Fact Sheet
Updated August 2020
Changes to the GIPA Act in 2018 –
guidance for agencies
The
Government Information (Public Access)
1.4 Consultation with other agencies
Amendment Act 2018 made a number of
amendments to the
Government Information (Public
Section 54A clarifies that an agency may consult with any
Access) Act 2009 (GIPA Act). These amendments
other agency in order to:
came into effect in November 2018 and must be
• determine whether there is an overriding public
considered as agencies fulfil their obligations under
interest against disclosure of the information, or
the GIPA Act.
• identify a person that may be required to be
consulted under section 54.
1.1 Contracts register
An agency may be consulted under this section even if
When calculating the value of a government contract for
the agency would not reasonably be expected to have
the purpose of the contract register under Division 5 of
concerns about the disclosure of the information.
Part 3 the GIPA Act, GST must be included in the total
value of the contract: section 27(1).
1.5 Proof of identity of the applicant
1.2 Making an access application
An agency may require a person to take reasonable
steps to prove his or her identity before providing
The existing requirements under section 41 of the GIPA
personal information to that person in response to an
Act remain, but the section now includes some additional
access application: section 55(5).
requirements detailed below:
1.6 Objection to inclusion in a
• Section 41(1)(d) now requires that a valid access
disclosure log
application must include the name of the applicant
and a postal or email address.
An authorised objector is now entitled to object to the
• Section 41(1A) provides that an applicant must
inclusion of information in an agency’s disclosure log
disclose on their access application whether they
where that information concerns research or the
have applied to another agency, at any time, for
compilation or analysis of statistics that has been, is
substantially the same information, and if so, they
being, or is intended to be, carried out by or on behalf of
must identify the agency. However, an application
the objector: section 56(2)(c).
will not be invalid if an applicant fails to make this
disclosure.
If an authorised objector has objected to the inclusion of
•
information in the agency’s disclosure log, the agency
Under section 41(2), an agency is now able to
approve additional facilities for the making of an
must decide:
access application, or payment of an application fee
• whether the authorised objector is entitled to object,
without seeking the approval of the Information
and
Commissioner. Additional facilities may include:
• if the agency has decided that the authorised
o electronic lodgment of applications via a
objector is entitled to object, whether the objection
website or email, or
outweighs the general public interest in including the
o payment of an application fee via direct
information in the disclosure log: section 56(3).
transfer or credit card.
1.7 Decisions that information is
1.3 Transfer of applications between
already available
agencies
An agency can now refuse an application on the grounds
Under section 44(2), an agency may make a partial
that the information is already available to the applicant
transfer of an application to one or more agencies. To
where:
facilitate this, the agency may split the application into
two or more applications. Where an application is split
• the information has already been provided to the
into two or more applications, each part is to be treated
applicant and there is no reason to believe they are
as a separate application with separate rights of review.
no longer in possession of the information, or
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Changes to the GIPA Act in 2018 – guidance for agencies
Fact Sheet
• the information is publicly available on a website, or
1.11 Timeframe to complete an
• the information is available under a standing rule or
internal review
order of the Legislative Council or Legislative
Assembly.
If an agency reasonably believes more than one person
Where an agency makes the decision to refuse access
is entitled to an internal review of any reviewable decision
on the grounds that the information is already available to
for the same access application, the review period does
the applicant, section 59(2) requires the agency to
not commence until the expiration of the time within
provide a reason for this decision in its notice of decision
which an internal review can be applied for by any of
to the applicant.
those persons: new section 86(1A).
1.8 Decision to refuse to deal with an
1.12 External review by the
application
Information Commissioner
Section 60(1)(e) provides that an agency may refuse to
Section 92A provides that the Information Commissioner
deal with an access application where the agency
has 40 working days (‘review period’) from the day on
reasonably believes the applicant (or a person acting in
which all necessary information relating to a review
concert with the applicant) is:
application has been received by the Information
Commissioner, to complete the review of a decision and
• a party to current proceedings before a court, and
make any recommendations.
• is able to apply to the court for the information.
The Information Commissioner and the applicant can
Section 60(3A), added in 2018, provides a non-
agree to an extension of time for the review period and
exhaustive list of factors that decision-makers may take
the agency must be notified of any extension by the
into account when deciding whether an application would
Information Commissioner: section 92A(2).
involve an unreasonable and substantial diversion of an
agency’s resources. The agency may, without limitation,
If the Information Commissioner has not made any
recommendations in the review period, the Information
take the following factors into consideration:
Commissioner is deemed to have made no
• the estimated volume of information involved in the
recommendations to the agency: section 92A(3).
request
•
The applicant must be notified when the review is
the agency’s size and resources
•
completed and advised of any recommendations made
the required period for deciding the application.
by the Information Commissioner: section 92A(4).
Section 60(3B) provides that any consideration under
subsection (3A) must, on balance, outweigh:
1.13 Burden of proof during external
•
review
the general public interest in favour of the disclosure
of government information, and
If review of a decision is to include information in a
• the demonstrable importance of the information to
disclosure log despite an objection by the applicant, the
the applicant, including whether the information is
applicant must establish why the objection outweighs the
personal information that relates to the applicant, or
public interest to have the information included: section
could assist the applicant in exercising any legal
97(4) and section 105(4).
rights.
1.14 Administrative review of
1.9 Deemed refusals and refund of
decisions by NCAT
fees
A new subsection 100(2) provides that an aggrieved
Section 63(1) requires an agency to refund an application
person, other than the access applicant, must exercise
fee in the event that the agency does not decide an
their internal review rights under Division 2 of Part 5
access application within the statutory timeframe under
before they are entitled to apply to NCAT for an
section 57(1). The added subsection 63(5) provides that
administrative review.
there is no requirement to provide the applicant with a
refund of the application fee in circumstances where the
1.15 Restraint orders
application was transferred to or from another agency.
NCAT may make a restraint order that applies to the
1.10 Discounting processing charges
access applicant and others who are acting in concert
with the applicant: new section 110(1).
The total discount on any processing charge for dealing
The added subsection 110(3) sets out the circumstances
with an access application must not be more than 50%.
This applies whether the applicant has sought a discount
in which a restraint order may be limited, for example, to
a particular time period. Subsection 110(5A) sets out
on the grounds of financial hardship under section 65,
factors that NCAT may consider when deciding whether
public benefit under section 66, or where both sections
to approve an access application being made by a
apply: section 64(5).
person subject to a restraint order.
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Changes to the GIPA Act in 2018 – guidance for agencies
Fact Sheet
1.16 Report on improper conduct
and the agency in which the individual works) that reveals
nothing more than the fact they were engaged in the
If following completion of an administrative review, NCAT
exercise of public functions, is not ‘personal information’
is of the opinion that an officer of an agency has failed to
for the purposes of the GIPA Act: clause 4(3)(b) of
exercise, in good faith, a function conferred on the officer
Schedule 4.
by or under the GIPA Act, NCAT may on its own initiative
bring the matter to the attention of the relevant Minister,
1.23 Government information held by
or the Information Commissioner if the relevant Minister
an agency
was a party to the proceedings.
Information contained in a record held by an agency that
1.17 Annual reports
was unsolicited and not relevant to the agency’s business
or functions, is not government information held by the
An agency may only submit its annual GIPA report to the
agency: clause 12(4) of Schedule 4.
Information Commissioner after the agency’s annual
report has been tabled in Parliament by its Minister:
Further guidance
section 125(1) and (3).
Agencies are requested to refer to this fact sheet and
1.18 Cabinet information
the GIPA Act and Regulation before relying on any
Information is ‘Cabinet information’ if it is contained
guidance materials published prior to December
2018. For more information
entirely, or in part, in a document that reveals information
concerning a Cabinet decision, or reveals a position of a
Contact the Information and Privacy Commission NSW
Minister on a matter in Cabinet: clause 2(4) of Schedule
(IPC):
1.
Freecall:
1800 472 679
1.19 Conclusive presumption of
Email:
xxxxxxx@xxx.xxx.xxx.xx
Website:
www.ipc.nsw.gov.au
overriding public interest against
disclosure
NOTE: The information in this fact sheet is to be used as
Privilege – there is a conclusive presumption that there
a guide only. Legal advice should be sought in relation to
is an overriding public interest against disclosure of any
individual circumstances.
information contained in a document that was, in
response to a court order, not compelled by a court to be
produced on the grounds of privilege: new clause 5A of
Schedule 1.
Law enforcement and public safety – there is a
conclusive presumption that there is an overriding public
interest against disclosure of information if the
information is contained in a document concerning law
enforcement and public safety created by a law
enforcement agency in another jurisdiction, including a
jurisdiction outside Australia: new clause 7(f) of Schedule
1.
1.20 Excluded information of
particular agencies
The review functions of the Privacy Commissioner are
excluded information unless the Privacy Commissioner
consents to the disclosure: clause 2 of Schedule 2.
1.21 Definition of “working day”
A ‘working day’ means any day that is not a Saturday,
Sunday, public holiday or any day during the period
declared by the Premier as the Christmas closedown
period: clause 1 of Schedule 4.
1.22 Personal information
Information about an individual (comprising the
individual’s name and non-personal contact details,
including the individual’s position title, public functions
Information and Privacy Commission NSW
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