Posted on February 6, 2019 by 2

The Changing Face of the GIPA Act and the Power to Refuse to Deal

The power in s 60 of the Government Information (Public Access) Act 2009 (GIPA Act) to refuse to deal with an access application is a power often under-utilised by public sector agencies. In this blog, we consider whether recent amendments to the GIPA Act inhibit the broader use of the power.

Section 60- the power to refuse to deal

Section 60 of the GIPA Act empowers agencies to refuse to deal with an application for access to information for certain specified reasons only. Significantly, those reasons include that:

• dealing with the application would require an unreasonable and substantial diversion of the agency’s resources,
• the agency has already decided a previous application for the information and there are no reasonable grounds for believing that a different decision would be forthcoming,
• the information is available to the applicant as a result of having been produced in compliance with a subpoena or other order.

Those reasons have been expanded as a result of the Government Information (Public Access) Amendment Act 2018 (Amendment Act). An agency can now also refuse to deal with an application where an applicant, or a person acting in concert with the applicant, is a party to court proceedings, and is able to apply to the court for the information sought.

This is significant, as in our experience, litigants have sought to circumvent the subpoena process in the Courts by lodging a GIPA application. By doing so, they avoid the implied undertaking which attaches to the inspection of documents produced under subpoena and restricts their use for purposes outside of the proceedings.

Substantial and unreasonable diversion of resources

Whilst the Amendment Act gives agencies a broader power to refuse to deal with an application with one hand, it also took away with the other. The Amendment Act makes it more difficult for agencies to refuse to deal with an application on the basis that it would require an unreasonable and substantial diversion of the agency’s resources.

The new s 60(3A) of the Act specifies some of the considerations that an agency may take into account when deciding whether dealing with an application would require an unreasonable and substantial diversion of resources, being:

• the estimated volume of information involved in the request,
• the agency’s size and resources, and
• the decision period under s 57 of the GIPA Act.

This is uncontroversial. Those considerations are non-exhaustive and merely codify some of the considerations set out by the Tribunal in Cianfrano v Director General, Premier’s Department [2006] NSWADT 137.

The significant change, however, is the introduction of the new s 60(3B). That provision provides that an agency can only refuse to deal with an application on this basis if its consideration of the factors relevant to s 60(3A), on balance, outweigh:

• the general public interest in favour of disclosure of government information, and
• the ‘demonstrable‘ importance of the information to the applicant.

Accordingly, agencies must engage in a balancing process in deciding whether to refuse to deal with an application. It is not enough to merely conclude on the basis of the considerations set out in Cianfrano that dealing with the application would lead to an unreasonable and substantial diversion of resources.

This represents a marked departure from the previous regime. Even in circumstances where dealing with an application would consume a large and typically unreasonable share of an agency’s resources, an agency may nonetheless be required to deal with the application because of the fundamental importance of the information.

Implications

Clearly, the amendments will have significant consequences for agencies in processing GIPA applications.

When considering whether to refuse to deal with an application on account of a substantial and unreasonable diversion of resources, agencies should be careful to take the additional step now required by the GIPA Act to consider the public interest in favour of disclosure of information, and the apparent importance of the information to the Applicant.

Although the Act recognises the resource limitations on public sector agencies, this change arguably establishes a regime where those limitations are subject to the public interest in disclosure of government information. A much under-utilised power may now be used even less.

If you would like to discuss the Amendment Act, and its implications for the assessment of applications under the GIPA Act, please contact Carlo Zoppo, Partner, on 02 8235 9705, or Matt Harker on 02 8235 9714.