Fact Sheet
Updated June 2024
Your review rights under the GIPA Act
You can apply for access to information and NSW
l)
a decision to refuse to deal further with an access
government agencies will make a decision under
application because an applicant has failed to
the
Government Information (Public Access) Act
pay an advance deposit within the time required
2009 (GIPA). If you are dissatisfied with the
for payment
decision, you can request a review.
m) a decision to include information in a disclosure
log despite an objection by the authorised objector
What decisions can be reviewed?
(or a decision that the authorised objector was not
entitled to object).
You have the right to request a review of certain
decisions1 made by government agencies about the
You generally have three review options.
release of information under the GIPA Act:
1. Internal review
a) a decision that an application is not a valid access
application
You have
20 working days2 after the notice of a decision
has been given to you, to ask for an internal review by
b) a decision to transfer an access application to
the agency that made the decision. An agency may
another agency, as an agency-initiated transfer
accept an application for internal review out of time, but is
c) a decision to refuse to deal with an access
not obliged to do so.3
application (including such a decision that is deemed
If a Minister or their personal staff, or the principal officer
to have been made)
of an agency made the decision, you cannot ask for an
d) a decision to provide access or to refuse to provide
internal review4, but you can ask for an external review
access to information in response to an access
(see below).
application
Similarly, if the access applicant or one of any number of
e) a decision that government information is not held by
third parties has sought an internal review of the decision
the agency
that you are not satisfied with, you are not entitled to
seek an internal review of the decision.5 You are however
f) a decision that information applied for is already
able to seek an external review (see section 2 of this Fact
available to the applicant
Sheet).
g) a decision to refuse to confirm or deny that
The review must be carried out by an officer who is
information is held by the agency
no less senior than the person who made the original
h) a decision to defer the provision of access to
decision.6 The review decision must be made as if it
information in response to an access application
was a fresh application.7
i)
a decision to provide access to information in a
There is a $40 fee for an internal review application.8 An
particular way in response to an access application
agency may choose to waive the internal review fee.9
(or a decision not to provide access in the way
No fee applies for an internal review if the decision is a
requested by the applicant)
‘deemed refusal’ because the agency did not process
your application in time10 or the internal review is
j)
a decision to impose a processing charge or to
conducted because the Information Commissioner has
require an advance deposit,
recommended the agency reconsider its decision under
k) a decision to refuse a reduction in a processing
charge
1 Section 80 GIPA Act
6 Section 84(2) GIPA Act
2 Section 83(1) GIPA Act
7 Section 84(1) GIPA Act
3 Section 83(2) GIPA Act
8 Section 85(1) GIPA Act
4 Section 82(2) GIPA Act
9 Section 127 GIPA Act
5 Section 88 GIPA Act
10 Section 85(2) GIPA Act
Information and Privacy Commission NSW
1
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
Your review rights under the GIPA Act
Fact Sheet
section 93 of the GIPA Act.11 In this case, you cannot be
• it was not necessary for the applicant to have read or
charged a review fee.
been aware of the contents of a decision for it to
have been 'given to' them (at [23]).
The agency must acknowledge your internal review
application within
five working days of receiving it.12 The
2. External review by the Information
agency must decide the internal review within
15 working
days13 (this can be extended by
10 working days if the
Commissioner
agency has to consult with a third party not previously
If you disagree with any of the decisions listed above,
consulted14, or by agreement with you15).
you can ask for an external review by the Information
Note: You cannot ask for internal review of a decision
Commissioner, except where the decision was made by
that is being or has already been reviewed by the
the Information and Privacy Commission. In this case an
Information Commissioner16 or the NSW Civil and
external review is only available to NCAT.
Administrative Tribunal (NCAT)17. This does not apply if
If you are the person applying for access to information,
the internal review was recommended by the Information
you do
not have to have an internal review of the
Commissioner under section 93.
decision before asking the Information Commissioner to
What is a working day?
review it.21
A working day is defined as any day that is not a
However, if you are not the access applicant, you
must
Saturday, Sunday, public holiday or any day during the
seek an internal review before applying for review by the
period declared by the Premier as the Christmas
Information Commissioner, unless an internal review is
closedown period.18
not available to you22 (see section 1 of this Fact Sheet;
internal review is not available if a Minister or their
What does notice ‘given to’ mean?
personal staff, or the principal officer of an agency made
In the decision of
Choi v University of Technology
the decision, if the decision has already been internally
Sydney [2017] NSWCATAD 198, the NCAT considered
reviewed by the agency or if the decision is being or has
when notice of a decision could be considered to have
been reviewed by NCAT).
been 'given to' an access applicant, for the purposes of
You have
40 working days23 from being given the
calculating the time period to seek a review.
decision to ask for a review by the Information
NCAT gave the following guidance, in the circumstances
Commissioner.
where the applicant was emailed a notice of decision as
There is no provision in the GIPA Act that permits the
an attachment:
Information Commissioner to accept applications out of
•
time.
the words 'given to' have their ordinary meaning of
'delivered' or 'handed over' (at [23], citing
On reviewing the decision, the Information Commissioner
Melville v Townsville City Council [2004] 1 Qd R 530
can make recommendations about the decision to the
at [27])
agency. This may include a recommendation that the
•
agency reconsider and make a new decision on the
in the case of notification by email, notice was given
access application.24 This enables the agency to make a
when the decision was emailed to an applicant (at
new decision, whether or not the decision has already
[23])
been the subject of internal review by the agency.25
In the case of notification by post, notice is given at the
The Information Commissioner has 40 working days from
time when the notice is posted by the Agency. 19Once the
the day on which all necessary information relating to a
posting of the notice to the postal address is completed,
review application has been received to complete the
notice is considered to have been given by the agency.
review of a decision and make any recommendations.26
Calculating time then commences on the first working
day after the notice is posted. 20
The Information Commissioner and applicant can agree
to an extension of the timeframe. The Information
Commissioner will notify the agency of any extension.27
11 Section 93(6) GIPA Act
19 Section 126 (2) GIPA Act
12 Section 83(3) GIPA Act
13 Section 86(1) GIPA Act
20
ANQ v Department of Attorney General and Justice,
14 Section 86(2) GIPA Act; IPC Fact She
et Why consult third
Corrective Services {[2012] NSWADT 271 at [8]- [11]
parties; Guideline 5 Consultation on the public interest
21 Section 89(2)(a) GIPA Act
considerations
22 Section 89(2)(b) GIPA Act
15 Section 86(4) GIPA Act
23 Section 90 GIPA Act
16 Section 82(4) GIPA Act
24 Section 93(1) GIPA Act
17 Section 82(5) GIPA Act
25 Section 93(2) GIPA Act
18 Clause 1, Schedule 4 to the GIPA Act
26 Section 92A(1) GIPA Act
27 Section 92A(2) GIPA Act
Information and Privacy Commission NSW
2
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Your review rights under the GIPA Act
Fact Sheet
If the Information Commissioner does not complete the
review within the 40 working day period, the Information
Commissioner is deemed to have made no
recommendations to the agency.28 The effect of this is
that the original decision stands and the only option
available to the applicant is to seek a review by NCAT.
The applicant must be notified when the review is
completed and advised of any recommendations made
by the Information Commissioner.29
Note: You cannot ask the Information Commissioner to
review a decision that is being or has already been
reviewed by NCAT30.
3. External review by the NSW Civil
and Administrative Tribunal (NCAT)
If you disagree with any of the decisions listed above,
you can ask for a review by NCAT.
If you are the person applying for access to information,
you do
not have to have an internal review of the
decision before asking the NCAT to review it. However, if
you are not the original access applicant (i.e. you are a
third party), you must seek an internal review before
applying for review by NCAT, unless an internal review is
not available to you31 (see Part 1 above; internal review
is not available if a Minister or their personal staff, or the
principal officer of an agency made the decision, if the
decision has already been internally reviewed by the
agency or if the decision is being or has been reviewed
by the Information Commissioner).
You do not have to have the decision reviewed by the
Information Commissioner before applying for review by
NCAT.32
You have
40 working days33 from being given the
decision to apply to NCAT for review. However, if you
have applied for review by the Information
Commissioner, you have
20 working days34 from being
notified of the Information Commission’s review outcome
to apply to NCAT. Further information can be found on
the NCAT website: https://www.ncat.nsw.gov.au
For more information
Contact the Information and Privacy Commission NSW
(IPC):
Freecall:
1800 472 679
Email:
xxxxxxx@xxx.xxx.xxx.xx
Website:
www.ipc.nsw.gov.au
28 Section 92A(3) GIPA Act
32 Section 100 GIPA Act
29 Section 92A(4) GIPA Act
33 Section 101(1) GIPA Act
30 Section 98 GIPA Act
34 Section 101(2) GIPA Act
31 Section 100(2) GIPA Act
Information and Privacy Commission NSW
3
www.ipc.nsw.gov.au | 1800 IPC NSW (1800 472 679)
