Part 1 Preliminary
1 Name of Regulation
This Regulation is the Government Information (Public Access) Regulation 2018.
2 Commencement
This Regulation commences on the day on which it is published on the NSW legislation website.Note—This Regulation repeals and replaces the Government Information (Public Access) Regulation 2009, which would otherwise be repealed on 1 September 2018 by section 10 (2) of the Subordinate Legislation Act 1989.
3 Definitions
(1) In this Regulation—LGA means the Local Government Act 1993.the Act means the Government Information (Public Access) Act 2009.Note—The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.(2) Notes included in this Regulation do not form part of this Regulation.
Part 2 Open access information of local authorities
4 Additional open access information
(1) The government information listed in Schedule 1 that is held by a local authority is prescribed as open access information of the local authority.(2) An advertising compliance certificate issued by the head of a Government agency under the Government Advertising Act 2011 is prescribed as open access information of that agency.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.
5 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
6 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) the following details concerning overseas travel undertaken by the Minister—(i) the portfolio to which the travel relates,(ii) the purpose and anticipated benefits to New South Wales of the travel,(iii) the destinations visited,(iv) the dates of travel,(v) the number of persons who accompanied the Minister (including Ministerial advisors, agency staff and family members),(vi) the total cost of airfares,(vii) the total cost of accommodation,(viii) the total cost of other travel expenses (including travel allowances).(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),(e) any standard, code or other publication that has been applied, adopted or incorporated by reference in any Act or statutory rule that is administered by the Department.(3) The reference in subclause (2) to a Government Department includes a reference to—(a) a Public Service agency, within the meaning of the Government Sector Employment Act 2013, except a Staff Agency listed in that Act, Schedule 1, and(b) the Independent Commission Against Corruption, and(c) the NSW Police Force, and(d) the Judicial Commission of New South Wales.(4) Relevant entities 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 relevant entity—(a) the total number and total value of properties disposed of by the relevant entity during the previous financial year,(b) the relevant entity’s guarantee of service (if any).(5) In this clause—relevant entity means each of the following—(a) a statutory body representing the Crown, including a NSW Government agency to which the Interpretation Act 1987, section 13A applies,(b) a Council, within the meaning of the Health Practitioner Regulation National Law (NSW), Part 5A,(c) an entity with money held in an account within the Special Deposits Account, within the meaning of the Government Sector Finance Act 2018, except a Government Department covered by subclause (3).cl 6: Am 2021 (359), Sch 1[1]–[5].
7 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, andextended by the number of working days occurring in that school holiday period after the application is received.(b) if any part of the decision period occurs when the school is closed for school holidays,
8 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—(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.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).
9 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.
10 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).
Part 4 Miscellaneous
11 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) Freedom of Information Act 1991 of South Australia,(c) Freedom of Information Act 1992 of Western Australia,(d) Freedom of Information Act 2016 of the Australian Capital Territory,(e) Information Act of the Northern Territory,(f) Right to Information Act 2009 of Queensland,(g) Right to Information Act 2009 of Tasmania.
12 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) Australian Music Examinations Board NSW,(b) Duke of Edinburgh Award Scheme (NSW State Committee),(c) NSW Adult Migrant English Service,(d) Regional Development Australia.
13 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.
14 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.
15 Repeal and savings
(1) The Government Information (Public Access) Regulation 2009 is repealed.(2) Any act, matter or thing that, immediately before the repeal of the Government Information (Public Access) Regulation 2009, had effect under that Regulation is taken to have effect under this Regulation.
Schedule 1 Additional open access information—local authorities
(Clause 4)
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) reports by the Chief Executive of the Office of Local Government 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 made on or after 1 July 2010 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) However, 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, or(c) development applications made before 1 July 2010 and any associated documents received (whether before, on or after that date) in relation to the application.(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,(j) performance improvement orders issued to a council under Part 6 of Chapter 13 of the LGA.
Schedule 2 Statistical information about access applications to be included in annual report
(Clause 8)
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 | |
Information about complaints to Judicial Commission | |
Information about authorised transactions under Electricity Network Assets (Authorised Transactions) Act 2015 | |
Information about authorised transaction under Land and Property Information NSW (Authorised Transaction) Act 2016 | |
* 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 NCAT | |||
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) | |
Table I: Applications transferred to other agencies under Division 2 of Part 4 of the Act (by type of transfer) | |
Number of applications transferred | |
Agency-initiated transfers | |
Applicant-initiated transfers | |
Schedule 3 Agencies declared to be part of other agencies
(Clause 13)
Subsidiary agency | Parent agency |
Aboriginal and Torres Strait Islander Health Practice Council of New South Wales | Ministry of Health |
Advisory committee established under the Food Act 2003 | Department of Industry |
Advisory committee established under the National Parks and Wildlife Act 1974 | Office of Environment and Heritage |
Advisory committee established under the Protection of the Environment Administration Act 1991 | Office of Environment and Heritage |
Agricultural industry services committee constituted by the Agricultural Industry Services Act 1998 | Department of Industry |
Agricultural Scientific Collections Trust | Department of Industry |
Animal Research Review Panel | Department of Industry |
Anti-Discrimination Board | Department of Justice |
Australian Music Examinations Board NSW | NSW Education Standards Authority Staff Agency |
Belgenny Farm Agricultural Heritage Centre Trust | Department of Industry |
Biodiversity Conservation Trust of New South Wales | Office of Environment and Heritage |
Board of Surveying and Spatial Information | Department of Customer Service |
Board of the Environment Protection Authority | Environment Protection Authority |
Border Fence Maintenance Board | Department of Industry |
Botany Cemetery Trust | Department of Industry |
Building and Construction Industry Long Service Payments Committee | Treasury |
Building Insurers’ Guarantee Corporation | NSW Self Insurance Corporation |
Bush Fire Co-ordinating Committee | Office of the NSW Rural Fire Service |
Cape Byron State Conservation Area Trust | Office of Environment and Heritage |
Carers Advisory Council | Department of Family and Community Services |
Central Coast Regional Development Corporation | Department of Planning and Environment |
Child Death Review Team | Office of the Ombudsman |
Children’s Court | Department of Justice |
Children’s Court Advisory Committee | Department of Justice |
Children’s Court Clinic | Department of Justice |
Chinese Medicine Council of New South Wales | Ministry of Health |
Chiropractic Council of New South Wales | Ministry of Health |
Civil and Administrative Tribunal | Department of Justice |
Combat Sports Authority | Office of Sport |
Commissioner of the Land and Environment Court | Department of Justice |
Committee of inquiry established under the Energy and Utilities Administration Act 1987 | Department of Industry |
Committee of Review appointed under the Health Services Act 1997 | Ministry of Health |
Contract of Carriage Tribunal | Department of Justice |
Coroner (including the State Coroner and Deputy State Coroner) | Department of Justice |
Costs assessor appointed under the Legal Profession Uniform Law Application Act 2014 | Department of Justice |
Crown Solicitor’s Office | Department of Justice |
Dental Council of New South Wales | Ministry of Health |
Disability Council | Department of Family and Community Services |
District Court | Department of Justice |
Drug Court | Department of Justice |
Duke of Edinburgh Award Scheme (NSW State Committee) | Department of Education |
Dumaresq-Barwon Border Rivers Commission | Department of Industry |
Dust Diseases Tribunal | Department of Justice |
Energy Corporation | Department of Industry |
Environmental Trust | Office of Environment and Heritage |
Exhibited Animals Advisory Committee | Department of Industry |
Financial Counselling Trust Fund | Department of Customer Service |
Fluoridation of Public Water Supplies Advisory Committee | Ministry of Health |
Geographical Names Board | Department of Customer Service |
Hardship Review Board | Department of Customer Service |
Health Administration Corporation | Ministry of Health |
Heritage Council of New South Wales | Office of Environment and Heritage |
Hunter and Central Coast Regional Planning Panel | Department of Planning and Environment |
Hunter Development Corporation | Department of Planning and Environment |
Hunter River Salinity Trading Scheme | Environment Protection Authority |
Independent Liquor and Gaming Authority | Department of Customer Service |
Industrial Committee established under the Industrial Relations Act 1996 | Department of Justice |
Industrial Registrar | Department of Justice |
Industrial Relations Commission | Department of Justice |
Land and Environment Court | Department of Justice |
Law Reform Commission | Department of Justice |
Legal Profession Admission Board | Department of Justice |
Legal Services Commissioner | Department of Justice |
Liability Management Ministerial Corporation | Treasury |
Library Council of New South Wales | Department of Planning and Environment |
Local Court | Department of Justice |
Local Government Boundaries Commission | Office of Local Government |
Local Government Grants Commission | Office of Local Government |
Local Government Remuneration Tribunal | Public Service Commission |
Long Service Corporation | Treasury |
Medical Committee constituted under the Poisons and Therapeutic Goods Act 1966 | Ministry of Health |
Medical Radiation Practice Council of New South Wales | Ministry of Health |
Medical Services Committee established under the Health Administration Act 1982 | Ministry of Health |
Mental Health Review Tribunal | Ministry of Health |
Mining and Petroleum Competence Board | Department of Planning and Environment |
National Parks and Wildlife Advisory Council | Office of Environment and Heritage |
New South Wales Biological Control Authority | Department of Industry |
New South Wales Innovation and Productivity Council | Department of Industry |
New South Wales Land and Housing Corporation | Department of Family and Community Services |
New South Wales Rural Assistance Authority | Department of Industry |
New South Wales Sentencing Council | Department of Justice |
Northern Regional Planning Panel | Department of Planning and Environment |
NSW Adult Migrant English Service | Department of Education |
NSW Coastal Council | Office of Environment and Heritage |
NSW Food Authority | Department of Industry |
NSW Procurement Board | Treasury |
NSW Self Insurance Corporation | Treasury |
NSW Skills Board | Department of Industry |
NSW Telco Authority | Department of Customer Service |
Nursing and Midwifery Council of New South Wales | Ministry of Health |
Occupational Therapy Council of New South Wales | Ministry of Health |
Optometry Council of New South Wales | Ministry of Health |
Osteopathy Council of New South Wales | Ministry of Health |
Paramedicine Council of New South Wales | Ministry of Health |
Parliamentary Remuneration Tribunal | Public Service Commission |
Parramatta Park Trust | Office of Environment and Heritage |
Personal Injury Commission | Department of Customer Service |
Physiotherapy Council of New South Wales | Ministry of Health |
Planning administrator or regional panel appointed under section 9.6 of the Environmental Planning and Assessment Act 1979 | The local authority whose functions the planning administrator or regional panel was appointed to exercise |
Podiatry Council of New South Wales | Ministry of Health |
Poisons Advisory Committee | Ministry of Health |
Professional Standards Committee for nurses and midwives | Ministry of Health |
Professional Standards Council | Department of Customer Service |
Property NSW | Department of Planning, Industry and Environment |
Psychology Council of New South Wales | Ministry of Health |
Public Defender (including the Senior Public Defender and Deputy Senior Public Defenders) | Department of Justice |
Public Guardian | NSW Trustee and Guardian |
Radiation Advisory Council | Environment Protection Authority |
Registrar under the Aboriginal Land Rights Act 1983 | Department of Education |
Rental Bond Board | Department of Customer Service |
Review panel under the Gas Supply Act 1996 | Department of Industry |
Rural Fire Service Advisory Council | Office of the NSW Rural Fire Service |
Serious Offenders Review Council | Department of Justice |
Small Business Commissioner | Department of Industry |
Southern Regional Planning Panel | Department of Planning and Environment |
State Aviation Working Group | Department of Transport |
State Parole Authority | Department of Justice |
Statutory and Other Offices Remuneration Tribunal | Public Service Commission |
Stewart House Preventorium | Department of Education |
Supreme Court | Department of Justice |
Sydney Eastern City Planning Panel | Department of Planning and Environment |
Sydney West City Planning Panel | Department of Planning and Environment |
Teacher Housing Authority of New South Wales | Department of Planning, Industry and Environment |
Trust established in respect of a common under the Commons Management Act 1989 | Department of Industry |
Trustees of the Anzac Memorial Building | Department of Justice |
Trustees of the Farrer Memorial Research Scholarship Fund | Department of Industry |
Trustees of the Parliamentary Contributory Superannuation Fund | Treasury |
Victims Advisory Board | Department of Justice |
Waste Assets Management Corporation | Department of Planning, Industry and Environment |
Western Regional Planning Panel | Department of Planning and Environment |
Workers Compensation (Dust Diseases) Authority | Treasury |
sch 3: Am 2018 No 63, Sch 3.5; 2018 No 65, Sch 6.2; 2020 No 18, Sch 6.4; 2020 No 30, Sch 3.17; 2022 (580), sec 3.