- Roughly five years on from significant government reforms to the GIPA and FOI Acts, we are presented with a timely opportunity for review.
- Are the public interest objects of ‘Increasing public participation in Government processes’ and ‘increasing scrutiny, discussion, comment and review of [Government]’ being achieved?
- This article summarises the legislation and analyses data relating to reviews and agency compliance.
- The results suggest high levels of compliance in both jurisdictions.
In 2009 and 2010, the NSW and Commonwealth governments enacted significant freedom of information reforms: the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and wide-ranging amendments to the Freedom of Information Act 1982 (Cth) (FOI Act). This article provides a brief summary of the legislation in each jurisdiction and a discussion of some of the data available in relation to reviews and agency compliance.
Overview of legislation
The NSW government described the GIPA Act as a ‘paradigm shift’ (NSW, Parliamentary Debates, Legislative Assembly, 17 June 2009, 16227 [Mr Nathan Rees]) and the Commonwealth reforms had a similar effect. The two Acts display significant similarities.
Each contains broad objects provisions referring to publication of information by government agencies and the legal right of access to information (GIPA Act, s 3; FOI Act, ss 3 and 3A).
Both objects provisions also include high level public interest factors. Section 3(1) of the GIPA Actincludes the object ‘to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective’. Section 3(2) of the FOI Act refers to ‘increasing public participation in Government processes’ and ‘increasing scrutiny, discussion, comment and review of [Government]’.
Each Act contains provisions relating to the methods by which information can be accessed, including proactive release or publication of information or documents and access by application (GIPA Act, Pt 2, Div 1; FOI Act, Pt II, Div 2).
Further, each Act contains a presumption in favour of disclosure (differently worded in the FOI Act) and a legally enforceable right to access information (GIPA Act, ss 5 and 9; FOI Act, ss 11 – 11A).
Overall, both Acts set up schemes requiring proactive release of information, diminishing barriers to access, and encouraging release of information following an application for access.
The categories of information that are to be released proactively are broad. Importantly, policy documents fall within the definitions of ‘open access information’ in the GIPA Act and ‘operational information’ in the FOI Act. Accordingly, in both jurisdictions, policy documents must generally be made available.
One distinction between the jurisdictions relates to proactive release of government contracts. In NSW, there is a requirement to proactively release information about government contracts worth $150,000 or more (GIPA Act, ss 18(e) and 27). No such obligation exists under the FOI Act.
While it is likely that much, if not all, equivalent information would be granted following a Commonwealth FOI request, there can be a practical difference between accessing information easily and for free, compared to the need to make an application to access it.