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Contents (2009 - 52)
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Government Information (Public Access) Act 2009 No 52
Current version for 1 July 2017 to date (accessed 20 September 2017 at 15:36)
Part 2
Part 2 Open government information—general principles
Division 1 Ways of accessing government information
5   Presumption in favour of disclosure of government information
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
6   Mandatory proactive release of certain government information
(1)  An agency must make the government information that is its open access information publicly available unless there is an overriding public interest against disclosure of the information.
Note.
 Part 3 lists the information that is open access information.
(2)  Open access information is to be made publicly available free of charge on a website maintained by the agency (unless to do so would impose unreasonable additional costs on the agency) and can be made publicly available in any other way that the agency considers appropriate.
(3)  At least one of the ways in which an agency makes open access information publicly available must be free of charge. Access provided in any other way can be charged for.
(4)  An agency must facilitate public access to open access information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record and it is practicable to delete the matter.
(5)  An agency must keep a record of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure. The record is to indicate only the general nature of the information concerned.
(6)  Nothing in this section or the regulations requires or permits an agency to make open access information available in any way that would constitute an infringement of copyright.
7   Authorised proactive release of government information
(1)  An agency is authorised to make any government information held by the agency publicly available unless there is an overriding public interest against disclosure of the information.
(2)  The information that an agency decides to make publicly available is to be made publicly available in any manner that the agency considers appropriate, either free of charge or at the lowest reasonable cost to the agency.
(3)  An agency must, at intervals of not more than 12 months, review its program for the release of government information under this section to identify the kinds of government information held by the agency that should in the public interest be made publicly available and that can be made publicly available without imposing unreasonable additional costs on the agency.
(4)  An agency can facilitate public access to government information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record.
(5)  The functions of an agency under this section may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.
8   Informal release of government information
(1)  An agency is authorised to release government information held by it to a person in response to an informal request by the person (that is, a request that is not an access application) unless there is an overriding public interest against disclosure of the information.
(2)  An agency can release government information in response to an informal request subject to any reasonable conditions that the agency thinks fit to impose.
(3)  An agency cannot be required to disclose government information pursuant to an informal request and cannot be required to consider an informal request for government information.
(4)  An agency can decide by what means information is to be released in response to an informal request.
(5)  An agency can facilitate public access to government information contained in a record by deleting matter from a copy of the record to be released in response to an informal request if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record.
(6)  The functions of an agency under this section may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.
9   Access applications
(1)  A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
(2)  An agency is not subject to the direction or control of any Minister in the exercise of the agency’s functions in dealing with a particular access application.
(3)  The function of making a reviewable decision in connection with an access application made to an agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.
10   Disclosure and access under other laws
(1)  This Act is not intended to prevent or discourage the publication or giving of access to government information as permitted or required by or under any other Act or law that enables a member of the public to obtain access to government information.
(2)  This Act does not affect the operation of any other Act or law that requires government information to be made available to the public or that enables a member of the public to obtain access to government information.
11   Act overrides secrecy provisions in other legislation
This Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law.
Note.
 For overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure of the information. Other secrecy laws are to be taken into account as considerations against disclosure in determining whether there is an overriding public interest against disclosure. See section 14.
Division 2 Public interest considerations
12   Public interest considerations in favour of disclosure
(1)  There is a general public interest in favour of the disclosure of government information.
(2)  Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note.
 The following are examples of public interest considerations in favour of disclosure of information:
(a)  Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b)  Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c)  Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d)  The information is personal information of the person to whom it is to be disclosed.
(e)  Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
(3)  The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
13   Public interest test
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.
14   Public interest considerations against disclosure
(1)  It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(2)  The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
(3)  The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
(4)  The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
Table
 
1   Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
(a)  
prejudice collective Ministerial responsibility,
(b)  
prejudice Ministerial responsibility to Parliament,
(c)  
prejudice relations with, or the obtaining of confidential information from, another government,
(d)  
prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,
(e)  
reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,
(f)  
prejudice the effective exercise by an agency of the agency’s functions,
(g)  
found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,
(h)  
prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
 
2   Law enforcement and security
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
(a)  
reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,
(b)  
prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,
(c)  
increase the likelihood of, or prejudice the prevention of, preparedness against, response to, or recovery from, a public emergency (including any natural disaster, major accident, civil disturbance or act of terrorism),
(d)  
endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person,
(e)  
endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle,
(f)  
facilitate the commission of a criminal act (including a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002),
(g)  
prejudice the supervision of, or facilitate the escape of, any person in lawful custody,
(h)  
prejudice the security, discipline or good order of any correctional facility.
 
3   Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a)  
reveal an individual’s personal information,
(b)  
contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,
(c)  
prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,
(d)  
prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness,
(e)  
reveal false or unsubstantiated allegations about a person that are defamatory,
(f)  
expose a person to a risk of harm or of serious harassment or serious intimidation,
(g)  
in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.
 
4   Business interests of agencies and other persons
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a)  
undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market,
(b)  
reveal commercial-in-confidence provisions of a government contract,
(c)  
diminish the competitive commercial value of any information to any person,
(d)  
prejudice any person’s legitimate business, commercial, professional or financial interests,
(e)  
prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
 
5   Environment, culture, economy and general matters
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a)  
endanger, or prejudice any system or procedure for protecting, the environment,
(b)  
prejudice the conservation of any place or object of natural, cultural or heritage value, or reveal any information relating to Aboriginal or Torres Strait Islander traditional knowledge,
(c)  
endanger, or prejudice any system or procedure for protecting, the life, health or safety of any animal or other living thing, or threaten the existence of any species,
(d)  
damage, or prejudice the ability of the Government or an agency to manage, the economy,
(e)  
expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or an agency.
 
6   Secrecy provisions
(1) 
There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
(2) 
The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
 
7   Exempt documents under interstate Freedom of Information legislation
(1) 
There is a public interest consideration against disclosure of information communicated to the Government of New South Wales by the Government of the Commonwealth or of another State if notice has been received from that Government that the information is exempt matter within the meaning of a corresponding law of the Commonwealth or that other State.
(2) 
The public interest consideration under this clause extends to consideration of the policy that underlies the exemption.
(3) 
In this clause, a reference to a corresponding law is a reference to:
(a)  
the Freedom of Information Act 1982 of the Commonwealth, or
(b)  
a law of any other State that is prescribed by the regulations as a corresponding law for the purposes of this clause.
15   Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a)  Agencies must exercise their functions so as to promote the object of this Act.
(b)  Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c)  The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d)  The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e)  In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Division 3 Assistance and oversight
16   Agencies to provide advice and assistance
(1)  An agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available.
(2)  An agency must provide the following specific advice and assistance to a person who requests access to government information:
(a)  advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed,
(b)  advice on how to make an access application for the information if the information is not publicly available from the agency but appears likely to be held by the agency,
(c)  if the information appears unlikely to be held by the agency but appears likely to relate to the functions of some other agency, the contact details of the other agency,
(d)  the contact details of the Information Commissioner and advice on the availability of and how to access any information published by the Information Commissioner that it appears may be relevant to the person’s request.
(3)  An agency is only required to provide advice and assistance under this section that it would be reasonable to expect the agency to provide.
17   Role of Information Commissioner
The Information Commissioner has the following functions in connection with the operation of this Act:
(a)  to promote public awareness and understanding of this Act and to promote the object of this Act,
(b)  to provide information, advice, assistance and training to agencies and the public on any matters relevant to this Act,
(c)  to assist agencies in connection with the exercise of their functions under this Act, including by providing services to assist with the lodgment, handling and processing of access applications,
(d)  to issue guidelines and other publications for the assistance of agencies in connection with their functions under this Act,
(e)  to issue guidelines and other publications for the assistance of the public in connection with their rights under this Act (including rights of review),
(f)  to review decisions of agencies pursuant to Part 5,
(g)  to monitor, audit and report on the exercise by agencies of their functions under, and compliance with, this Act,
(h)  to make reports and provide recommendations to the Minister about proposals for legislative and administrative changes to further the object of this Act.