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Freedom of Information
What sort of information can I ask for?
What information cannot be seen?
Requesting information
Costs
Can an agency refuse to give information?
Appeal against a decision to refuse access to information
Inaccurate documents
Further information
Office of the NSW Privacy Commissioner

Freedom of Information

Under the NSW Freedom of Information Act 1989, agencies are required to make information available wherever possible. The Act gives anyone the legal right to:

• Obtain access to records held by State government agencies, government Ministers, local government and other public bodies;
• Ask for changes to be made to personal records that are inaccurate; and
• Appeal against a decision not to grant access to information or amend personal records.

What sort of information can I ask for?

People can ask for personal or non-personal information. Personal information includes health, welfare and superannuation records, public education and school records and examination and training records. Non-personal information includes government policy documents; research materials; instruction and procedure manuals; and market research and product testing records. Information can be in the form of certificates; files; computer printouts; maps; films; photographs; tape recordings and video recordings.

What information cannot be seen?

People may not be able to see information where there is a legitimate need for confidentiality or where another person’s privacy may be invaded.

Requesting information

First you should approach the government body that holds the information wanted. It may give you access straight away. If it cannot give access, individuals can make a Freedom of Information (FOI) request by taking the following steps:

• Work out what information or document(s) they want to see. It is important that they know what they want because they have to pay a fee for the processing of their requests;
• Work out which agency or organisation is likely to keep that information. If they do not know which organisation has the documents, contact the agency’s FOI officer or the Government Information Service;
• Write a request on an FOI application form (available from all government agencies) or in a letter, and post or deliver it to the organisation concerned;
• Provide as much information as possible about the document they wish to see, such as file reference numbers; and
• Enclose the $30 application fee.

Costs

The applicant will have to pay:

• Application fees, and
• Processing fees.

The application fee for both personal and non-personal information is $30. Processing fees cover time for locating the information, decision-making, consultation where necessary and photocopying. A $30/hour fee covers processing for personal and non-personal information. However, individuals are entitled to up to 20 hours of free processing time for requests about their personal affairs. There is no upper limit on fees.

Individuals may qualify for a rebate on these fees. Rebates of 50% are offered:

• For pensioners with a Health Benefit Card as well as those with an equivalent income who are under financial hardship;
• For non-profit organisations under financial hardship;
• Where public interest can be demonstrated; and
• For children (under 18 years old).

Can an agency refuse to give information?

Yes. A request for information may be refused:

• If the document is one which the Act says is exempt (i.e. it is not available);
• If it would unreasonably divert the agency’s resources from its normal functions;
• If an agency believes an applicant may be seriously affected by personally accessing information relating to their physical or mental health. If this is the case, they can ask that their doctor look at the information and tell them about it.

Appeal against a decision to refuse access to information

People are entitled to ask for an Internal Review of a decision not to give information they ask for. They must make a written application for the internal review within 28 days and another $40 fee applies. If they are still not happy with that decision, they can approach the Ombudsman for assistance. Alternatively, they can make an application to the Administrative Decisions Tribunal (ADT)to review the matter. The Ombudsman can make a recommendation that information be released but the ADt can make a binding order. It costs nothing to go to the Ombudsman but fees apply at the ADT. You will also usually need legal advice and assistance to make an aplication to the ADT. For contact details of the ADT or the Ombudsman see Chapter 17: 'Contacts'

Inaccurate documents

If a person believes information about them is incomplete, incorrect, misleading or out of date, they have the right to request a correction. This request needs to be made in writing. If a correction is approved, the records will be amended to include the new information and a notation that the old information is wrong or incomplete. If a correction is refused, they can ask for an internal review and then go onto the Ombudsman or the ADT if the request to amend records is still refused.

Further information

Most government agencies have a Freedom of Information officer who can help with queries. If unsure about the agency concerned, contact the Government Information Service or the Freedom of Information Unit (contact details).

Office of the NSW Privacy Commissioner

Privacy NSW describes privacy as meaning “the right to be let alone, the right to personal space or autonomy, the right of people to exercise control over their personal information or the degree of interference with their personal life”. Privacy NSW promotes and protects the right to privacy by:

• Advising individuals, government agencies and business organisations on what action they can take to protect the right to privacy;
• Assisting NSW Government agencies to comply with their obligations under the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002;
• Researching significant development in policy, law and technology that impact on privacy and making reports and recommendations to relevant authorities;
• Investigating, and if possible conciliating, complaints on breaches of privacy, and
• Answering enquiries and educating the community about privacy issues.

The Privacy and Personal Information Protection Act 1998 has two main purposes. First, it sets up the Office of the Privacy Commissioner and gives the Commissioner powers that were held in the past by the Privacy Committee. These powers include conducting research, giving advice and handling complaints about breaches of privacy. Secondly, the Act introduces a set of privacy standards for the NSW public sector. These standards regulate the way public sector agencies deal with personal information.

Privacy standards or principles only apply to personal information, i.e., information that relates to an identifiable person. This definition covers traditional data storage such as paper files and also genetic material, electronic records, video and audio recordings, photographs and biometric information such as fingerprints.

The Act provides enforceable remedies in relation to privacy breaches by public sector agencies. The Act also gives the Privacy Commissioner the power to investigate and conciliate complaints about some breaches of privacy by non-public sector organisations and individuals.

The legislation offers enforceable privacy rights to the people of NSW. It gives people the opportunity to make a complaint to a public sector agency about misuse of their personal information, and if they are not satisfied with the response, it may allow them to make a complaint to the Administrative Decisions Tribunal. The Act also requires all public sector agencies to prepare a privacy management plan, which will help to ensure that staff are aware of privacy issues.

The information protection principles in the Act cover matters such as collection, storage, use and disclosure of personal information. A more detailed discussion of the principles is found on the Privacy NSW website  at: www.lawlink.nsw.gov.au/privacynsw

The Act does not cover all uses of personal information by public sector agencies, making significant exemptions in the case of law enforcement and investigative agencies. The Act also allows for agencies to opt out of one or more of the Principles by developing a privacy code of practice.

The Act lays down rules for public registers that are operated by Government agencies. It introduces the right for people to have any of their personal details that are held on a register removed or hidden from public view in some circumstances. The public register provisions can also be modified by privacy codes of practice.

The Health Records and Information Privacy Act 2002 (NSW)

• Sets privacy standards for dealing with health information;
• Applies to NSW state and local government agencies;
• Applies to many private sector persons and organisations in NSW who hold health information or are health service providers.

More information can be found in the Privacy NSW Handbook to Health Privacy available on the website.

When a public sector agency breaches a privacy principle, a privacy code of practice or a public register provision, a person can choose to ask that the agency investigate what has occurred. After the investigation the agency has various options, for example it can can:

• Apologise;
• Offer a remedy such as compensation;
• Promise that the behaviour will not occur again;
• Change its operations to make sure the behaviour will not occur again; or
• Do nothing.

If the person making the complaint is not satisfied with the decision they can appeal to the Administrative Decisions Tribunal. The Tribunal has the power to make any orders that it thinks necessary including, in certain circumstances, the power to award damages to the person making the complaint. These damages can be up to $10,000 if the person complained about is not a corporation and up to $40,000 if a corporation is the subject of the complaint.

If the privacy complaint is not about a breach of a principle, code or public register provision or if it is about a non public sector agency, then the complaint needs to be made directly to the Privacy Commissioner, who has discretion to accept the complaint or not. If she or he does accept the complaint, they do not have power to make orders or to award compensation. They may, however, conciliate complaints by trying to reach a decision that all the parties including the Commissioner are happy with.