Fact Sheet
November 2019
Your review rights under the GIPA Act
You can apply for access to information and NSW
pay an advance deposit within the time required
government agencies will make a decision under
for payment
the
Government Information (Public Access) Act
m) a decision to include information in a disclosure
2009 (GIPA). If you are dissatisfied with the decision
log despite an objection by the authorised objector
you can request a review.
(or a decision that the authorised objector was not
entitled to object).
What decisions can be reviewed?
You generally have three review options.
You have the right to request a review of certain
1. Internal review
decisions1 made by government agencies about
the release of information under the GIPA Act:
You have
20 working days2 after the notice of a decision
a) a decision that an application is not a valid
has been given to you, to ask for an internal review by
access application
the agency that made the decision. An agency may
accept an application for internal review out of time, but is
b) a decision to transfer an access application to
not obliged to do so.3
another agency, as an agency-initiated transfer
If a Minister or their personal staff, or the principal officer
c) a decision to refuse to deal with an access
of an agency made the decision, you cannot ask for an
application (including such a decision that is
internal review4, but you can ask for an external review
deemed to have been made)
(see below).
d) a decision to provide access or to refuse to
Similarly, if the access applicant or one of any number of
provide access to information in response to
third parties has sought an internal review of the decision
an access application
that you are not satisfied with, you are not entitled to
e) a decision that government information is not
seek an internal review of the decision.5 You are however
held by the agency
able to seek an external review.
f) a decision that information applied for is already
The review must be carried out by an officer who is
available to the applicant
no less senior than the person who made the original
decision.6 The review decision must be made as if it
g) a decision to refuse to confirm or deny that
was a fresh application.7
information is held by the agency
There is a $40 fee for an internal review application.8 An
h) a decision to defer the provision of access to
agency may choose to waive the internal review fee.9
information in response to an access application
No fee applies for an internal review if the decision is a
i)
a decision to provide access to information in
‘deemed refusal’ because the agency did not process
a particular way in response to an access application
your application in time10 or the internal review is
(or a decision not to provide access
conducted because the Information Commissioner has
in the way requested by the applicant)
recommended the agency reconsider its decision under
j)
a decision to impose a processing charge or
to require an advance deposit,
k) a decision to refuse a reduction in a processing
2 Section 83(1) GIPA Act
charge
3 Section 83(2) GIPA Act
4
l)
a decision to refuse to deal further with an access
Section 82(2) GIPA Act
application because an applicant has failed to
5 Section 88 GIPA Act
6 Section 84(2) GIPA Act
7 Section 84(1) GIPA Act
8 Section 85(1) GIPA Act
9 Section 127 GIPA Act
1 Section 80 GIPA Act
10 Section 85(2) GIPA Act
Information and Privacy Commission NSW
1
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Your review rights under the GIPA Act
Fact Sheet
section 93 of the GIPA Act.11 In this case, you cannot be
Calculating time then commences on the first working
charged a review fee.
day after the notice is posted. 20
The agency must acknowledge your internal review
• it was not necessary for the applicant to have read or
application within
five working days of receiving it.12 The
been aware of the contents of a decision for it to
agency must decide the internal review within
15 working
have been 'given to' them (at [23]).
days13 (this can be extended by
10 working days if the
agency has to consult with a third party not previously
2. External review by the Information
consulted14, or by agreement with you15).
Commissioner
Note: You cannot ask for internal review of a decision
that is being or has already been reviewed by the
If you disagree with any of the decisions listed above,
Information Commissioner16 or the NSW Civil and
you can ask for an external review by the Information
Administrative Tribunal (NCAT)17. This does not apply if
Commissioner.
the internal review was recommended by the Information
Commissioner under section 93.
If you are the person applying for access to information,
What is a working day?
you do
not have to have an internal review of the
decision before asking the Information Commissioner
A working day is defined as any day that is not a
to review it.21
Saturday, Sunday, public holiday or any day during the
period declared by the Premier as the Christmas
However, if you are not the access applicant, you
must
closedown period.18
seek an internal review before applying for review by the
Information Commissioner, unless an internal review is
What does notice ‘given to’ mean?
not available to you22 (see Option 1 above; internal
review is not available if a Minister or their personal staff,
In the decision of
Choi v University of Technology
or the principal officer of an agency made the decision, if
Sydney [2017] NSWCATAD 198, the NCAT considered
the decision has already been internally reviewed by the
when notice of a decision could be considered to have
agency or if the decision is being or has been reviewed
been 'given to' an access applicant, for the purposes of
by NCAT).
calculating the time period to seek a review.
You have
40 working days23 from being given
NCAT gave the following guidance, in the circumstances
the decision to ask for a review by the Information
where the applicant was emailed a notice of decision as
Commissioner.
an attachment:
There is no provision in the GIPA Act that permits the
• the words 'given to' have their ordinary meaning of
Information Commissioner to accept applications out of
'delivered' or 'handed over' (at [23], citing
time.
Melville v Townsville City Council [2004] 1 Qd R 530
at [27])
On reviewing the decision, the Information Commissioner
can make recommendations about
• in the case of notification by email, notice was given
the decision to the agency. This may include a
when the decision was emailed to an applicant (at
recommendation that the agency reconsider and make a
[23])
new decision on the access application.24 This enables
the agency to make a new decision, whether or not the
In the case of notification by post, notice is given at the
decision has already been the subject of internal review
time when the notice is posted by the Agency. 19Once the
by the agency.25
posting of the notice to the postal address is completed,
notice is considered to have been given by the agency.
The Information Commissioner has 40 working days from
the day on which all necessary information relating to a
review application has been received to complete the
review of a decision and make any recommendations.26
11 Section 93(6) GIPA Act
12 Section 83(3) GIPA Act
13 Section 86(1) GIPA Act
14 Section 86(2) GIPA Act; IPC Fact Shee
t Why consult third
parties; Guideline 5 Consultation on the public interest
20
ANQ v Depaftment of Attorney General and Justice, Corective Services
considerations
{[2012] NSWADT 271 at [8]- [11]
15 Section 86(4) GIPA Act
21 Section 89(2)(a) GIPA Act
16 Section 82(4) GIPA Act
22 Section 89(2)(b) GIPA Act
17 Section 82(5) GIPA Act
23 Section 90 GIPA Act
18 Clause 1, Schedule 4 to the GIPA Act
24 Section 93(1) GIPA Act
19 Section 126 (2) GIPA Act
25 Section 93(2) GIPA Act
26 Section 92A(1) GIPA Act
Information and Privacy Commission NSW
2
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Your review rights under the GIPA Act
Fact Sheet
The Information Commissioner and applicant can agree
For more information
to an extension of the timeframe. The Information
Commissioner will notify the agency of any extension.27
Contact the Information and Privacy Commission NSW
(IPC):
If the Information Commissioner does not complete the
review within the 40 working day period, the Information
Freecall:
1800 472 679
Commissioner is deemed to have made no
Email:
xxxxxxx@xxx.xxx.xxx.xx
recommendations to the agency.28 The effect of this is
Website:
www.ipc.nsw.gov.au
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 Option 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.
27 Section 92A(2) GIPA Act
28 Section 92A(3) GIPA Act
29 Section 92A(4) GIPA Act
30 Section 98 GIPA Act
31 Section 100(2) GIPA Act
32 Section 100 GIPA Act
33 Section 101(1) GIPA Act
34 Section 101(2) GIPA Act
Information and Privacy Commission NSW
3
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