Freedom of Information in NSW: The GIPA Laws

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By Paul Gregoire and Ugur Nedim

David Shoebridge is quite fond of the NSW GIPA laws, which are also known as freedom of information (FOI). These laws have allowed the NSW Greens MLC to access and highlight information around gun ownership, consorting laws and police plans to bust up the 2014 Bentley Blockade.

The heavy utilisation of freedom of information laws on the part of Shoebridge has led to the now commonplace understanding that drug dogs being deployed at train stations, music festivals, and even shopping malls, get it wrong two-thirds to three-quarters of the time.

Via GIPA, the Greens justice spokesperson also exposed the quota system NSW police management is running for all local area commands, which means officers have annual targets to meet in regard to how many people are searched in an area, as well as how many move-on orders are being issued.

Indeed, such is the adoration that Mr Shoebridge has for state freedom of information laws that he presented a briefing on the GIPA back in 2017, which included a slideshow on how to practically utilise them titled, How to Use GIPA for Fun and Profit.

However, while NSW freedom of information laws do lead to greater government scrutiny, as well as provide details that indicate paths for reform, the state and its institutions have found that the tactic of delaying the release of such information can be effective in reducing its usefulness.

An accountability framework

NSW freedom of information laws are contained within the Government Information (Public Access) Act 2009 (NSW) (the GIPA). These laws were brought in to replace those that fell under the Freedom of Information Act 1989 (NSW), following a NSW Ombudsman report recommending an overhaul.

Then NSW premier Nathan Rees introduced the GIPA Bill into parliament on 17 June 2009. The Labor politician outlined that the laws would lead to the “proactive disclosure” of certain information by agencies, as well as “enhance the rights of the public” to request government information.

During his reading speech, Rees explained that under prior FOI laws, there were over 100 different Acts that contained secrecy provisions that exempted the application of FOI laws. But, under GIPA, there are only 20 Acts that override the laws, including juror and child protection legislation.

“However, information that is subject to any other secrecy provision will now need to be subject to the public interest test on a case-by-case basis,” the serving premier said. “The fact that a secrecy provision applies will be a relevant consideration, but it will no longer of itself be conclusive.”

And as the GIPA laws were passed on 25 June 2009, NSW parliament also passed a bill that established the position of NSW information commissioner.

Currently held by Elizabeth Tydd, the commissioner promotes the use of the GIPA laws, and reviews agency decisions regarding them.

Accessing information

Section 3 of the GIPA states that the purpose of the legislation is “to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective”, and it does this by opening up “government information to the public”.

Part 2 of the GIPA contains provisions and powers that include a presumption in favour of disclosure, mandatory proactive release, authorised proactive release, informal release, an overriding of release if it is in the public interest not to, and an overriding of other legislation that prohibits disclosure.

Section 41 of the GIPA sets out how to make an information access application. This process includes lodging a written application with enough details “necessary to enable the government information applied for to be identified”.

An access application must be lodged with the agency concerned, and a $30 application fee applies. The request can relate to NSW government departments, local councils, state-owned corporations, universities and NSW ministers and their staff.

The turnaround time for an FOI request is within 20 working days. There may be a processing fee charged of $30 an hour. But this hourly fee should be waived for the first 20 hours if the application involves accessing personal information.

A case in point

Out of concerns around the stockpiling of firearms in suburban homes, Shoebridge lodged a GIPA application with NSW police in early 2017 to obtain the figures relating to the top 100 private arsenals across the state.

At the time, it was found one individual in La Perouse owned 305 firearms.

Released in October 2017, the figures related to March that year, as there had been an attempt to prevent their release, which led to a court appeal. Although the Victorian Greens weren’t able to obtain similar figures in that state as there were no FOI laws that would permit it.

During his 2017 GIPA slide presentation, Shoebridge outlined that an individual needs to be very specific when making an FOI request. And he went on to explain how he went about requesting the information on the top 100 personal firearms owners in NSW.

The Greens member set out that he requested the number of guns owned by each of the top 100 registered gun owners, their postcodes, the numbers each owned, the number of registered guns in NSW, the number of registered owners, and the number of owners and guns in each postcode.

The reluctance of government

As indicated above, government agencies do attempt to prevent following through on GIPA information requests, and in the process, they can often slow down the progress of information finding its way into the public domain.

Shoebridge filed a GIPA request with the NSW Police Force in October 2016, in an attempt to access the briefing documents relating to the reclassification of the rapid-fire lever action Adler A110, as there were concerns about it being placed in a less restrictive gun ownership category.

NSW police handed over some information, but withheld the majority, arguing, under GIPA, that it was in the public interest not to disclose it. This held back the release of most of the information until May 2018, when the relevant tribunal ruled that it should be.

“Having information in a timely manner is what makes the information politically useful, and actually allows you to hold the government to account,” Shoebridge remarked at the time. Delays work for government, “because even if you do get the information, the public debate has moved on.”

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