Third party consultation
Fact sheet
June 2014
This fact sheet aims to explain to individuals
What is the process?
and organisations why they are being
An agency is generally required to give access to
consulted by government agency and what
information that it holds that is not subject to an
their rights are under the
Government
“overriding public interest against disclosure”. When
Information (Public Access) Act 2009
access to information is refused under the GIPA Act,
the applicant must be advised of the reasons why.
You have received this fact sheet because an agency
To decide whether information should be released, an
has received an application under the GIPA Act that may
agency must apply the public interest test. This is done
involve your
personal information, business
by balancing any public interest consideration in favour
or
research interests.
of disclosure with any public interest consideration
against disclosure. For more information about this see
Your views are required to help agencies make the best
our
Fact sheet: What is in the public interest?
decision possible about whether or not to release all or
part of the information that has been requested.
Section 14 of the GIPA Act provides a list of public
interest considerations that may be taken into account
This fact sheet is not legal advice and should not be
as considerations against disclosure when applying the
taken as such or relied upon as legal advice. You should
public interest test. These include:
always consult a solicitor in the event of needing legal
advice on the GIPA Act
.
Individual rights, judicial processes and
natural justice
What is the GIPA Act?
There is a public interest consideration against
The GIPA Act commenced on 1 July 2010 and gives
disclosure of information if disclosure of the information
individuals a right of access to information held by
could reasonably be expected to have one or more of
NSW State Government “agencies”, e.g. departments,
the following effects:
authorities and local councils. The new system is
(a)
reveal an individual’s personal information;
focused on making government information more
readily available.
(b)
contravene an Information Protection Principle
(IPP) under the
Privacy and Personal Information
The GIPA Act does not, however, allow access to all
Protection Act 1998 (PPIP Act) or a Health
information at all times. An agency may refuse access to
Privacy Principle (HPP) under the
Health Records
information if there is “overriding public interest against
and Information Privacy Act 2002 (HRIP Act);
disclosure”.
(c)
prejudice any court proceedings by revealing
This is determined by seeing whether there are any
matter prepared for the purposes of or in relation
“public interest considerations against disclosure” and
to current or future proceedings;
the strength of the considerations. Some of the available
considerations against disclosure apply to information
(d)
prejudice the fair trial of any person, the impartial
that is someone else’s personal information, or affects
adjudication of any case or a person’s right to
someone’s business or research interests.
procedural fairness;
(e)
reveal false or unsubstantiated allegations about a
What are the consultation requirements?
person that are defamatory;
Where an application is received for access to
(f)
expose a person to a risk of harm or of serious
information concerning a third party (that is, someone
harassment or serious intimidation;
other than the applicant or the agency that received
the application), then the agency is required to take all
(g)
in the case of the disclosure of personal
reasonable steps to consult with the third party to obtain
information about a child—the disclosure of
their views. This requirement exists so that sensitive
information that it would not be in the best
information of third parties is not released without
interests of the child to have disclosed.
proper consultation and careful consideration.
information and privacy commission new south wales
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
Third party consultation
Fact sheet
Business and research interests of agencies
What should I tell the agency?
and other persons
The agency would appreciate your views about how
There is a public interest consideration against
disclosure of the information would affect your interests.
disclosure of information if disclosure of the information
It may be that you do not object to the information in
could reasonably be expected to have one or more of
question being disclosed. If, however, you have doubts
the following effects:
about the release of the information in question, the
(a)
undermine competitive neutrality in connection
more detailed information you can provide to the
with any functions of an agency in respect of
agency, the better.
which it competes with any person or otherwise
place an agency at a competitive advantage
What if I object to the release of
or disadvantage in any market,
information?
(b)
reveal commercial-in-confidence provisions
You will need to advise the agency in writing about:
of a government contract,
• what information, if any, you are happy for the
(c)
diminish the competitive commercial value of any
agency to release
information to any person,
• what information you are most concerned
(d)
prejudice any person’s legitimate business,
about releasing
commercial, professional or financial interests,
• whether the information is available through
(e)
prejudice the conduct, effectiveness or integrity of
other means
any research by revealing its purpose, conduct or
•
results (whether or not commenced and whether
the way disclosure would adversely affect you
or not completed).
or your business or your research, and
•
Section 54 of the GIPA Act provides the steps to be
any other information you believe the agency
taken when consulting:
should know prior to making a decision.
1. An agency must take such steps (if any) as are
Does the agency have to accept my views?
reasonably practicable to consult with a person
before providing access to information relating
The agency must take into account your views in making
to the person in response to an access application if
its final decision – but the final decision on release
it appears that:
remains that of the agency.
a) the information is of a kind that requires
What if I object, but the agency decides to
consultation under this section; and
b) the person may reasonably be expected to have
release the information anyway?
concerns about the disclosure of the
If it is your view that the information should not be
information;, and
released, but the agency proposes to grant access
c) those concerns may reasonably be expected to
despite your objections, then the agency must inform
be relevant to the question
you of this decision.
of whether there is a public interest
consideration against disclosure of
If this is the case, you have the following review rights:
the information.
1. Internal Review
2. Information relating to a person is of a kind that
requires consultation under this section if the
You have
20 working days from the date of the
information:
decision to ask for an internal review, by the agency.
a) includes personal information about the person;
The review must be carried out by an officer not less
or
senior than the person who made the original decision.
b) concerns the person’s business, commercial,
The review decision must be made as if it was a fresh
professional or financial interests; or
application.
c) concerns research that has been, is being, or is
If a Minister or the principal officer of an agency made
intended to be, carried out by or on behalf of the
the decision, you cannot ask for an internal review, but
person; or
you can ask for an external review (see below).
d) concerns the affairs of a government of the
Commonwealth or another State (and the
There is a $40 fee for an internal review application.
person is that government).
This fee is not payable (by the person who applied for a
review with the Information Commissioner) where an
information and privacy commission new south wales
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
Third party consultation
Fact sheet
internal review is recommended by the Information
If the agency is considering publishing the information
Commissioner under section 93(6).
you’ve been consulted about, the agency must notify
you in writing:
The agency must acknowledge your application within
five working days of receiving it. The agency must
• that the information will be included in the agency’s
decide the internal review within
15 working days (this
disclosure log and that you can object to this,
can be extended by
10 working days if the agency has
•
to consult further, or by agreement with you).
that you have a right to request a review of the
decision to include information in its disclosure log
2. External review by the Information Commissioner
despite your objection.
If you disagree with the outcome of the internal review, you
You would then have the same review rights as
can ask for a review by the Information Commissioner.
discussed above, and the agency cannot publish the
information until the period for seeking a review has
You must seek an internal review before applying for
expired or any review itself is finalised.
review by the Information Commissioner, unless an
internal review is otherwise unavailable (for instance, if
For more information
the principal officer of the agency decided the
application or if the agency is a Minister).
Contact the Information and Privacy Commission
NSW (IPC):
You have
40 working days from the date of the
decision of an internal review to ask for a review by the
Freecall:
1800 472 679
Information Commissioner.
Email:
xxxxxxx@xxx.xxx.xxx.xx
Website:
www.ipc.nsw.gov.au
On reviewing the decision, the Information
Commissioner can make recommendations about the
decision to the agency.
Note: You cannot ask the Information Commissioner
to review a decision that has already been reviewed
by the NSW Civil and Administrative Tribunal.
3. External review by the NSW Civil and
Administrative Tribunal (NCAT)
If you disagree with either of the decisions listed above,
you can ask for a review by NCAT. You do not have
to have the decision reviewed internally, or by the
Information Commissioner, before applying for review
by NCAT.
You have
40 working days from the date of the
decision to apply to the NCAT for review. However,
if you have applied for review by the Information
Commissioner, you have
20 working days from the
date you are notified that the Information Commissioner’s
review is completed, to apply to NCAT.
The agency cannot release the information until you
have exhausted all your review rights.
You should also be aware that if the agency agrees with
you and denies access to the information, then the GIPA
applicant has similar review rights. Fees and charges
apply to these review processes.
If the agency discloses the information, can
they publish the information on their
disclosure log?
An agency may decide to publish information released in
their disclosure log because it may be of interest to other
members of the public.
information and privacy commission new south wales
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
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