Government Information (Public Access) Act
The Government Information (Public Access) Act 2009 (GIPA Act) establishes an open approach to gaining access to government information. The objectives of the GIPA Act are to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective, by:
- authorising and encouraging the proactive release of government information by agencies
- giving members of the public an enforceable right to access government information, and
- providing that access to government information is restricted only where there is an overriding public interest against disclosure.
The GIPA Act provides for four ways for government information to be release
Type of release
Open access information
Certain information must be made available on an agency's website free of charge. Open access information includes:
|Proactive release||Apart from open access information, agencies are authorised to release as much other information as possible free of charge or at the lowest possible cost.|
Members of the public may contact an agency and ask for information . Agencies may release information informally, subject to reasonable conditions.
|Formal application||If information can not be accessed through any of the above ways, a formal application can be made. This should be the last resort under the GIPA Act. It may be necessary when a request relates to large volume of information, involves an extensive search, or if it involves personal or business information about third parties that need to be consulted.|
The GIPA Act primarily applies to records less than 30 years of age. As sensitivity diminishes over time more records will be available for public access under the State Records Act than under the GIPA Act.
Formal applications under the GIPA Act usually involve examination of individual documents and application of public interest considerations against disclosure as set out in the Act. This is in contrast to the risk-based approach and the assessment at the level of series, group or class of records under the State Records Act.
For more information on the GIPA Act visit the website of the Information and Privacy Commission NSW.
Relationship with State Records Act
The different public access regimes in the GIPA Act and the State Records Act are intended to complement each other and to provide entitlements and protections appropriate to their own contexts without affecting the operation of the other.
The fact that a record is not open to public access under the State Records Act does not affect any entitlement to access the record under the GIPA Act. Consequently it is open to a person to use the GIPA Act to seek access to a record that is the subject of a CPA direction, as well as to records not in the open access period. It is possible for a public office to grant such access under the GIPA Act without affecting the continued application of the CPA direction to the series, group or class to which the record belongs.
To ensure consistency between the two Acts an agency should make an early access authorisation for all records containing information available via mandatory and proactive release.
Privacy and Personal Information Protection Act
The Privacy and Personal Information Protection Act 1998 (PPIP Act) gives legal recognition to the public interest in the protection of privacy. Privacy is the right of individuals to exercise control over the availability and use of personal information about themselves.
The PPIP Act protects privacy by regulating the way NSW public sector agencies deal with personal information. Personal information does not include information about someone who has been deceased for more than 30 years.
The key to the PPIP Act is set out in the 12 information protection principles (IPPs). They are legal obligations that describe what public sector agencies (including statutory bodies and local councils) must do when they handle personal information. The IPPs cover the collection, storage, use and disclosure of personal information as well as access and correction rights.
For more information on the PPIP Act visit the website of the Information and Privacy Commission NSW.
Relationship with State Records Act
The IPPs set out in sections 18 and 19 of the PPIP Act restrict the disclosure of personal information held by public sector agencies. By itself this would mean that State Records or another public office would breach one or both of these principles by giving public access under the State Records Act to open period State records containing personal information about anyone who is still alive or who has been dead for less than 30 years, whether that information is still sensitive or not.
Section 25 of the PPIP Act, however, permits non-compliance with these and some other IPPs where it is permitted under other legislation, including, explicitly, the State Records Act. This means that the PPIP Act and the IPPs do not affect the making of access directions for open period State records under the State Records Act. Rather, personal information which is in open period State records and which requires protection is protected from inappropriate release by the mechanisms of the State Records Act, notably by public offices giving CPA directions to close the records to public access for a long enough period.
This is based on the principle that sensitivity in personal information diminishes with time. Most of the personal information which is held in State archives or other inactive records after 30 years does not require the same level of protection as personal information which is still being used to make operational or commercial decisions about people. Some personal information remains sensitive for much longer and should be protected by an appropriate CPA direction.
A privacy code of practice made under s. 29 of the PPIP Act may provide for the protection of personal information contained in a record that is more than 30 years old. Any such code must, to the extent that it relates to personal information contained in a State record that is more than 30 years old, be consistent with any relevant guidelines issued under s. 52 of the State Records Act, that is, these guidelines.
The disclosure provisions of the PPIP Act and the public access provisions of the State Records Act are intended to complement each other and to provide appropriate protections for personal information in their respective contexts without affecting the operation of the other.
Personal information remains an important issue to consider when assessing the content of series, groups or classes of State records for making an access direction. These guidelines identify the kinds of personal information that may require a period of protection of more than 30 years by the giving of a CPA direction.
As noted at 2.8, in certain limited circumstances the State Records Act provides for public access to records not yet in the open access period by enabling a public office to authorise early access. In doing so a public office must not breach any duty or obligation, such as a duty of confidentiality, that it may have in respect of the records. This includes obligations under the PPIP Act. Consequently a public office considering whether to permit early access under the State Records Act must still comply with the PPIP Act and the IPPs relating to the disclosure of personal information if the records concerned contain personal information.
Health Records and Information Privacy Act
The Health Records and Information Privacy Act 2002(HRIP Act) protects the privacy of people's health information.
The Act covers information created and collected by hospitals, doctors, and other health care organisations. It also includes other public offices that hold any type of health information. Health information includes information about people who have been dead for less than 30 years.
The HRIP Act contains 15 health privacy principles (HPPs) outlining how health information must be collected, stored, used and disclosed. HPP 11 limits the disclosure of health information beyond the purpose for which it was collected, subject to a number of exceptions.
Relationship with State Records Act
One of the exceptions to HPP 11 is non-compliance permitted under other legislation, including, explicitly, the State Records Act.
In addition, section 5(3)(d) provides that the information is not personal information if it is "information about an individual that is contained in a State record under the control of State Records Authority that is available for public inspection in accordance with the State Records Act".
As with the PPIP Act, this means that the HRIP Act and HPP 11 do not affect the assessment and the making of access directions for open period State records under the State Records Act. Rather, health information in open period State records is protected from inappropriate release by the mechanisms of the State Records Act, notably by public offices giving CPA directions to close the records to public access for a long enough period.
A health privacy code of practice made under s. 38 of the HRIP Act may provide for the protection of health information contained in a record that is more than 30 years old. Any such code must, to the extent that it relates to health information contained in a State record that is more than 30 years old, be consistent with any relevant guidelines issued under s. 52 of the State Records Act, that is, these guidelines.
As with the PPIP Act also, the disclosure provisions of the HRIP Act and the public access provisions of the State Records Act are intended to complement each other and to provide appropriate protections for health information in their respective contexts without affecting the operation of the other.
Health information is a highly sensitive type of personal information. Health records often reveal more intimate, private and comprehensive details about a person than can be found in any other records.
When making access directions about series, groups or classes of State records likely to contain health information, public offices should refer to the advice relating to personal information earlier in these guidelines to determine a closure period that will ensure that the information is appropriately protected.
As with the PPIP Act, a public office may not breach its obligations under the HRIP Act and HPP 11 when authorising early access under the State Records Act to records that may contain health information.