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Your review rights under the GIPA Act
Fact sheet
May 2018
The right to information system in NSW aims
m) a decision to include information in a disclosure
to foster responsible and representative
log despite an objection by the authorised objector
(or a decision that the authorised objector was not
government that is open, fair and effective.
entitled to object).
You have the right to request a review of certain
You generally have three review options.
decisions
1 made by government agencies about
the release of information under the
Government
1. Internal review
Information (Public Access) Act 2009 (GIPA Act):
a) a decision that an application is not a valid
You have
20 working days2 after the notice of a
access application
decision has been given to you to ask for an internal
review by the agency that made the decision. An
b) a decision to transfer an access application to
agency may accept an application for internal review
another agency, as an agency-initiated transfer
out of time, but is not obliged to do so.
3
c) a decision to refuse to deal with an access
If a Minister or their personal staff, or the principal
application (including such a decision that is
officer of an agency made the decision, you cannot
deemed to have been made)
ask for an internal review
4, but you can ask for an
d) a decision to provide access or to refuse to
external review.
provide access to information in response to
The review must be carried out by an officer who is
an access application
no less senior than the person who made the original
e) a decision that government information is not
decision.
5 The review decision must be made as if it
held by the agency
was a fresh application.
6
f) a decision that information applied for is already
There is a $40 fee for an internal review application.
available to the applicant
An agency may choose to waive the internal review
fee.
7
g) a decision to refuse to confirm or deny that
information is held by the agency
No fee applies for an internal review if the decision is
a ‘deemed refusal’ because the agency did not
h) a decision to defer the provision of access to
process your application in time
8 or the internal
information in response to an access application
review is conducted because the Information
i)
a decision to provide access to information in
Commissioner has recommended the agency
a particular way in response to an access
reconsider its decision under section 93 of the GIPA
application (or a decision not to provide access
Act.
9 In this case, you cannot be charged any review
in the way requested by the applicant)
fee.
j)
a decision to impose a processing charge or
The agency must acknowledge your application
to require an advance deposit,
within
five working days of receiving it.
10 The agency
must decide the internal review within
15 working
k) a decision to refuse a reduction in a processing
days
11 (this can be extended by
10 working days if
charge
l)
a decision to refuse to deal further with an access
application because an applicant has failed to
2 Section 83(1) GIPA Act
pay an advance deposit within the time required
3 Section 83(2) GIPA Act
4
for payment
Section 82(2) GIPA Act
5 Section 84(2) GIPA Act
6
Section 84(1) GIPA Act
7 Section 127 GIPA Act
8 Section 85(2) GIPA Act
9 Section 93(6) GIPA Act
10
Section 83(3) GIPA Act
1 Section 80 GIPA Act
11 Section 86(1) GIPA Act
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Your review rights under the GIPA Act
Fact sheet
the agency has to consult with a third party not
(a) may be effected by properly addressing,
previously consulted
12, or by agreement with you
13).
prepaying and posting a letter containing the
document, and
What is a working day?
(b) in Australia or in an external Territory—is, unless
evidence sufficient to raise doubt is adduced to
A working day is defined as any day that is not a
the contrary, taken to have been effected on the
Saturday, a Sunday or a public holiday.
14
fourth working day after the letter was posted,
The close down for Christmas/ New Year is not excluded
and
from the meaning of working day, so that only those
(c) in another place—is, unless evidence sufficient
days in the close down period that are Saturdays,
to raise doubt is adduced to the contrary, taken
Sundays or public holidays are excluded from working
to have been effected at the time when the letter
days for the purposes of calculating time in the GIPA
would have been delivered in the ordinary
Act.
course of post.
What do the words ‘given to’ mean?
2. External review by the Information
Commissioner
A recent Tribunal decision,
Choi v University of
Technology Sydney [2017] NSWCATAD 198 considered
If you disagree with any of the decisions listed above,
the meaning of the words ‘given to’ in looking at whether
you can ask for a review by the Information
an application for internal review had been made within
Commissioner.
time.
If you are the person applying for access to
The question before the Tribunal in
Choi was about
information, you do
not have to have an internal
giving a notice of decision by email however the Tribunal
review of the decision before asking the Information
in looking at the words “given to” also looked at
Commissioner
decisions being given to a person by post.
to review it.
15
In
Choi, at [23], the Tribunal’s reasoning was that the
If you are not the access applicant, you
must seek
words “given to” have their ordinary meaning of
an internal review before applying for review by the
“delivered” or “handed over”.
Information Commissioner. However, if an internal
review cannot be sought (if a Minister or their
The Tribunal in Choi at [24] to [25] also referred to
personal staff, or the principal officer of an agency
previous decisions of Tribunals which considered the
made the decision), you can seek a review by the
question of when a decision may be given to a party by
Information Commissioner.
16
posting a letter, served by post, which is when the letter
would be delivered in the ordinary course of the post,
You have
40 working days17 from being notified of
unless it can be proved otherwise.
the decision to ask for a review by the Information
Commissioner.
The Tribunal in
Choi found that the notice was given to
the applicant when it was received by email.
There is not a provision in the GIPA Act that enables
the Information Commissioner to accept applications
The Tribunal observed that the email notice was sent by
out of time. On reviewing the decision, the
the agency to the Applicant and there was no dispute
Information Commissioner can make
that the email was received. In those circumstances the
recommendations about
Tribunal could not be satisfied that there was a
the decision to the agency.
reasonable excuse for the Applicant’s delay in lodging a
request for administrative review to the Tribunal.
Note: You cannot ask the Information Commissioner
to review a decision that has already been reviewed
by the NSW Civil and Administrative Tribunal
What is service by post?
(NCAT)
18.
Section 76 of the
Interpretation Act 1987 provides that:
3. External review by the NSW Civil and
(1)
If an Act or instrument authorises or requires any
document to be served by post (whether the word
Administrative Tribunal (NCAT)
“serve”, “give” or “send” or any other word is
If you disagree with any of the decisions listed above,
used), service of the document:
you can ask for a review by NCAT. You do not have
to have the decision reviewed internally, or by the
12
15
Section 86(2) GIPA Act; IPC Fact Sheet
Why consult third parties;
Section 89 (2)(a) GIPA Act
16
Guideline 5 Consultation on the public interest considerations
Section 89 (2)(b) GIPA Act
17
13 Section 86(4) GIPA Act
Section 90 GIPA Act
14 Clause 1, Schedule 4 to the GIPA Act
18 Section 98 GIPA Act
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Your review rights under the GIPA Act
Fact sheet
Information Commissioner before applying for review
by NCAT.
You have
40 working days19 from being notified of
the decision to apply to NCAT for review. However,
if you have applied for review by the Information
Commissioner, you have
20 working days20 from
being notified of the Information Commission’s review
outcome to apply to NCAT.
For more information
Contact the Information and Privacy Commission
NSW (IPC):
Freecall:
1800 472 679
Email:
xxxxxxx@xxx.xxx.xxx.xx
Website:
www.ipc.nsw.gov.au
19 Section 101(1) GIPA Act
20 Section 101(2) GIPA Act
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Document Outline
