• Fees and charges under the GIPA Act - Time to Review
  • November 29, 2011
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • The Government Information (Public Access) Act 2009 (NSW) (GIPA Act) commenced on 1 July 2010 replacing the Freedom of Information Act 1989 (NSW). The object of the GIPA Act is to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective by:

    1. authorising and encouraging the proactive public release of government information by NSW Government agencies;
    2. giving members of the public an enforceable right to access government information; and
    3. providing that access to government information is restricted only when there is an overriding public interest against disclosure.

    The Office of the Information Commissioner (OIC) periodically releases consultation papers to receive feedback and have a better understanding of the issues surrounding the working of the GIPA Act.

    The most recent consultation paper is “Consultation paper 2: fees and charges under the GIPA Act - issues for agencies” (Consultation Paper).

    The OIC has recently issued the Consultation Paper with a goal to:

    1. identify how the fees and charges provisions are working in practice;
    2. assess the impact that fees and charges have on affordability of, and access to, information under the GIPA Act; and
    3. see whether the fees and charges provisions help to promote the objects of the GIPA Act to maintain open and accountable government by facilitating access to information at the lowest reasonable cost.

    The objective of the GIPA Act is not to enable agencies to recover their costs, but to provide a mechanism whereby members of the public can gain access to government information promptly and at the lowest reasonable cost. The OIC seeks views from NSW Government agencies on whether the fees and charges are effective in meeting this objective.

    In most cases, government information sought under the GIPA Act should be made available free of charge. However, the GIPA Act permits NSW Government agencies to charge certain fees and charges, including the following:

    1. an application fee of $30;
    2. a processing charge of $30 per hour for dealing with formal access applications (the first 20 hours of processing applications for personal information are free);
    3. an advance deposit of up to 50% of the total estimated processing charge; and
    4. a $40 fee to conduct an internal review of a decision made regarding an access application.

    Agencies also have a general discretion to reduce or waive any fees or charges under the GIPA Act. For formal access applications, NSW Government agencies must reduce the processing charges by 50% where:

    1. the applicant is suffering financial hardship; or
    2. the information sought would be of special benefit to the public generally.

    The OIC is seeking agency feedback on the following issues in respect of the fees and charges provisions of the GIPA Act.

    1. Underlying policy basis: whether the provisions benefit NSW Government agencies overall, whether the provisions help promote the objects of the GIPA Act and whether the provisions should remain in their current form.
    2. Clarity of the provisions, including calculation of processing charges: whether the provisions are clear and easy to interpret and apply and what further guidance, if any, NSW Government agencies would like about fees and charges.
    3. Agency practice: what practices NSW Government agencies have adopted in respect of processing or billing that work well, what difficulties have NSW Government agencies faced, and the ways in which these have been overcome, and whether the capacity to accept online payment would be beneficial.

    Feedback is to be provided by Tuesday, 31 January 2012.

    The OIC has provided a questionnaire, in the Consultation Paper, as well as a section for general comments. It should be noted that all responses will be published on the OIC website.

    The OIC will consider the responses and will write a report that may result in any of the following:

    1. a special report to Parliament on the issues raised;
    2. recommendations for reform of the GIPA Act or the regulations; and
    3. targeted guidance or training for NSW Government agencies on interpreting and applying the fees and charges provisions.