Division 3Process for
dealing with access applications
51Initial decision as to validity of
application
(1)
When an agency receives an application for access
to government information that it appears is intended to be an access
application, the agency is to decide whether the application is a valid access
application and is to notify its decision to the applicant by
either—
(a)
acknowledging receipt of the application as a
valid access application, or
(b)
notifying the applicant that the application is
not a valid access application.
Note—
An application is not a valid access application
if it is an application for excluded information of the agency or does not
comply with the formal requirements for access
applications.
(2)
An agency’s decision as to the validity of
an application must be made and notified to the applicant as soon as
practicable after the agency receives the application and in any event within
5 working days after the application is received.
Note—
The decision as to the validity of an application
is reviewable under Part 5.
(3)
An acknowledgement of receipt of a valid access
application must include the following—
(a)
the date by which the application is required to
be decided (subject to any suspension or extension of the time for deciding an
application),
(b)
a statement that the application will be deemed
to have been refused if not decided by the required date,
(c)
the following statements about the inclusion of
information in the agency’s disclosure log (unless the agency considers
it unlikely that information about the application will be included in the
disclosure log)—
(i)
a statement that information concerning the
application is likely to be included in the agency’s disclosure log and
that the applicant can object to this,
(ii)
a statement about the right of review under Part
5 of a decision by the agency to include information in its disclosure log
despite the applicant’s objection,
(d)
such details of rights of review in connection
with access applications as the Information Commissioner may from time to time
direct.
(4)
Acknowledging receipt of an application as a
valid access application does not prevent the agency from subsequently
deciding that the application is not a valid access
application.
(5)
An agency’s decision that an application is
not a valid access application is presumed to be correct, subject to any
review of the decision under Part 5.
s 51: Am 2018 No 89,
Sch 1 [11] [12].
51AEffect of waiver, reduction or refund of application
fee
(1)
An agency is not to treat an application as being
an invalid access application only because of the non-payment of the required
application fee if—
(a)
the payment of the fee was waived by the agency
before the application was made, or
(b)
the amount of the fee payable was reduced by the
agency before the application was made and the reduced fee accompanied the
application.
Note—
Section 127 enables an agency to waive, reduce or
refund a fee payable or paid under this Act for an application fee in any case
that the agency thinks appropriate, subject to the
regulations.
(2)
If an agency waives payment of the required
application fee, or reduces the amount of the fee that is payable, after the
application is made (and the application would have been valid had the
required application fee been paid)—
(a)
in the case of a waived fee—the application
becomes a valid access application and is deemed to have been made when the
fee was waived, or
(b)
in the case of a reduced fee—the
application becomes a valid access application when the reduced fee is paid
and is deemed to have been made when the payment is
made.
(3)
The refund of an application fee does not affect
the validity of an access application that was duly
made.
s 51A: Ins 2012 No 7,
Sch 1 [10].
52Agency assistance with invalid
applications
(1)
The notification of an agency’s decision
that an application is not a valid access application must—
(a)
include a statement of the reason why the
application is not a valid access application (including reference to the
relevant provisions of this Act), and
(b)
if a reason is non-payment of the required
application fee, invite the applicant to pay the fee, and
(c)
if a reason is failure to provide required
information, invite the applicant to provide the information,
and
(d)
notify the applicant of the right of review under
Part 5 that applies in relation to a decision that an application is not a
valid access application.
(2)
The application becomes a valid access
application if the applicant pays the required fee or provides the required
information (as appropriate), and is then deemed to have been made when the
fee or information was received by the agency.
(3)
An agency must provide advice and assistance, so
far as it would be reasonable to expect the agency to do so, to assist an
applicant to provide such information as may be necessary to enable the
applicant to make a valid access application.
(4)
(5)
An applicant is entitled to a refund of any
application fee that accompanied an invalid access application (unless the
application subsequently becomes valid).
s 52: Am 2012 No 7,
Sch 1 [11].
53Searches for information held by
agency
(1)
The obligation of an agency to provide access to
government information in response to an access application is limited to
information held by the agency when the application is
received.
(2)
An agency must undertake such reasonable searches
as may be necessary to find any of the government information applied for that
was held by the agency when the application was received. The agency’s
searches must be conducted using the most efficient means reasonably available
to the agency.
(3)
The obligation of an agency to undertake
reasonable searches extends to searches using any resources reasonably
available to the agency including resources that facilitate the retrieval of
information stored electronically.
(4)
An agency is not required to search for
information in records held by the agency in an electronic backup system
unless a record containing the information has been lost to the agency as a
result of having been destroyed, transferred, or otherwise dealt with, in
contravention of the State Records Act
1998 or contrary to the agency’s established record
management procedures.
(5)
An agency is not required to undertake any search
for information that would require an unreasonable and substantial diversion
of the agency’s resources.
54Consultation on public interest
considerations
(1)
An agency must take such steps (if any) as are
reasonably practicable to consult with a person before providing access to
information relating to the person in response to an access application if it
appears that—
(a)
the information is of a kind that requires
consultation under this section, and
(b)
the person may reasonably be expected to have
concerns about the disclosure of the information, and
(c)
those concerns may reasonably be expected to be
relevant to the question of whether there is a public interest consideration
against disclosure of the information.
(2)
Information relating to a person is of a kind
that requires consultation under this section if the information—
(a)
includes personal information about the person,
or
(b)
concerns the person’s business, commercial,
professional or financial interests, or
(c)
concerns research that has been, is being, or is
intended to be, carried out by or on behalf of the person,
or
(d)
concerns the affairs of a government of the
Commonwealth or another State (and the person is that
government).
Note—
The requirement to consult extends to
consultation with other agencies and other governments. See the definition of
person in Schedule
4.
(2A)
If the agency considers that information about a
person consulted under this section is likely to be included in the
agency’s disclosure log in relation to the access application, the
agency must give a written notice to the person containing the following
statements—
(a)
that information concerning the application is
likely to be included in the agency’s disclosure log and that the person
can object to this,
(b)
that there is a right of review under Part 5 of a
decision by the agency to include information in its disclosure log despite
the person’s objection.
(3)
If consultation is required concerning the
release of personal information about a deceased person, that consultation is
to be done by consultation with a close relative of the
deceased.
(4)
The purpose of consultation under this section is
to ascertain whether the person has an objection to disclosure of some or all
of the information and the reasons for any such
objection.
(5)
The agency must take any objection to disclosure
of information that the agency receives in the course of consultation into
account in the course of determining whether there is an overriding public
interest against disclosure of government information.
(6)
If consultation establishes that a person objects
to the disclosure of information but the agency decides to provide access to
the information in response to the application, access is not to be provided
until the agency has first given the objector notice of the agency’s
decision to provide access to the information and notice of the
objector’s right to have that decision reviewed, and is not to be
provided while review rights on the decision are
pending.
(7)
Review rights on a decision are pending while the
objector is entitled to apply for a review of the decision under Part 5
(ignoring any period that may be available by way of extension of time to
apply for review), or any review duly applied for is
pending.
s 54: Am 2012 No 7,
Sch 1 [12]; 2018 No 89, Sch 1 [13].
54AConsultation with other agencies
(1)
An agency may, in response to an access
application, consult with any other agency for the following
purposes—
(a)
to determine whether there is an overriding
public interest against disclosure of the information,
(b)
to identify a person that may be required to be
consulted under section 54.
(2)
An agency may be consulted under this section
even if the agency would not reasonably be expected to have concerns about the
disclosure of the information.
s 54A: Ins 2018 No
89, Sch 1 [14].
55Consideration of personal factors of
application
(1)
In determining whether there is an overriding
public interest against disclosure of information in response to an access
application, an agency is entitled to take the following factors (the personal factors of the
application) into account as provided by this
section—
(a)
the applicant’s identity and relationship
with any other person,
(b)
the applicant’s motives for making the
access application,
(c)
any other factors particular to the
applicant.
(2)
The personal factors of the application can also
be taken into account as factors in favour of providing the applicant with
access to the information.
(3)
The personal factors of the application can be
taken into account as factors against providing access if (and only to the
extent that) those factors are relevant to the agency’s consideration of
whether the disclosure of the information concerned could reasonably be
expected to have any of the effects referred to in clauses 2–5 (but not
clause 1, 6 or 7) of the Table to section 14.
(4)
An applicant is entitled to provide any evidence
or information concerning the personal factors of the application that the
applicant considers to be relevant to the determination of whether there is an
overriding public interest against disclosure of the information applied
for.
(5)
An agency may, as a precondition to providing
access to information to an applicant, require the applicant to provide
evidence concerning any personal factors of the application that were relevant
to a decision by the agency that there was not an overriding public interest
against disclosure of the information and, for that purpose, require the
applicant to take reasonable steps to provide proof of his or her
identity.
(6)
An agency is under no obligation to inquire into,
or verify claims made by an access applicant or any other person about, the
personal factors of the application but is entitled to have regard to evidence
or information provided by the applicant or other
person.
Note—
An agency is not entitled to impose any
conditions on the use or disclosure of information when the agency provides
access to the information in response to an access application. See section
73.
s 55: Am 2012 No 7,
Sch 1 [13]; 2018 No 89, Sch 1 [15].
56Authorised objector can object to inclusion in disclosure
log
(1)
Each of the following persons (an authorised
objector) can object to the inclusion in the agency’s
disclosure log of all or specified information concerning an access
application—
(a)
the access applicant,
(b)
any other person with whom the agency has
consulted (or is required to consult) under section 54 before providing access
to the information sought in the application.
(1A)
An objection can include reasons for the
objection and, in the case of an objection by an access applicant, can be made
as part of the access application or separately.
(2)
The grounds on which an authorised objector is
entitled to object to the inclusion of information in an agency’s
disclosure log are limited to any one or more of the following—
(a)
the information includes personal information
about the authorised objector (or a deceased person for whom the authorised
objector is the personal representative),
(b)
the information concerns the authorised
objector’s business, commercial, professional or financial
interests,
(c)
the information concerns research, or the
compilation or analysis of statistics, that has been, is being, or is intended
to be, carried out by or on behalf of the authorised
objector,
(d)
the information concerns the affairs of a
government of the Commonwealth or another State (and the authorised objector
is that government).
(3)
If an authorised objector has objected to the
inclusion of information in the agency’s disclosure log, the agency must
decide—
(a)
whether the authorised objector is entitled to
object, and
(b)
if the agency decides that the authorised
objector is entitled to object, whether the objection outweighs the general
public interest in including the information in the disclosure
log.
(4)
If an access applicant has objected to the
inclusion of information in the agency’s disclosure log, the
agency’s notice of decision of the access application must
indicate—
(a)
the agency’s decision about whether the
applicant was entitled to object, and
(b)
(if the agency has decided that the applicant was
entitled to object) the agency’s decision on whether to include the
information in its disclosure log.
Note—
The agency’s decisions are reviewable under
Part 5.
(4A)
If a person referred to in subsection (1) (b) has
objected to the inclusion of information in the agency’s disclosure log,
the agency must, as soon as is reasonably practicable after the decision
concerned is made (and in any event within 5 working days after the decision
is made), give the person a written notice that indicates—
(a)
the agency’s decision about whether the
person was entitled to object, and
(b)
(if the agency has decided that the person was
entitled to object) the agency’s decision on whether to include the
information in its disclosure log.
(5)
An agency that decides that an authorised
objector was not entitled to object to the inclusion of information in the
agency’s disclosure log is entitled to immediately include the
information in the disclosure log.
(6)
An agency that decides that an authorised
objector was entitled to object to the inclusion of information in the
agency’s disclosure log but decides to include the information despite
the objection must not include the information while the objector is entitled
to apply for a review of the agency’s decision under Part 5 (ignoring
any period that may be available by way of extension of time to apply for
review), or any review duly applied for is pending.
s 56: Am 2012 No 7,
Sch 1 [14]–[18]; 2018 No 89, Sch 1 [16] [17].
Division 4Deciding
access applications
57Required period for deciding
application
(1)
An agency must decide an access application and
give the applicant notice of the agency’s decision within 20 working
days (the decision period) after
the agency receives the application.
(2)
The decision period can be extended by up to 10
working days for either or both of the following reasons (with a maximum
extension under this subsection of 15 working days for any particular access
application)—
(a)
consultation with another person is required
under a provision of this Act,
(b)
records are required to be retrieved from a
records archive.
Note—
The decision period can only be extended to allow
for mandatory consultation, not just consultation that the agency chooses to
do.
(3)
The regulations can also provide for the
extension (and further extension) of the decision
period.
(4)
The decision period can also be extended (and
further extended) by agreement with the applicant.
Note—
A decision by an agency to refuse to agree to
extending the decision period is not a reviewable
decision.
(5)
The agency must as soon as practicable after the
decision period is extended (and in any case within 5 working days after it is
extended) give the applicant notice of any extension of the decision period
(including any extension by agreement with the applicant), indicating the date
on which the extended decision period will end.
(6)
An access application is considered to have been
decided within time if the agency
decides the application and gives the applicant notice of the agency’s
decision within the decision period. The decision period is also referred to
in other provisions of this Act as the period within which an application is
required to be decided.
58How applications are decided
(1)
An agency decides an access application for
government information by—
(a)
deciding to provide access to the information,
or
(b)
deciding that the information is not held by the
agency, or
(c)
deciding that the information is already
available to the applicant (see section 59), or
(d)
deciding to refuse to provide access to the
information because there is an overriding public interest against disclosure
of the information, or
(e)
deciding to refuse to deal with the application
(see section 60), or
(f)
deciding to refuse to confirm or deny that
information is held by the agency because there is an overriding public
interest against disclosure of information confirming or denying that
fact.
Note—
These decisions are reviewable under Part
5.
(2)
More than one decision can be made in respect of
a particular access application, so as to deal with the various items of
information applied for.
(3)
If an agency finds that information or additional
information is held by the agency after deciding an access application, the
agency can make a further decision that replaces or supplements the original
decision, but cannot be required to make a further decision in such a case.
The further decision can be made even if the period within which the
application is required to be decided has expired.
59Decision that information already available to
applicant
(1)
An agency can decide that information is already
available to an applicant only if the information is—
(a)
made publicly available by the agency or some
other agency in accordance with a legislative instrument other than this Act,
whether or not availability of the information is by inspection only and
whether or not availability is subject to a charge, or
(b)
available to the applicant from, or for
inspection at, the agency free of charge in accordance with this Act or the
agency’s policies and practices, or
(c)
contained in a document that is usually available
for purchase, or
(d)
available to the applicant as the applicant has
already been provided with access to the information and the agency has no
reason to believe the information is no longer in the applicant’s
possession, or
(e)
publicly available on a website,
or
(f)
available to the applicant by way of a standing
rule or order of the Legislative Council or Legislative
Assembly.
(2)
An agency is not required to provide access to
information that the agency has decided is already available to the applicant,
but notice of the decision must indicate why the agency believes the
information is already available to the applicant and, if necessary, how the
information can be accessed by the applicant.
s 59: Am 2018 No 89,
Sch 1 [18] [19].
60Decision to refuse to deal with
application
(1)
An agency may refuse to deal with an access
application (in whole or in part) for any of the following reasons (and for no
other reason)—
(a)
dealing with the application would require an
unreasonable and substantial diversion of the agency’s
resources,
(b)
the agency has already decided a previous
application for the information concerned (or information that is
substantially the same as that information) made by the applicant and there
are no reasonable grounds for believing that the agency would make a different
decision on the application,
(b1)
the applicant has previously been provided with
access to the information concerned under this Act or the Freedom of Information Act
1989,
(c)
the applicant has failed to pay an advance
deposit that is payable in connection with the application,
Note—
See section 70.
(d)
the information is or has been the subject of a
subpoena or other order of a court for the production of documents and is
available to the applicant as a result of having been produced in compliance
with the subpoena or other order,
(e)
the agency reasonably believes the applicant, or
a person acting in concert with the applicant, is—
(i)
a party to current proceedings before a court,
and
(ii)
able to apply to that court for the
information.
(2)
In deciding whether dealing with an application
would require an unreasonable and substantial diversion of an agency’s
resources, the agency is not required to have regard to any extension by
agreement between the applicant and the agency of the period within which the
application is required to be decided.
(3)
In deciding whether dealing with an application
would require an unreasonable and substantial diversion of an agency’s
resources, the agency is entitled to consider 2 or more applications
(including any previous application) as the one application if the agency
determines that the applications are related and are made by the same
applicant or by persons who are acting in concert in connection with those
applications.
(3A)
In deciding whether dealing with an application
would require an unreasonable and substantial diversion of an agency’s
resources, the agency may, without limitation, take into account the following
considerations—
(a)
the estimated volume of information involved in
the request,
(b)
the agency’s size and
resources,
(c)
the decision period under section
57.
(3B)
Any consideration under subsection (3A) must, on
balance, outweigh—
(a)
the general public interest in favour of the
disclosure of government information, and
(b)
the demonstrable importance of the information to
the applicant, including whether the information—
(i)
is personal information that relates to the
applicant, or
(ii)
could assist the applicant in exercising any
rights under any Act or law.
(4)
Before refusing to deal with an access
application because dealing with it would require an unreasonable and
substantial diversion of an agency’s resources, the agency must give the
applicant a reasonable opportunity to amend the application. The period within
which the application is required to be decided stops running while the
applicant is being given an opportunity to amend the
application.
(5)
Notice of an agency’s decision to refuse to
deal with an access application must state the agency’s reasons for the
refusal.
(6)
An applicant is not entitled to a refund of the
application fee when the agency refuses to deal with the
application.
s 60: Am 2012 No 7,
Sch 1 [19]; 2018 No 89, Sch 1 [20] [21].
61Notice of decision to refuse to provide
access
Notice of an agency’s decision to refuse to
provide access to information because there is an overriding public interest
against disclosure of the information must state the following—
(a)
the agency’s reasons for its
decision,
(b)
the findings on any material questions of fact
underlying those reasons, together with a reference to the sources of
information on which those findings are based,
(c)
the general nature and the format of the records
held by the agency that contain the information
concerned.
62Notice of processing charges
Notice of an agency’s decision to provide
access to information must state whether any processing charges will be
payable for access to the information and indicate how those charges have been
calculated.
63Deemed refusal if application not decided within
time
(1)
If an agency does not decide an access
application within time, the agency is deemed to have decided to refuse to
deal with the application and any application fee paid by the applicant is to
be refunded.
Note—
A deemed decision to refuse to deal with an
application is reviewable under Part 5.
(2)
The deemed refusal to deal with an application
does not prevent the agency from continuing to deal with the application and
subsequently deciding the application and giving notice of its decision (a
late decision) on the
application.
(3)
The obligation to refund an application fee to
the applicant is not affected by the making of the late decision and the late
decision does not entitle the agency to payment of an application
fee.
(4)
No processing charge can be imposed for dealing
with an access application if the application was not decided within time
(whether or not a late decision is made on the
application).
(5)
Despite this section, the obligation to refund an
application fee to the applicant does not apply to any application that was
transferred to or from the agency.
s 63: Am 2018 No 89,
Sch 1 [22].