link to page 1 link to page 1 link to page 1 link to page 1 link to page 1 link to page 1 link to page 1 link to page 1 link to page 1 link to page 1
Fact Sheet
Updated November 2019
Your review rights under the GIPA Act
You can apply for access to information and NSW
k) a decision to refuse a reduction in a processing
government agencies wil make a decision under
charge
the
Government Information (Public Access) Act
l) a decision to refuse to deal further with an access
2009 (GIPA). If you are dissatisfied with the decision
application because an applicant has failed to
you can request a review.
pay an advance deposit within the time required
for payment
What decisions can be reviewed?
m) a decision to include information in a disclosure
You have the right to request a review of certain
log despite an objection by the authorised objector
decisions
(or a decision that the authorised objector was not
1 made by government agencies about
the release of information under the GIPA Act:
entitled to object).
You generally have three review options.
a) a decision that an application is not a valid
access application
1. Internal review
b) a decision to transfer an access application to
another agency, as an agency-initiated transfer
You have
20 working days2 after the notice of a decision
has been given to you, to ask for an internal review by
c) a decision to refuse to deal with an access
the agency that made the decision. An agency may
application (including such a decision that is
accept an application for internal review out of time, but is
deemed to have been made)
not obliged to do so.
3
d) a decision to provide access or to refuse to
If a Minister or their personal staff, or the principal officer
provide access to information in response to
of an agency made the decision, you cannot ask for an
an access application
internal review
4, but you can ask for an external review
e) a decision that government information is not
(see below).
held by the agency
Similarly, if the access applicant or one of any number of
f) a decision that information applied for is already
third parties has sought an internal review of the decision
available to the applicant
that you are not satisfied with, you are not entitled to
seek an internal review of the decision.
5 You are however
g) a decision to refuse to confirm or deny that
able to seek an external review.
information is held by the agency
The review must be carried out by an officer who is
h) a decision to defer the provision of access to
no less senior than the person who made the original
information in response to an access application
decision.
6 The review decision must be made as if it
i) a decision to provide access to information in
was a fresh application.
7
a particular way in response to an access application
There is a $40 fee for an internal review application.
8 An
(or a decision not to provide access
agency may choose to waive the internal review fee.
9
in the way requested by the applicant)
No fee applies for an internal review if the decision is a
j) a decision to impose a processing charge or
‘deemed refusal’ because the agency did not process
to require an advance deposit,
your application in time
10 or the internal review is
conducted because the Information Commissioner has
1 Section 80 GIPA Act
6 Section 84(2) GIPA Act
2 Section 83(1) GIPA Act
7 Section 84(1) GIPA Act
3 Section 83(2) GIPA Act
8 Section 85(1) GIPA Act
4 Section 82(2) GIPA Act
9 Section 127 GIPA Act
5 Section 88 GIPA Act
10 Section 85(2) GIPA Act
Information and Privacy Commission NSW
1
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2
Your review rights under the GIPA Act
Fact Sheet
recommended the agency reconsider its decision under
Calculating time then commences on the first working
section 93 of the GIPA Act.
11 In this case, you cannot be
day after the notice is posted.
20
charged a review fee.
• it was not necessary for the applicant to have read or
The agency must acknowledge your internal review
been aware of the contents of a decision for it to
application within
five working days of receiving it.
12 The
have been 'given to' them (at [23]).
agency must decide the internal review within
15 working
days
13 (this can be extended by
10 working days if the
agency has to consult with a third party not previously
2. External review by the Information
consulted
14, or by agreement with you
15).
Commissioner
Note: You cannot ask for internal review of a decision
If you disagree with any of the decisions listed above,
that is being or has already been reviewed by the
you can ask for an external review by the Information
Information Commissioner
16 or the NSW Civil and
Commissioner.
Administrative Tribunal (NCAT)
17. This does not apply if
the internal review was recommended by the Information
If you are the person applying for access to information,
Commissioner under section 93.
you do
not have to have an internal review of the
What is a working day?
decision before asking the Information Commissioner
to review it.
21
A working day is defined as any day that is not a
Saturday, Sunday, public holiday or any day during the
However, if you are not the access applicant, you
must
period declared by the Premier as the Christmas
seek an internal review before applying for review by the
closedown period.
18
Information Commissioner, unless an internal review is
not available to you
22 (see Option 1 above; internal
What does notice ‘given to’ mean?
review is not available if a Minister or their personal staff,
or the principal officer of an agency made the decision, if
In the decision of
Choi v University of Technology
the decision has already been internally reviewed by the
Sydney [2017] NSWCATAD 198, the NCAT considered
agency or if the decision is being or has been reviewed
when notice of a decision could be considered to have
by NCAT).
been 'given to' an access applicant, for the purposes of
calculating the time period to seek a review.
You have
40 working days23 from being given
the decision to ask for a review by the Information
NCAT gave the following guidance, in the circumstances
Commissioner.
where the applicant was emailed a notice of decision as
an attachment:
There is no provision in the GIPA Act that permits the
Information Commissioner to accept applications out of
• the words 'given to' have their ordinary meaning of
time.
'delivered' or 'handed over' (at [23], citing
Melville v Townsvil e City Council [2004] 1 Qd R 530
On reviewing the decision, the Information Commissioner
at [27])
can make recommendations about
the decision to the agency. This may include a
• in the case of notification by email, notice was given
recommendation that the agency reconsider and make a
when the decision was emailed to an applicant (at
new decision on the access application.
24 This enables
[23])
the agency to make a new decision, whether or not the
decision has already been the subject of internal review
In the case of notification by post, notice is given at the
by the agency.
25
time when the notice is posted by the Agency.
19Once the
posting of the notice to the postal address is completed,
The Information Commissioner has 40 working days from
notice is considered to have been given by the agency.
the day on which all necessary information relating to a
11 Section 93(6) GIPA Act
19 Section 126 (2) GIPA Act
12 Section 83(3) GIPA Act
13 Section 86(1) GIPA Act
20
ANQ v Depaftment of Attorney General and Justice, Corective Services
14 Section 86(2) GIPA Act; IPC Fact Sheet
Why consult third
{[2012] NSWADT 271 at [8]- [11]
parties; Guideline 5 Consultation on the public interest
21 Section 89(2)(a) GIPA Act
considerations
22 Section 89(2)(b) GIPA Act
15 Section 86(4) GIPA Act
23 Section 90 GIPA Act
16 Section 82(4) GIPA Act
24 Section 93(1) GIPA Act
17 Section 82(5) GIPA Act
25 Section 93(2) GIPA Act
18 Clause 1, Schedule 4 to the GIPA Act
Information and Privacy Commission NSW
2
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
link to page 3 link to page 3 link to page 3 link to page 3 link to page 3 link to page 3 link to page 3 link to page 3 link to page 3
Your review rights under the GIPA Act
Fact Sheet
review application has been received to complete the
For more information
review of a decision and make any recommendations.
26
The Information Commissioner and applicant can agree
Contact the Information and Privacy Commission NSW
to an extension of the timeframe. The Information
(IPC):
Commissioner wil notify the agency of any extension.
27
Freecall:
1800 472 679
If the Information Commissioner does not complete the
Email:
xxxxxxx@xxx.xxx.xxx.xx
review within the 40 working day period, the Information
Website:
www.ipc.nsw.gov.au
Commissioner is deemed to have made no
recommendations to the agency.
28 The effect of this is
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.
29
Note: You cannot ask the Information Commissioner
to review a decision that is being or has already been
reviewed by NCAT
30.
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 you
31 (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.
32
You have
40 working days33 from being given the
decision to apply to NCAT for review. However,
if you have applied for review by the Information
Commissioner, you have
20 working days34 from
being notified of the Information Commission’s review
outcome to apply to NCAT.
26 Section 92A(1) GIPA Act
31 Section 100(2) GIPA Act
27 Section 92A(2) GIPA Act
32 Section 100 GIPA Act
28 Section 92A(3) GIPA Act
33 Section 101(1) GIPA Act
29 Section 92A(4) GIPA Act
34 Section 101(2) GIPA Act
30 Section 98 GIPA Act
Information and Privacy Commission NSW
3
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
Document Outline
