Posted on August 15, 2020 by Lindsay Taylor and Matt Harker

Busting the myth: is information released under the GIPA Act really released ‘to the world’?

The release of information under the Government Information (Public Access) Act 2009 (GIPA Act) is commonly referred to as being a release to the world at large. However, this view erroneously conflates the requirement in the GIPA Act for the unconditional release of information to an applicant with their rights to use the information in any manner contrary to other laws.

The view that release under the GIPA Act is a release to the entire world stems from the requirement in s 73 of the Act that access be unconditional. That section relevantly provides  that:

‘(1)  An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.

(2)  A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.

…’

The section has been referred to somewhat carelessly by the New South Wales Civil and Administrative Tribunal on several occasions in support of the proposition that the release of information under the GIPA Act is a release to the world.

However, section 73 in terms merely prevents an agency from imposing conditions on the use or disclosure of information where it determines to release that information.

The section does not excuse an access applicant from complying with pre-existing conditions or restrictions on the use or disclosure of the information.

The GIPA Act protects agencies, agency officers and authors of information against actions for breach of confidence, defamation and general personal liability in respect of information released under the Act (see sections 113-115). However, the Act does not set out any similar protections for the recipients of information released under the Act.

The GIPA Act cannot, for example, due to the supremacy of Commonwealth law, protect a recipient of information released under the Act from a breach of copyright under the Copyright Act 1968 (Cth) .

Further, while a person has no action against an agency or its officers in defamation or for breach of confidentiality for releasing information to an applicant under the GIPA Act, the Act does not remove the person’s right to bring an action against the recipient for the publication or disclosure of the information to third parties.

In Glencore International AG v Commissioner of Taxation [2019] HCA 26 the High Court considered a not dissimilar issue to that applying to the unconditional release of information under the GIPA Act. The plaintiffs had sought an injunction to protect the confidentiality of information that was in the public domain on the basis that it was subject to legal professional privilege. The Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ said [at 34]:

On the present state of the law, once privileged communications have been disclosed, resort must be had to equity for protection respecting the use of that material. Although the policy upon which legal professional privilege is founded is not irrelevant to the exercise of that jurisdiction, the juridical basis for relief in equity is confidentiality’.

Recipients of information released unconditionally under section 73 of the GIPA Act should be mindful that the release of the information does not constitute a permission for them to use the information in breach of other laws. This is particularly so as no obligation is imposed on agencies under the GIPA Act to explain to recipients their obligations under other laws concerning the use of information released unconditionally to them under that Act.