Posted on October 25, 2020 by Matt Harker and Carlo Zoppo

When is excluded information under the GIPA Act really excluded?

The Government Information (Public Access) Act 2009 is generally assumed to have been designed to open up government information to the public. Nevertheless, the Act identifies broad categories of ‘excluded information‘ of certain agencies which are subject to a conclusive presumption of an overriding public interest against disclosure.

In a recent judgment, the Appeal Panel of the NSW Civil and Administrative Tribunal held that these categories of excluded information are to be interpreted broadly. We will seek to set out what this means for state and local public sector agencies when exercising their functions under the GIPA Act.

The Beregi Decision

In Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185, the Appeal dealt with an application for access to information relating to a public inquiry carried out s 438U of the Local Government Act 1993 into North Sydney Council.

The then Office of Local Government (OLG) claimed that the documents were excluded information on the basis that they related to the complaint handling and investigative functions of the OLG, and therefore were subject to a conclusive presumption of an overriding public interest against disclosure.

Excluded information is defined in Schedule 4 of the GIPA Act as follows:

excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.

In considering that definition, the Appeal Panel, despite acknowledging the overriding purpose of the GIPA Act to facilitate the release of information, held that the term ‘relates to‘ is to be given a broad meaning. It stated that:

Notwithstanding Parliament’s intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to “open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure” (GIPA Act, s 3(1)(c)). The use of the term “relates to” indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG’s complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2).

This has significant implications for not only the OLG but other agencies whose information is identified as excluded information in Schedule 2 of the GIPA Act. There is no requirement for there to be a significant or direct connection with the relevant functions identified in Schedule 2.

As a result, substantial amounts of information could fall within the scope of excluded information. By way of example, the Tribunal at first instance in Beregi said in the context of the OLG that all information tied to a complaint, from the point of its receipt by the OLG up to its resolution, related to the OLG’s complaint handling functions and was therefore excluded information.

The broad scope of excluded information significantly circumscribes the ability of the public to access information that may be even tangentially related to the functions of public sector agencies. No access application can be lodged directly with the agency for excluded information of that agency (GIPA Act, s 43). Where the application is made to another agency, the information is subject to a conclusive presumption of an overriding public interest against disclosure (GIPA Act, s 14(1)).

Consent

This is subject to one important caveat which was also addressed by the Tribunal. Excluded information is not subject to a conclusive presumption of an overriding public interest against disclosure in circumstances where an agency consents to disclosure.

The Appeal Panel made clear in Beregi that any consent must be consent for the purposes of disclosure under the GIPA Act. Another authority cannot rely upon some previous disclosure (such as pursuant to a subpoena, or to another party), to conclude that an authority consents to the disclosure of its information. That authority is required to be consulted in relation to the specific access application (Sch 1, cl 6(2)); any past consent is irrelevant.

Combined with the Appeal Panel’s findings in relation to the scope of excluded information, this strengthens the ability of public sector agencies to limit access to information. In that way, the decision in Beregi represents a significant bulwark against the release of sensitive information to the public.

You can read the decision in Beregi here.

To discuss this post, please contact Carlo Zoppo on 8235 9705 or Matt Harker on 8235 9714.