Freedom Of Information (FOI) (NSW)

Freedom of Information (FOI) law is designed to promote accountable, transparent and responsible government, and in New South Wales this law is contained in the Government Information (Public Access) Act 2009. The Act gives the public the right to access government-held information about themselves or policies, unless there is an overriding public interest against disclosure.

What information can I access?

A person can apply to the Department of Justice to access FOI documents held by an agency or a minister that contains personal information, or is used to make policy or administrative decisions. “Agencies” include public service agencies, public authorities such as police, state-owned corporations, universities and courts.

An FOI application can be made online. A fee of $30 applies, which can be waived or reduced cases of financial hardship. The applicant must be notified within 5 working days whether their application is valid. The department must consult with the applicant if the requested information includes their personal information, concerns their business, commercial, professional or financial interests; concerns research that has been, is being, or is intended to be, done by or on behalf of the person; or concerns government affairs.

The Act allows 20 working days to process an application, but the department can extend this by 10 working days if it needs to consult with another person or retrieve records from an archive.

Access to the document can be granted in several ways, including as hard copy; in electronic form; as an opportunity to inspect, listen or view (if the document is sounds or images); or as a written transcript if the information is recorded as audio, or shorthand or other encoded format. Access is usually granted for 6 months.

The agency has a right to delete information they consider to be not relevant to the information applied for, or because the agency has decided to refuse access to that information.

FOI decisions

The agency can decide:

• to grant access;
• the information is not held by the agency;
• the information is readily available to the applicant;
• to refuse to provide access because there is an overriding public interest against disclosure;
• to refuse to deal with the application;
• to refuse to confirm or deny the information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

The agency can decide that information is readily available to the applicant when the information is, for instance, available to be inspected at an agency free of charge, contained in a document for purchase, or publicly available on a website.

The agency can decide to refuse to deal with an FOI application for reasons such as:

• dealing with the application would require an unreasonable and substantial diversion of an agency’s resources;
• the agency has already decided a previous application and there are no reasonable grounds for the agency to make a different decision;
• the applicant has failed to pay the required fee;
• the information is or has been the subject to a court order and is available to the applicant because it has been produced in compliance with the order;
• the applicant is involved in court proceedings and can apply to the court for the information.

In deciding whether the FOI application would require an unreasonable and substantial diversion of an agency’s resources, the agency must consider the estimated volume of information involved in the request, the agency’s size and resources, and the time allowed to process an application. Before refusing an application on these grounds, the agency must give the applicant an opportunity to amend the application.

Public interest and FOI applications

The Act sets out factors to be considered when deciding whether there is an overriding public interest against disclosure in relation to an FOI application. Some information is exempt from disclosure or subject to secrecy provisions. Other categories are explained below.

Responsible and effective government

The agency must consider whether release of the information would have the effect of prejudicing collective ministerial responsibility, ministerial responsibility to parliament, relations with other government, or supply of confidential information to an agency. It could reveal a deliberation or consultation, or an opinion, advice or recommendation  in such a way that it could prejudice government or agency deliberations. It could prejudice the effective exercise of an agency’s functions, found an action against an agency for breach of confidence, or prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results.

Law enforcement and security

The information could reveal the identity of an informant or prejudice the supply of information from that informant, prejudice an investigation, or impair a response to or recovery from an emergency such as a natural disaster or terrorism event. It could endanger the protection of life, health or safety of a person, or the security of property. It could facilitate commission of crime. In relation to prisons, it could  prejudice the supervision or help the escape of a prisoner, or prejudice the security or good order of a prison.

Individual rights and natural justice

Release of information could infringe on privacy by revealing a person’s private information. It could prejudice court proceedings by revealing information for current or future proceedings, or jeopardise impartial adjudication of a matter by denying them the right to procedural fairness. It could reveal defamatory allegations, or expose a person to the risk of harm or intimidation.

Business interests

In a commercial context, release of information could undermine competition, reveal commercial in-confidence provisions of a government contract, diminish the commercial value of information, prejudice a person’s legitimate financial interests, or prejudice research by revealing its conduct, purpose or results.

Environment, culture and economy

Release of information could impair protection of the environment; prejudice conservation of any place or object of natural, cultural or heritage value, or reveal information relating to Aboriginal or Torres Strait Islander knowledge; or endanger the protection of life, health or safety of any animal. It could impair government management of the economy, or advantage or disadvantage any person via the premature disclosure of information about proposed action or inaction of the government or an agency.

For advice on FOI or advice or representation in any legal matter, please contact Armstrong Legal.