Contents (2009 - 52)
Government Information (Public Access) Act 2009 No 52
Part 3 Open access information
Division 1 Preliminary
18 What constitutes open access information
The following government information held by an agency is the agency’s open access information that is required to be made publicly available by the agency under section 6 (Mandatory proactive release of certain government information):(a) the agency’s current agency information guide (see Division 2),(b) information about the agency contained in any document tabled in Parliament by or on behalf of the agency, other than any document tabled by order of either House of Parliament,(c) the agency’s policy documents (see Division 3),(d) the agency’s disclosure log of access applications (see Division 4),(e) the agency’s register of government contracts (see Division 5),(f) the agency’s record (kept under section 6) of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure,(g) such other government information as may be prescribed by the regulations as open access information.
19 Excluded functions of particular agencies
This Part does not apply to an agency in respect of any functions of the agency listed in Schedule 2 (Excluded information of particular agencies).
Division 2 Agency information guides
20 Agencies must have agency information guide
(1) An agency (other than a Minister) must have a guide (its agency information guide) that:(a) describes the structure and functions of the agency, and(b) describes the ways in which the functions (including, in particular, the decision-making functions) of the agency affect members of the public, and(c) specifies any arrangements that exist to enable members of the public to participate in the formulation of the agency’s policy and the exercise of the agency’s functions, and(d) identifies the various kinds of government information held by the agency, and(e) identifies the kinds of government information held by the agency that the agency makes (or will make) publicly available, and(f) specifies the manner in which the agency makes (or will make) government information publicly available, and(g) identifies the kinds of information that are (or will be) made publicly available free of charge and those kinds for which a charge is (or will be) imposed.(2) An agency must make government information publicly available as provided by its agency information guide.(3) The Director-General of the Department of Local Government may, in consultation with the Information Commissioner, adopt mandatory provisions for inclusion in the agency information guide of local authorities. The agency information guide of a local authority must include any such mandatory provision unless the Director-General otherwise approves in a particular case.
21 Adoption and review of agency information guide
An agency must adopt its first agency information guide within 6 months after the commencement of this section and must review its agency information guide and adopt a new agency information guide at intervals of not more than 12 months. An agency may update and amend its agency information guide at any time.
22 Role of Information Commissioner
(1) An agency must notify the Information Commissioner before adopting or amending an agency information guide and must, if requested to do so by the Information Commissioner, consult with the Information Commissioner on the proposed agency information guide or amendment.(2) The Information Commissioner can issue guidelines and model agency information guides for the assistance of agencies in connection with agency information guides.
Division 3 Policy documents
23 What constitutes an agency’s policy documents
An agency’s policy documents are such of the following documents as are used by the agency in connection with the exercise of those functions of the agency that affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject (but does not include a legislative instrument):(a) a document containing interpretations, rules, guidelines, statements of policy, practices or precedents,(b) a document containing particulars of any administrative scheme,(c) a document containing a statement of the manner, or intended manner, of administration of any legislative instrument or administrative scheme,(d) a document describing the procedures to be followed in investigating any contravention or possible contravention of any legislative instrument or administrative scheme,(e) any other document of a similar kind.
24 Effect of policy documents not being publicly available
(1) A person is not to be subjected to any prejudice because of the application of the provisions of an agency’s policy document to any act or omission of the person if, at the time of the act or omission:(a) the policy document was not publicly available as required by this Act, and(b) the person was not aware of those provisions, and(c) the person could lawfully have avoided the prejudice had the person been aware of those provisions.(2) This section does not apply to any matter forming part of an agency’s policy document that is not made publicly available as a result of being deleted as required by this Act from copies of the policy document that are made publicly available.
Division 4 Disclosure log of access applications
25 Requirement for disclosure log
An agency must keep a record (called its disclosure log) that records information about access applications made to the agency that the agency decides by deciding to provide access (to some or all of the information applied for) if the information is information that the agency considers may be of interest to other members of the public.
26 Required information about access applications
(1) The information about an access application that is required to be recorded in an agency’s disclosure log is as follows:(a) the date the application was decided,(b) a description of the information to which access was provided in response to the application,(c) a statement as to whether any of the information is now available from the agency to other members of the public and (if it is) how it can be accessed.(2) No details are required to be recorded in the agency’s disclosure log:(a) if no objection is made under section 56 to the inclusion of information in the log before the access application is decided—until the application is decided, or(b) if an objection is made under section 56 to the inclusion of information in the log before the access application is decided—until the agency is entitled under that section to include the information in the log.Note.See section 56 (5) and (6) as to when an agency is entitled to include information in its disclosure log following an objection under that section.(3) An agency is not required to include in its disclosure log information about any application:(a) for personal information about the applicant (the applicant being an individual) or any other individual, or(b) in respect of which any factors particular to the applicant were otherwise a consideration in the agency’s determination of the public interest in connection with the disclosure of the information to the applicant.
Division 5 Government contracts with private sector
27 Register of government contracts valued at $150,000 or more
(1) An agency is to keep a register of government contracts (its government contracts register) that records information about each government contract to which the agency is a party that has (or is likely to have) a value of $150,000 or more (class 1 contracts).(2) Information about a class 1 contract must be entered in the register within 45 working days after the contract becomes effective.(3) A contract becomes effective:(a) when it is entered into by or on behalf of the agency concerned, or(b) if the contract contains a provision to the effect that one or more conditions are to be met before the obligations of the parties under the contract are enforceable—when the condition or conditions have been met (and not when the contract is entered into by the agency).
28 Value of contract
The value of a contract is whichever of the following values is appropriate to the kind of contract concerned:(a) the total estimated value of the project,(b) the total estimated value of the goods or services over the term of the contract,(c) the value of the real property transferred,(d) the rent for the term of the lease.
29 Information to be entered in register—class 1 contracts
The following information about a class 1 contract is to be entered in the government contracts register:(a) the name and business address of the contractor,(b) particulars of any related body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) in respect of the contractor, or any other private sector entity in which the contractor has an interest, that will be involved in carrying out any of the contractor’s obligations under the contract or will receive a benefit under the contract,(c) the date on which the contract became effective and the duration of the contract,(d) particulars of the project to be undertaken, the goods or services to be provided or the real property to be leased or transferred under the contract,(e) the estimated amount payable to the contractor under the contract,(f) a description of any provisions under which the amount payable to the contractor may be varied,(g) a description of any provisions with respect to the renegotiation of the contract,(h) in the case of a contract arising from a tendering process, the method of tendering and a summary of the criteria against which the various tenders were assessed,(i) a description of any provisions under which it is agreed that the contractor is to receive payment for providing operational or maintenance services.
30 Additional information for class 2 contracts
(1) Additional information is required to be entered in the government contracts register for class 1 contracts to which any of the following paragraphs applies (class 2 contracts):(a) there has not been a tender process, the proposed contract has not been made publicly available and the terms and conditions of the contract have been negotiated directly with the contractor,(b) the proposed contract (whether or not made publicly available) has been the subject of a tendering process and the terms and conditions of the contract have been substantially negotiated with the successful tenderer,(c) the obligations of one or more parties under the contract to maintain or operate infrastructure or assets could continue for 10 years or more,(d) the contract involves a privately financed project as defined by guidelines published by the Treasury (as in force from time to time),(e) the contract involves a transfer of a significant asset of the agency concerned to another party to the contract in exchange for the transfer of an asset to the agency.(2) The additional information required to be entered in the register for class 2 contracts is as follows:(a) particulars of future transfers of significant assets to the State at zero, or nominal, cost to the State, including the date of their proposed transfer,(b) particulars of future transfers of significant assets to the contractor, including the date of their proposed transfer,(c) the results of any cost-benefit analysis of the contract conducted by the agency,(d) the components and quantum of the public sector comparator if used,(e) if relevant, a summary of information used in the contractor’s full base case financial model (for example, the pricing formula for tolls or usage charges),(f) if relevant, particulars of how risk, during the construction and operational phases of a contract to undertake a specific project (such as construction, infrastructure or property development), is to be apportioned between the parties, quantified (where practicable) in net present-value terms and specifying the major assumptions involved,(g) particulars as to any significant guarantees or undertakings between the parties, including any guarantees or undertakings with respect to loan agreements entered into or proposed to be entered into,(h) particulars of any other key elements of the contract.
31 Register to include copy of class 3 contract
If a class 2 contract has (or is likely to have) a value of $5 million or more (a class 3 contract), the register must include a copy of the class 3 contract.
32 Confidential information not required to be included in register
(1) A requirement of this Division to include information or a copy of a contract in the government contracts register does not require the inclusion of:(a) the commercial-in-confidence provisions of a contract, or(b) details of any unsuccessful tender, or(c) any matter that could reasonably be expected to affect public safety or security, or(d) a copy of a contract, a provision of a contract or any other information in relation to a contract that is of such a nature that its inclusion in a record would result in there being an overriding public interest against disclosure of the record.(2) If an agency does not include a copy of a contract in the register, or includes only some of the provisions of a contract in the register, because of this section, the agency must include in the register:(a) the reasons why the contract or those provisions have not been included in the register, and(b) a statement as to whether it is intended that the contract or those provisions will be included in the register at a later date and, if so, when it is likely that they will be included, and(c) if some but not all of the provisions of the contract have been included in the register, a general description of the types of provisions that have not been included.
33 Variations to contracts
(1) If a material variation is made to a contract that would affect the particulars that are required to be included in the government contracts register in relation to the contract, the particulars included in the register are to be amended to reflect the variation within 45 working days after the variation becomes effective.(2) If a material variation is made to a contract a copy of which is required to be included in the register, a copy of the variation or the varied provisions is to be included in the register within 45 working days after the variation becomes effective.
34 Minimum public access period for information on register
(1) Information (including a copy of a contract) required to be included in the government contracts register in relation to a contract is only required to be made publicly available as open access information for the public access period.(2) The public access period is whichever is the longer of the following periods:(a) 20 working days,(b) the period until the project to which the contract relates is complete, the goods and services concerned have been provided under the contract, the term of the lease has expired or the real property has been transferred.
35 Register to be published on Government tenders website
(1) A copy of an agency’s government contracts register is to be published on the Government tenders website (that is, the website with the URL of https://tenders.nsw.gov.au or such other internet website as the Premier may authorise for the purposes of this section).(2) Each of the following agencies is not required to have a copy of its government contracts register published on the Government tenders website but is required to have a copy of the register published on any website of the agency:(a) a State owned corporation or a subsidiary of a State owned corporation,(b) a local authority,(c) a university.(3) A copy of an agency’s government contracts register is also to be made publicly available in any other manner in which the agency decides to make its open access information publicly available.
(1) If a person other than an officer of the agency (including, for example, a party to a government contract) disagrees with the way in which an agency has interpreted its obligations under this Division, the agency is to obtain:(a) the opinion of the Chairperson of the NSW Procurement Board in relation to the matter, or(b) if the principal officer of the agency is the Chairperson of the Board—the opinion of the Minister in relation to the matter.(2) This section does not apply to:(a) a State owned corporation or a subsidiary of a State owned corporation, or(b) a local authority, or(c) a university.
37 Agency obligation to find information
Information is required to be included in an agency’s government contracts register only to the extent that the agency holds the information or it is reasonably practical for the agency to obtain the information.
38 Exception for industry support contracts
This Division does not require the Department of State and Regional Development to include any information about or a copy of a government contract in its government contracts register if the contract involves the provision of industry support.
39 Exception for SOCs—competitive neutrality
This Division does not require a State owned corporation or a subsidiary of a State owned corporation to include any information about or a copy of a government contract in its government contracts register if the contract relates to activities engaged in by the corporation or subsidiary in a market in which it is in competition with any other person.
40 Exception for Landcom—contracts for sale of land
This Division does not require Landcom to include any information about or a copy of a government contract in its government contracts register if the contract is a contract for the sale of land.
Note.Any exception under this Division from the requirement to include information about or a copy of a contract on a government contracts register does not of itself constitute grounds for refusing an access application.