NSW Government Bulletin - Freedom of Information, In the media, Practice and courts, Cases and Legislation

• Published date: 17 September 2021
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law
• Law Firm: Holding Redlich
• Author: Ms Christine Jones and Kim Nguyen

Right to Know: New South Wales' freedom of information regime

In this article, we take a look at the New South Wales' freedom of information regime, and the "Right to Know Week NSW 2021" to be held in conjunction with the upcoming International Access to Information Day.

What is International Access to Information Day?

International Access to Information Day, originally championed by the United Nations, is held annually on 28 September. It is intended to increase public awareness of the rights of individuals to access government documents and information.

The rights of individuals to access government information in Australia is enshrined in freedom of information (FOI) legislation. Legislation exists in all Australian jurisdictions to provide rights to access information and documents held by Ministers, government agencies and government enterprises. In New South Wales, that legislation is the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

The GIPA Act is administered by the New South Wales Information and Privacy Commissioner (IPC). In conjunction with International Access to Information Day, the IPC runs a campaign known as Right to Know Week. In 2021, the IPC's theme for Right to Know Week is "Open by design: Integrity through greater transparency and accountability in government."¹ Throughout Right to Know Week, the IPC will host online events on FOI, the role of data in government policy and decision-making, and the value of open government.

In anticipation of International Access to Information Day, the Association of Information Access Commissioners, which includes the IPC, also recently released an animation highlighting the importance of access to information about government decision-making. The Commissioners highlighted that providing such information encourages governments to make better decisions and to be more transparent, open and accountable, while also strengthening public trust in government processes.

Freedom of information in New South Wales

The object of the GIPA Act is to open government information to the public in order to maintain and advance a system of responsible and representative government. This is to be achieved by:

• both authorising and encouraging the proactive public release of government information;
• providing the public with a legal right to access government information; and
• providing that access to government information is restricted only when there is an overriding public interest for that information not to be provided.

Therefore the right to seek information through FOI requests is the key right in the GIPA Act, however proactive public release of information, without the need to make an application, is also supported.

The IPC's Annual Report for 2019/20² stated that the IPC's Community Attitudes Survey concluded that a significant majority of respondents thought that access to government data was necessary to support both transparent and accountable decision making by government agencies. That Annual Report also noted that the number of complaints received by the IPC in 2019/20 decreased from 2018/19. The IPC's separate Report on the Operation of the GIPA Act 2019/20³ (GIPA Act Report) stated that, over the year, 91% of GIPA Act decisions were made within the required statutory time frame and that rates of refusal of access requests under the GIPA Act dropped from 8% to 3%, despite a 9% rise in the number of applications received. This indicates that regulated government agencies and entities are responsive to requests under the GIPA Act.

Recent development at the Commonwealth level

In August 2021, the Commonwealth Administrative Appeals Tribunal (AAT) heard an application made under the Commonwealth Freedom of Information Act 1982 (FOI Act) relating to access to the minutes of two National Cabinet meetings.⁴

The Department of the Prime Minister and Cabinet (PM&C) argued that the documents were exempt from disclosure under the FOI Act because they are official documents of the National Cabinet, which is appropriately characterised as a committee of the federal Cabinet. If this was accepted, the documents would be exempt from disclosure by virtue of section 34 of the FOI Act. In addition, PM&C argued, release of the documents could reasonably be expected to cause damage to relations between the Commonwealth and a State, making them conditionally exempt from disclosure under section 47B of the FOI Act.

In a detailed decision, Justice White concluded that neither ground for exemption was available, primarily because the National Cabinet was not in fact a committee of the federal Cabinet.

Cabinet confidentiality under the GIPA Act

The GIPA Act has its own equivalent of the exemptions under the FOI Act that were unsuccessfully relied upon by PM&C. Under section 14 and Schedule 1 of the GIPA Act a conclusive presumption of an overriding public interest against disclosure exists for each of the following Cabinet documents (including drafts and extracts):

• an official record of Cabinet;
• prepared for the dominant purpose of being submitted to Cabinet, where the document is either so submitted or is or was proposed to be submitted;
• prepared after Cabinet's deliberation or decision on a matter that would tend to reveal information about those deliberations;
• prepared for the purpose of being submitted to Cabinet for Cabinet's approval; or
• prepared before or after Cabinet's deliberation or decision on a matter and which tends to reveal the position or potential position of any particular Minister in relation to that matter.

Section 14 also provides that a public interest consideration that may be taken into account in determining whether or not to provide disclosure under the New South Wales FOI regime is whether the disclosure could reasonably be expected to prejudice relations with another government.

Of course, the minutes of the National Cabinet meetings that were the subject of the dispute before the Commonwealth AAT case could equally have been sought from the New South Wales Premier under the GIPA Act. Given the characterisation of the National Cabinet by the AAT, it is not clear that the New South Wales Premier would have been any more successful in arguing under the GIPA Act that she did not need to disclose the minutes of the relevant meetings.

What does this mean for New South Wales?

As mentioned previously, between 2018/19 and 2019/20, there was a 9% rise in the number of FOI applications made under the GIPA Act. It is likely that this upward trend will be evident when data is released for 2020/21.

The media, public interest groups and even politicians are increasingly challenging the use of FOI exemptions at both the State and Commonwealth level, and seeking more robust enforcement of FOI legislation. The 2019 "Right to Know" campaign co-ordinated by Australia's major media organisations notably called for legislative reform in light of delays and a perceived over-reliance on broad exemptions to refuse access to documents requested under FOI legislation.

Increasing requests for the release of information, as well as increased scrutiny on the reliance on FOI exemptions, makes it clear that New South Wales government departments, agencies and enterprises should be conscious of the need to ensure robust reasons support decisions not to release documents under the GIPA Act.

In the media

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