Fact Sheet
May 2019
Your review rights under the GIPA Act
The right to information system in NSW aims
(or a decision that the authorised objector was not
to foster responsible and representative government
entitled to object).
that is open, fair and effective.
You generally have three review options.
You have the right to request a review of certain
1. Internal review
decisions1 made by government agencies about
the release of information under the
Government
You have
20 working days2 after the notice of a decision
Information (Public Access) Act 2009 (GIPA Act):
has been given to you, to ask for an internal review by
the agency that made the decision. An agency may
a) a decision that an application is not a valid
accept an application for internal review out of time, but is
access application
not obliged to do so.3
b) a decision to transfer an access application to
If a Minister or their personal staff, or the principal officer
another agency, as an agency-initiated transfer
of an agency made the decision, you cannot ask for an
c) a decision to refuse to deal with an access
internal review4, but you can ask for an external review
application (including such a decision that is
(see below).
deemed to have been made)
Similarly, if the access applicant or one of any number of
d) a decision to provide access or to refuse to
third parties has sought an internal review of the decision
provide access to information in response to
that you are not satisfied with, you are not entitled to
an access application
seek an internal review of the decision.5 You are however
able to seek an external review.
e) a decision that government information is not
held by the agency
The review must be carried out by an officer who is
no less senior than the person who made the original
f) a decision that information applied for is already
decision.6 The review decision must be made as if it
available to the applicant
was a fresh application.7
g) a decision to refuse to confirm or deny that
There is a $40 fee for an internal review application.8 An
information is held by the agency
agency may choose to waive the internal review fee.9
h) a decision to defer the provision of access to
No fee applies for an internal review if the decision is a
information in response to an access application
‘deemed refusal’ because the agency did not process
your application in time10 or the internal review is
i)
a decision to provide access to information in
conducted because the Information Commissioner has
a particular way in response to an access application
recommended the agency reconsider its decision under
(or a decision not to provide access
section 93 of the GIPA Act.11 In this case, you cannot be
in the way requested by the applicant)
charged a review fee.
j)
a decision to impose a processing charge or
to require an advance deposit,
k) a decision to refuse a reduction in a processing
charge
l)
a decision to refuse to deal further with an access
2 Section 83(1) GIPA Act
application because an applicant has failed to
3 Section 83(2) GIPA Act
pay an advance deposit within the time required
4 Section 82(2) GIPA Act
for payment
5 Section 88 GIPA Act
6
m) a decision to include information in a disclosure
Section 84(2) GIPA Act
7
log despite an objection by the authorised objector
Section 84(1) GIPA Act
8 Section 85(1) GIPA Act
9 Section 127 GIPA Act
10 Section 85(2) GIPA Act
1 Section 80 GIPA Act
11 Section 93(6) GIPA Act
Information and Privacy Commission NSW
1
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
Your review rights under the GIPA Act
Fact Sheet
The agency must acknowledge your internal review
2. External review by the Information
application within
five working days of receiving it.12 The
agency must decide the internal review within
15 working
Commissioner
days13 (this can be extended by
10 working days if the
agency has to consult with a third party not previously
If you disagree with any of the decisions listed above,
consulted14, or by agreement with you15).
you can ask for an external review by the Information
Commissioner.
Note: You cannot ask for internal review of a decision
that is being or has already been reviewed by the
If you are the person applying for access to information,
Information Commissioner16 or the NSW Civil and
you do
not have to have an internal review of the
Administrative Tribunal (NCAT)17. This does not apply if
decision before asking the Information Commissioner
the internal review was recommended by the Information
to review it.19
Commissioner under section 93.
However, if you are not the access applicant, you
must
What is a working day?
seek an internal review before applying for review by the
Information Commissioner, unless an internal review is
A working day is defined as any day that is not a
not available to you20 (see Option 1 above; internal
Saturday, Sunday, public holiday or any day during the
review is not available if a Minister or their personal staff,
period declared by the Premier as the Christmas
or the principal officer of an agency made the decision, if
closedown period.18
the decision has already been internally reviewed by the
What does notice ‘given to’ mean?
agency or if the decision is being or has been reviewed
by NCAT).
In the decision of
Choi v University of Technology
Sydney [2017] NSWCATAD 198, the NCAT considered
You have
40 working days21 from being notified of
when notice of a decision could be considered to have
the decision to ask for a review by the Information
been 'given to' an access applicant, for the purposes of
Commissioner.
calculating the time period to seek a review.
There is no provision in the GIPA Act that permits the
NCAT gave the following guidance, in the circumstances
Information Commissioner to accept applications out of
where the applicant was emailed a notice of decision as
time.
an attachment:
On reviewing the decision, the Information Commissioner
can make recommendations about
the words 'given to' have their ordinary meaning of
the decision to the agency. This may include a
'delivered' or 'handed over' (at [23], citing
recommendation that the agency reconsider and make a
Melville v Townsville City Council [2004] 1 Qd R 530
new decision on the access application.22 This enables
at [27])
the agency to make a new decision, whether or not the
in the case of notification by email, notice was given
decision has already been the subject of internal review
when the decision was emailed to an applicant (at
by the agency.23
[23])
The Information Commissioner has 40 working days from
the day on which all necessary information relating to a
in the case of notification by post, notice is given the
review application has been received to complete the
at the time when the letter would be delivered in the
review of a decision and make any recommendations.24
ordinary course of the post, unless the contrary is
The Information Commissioner and applicant can agree
proved (at [24]-[25], citing
Melville v Townsville City
to an extension of the timeframe. The Information
Council and
ZAG v NSW Trustee and
Commissioner will notify the agency of any extension.25
Guardian [2016] NSWCATAP 19)
If the Information Commissioner does not complete the
it was not necessary for the applicant to have read or
review within the 40 working day period, the Information
been aware of the contents of a decision for it to
Commissioner is deemed to have made no
have been 'given to' them (at [23]).
recommendations to the agency.26 The effect of this is
12
Section 83(3) GIPA Act
13 Section 86(1) GIPA Act
19 Section 89(2)(a) GIPA Act
14 Section 86(2) GIPA Act; IPC Fact Shee
t Why consult third
20 Section 89(2)(b) GIPA Act
parties; Guideline 5 Consultation on the public interest
21 Section 90 GIPA Act
considerations
22 Section 93(1) GIPA Act
15 Section 86(4) GIPA Act
23 Section 93(2) GIPA Act
16 Section 82(4) GIPA Act
24 Section 92A(1) GIPA Act
17 Section 82(5) GIPA Act
25 Section 92A(2) GIPA Act
18 Clause 1, Schedule 4 to the GIPA Act
26 Section 92A(3) GIPA Act
Information and Privacy Commission NSW
2
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Your review rights under the GIPA Act
Fact Sheet
that the original decision stands and the only option
available to the applicant is to seek a review by NCAT.
The applicant must be notified when the review is
completed and advised of any recommendations made
by the Information Commissioner.27
Note: You cannot ask the Information Commissioner
to review a decision that is being or has already been
reviewed by NCAT28.
3. External review by the NSW Civil
and Administrative Tribunal (NCAT)
If you disagree with any of the decisions listed above,
you can ask for a review by NCAT.
If you are the person applying for access to information,
you do
not have to have an internal review of the
decision before asking the NCAT to review it. However, if
you are not the original access applicant (i.e. you are a
third party), you must seek an internal review before
applying for review by NCAT, unless an internal review is
not available to you29 (see Option 1 above; internal
review is not available if a Minister or their personal staff,
or the principal officer of an agency made the decision, if
the decision has already been internally reviewed by the
agency or if the decision is being or has been reviewed
by the Information Commissioner).
You do not have to have the decision reviewed by the
Information Commissioner before applying for review by
NCAT.30
You have
40 working days31 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 days32 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
27 Section 92A(4) GIPA Act
28 Section 98 GIPA Act
29 Section 100(2) GIPA Act
30 Section 100 GIPA Act
31 Section 101(1) GIPA Act
32 Section 101(2) GIPA Act
Information and Privacy Commission NSW
3
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