection.
(3)  If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased.
(4)  The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.
(5)  The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.
(6)  If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency’s decision to provide access to the information and notice of the objector’s right to have that decision reviewed, and is not to be provided while review rights on the decision are pending.
(7)  Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.

55   Consideration of personal factors of application

(1)  In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a)  the applicant’s identity and relationship with any other person,
(b)  the applicant’s motives for making the access application,
(c)  any other factors particular to the applicant.
(2)  The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3)  The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.
(4)  An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5)  An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity.
(6)  An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

56   Authorised objector can object to inclusion in disclosure log

(1)  Each of the following persons (an authorised objector) can object to the inclusion in the agency’s disclosure log of all or specified information concerning an access application:
(a)  the access applicant,
(b)  any other person with whom the agency has consulted (or is required to consult) under section 54 before providing access to the information sought in the application.
(1A)  An objection can include reasons for the objection and, in the case of an objection by an access applicant, can be made as part of the access application or separately.
(2)  The grounds on which an authorised objector is entitled to object to the inclusion of information in an agency’s disclosure log are limited to any one or more of the following:
(a)  the information includes personal information about the authorised objector (or a deceased person for whom the authorised objector is the personal representative),
(b)  the information concerns the authorised objector’s business, commercial, professional or financial interests,
(c)  the information concerns research that has been, is being, or is intended to be, carried out by or on behalf of the authorised objector,
(d)  the information concerns the affairs of a government of the Commonwealth or another State (and the authorised objector is that government).
(3)  An agency’s acknowledgement of receipt of an access application is to include the following statements about the inclusion of information in the agency’s disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log):
(a)  a statement that information concerning the application will be included in the agency’s disclosure log and that the applicant can object to this,
(b)  a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant’s objection.
(4)  If an access applicant has objected to the inclusion of information in the agency’s disclosure log, the agency’s notice of decision of the access application must indicate:
(a)  the agency’s decision about whether the applicant was entitled to object, and
(b)  (if the agency has decided that the applicant was entitled to object) the agency’s decision on whether to include the information in its disclosure log.
Note. The agency’s decisions are reviewable under Part 5.
(4A)  If a person referred to in subsection (1) (b) has objected to the inclusion of information in the agency’s disclosure log, the agency must, as soon as is reasonably practicable after the decision concerned is made (and in any event within 5 working days after the decision is made), give the person a written notice that indicates:
(a)  the agency’s decision about whether the person was entitled to object, and
(b)  (if the agency has decided that the person was entitled to object) the agency’s decision on whether to include the information in its disclosure log.
(5)  An agency that decides that an authorised objector was not entitled to object to the inclusion of information in the agency’s disclosure log is entitled to immediately include the information in the disclosure log.
(6)  An agency that decides that an authorised objector was entitled to object to the inclusion of information in the agency’s disclosure log but decides to include the information despite the objection must not include the information while the objector is entitled to apply for a review of the agency’s decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.
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