Government Information (Public Access) Regulation 2009 (2010 SI 343)



Part 1 Preliminary
1   Name of Regulation
This Regulation is the Government Information (Public Access) Regulation 2009.
2   Definitions
(1)  In this Regulation:
(2)  Notes included in this Regulation do not form part of this Regulation.
Part 2 Open access information of local authorities
3   Additional open access information
The government information listed in Schedule 1 that is held by a local authority is prescribed as open access information of the local authority.
Note—
The fact that information is open access information does not create an obligation to keep records indefinitely and does not interfere with records management practices and procedures of local authorities that are consistent with the State Records Act 1998.
4   Additional ways in which open access information is to be made available
(1)  A local authority must make its open access information publicly available by:
(a)  making the information available for inspection free of charge by any person at the office of the local authority during ordinary office hours, and
(b)  providing a copy of a record containing the information (or providing the facilities for making a copy of a record containing the information) to any person either free of charge or for a charge not exceeding the reasonable cost of photocopying.
(2)  This clause does not prevent a local authority from archiving records that contain open access information in accordance with the authority’s records management practices and procedures. The authority is required to retrieve archived records and make the information available in accordance with this clause in response to a request for access as soon as reasonably practicable after the request is made.
(3)  This clause extends to open access information of a local authority that is open access information listed in section 18 of the Act (and is not limited to information listed in Schedule 1).
Part 3 Provisions relating to agencies generally
pt 3: Ins 2010 (252), Sch 1 [1].
5   Additional open access information of certain agencies
(1) Ministers For the purposes of section 18 (g) of the Act, the following government information is prescribed as open access information of a Minister:
(a)  any media release issued by the Minister,
(b)  details (including the costs and purpose) of any overseas travel undertaken by the Minister.
(2) Government departments For the purposes of section 18 (g) of the Act, the following government information is prescribed as open access information of a Government Department:
(a)  a list of the Department’s major assets, other than land holdings, appropriately classified and highlighting major acquisitions during the previous financial year,
(b)  the total number and total value of properties disposed of by the Department during the previous financial year,
(c)  the Department’s guarantee of service (if any),
(d)  the Department’s code of conduct (if any).
(3)  The reference in subclause (2) to a Government Department includes a reference to a public authority that is a Department within the meaning of the Annual Reports (Departments) Act 1985.
(4) Statutory bodies For the purposes of section 18 (g) of the Act, the following government information is prescribed as open access information of a public authority that is a statutory body within the meaning of the Annual Reports (Statutory Bodies) Act 1984:
(a)  the total number and total value of properties disposed of by the statutory body during the previous financial year,
(b)  the statutory body’s guarantee of service (if any).
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
6   Extension of decision period for access applications involving schools
The decision period under section 57 of the Act is:
(a)  in the case of an access application that involves a school, and
(b)  if any part of the decision period occurs when the school is closed for school holidays,
extended by the number of working days occurring in that school holiday period after the application is received.
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
7   Annual reporting requirements under section 125 of Act
The annual report of an agency (other than a Minister) required to be prepared under section 125 of the Act must include the following:
Note—
An agency’s report under section 125 of the Act can be included in the agency’s annual report required to be prepared under the annual reporting legislation—see section 6 of the Annual Reports (Departments) Act 1985 or section 5A of the Annual Reports (Statutory Bodies) Act 1984 (as the case requires).
(a)  details of the review carried out by the agency under section 7 (3) of the Act during the reporting year and the details of any information made publicly available by the agency as a result of the review,
(b)  the total number of access applications received by the agency during the reporting year (including withdrawn applications but not including invalid applications),
(c)  the total number of access applications received by the agency during the reporting year that the agency refused, either wholly or partly, because the application was for the disclosure of information referred to in Schedule 1 to the Act (Information for which there is conclusive presumption of overriding public interest against disclosure),
Note—
Table D in Schedule 2 also requires information relating to access applications in respect of which there is a conclusive presumption of overriding public interest against disclosure.
(d)  information, as set out in the form required by the tables in Schedule 2, relating to the access applications (if any) made to the agency during the reporting year.
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
8   Public availability of open access information of Ministers
The open access information of a Minister may, without limiting section 6 of the Act, be made publicly available on a website maintained by a Government Department for which the Minister is responsible.
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
9   Discounted processing charge
An agency is required to reduce, by 50%, the processing charge payable under the Act for dealing with an access application if the applicant provides evidence that the applicant:
(a)  is the holder of a Pensioner Concession card issued by the Commonwealth that is in force, or
(b)  is a full-time student, or
(c)  is a non-profit organisation (including a person applying for or on behalf of a non-profit organisation).
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
Part 4 Miscellaneous
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
10   Exempt documents under interstate FOI legislation—corresponding laws
The following laws are prescribed as corresponding laws for the purposes of clause 7 of the Table to section 14 of the Act:
(a)  Freedom of Information Act 1982 of Victoria,
(b)  Right to Information Act 2009 of Queensland,
(c)  Freedom of Information Act 1989 of the Australian Capital Territory,
(d)  Freedom of Information Act 1992 of Western Australia,
(e)  Right to Information Act 2009 of Tasmania,
(f)  Freedom of Information Act 1991 of South Australia,
(g)  Information Act of the Northern Territory.
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
11   Bodies declared to be public authorities
For the purposes of clause 2 (2) (b) of Schedule 4 to the Act, each of the following bodies is declared to be a public authority:
(a)  NSW Adult Migrant English Service,
(b)  Australian Music Examinations Board NSW,
(c)  Duke of Edinburgh Award Scheme (NSW State Committee),
(d)  Regional Development Australia.
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
12   Agencies that are part of other agencies
For the purposes of clause 6 of Schedule 4 to the Act, each agency referred to in Schedule 3 to this Regulation (the subsidiary agency) is declared not to be a separate agency but is taken to be part of and included in the agency (the parent agency) specified in that Schedule in respect of the subsidiary agency.
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
13   Records in certain agencies
For the purposes of clause 13 (1) (e) of Schedule 4 to the Act, the following agencies are prescribed:
(a)  Audit Office,
(b)  Ombudsman’s Office.
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
14   Savings and transitional provisions
(1) FOI Act annual reports due for 2010 Section 68 of the FOI Act continues to apply (as if it had not been repealed) to and in respect of any report that would, but for that repeal, have been required to be prepared at any time during 2010.
(2) Publication of information concerning affairs of agencies under FOI Act Despite the repeal of section 14 of the FOI Act, the requirement under that section to publish a statement of the affairs of an agency, or an up-to-date summary of those affairs, that was due by 30 June 2010 is, if that statement or summary was not published on or before that date, extended until 30 July 2010. However, any such statement or summary is not required to be published if the agency adopts its publication guide under section 20 of the Act before 30 July 2010.
(3)  In this clause:
FOI Act means the Freedom of Information Act 1989 as in force immediately before its repeal.
Parts 4 (cll 5–14): Ins 2010 (252), Sch 1 [1].
Schedule 1 Additional open access information—local authorities
(Clause 3)
1   Information about local authority
(1)  Information contained in the current version and the most recent previous version of the following records is prescribed as open access information:
(a)  the model code prescribed under section 440 (1) of the LGA and the code of conduct adopted under section 440 (3) of the LGA,
(b)  code of meeting practice,
(c)  annual report,
(d)  annual financial reports,
(e)  auditor’s report,
(f)  management plan,
(g)  EEO management plan,
(h)  policy concerning the payment of expenses incurred by, and the provision of facilities to, councillors,
(i)  annual reports of bodies exercising functions delegated by the local authority,
(j)  any codes referred to in the LGA.
(2)  Information contained in the following records (whenever created) is prescribed as open access information:
(a)  returns of the interests of councillors, designated persons and delegates,
(b)  agendas and business papers for any meeting of the local authority or any committee of the local authority (but not including business papers for matters considered when part of a meeting is closed to the public),
(c)  minutes of any meeting of the local authority or any committee of the local authority, but restricted (in the case of any part of a meeting that is closed to the public) to the resolutions and recommendations of the meeting,
(d)  Departmental representative reports presented at a meeting of the local authority in accordance with section 433 of the LGA.
(3)  Information contained in the current version of the following records is prescribed as open access information:
(a)  land register,
(b)  register of investments,
(c)  register of delegations,
(d)  register of graffiti removal work kept in accordance with section 13 of the Graffiti Control Act 2008,
(e)  register of current declarations of disclosures of political donations kept in accordance with section 328A of the LGA,
(f)  the register of voting on planning matters kept in accordance with section 375A of the LGA.
2   Plans and policies
Information contained in the current version and the most recent previous version of the following records is prescribed as open access information:
(a)  local policies adopted by the local authority concerning approvals and orders,
(b)  plans of management for community land,
(c)  environmental planning instruments, development control plans and contributions plans made under the Environmental Planning and Assessment Act 1979 applying to land within the local authority’s area.
3   Information about development applications
(1)  Information contained in the following records (whenever created) is prescribed as open access information:
(a)  development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and any associated documents received in relation to a proposed development including the following:
(i)  home warranty insurance documents,
(ii)  construction certificates,
(iii)  occupation certificates,
(iv)  structural certification documents,
(v)  town planner reports,
(vi)  submissions received on development applications,
(vii)  heritage consultant reports,
(viii)  tree inspection consultant reports,
(ix)  acoustics consultant reports,
(x)  land contamination consultant reports,
(b)  records of decisions on development applications (including decisions made on appeal),
(c)  a record that describes the general nature of the documents that the local authority decides are excluded from the operation of this clause by subclause (2).
(2)  This clause does not apply to so much of the information referred to in subclause (1) (a) as consists of:
(a)  the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or
(b)  commercial information, if the information would be likely to prejudice the commercial position of the person who supplied it or to reveal a trade secret.
(3)  A local authority must keep the record referred to in subclause (1) (c).
4   Approvals, orders and other documents
Information contained in the following records (whenever created) is prescribed as open access information:
(a)  applications for approvals under Part 1 of Chapter 7 of the LGA and any associated documents received in relation to such an application,
(b)  applications for approvals under any other Act and any associated documents received in relation to such an application,
(c)  records of approvals granted or refused, any variation from local policies with reasons for the variation, and decisions made on appeals concerning approvals,
(d)  orders given under Part 2 of Chapter 7 of the LGA, and any reasons given under section 136 of the LGA,
(e)  orders given under the authority of any other Act,
(f)  records of building certificates under the Environmental Planning and Assessment Act 1979,
(g)  plans of land proposed to be compulsorily acquired by the local authority,
(h)  compulsory acquisition notices,
(i)  leases and licences for use of public land classified as community land.
Schedule 2 Statistical information about access applications to be included in annual report
(Clause 7)
Table A: Number of applications by type of applicant and outcome*
 
Access granted in full
Access granted in part
Access refused in full
Information not held
Information already available
Refuse to deal with application
Refuse to confirm/deny whether information is held
Application withdrawn
Media
        
Members of Parliament
        
Private sector business
        
Not for profit organisations or community groups
        
Members of the public (application by legal representative)
        
Members of the public (other)
        
* More than one decision can be made in respect of a particular access application. If so, a recording must be made in relation to each such decision. This also applies to Table B.
Table B: Number of applications by type of application and outcome
 
Access granted in full
Access granted in part
Access refused in full
Information not held
Information already available
Refuse to deal with application
Refuse to confirm/deny whether information is held
Application withdrawn
Personal information applications*
        
Access applications (other than personal information applications)
        
Access applications that are partly personal information applications and partly other
        
* A personal information application is an access application for personal information (as defined in clause 4 of Schedule 4 to the Act) about the applicant (the applicant being an individual).
Table C: Invalid applications
Reason for invalidity
No of applications
Application does not comply with formal requirements (section 41 of the Act)
 
Application is for excluded information of the agency (section 43 of the Act)
 
Application contravenes restraint order (section 110 of the Act)
 
  
Total number of invalid applications received
 
Invalid applications that subsequently became valid applications
 
Table D: Conclusive presumption of overriding public interest against disclosure: matters listed in Schedule 1 to Act
 
Number of times consideration used*
Overriding secrecy laws
 
Cabinet information
 
Executive Council information
 
Contempt
 
Legal professional privilege
 
Excluded information
 
Documents affecting law enforcement and public safety
 
Transport safety
 
Adoption
 
Care and protection of children
 
Ministerial code of conduct
 
Aboriginal and environmental heritage
 
* More than one public interest consideration may apply in relation to a particular access application and, if so, each such consideration is to be recorded (but only once per application). This also applies in relation to Table E.
Table E: Other public interest considerations against disclosure: matters listed in table to section 14 of Act
 
Number of occasions when application not successful
Responsible and effective government
 
Law enforcement and security
 
Individual rights, judicial processes and natural justice
 
Business interests of agencies and other persons
 
Environment, culture, economy and general matters
 
Secrecy provisions
 
Exempt documents under interstate Freedom of Information legislation
 
Table F: Timeliness
 
Number of applications
Decided within the statutory timeframe (20 days plus any extensions)
 
Decided after 35 days (by agreement with applicant)
 
Not decided within time (deemed refusal)
 
Total
 
Table G: Number of applications reviewed under Part 5 of the Act (by type of review and outcome)
 
Decision varied
Decision upheld
Total
Internal review
   
Review by Information Commissioner*
   
Internal review following recommendation under section 93 of Act
   
Review by ADT
   
Total
   
* The Information Commissioner does not have the authority to vary decisions, but can make recommendations to the original decision-maker. The data in this case indicates that a recommendation to vary or uphold the original decision has been made by the Information Commissioner.
Table H: Applications for review under Part 5 of the Act (by type of applicant)
 
Number of applications for review
Applications by access applicants
 
Applications by persons to whom information the subject of access application relates (see section 54 of the Act)
 
sch 2: Ins 2010 (252), Sch 1 [2].
Schedule 3 Agencies declared to be part of other agencies
(Clause 12)
Subsidiary agency
Parent agency
Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal
Department of Human Services
Administrative Decisions Tribunal
Department of Justice and Attorney General
Advisory committee or consultation forum established under the Protection of the Environment Administration Act 1991
Department of Environment, Climate Change and Water
Advisory committee established under the Food Act 2003
Office of the NSW Food Authority
Advisory committee established under the National Parks and Wildlife Act 1974
Department of Environment, Climate Change and Water
Advisory committee established under the Noxious Weeds Act 1993
Department of Industry and Investment
Agricultural industry services committee constituted by the Agricultural Industry Services Act 1998
Department of Industry and Investment
Animal Research Review Panel
Department of Industry and Investment
Anti-Discrimination Board
Department of Justice and Attorney General
Australian Music Examinations Board NSW
Office of the Board of Studies
Biological Control Authority
Department of Industry and Investment
Biological Diversity Advisory Council
Department of Environment, Climate Change and Water
Board of the Environment Protection Authority
Department of Environment, Climate Change and Water
Board of Surveying and Spatial Information
Land and Property Management Authority
Board of Vocational Education and Training
Department of Education and Training
Bookmakers Revision Committee
Communities NSW
Botany Cemetery Trust
Land and Property Management Authority
Building and Construction Industry Long Service Payments Committee
Building and Construction Industry Long Service Payments Corporation
Bush Fire Co-ordinating Committee
Department of Rural Fire Service
Casino, Liquor and Gaming Control Authority
Communities NSW
Charity Referee appointed under the Dormant Funds Act 1942
Department of Justice and Attorney General
Children’s Court
Department of Justice and Attorney General
Children’s Court Advisory Committee
Department of Justice and Attorney General
Children’s Court Clinic
Department of Justice and Attorney General
Chipping Norton Lake Authority
Land and Property Management Authority
Chiropractic Care Assessment Committee
Department of Health
Chiropractors Registration Board
Department of Health
Chiropractors Tribunal
Department of Health
Coal Competence Board
Department of Industry and Investment
Combat Sports Authority
Communities NSW
Commissioner of the Land and Environment Court
Department of Justice and Attorney General
Committee of inquiry established under the Energy and Utilities Administration Act 1987
Department of Industry and Investment
Committee of Review appointed under the Health Services Act 1997
Department of Health
Consumer, Trader and Tenancy Tribunal
Department of Services, Technology and Administration
Contract of Carriage Tribunal
Department of Justice and Attorney General
Co-operatives Council constituted under the Co-operatives Act 1992
Department of Services, Technology and Administration
Costs assessor appointed under the Legal Profession Act 2004
Department of Justice and Attorney General
Dental Technicians Registration Board
Department of Health
Director of Equal Opportunity in Public Employment
Department of Premier and Cabinet
Disability Council under the Community Welfare Act 1987
Department of Human Services
District Court
Department of Justice and Attorney General
Drug Court
Department of Justice and Attorney General
Duke of Edinburgh Award Scheme (NSW State Committee)
Communities NSW
Dust Diseases Tribunal
Department of Justice and Attorney General
Electrical Equipment Safety Advisory Committee
Department of Services, Technology and Administration
Energy Corporation
Department of Industry and Investment
Environmental Trust
Department of Environment, Climate Change and Water
Exhibited Animals Advisory Committee
Department of Industry and Investment
Fair Trading Advisory Council
Department of Services, Technology and Administration
Farrer Memorial Trust
Department of Industry and Investment
Festival Development Corporation
Land and Property Management Authority
Financial Counselling Trust Fund
Department of Services, Technology and Administration
Fluoridation of Public Water Supplies Advisory Committee
Department of Health
Geographical Names Board
Land and Property Management Authority
Guardianship Tribunal
Department of Human Services
Hardship Review Board constituted under the Taxation Administration Act 1996
The Treasury
Hazardous Chemicals Advisory Committee
Department of Environment, Climate Change and Water
Health Administration Corporation
Department of Health
Heritage Council
Department of Planning
Home Building Advisory Council
Department of Services, Technology and Administration
Hunter Development Corporation
Land and Property Management Authority
Industrial Committee established under the Industrial Relations Act 1996
Department of Justice and Attorney General
Industrial Registrar
Department of Justice and Attorney General
Industrial Relations Commission
Department of Justice and Attorney General
Lake Illawarra Authority
Land and Property Management Authority
Land and Environment Court
Department of Justice and Attorney General
Land and Housing Corporation
Department of Human Services
Law Reform Commission
Department of Justice and Attorney General
Legal Profession Admission Board
Department of Justice and Attorney General
Legal Services Commissioner
Department of Justice and Attorney General
Library Council
Communities NSW
Local Court
Department of Justice and Attorney General
Local Government Boundaries Commission
Department of Premier and Cabinet
Local Government Grants Commission
Department of Premier and Cabinet
Local Government Remuneration Tribunal
Department of Premier and Cabinet
Local Government Pecuniary Interest and Disciplinary Tribunal
Department of Premier and Cabinet
Local land board under the Crown Lands Act 1989
Land and Property Management Authority
Medical Committee constituted under the Poisons and Therapeutic Goods Act 1966
Department of Health
Medical Services Committee established under the Health Administration Act 1982
Department of Health
Mental Health Review Tribunal
Department of Health
Metalliferous Mines and Extractive Industries Competence Board
Department of Industry and Investment
Mine Subsidence Board
Department of Industry and Investment
Ministerial Corporation for Industry
Department of Industry and Investment
Ministerial Review Panel appointed under section 35 of the Heritage Act 1977
Department of Planning
Motor Vehicle Industry Advisory Council
Department of Services, Technology and Administration
National Parks and Wildlife Advisory Council
Department of Environment, Climate Change and Water
New South Wales Council on Environmental Education
Department of Environment, Climate Change and Water
New South Wales Innovation Council
Department of Industry and Investment
Non-Indigenous Animals Advisory Committee
Department of Industry and Investment
Nurses and Midwives Board
Department of Health
Nurses and Midwives Tribunal
Department of Health
Optical Dispensers Licensing Board
Department of Health
Optometrists Registration Board
Department of Health
Osteopaths Registration Board
Department of Health
Osteopaths Tribunal
Department of Health
Parliamentary Remuneration Tribunal
Department of Premier and Cabinet
Physiotherapists Registration Board
Department of Health
Physiotherapy Standards Advisory Committee
Department of Health
Planning administrator appointed under section 118 of the Environmental Planning and Assessment Act 1979
The local authority that the planning administrator was appointed to exercise functions of
Planning assessment panel appointed under section 118 of the Environmental Planning and Assessment Act 1979
The local authority that the planning assessment panel was appointed to exercise functions of
Podiatrists Registration Board
Department of Health
Poisons Advisory Committee
Department of Health
Pool Fencing Advisory Committee
Department of Premier and Cabinet
Privacy Commissioner
Department of Justice and Attorney General
Products Safety Committee
Department of Services, Technology and Administration
Professional Standards Committee under the Nurses and Midwives Act 1991
Department of Health
Professional Standards Council
Department of Justice and Attorney General
Property Services Advisory Council
Department of Services, Technology and Administration
Psychological Care Assessment Committee
Department of Health
Psychologists Registration Board
Department of Health
Radiation Advisory Council
Department of Environment, Climate Change and Water
Department of Human Services
Reserve trust established under the Crown Lands Act 1989
Land and Property Management Authority
Review Panel established under the Gas Supply Act 1996
Department of Industry and Investment
Riverina Citrus
Department of Industry and Investment
Roads and Traffic Advisory Council
Roads and Traffic Authority
Rural Assistance Authority
Department of Industry and Investment
Rural Fire Service Advisory Council
Department of Rural Fire Service
Sentencing Council
Department of Justice and Attorney General
Serious Offenders Review Council
Department of Justice and Attorney General
Small Business Development Corporation
Department of Industry and Investment
Sporting Injuries Committee
Compensation Authorities Staff Division
State Aviation Working Group
Transport NSW
State Debt Recovery Office
The Treasury
State Parole Authority
Department of Justice and Attorney General
Statutory and Other Offices Remuneration Tribunal
Department of Premier and Cabinet
Supreme Court
Department of Justice and Attorney General
The Stewart House Preventorium, Curl Curl
Department of Education and Training
Teacher Housing Authority
Department of Services, Technology and Administration Training
Trustees of Anzac Memorial Building
Department of Premier and Cabinet
Trust established in respect of a common under the Commons Management Act 1989
Land and Property Management Authority
Trustees of the Parliamentary Contributory Superannuation Fund
The Treasury
Trustees of the West Scholarship Scheme
Department of Education and Training
Victims Advisory Board
Department of Justice and Attorney General
Victims Compensation Fund Corporation
Department of Justice and Attorney General
Victims Compensation Tribunal
Department of Justice and Attorney General
Vocational Education and Training Accreditation Board
Department of Education and Training
Vocational Training Tribunal
Department of Education and Training
Wagga Wagga Interim Joint Planning Panel constituted under section 23G of the Environmental Planning and Assessment Act 1979
Wagga Wagga City Council
Wild Dog Destruction Board
Land and Property Management Authority
Workers Compensation and Workplace Occupational Health and Safety Council
Compensation Authorities Staff Division
Workers Compensation Commission
Compensation Authorities Staff Division
Workers Compensation (Dust Diseases) Board
Compensation Authorities Staff Division
sch 3: Ins 2010 (252), Sch 1 [2].