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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 21 September 2017 at 00:34)
Part 7
Part 7 Miscellaneous
121   Provision of information by private sector contractors
(1)  An agency that enters into a contract (a government contract) with a private sector entity (the contractor) under which the contractor is to provide services to the public on behalf of the agency must ensure that the contract provides for the agency to have an immediate right of access to the following information contained in records held by the contractor:
(a)  information that relates directly to the performance of the services by the contractor,
(b)  information collected by the contractor from members of the public to whom it provides, or offers to provide, the services,
(c)  information received by the contractor from the agency to enable it to provide the services.
Note.
 A reference in this Act to government information held by an agency includes information held by a private sector entity to which the agency has an immediate right of access. See clause 12 of Schedule 4. This means that an access application can be made to the agency for that information.
(2)  A government contract is not required to provide for the agency to have an immediate right of access to any of the following information:
(a)  information that discloses or would tend to disclose the contractor’s financing arrangements, financial modelling, cost structure or profit margins,
(b)  information that the contractor is prohibited from disclosing to the agency by provision made by or under any Act (of this or another State or of the Commonwealth),
(c)  information that, if disclosed to the agency, could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency, whether at present or in the future.
Note.
 The contractor may be entitled to be consulted by the agency under section 54 (Consultation on public interest considerations) in relation to an access application made to the agency for information held by the contractor.
122   Act binds the Crown
This Act binds the State and, in so far as the legislative power of the Parliament of New South Wales permits, the other States, the Territories and the Commonwealth.
123   State Records Act not affected
This Act does not affect the operation of the State Records Act 1998.
124   Powers of Ombudsman
The powers of the Ombudsman under the Ombudsman Act 1974 do not extend to investigating the conduct of any person or body in relation to a decision of an agency that is a reviewable decision under Part 5 of this Act.
125   Reports to Parliament
(1)  Each agency (other than a Minister) must, within 4 months after the end of each reporting year, prepare an annual report on the agency’s obligations under this Act for submission to the Minister responsible for the agency. A copy of the report is to be provided to the Information Commissioner.
(2)  Each Minister must, on or before 31 August each year, furnish the Minister administering this Act with such information concerning the Minister’s obligations as an agency under this Act as the Minister administering this Act may require.
(3)  The Minister administering this Act must, on or before 31 December each year, prepare an annual report on the obligations of each Minister as an agency under this Act. A copy of the report is to be provided to the Information Commissioner.
(4)  An annual report under this section must be tabled in each House of Parliament by the relevant Minister as soon as practicable after it is prepared unless it is included in an annual report prepared for the purposes of the Annual Reports (Departments) Act 1985 or the Annual Reports (Statutory Bodies) Act 1984.
(5)  The annual report referred to in subsection (3) may be included in the annual report for the Department of Attorney General and Justice prepared for the purposes of the Annual Reports (Departments) Act 1985.
(6)  The regulations may make provision for:
(a)  the information to be included in annual reports, and
(b)  the form in which annual reports are to be prepared.
(7)  In this section, a reference to the reporting year of an agency is a reference to:
(a)  the financial year of the agency for the purposes of the Annual Reports (Departments) Act 1985 or the Annual Reports (Statutory Bodies) Act 1984, or
(b)  if the agency does not have a financial year for the purposes of either of those Acts, the year ending 30 June.
126   Requirements for notices given by agencies
(1)  The following requirements apply to any notice or notification that an agency is required to give under this Act:
(a)  it must be in writing,
(b)  it must include the date of the decision or other action of the agency with which the notice or notification is concerned,
(c)  it must include a statement that gives details of any right of review provided by this Act in respect of any decision of the agency with which the notice or notification is concerned (including details of the period within which any such right of review must be exercised),
(d)  it must include the contact details of an officer of the agency to whom inquiries can be directed in connection with the decision or other action of the agency with which the notice or notification is concerned,
(e)  it must not disclose any information for which there is an overriding public interest against disclosure.
(1A)  A notice or notification under this Act that an agency is required or permitted to give a person may be given by:
(a)  posting the notice to the person at the postal address provided by the person for correspondence in connection with the matter concerned, or
(b)  such other method as may be agreed by the agency and the person.
(2)  A notice or notification under this Act that is given by an agency to a person by being posted to the person at the postal address provided by the person for correspondence in connection with the matter concerned is considered to have been given to the person when it is posted by the agency.
127   Waiver, reduction or refund of fees and charges
An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations.
Note.
 See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application.
128   Nature of proceedings for offences
(1)  Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.
(2)  Proceedings for an offence under this Act or the regulations may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.
129   Regulations
(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)  In particular, the regulations may make provision for or with respect to the following:
(a)  the manner in which agencies are to make government information publicly available,
(b)  the manner in which an access application can be made,
(c)  the adoption and amendment of agency information guides by agencies (including the obligations of agencies to consult with the Information Commissioner in connection with agency information guides and the adoption of model agency information guides developed by the Information Commissioner),
(d)  information to be given to applicants for government information,
(e)  the circumstances in which and the extent to which an agency must or may waive, reduce or refund any fee or charge payable under this Act.
(3)  The Minister is to consult with the Information Commissioner before recommending the making of a regulation under this Act.
(4)  The Minister is to consult with the Privacy Commissioner before recommending the making of a regulation under this Act that concerns the protection of the privacy of individuals or a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14).
130   Review of Act
(1)  The Minister administering this Act is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(1A)  The review is to include a consideration of the relationship between this Act and the Privacy and Personal Information Protection Act 1998.
(2)  The Minister is to consult with the Information Commissioner and the Privacy Commissioner on a review under this section and the Information Commissioner and Privacy Commissioner may assist the Minister and provide advice in connection with the review.
(3)  The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(4)  A report on the outcome of the review is to be provided to the Minister administering this Act and tabled in each House of Parliament within 12 months after the end of the period of 5 years.
131   Review of public interest provisions by Joint Committee
(1)  The Joint Committee is to keep the following provisions of this Act under review to determine whether the policy objectives of those provisions remain valid and whether the content of those provisions remains appropriate for securing those objectives:
(a)  Schedule 1 (Information for which there is conclusive presumption of overriding public interest against disclosure),
(b)  Schedule 2 (Excluded information of particular agencies),
(c)  Table to section 14 (Public interest considerations against disclosure).
(2)  The Joint Committee is to consult with the Information Commissioner on any review under this section and the Information Commissioner may assist the Joint Committee and provide advice in connection with the review.
(2A)  The Joint Committee is to consult with the Privacy Commissioner on any review under this section that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14), and the Privacy Commissioner may assist the Joint Committee and provide advice in connection with any such review.
(3)  The Joint Committee may report to both Houses of Parliament on any change that the Joint Committee considers should be made to the provisions reviewed under this section.
(1)  Schedule 5 is taken to be and has effect as a regulation made under this Act.
(2)  Part 2 of the Subordinate Legislation Act 1989 does not apply to the regulation set out in Schedule 5 (but applies to any amendment or repeal of the regulation).
(3)  For the purposes of section 10 of the Subordinate Legislation Act 1989, the regulation set out in Schedule 5 is taken to have been published on the day on which this section commences.
(4)  Sections 39, 40 and 41 of the Interpretation Act 1987 do not apply to the regulation set out in Schedule 5 (but apply to any amendment or repeal of the regulation).
(5)  Schedule 5 is repealed on the day following the day on which this section commences.
Note.
 The continued effect of the regulation set out in Schedule 5 is unaffected by the repeal of Schedule 5. See section 30 of the Interpretation Act 1987.