This article will discuss the fundamentals of the concept of freedom of information in New South Wales (NSW), Australia.
Do you ever wonder what your government is up to? Do you want to know how the government spends your tax dollars? Maybe you’re just curious about a particular policy or decision that the government has made.
If so, then you need to know about the Freedom of Information Act 1989 NSW (FOI). The FOI Act is a law that gives you the right to right to public access government information. This includes information about government policies, decisions, spending, and more.
The Government Information (Public Access) Act 2009 (GIPA Act) gives you the right to access government information. The GIPA Act is similar to the FOI Act as it allows anyone the access to documents held by Federal Departments or Agencies.
However, the GIPA Act differs from the FOI Act, as you can only access information that they held on record. The act also gives the public the right to access government-held information about themselves or policies. This is the case unless there is an overriding public interest against disclosure.
The FOI Act (NSW) is an important tool for transparency and accountability. Furthermore, it allows you to hold the government accountable for its actions and to make sure that they are spending your tax dollars wisely. Read on if you want to know how to access NSW government information.
The Freedom of Information Act 1989: An Overview
The Freedom of Information Act 1989 (FOI Act) is an law that gives individuals the right to access government-held information in NSW. The FOI Act applies to all NSW government agencies, including departments, statutory authorities, and government-owned companies.
- gives a legally enforceable public right of access to documents held by government agencies and Ministers (subject to certain restrictions);
- mandates that specific information about government agencies’ activities, duties, and records be published; and
- creates the right to request that personal data held by government organisations be corrected.
The Freedom of Information NSW allows individuals to request access to government-held information, subject to certain exemptions. The exemptions include information that is:
- Cabinet documents
- Personal information
- Information that has legal privilege
- Information that is commercially sensitive
- Information that would prejudice national security
If a person, agency, or department will refuse access to information to a person, the refused can appeal the decision to the Office of the Australian Information Commissioner (OAIC). Importantly, the OAIC is an independent statutory authority that is responsible for overseeing the FOI Act.
Many have praised the Freedom of Information NSW for its role in promoting transparency and accountability in government. However, the FOI Act has also faced criticism for being too complex and time-consuming.
How to Make a Freedom of Information Request in NSW?
To make a Freedom of Information (FOI) request in New South Wales (NSW), you can follow these steps:
- Identify the agency or organisation you want to make the request to. This could be a government department, a local council, or a statutory authority. You can find a list of all NSW government agencies on the NSW Government website: https://www.nsw.gov.au/.
- Determine what information you want to request. You can request any information that the agency or organisation holds; but there are some exemptions that may apply. For example, you cannot request information that is considered to be ‘cabinet confidential’ or that would prejudice national security.
- Write a clear and concise FOI request. Note that, your request should include the following information:
- Your name and contact details
- The name of the agency or organisation you are making the request to
- The specific information you are requesting
- The reasons why you are requesting the information
- Submit your FOI request. You can submit your FOI request in writing, by email, or by fax. The agency or organisation you are making the request to will have a specific process for submitting FOI requests.
- Wait for a response. The agency or organisation you are making the request to will have 45 days to respond to your FOI request. If they need more time, they can extend the deadline for a further 20 days.
- Appeal the decision if you are not happy. If you are not happy with the response to your FOI request, you can appeal the decision to the Information and Privacy Commission (IPC) NSW.
Types of Information That People Can Request under FOI Act
Note: Parties can make an FOI application online. A fee of $30 applies, but parties can request for a waiver or reduction in cases financial hardship. The applicant must be notified within 5 working days whether their application is valid.
Under the Freedom of Information Act 1989 (FOI Act), you can request any information that the NSW government agency holds, including:
- Any paper or electronic document, such as letters, reports, emails, and minutes of meetings.
- Any other type of record, such as photographs, maps, and audio recordings.
- Information about how decisions were made, who was involved in making the decisions, and the reasons for the decisions.
- Information about government policies, how they were developed, and how they are being implemented.
- Information about how government money is being spent, including contracts, grants, and loans.
However, there are some types of information that are exempt from FOI requests, such as:
- Cabinet documents. These are documents that are considered to be confidential and that are not released to the public.
- Personal information. This is information about an individual that is not publicly known, such as their address, phone number, or medical records.
- Information that would prejudice national security. This is information that could be used to harm Australia’s national security.
Frequently Asked Questions about the Freedom of Information Act
What Does the Right of Access Mean?
Right of access means that a person has a legally enforceable right of access to records belonging to a government agency or a minister that are related to the business of an agency.
What are the Exempt Bodies?
An “agency” can be a government department, public authority, local authority or public office. Exempt bodies include:
- Legislative Council
- Legislative Assembly
- parliamentary committees
- Royal Commissions
- Courts and Tribunals
What are Ministerial Certificates?
The Premier can issue a ministerial certificate in relation to three exemptions:
- Cabinet documents
- Executive Council documents
- Documents relating to law enforcement and public safety.
A ministerial certificate lasts for two years and is taken to be conclusive evidence that a document is exempt.
How is an Appeal Done?
The Act provides for three forms of appeal from an agency’s decision:
- an internal review by the agency (where available, a pre-requisite to other appeal options);
- review by the Ombudsman; and
- appeal to the Administrative Decisions Tribunal.
Are There Fees for the Request?
The Act imposes an application fee of AUD $30. They may further charge a processing fee of AUD $30 per hour (however there is no charge for the first 20 hours of processing for papers pertaining to the applicant’s personal affairs). Additionally, there is no cap on the amount that they can bill. In some cases, fees are subject to a 50 percent discount.
Can the Records be Amended?
Yes. A person may apply to an agency for amendment of personal information (about the applicant) held by the agency, where the information is incomplete, incorrect, out of date, or misleading.
What are the Publication Requirements?
The Act requires agencies to publish a “Statement of Affairs” every 12 months, and a “Summary of Affairs” every six months. Each agency must also prepare an annual report to Parliament on its obligations under the Act.
Appealing a Denied FOI Request
If an agency denies your Freedom of Information (FOI) request, or you are not happy with the response, you can appeal the decision. The appeals process will vary depending on the agency or organisation that denied your request. Here are some tips for appealing a denied or unsatisfactory FOI request:
- Be clear and concise in your appeal. The agency or organisation that is reviewing your appeal will need to understand why you are appealing the decision.
- Provide as much detail as possible about your reasons for appealing. This will help the agency or organisation to understand your concerns.
- Be polite and respectful in your appeal. The agency or organisation that is reviewing your appeal is more likely to be helpful if you are polite and respectful.
- Follow the agency or organisation’s specific process for filing appeals. This will help to ensure that they process your appeal promptly.
Legal Assistance in Appealing Your Denied FOI Request
The process of making an FOI request can be difficult, and the results are not always satisfactory. In some cases, a request may be denied or only partially fulfilled. Therefore, lawyers can assist with FOI request appeals in NSW Australia.
Lawyers who specialise in the law of freedom of information NSW can help individuals and organisations navigate the appeals process and assist in drafting and submitting an appeal application to the relevant review body. Our team of lawyers at JB Solicitors can provide legal advice and representation to help appeal the decision of a government agency that has denied an FOI request.
Make an enquiry today.
