What is ‘personal information’? | How can I access my own personal information? | How can I amend my own personal information? | How is my privacy protected under the Government Information (Public Access) Act 2009 (NSW) |
Who can make a formal application for information? | How do I make a formal application for information? How much does it cost? | What do I do if I can’t afford to pay the fees? | How will the Ministry of Health process my application? |
How long will my application take? | Is any government information excluded? | Can the Ministry of Health refuse my request for information? What are my review rights? | Will other people have access to the information released to me? | What is in the public interest? |
What are the public interests against releasing information? | What are the public interests in favour of releasing information? | Can the Government release information about my business? | Are there any penalties if someone does not follow the GIPA Act rules? | What are the protections under the GIPA Act? | What happens if someone makes repeated applications for the same information? | How can I complain about my dealings with an agency?
What is 'personal information'?
'Personal information' in the Government Information (Public Access) Act 2009 (NSW) is information or opinion about a person who can be identified from that information or opinion.
Information held by government agencies, such as the Ministry of Health, may identify you. If this is the case, the Privacy and Personal Information Protection Act protects your personal information. The Health Records Information and Privacy Act protects a specific type of personal information, including information about your physical or mental health, disability, provision of health services or genetic information.
More information on the privacy principles and protections is available on the Information and Privacy Commission NSW website.
Alternatively, the Ministry of Health's Privacy Officer can be contacted on (02) 9391 9092.
How can I access my own personal information?
You can access your personal information held by the Ministry of Health in several ways.
- Under the Government Information (Public Access) Act 2009 (NSW) the first step is to make an informal request for your information. Agencies should make every effort to release your personal information in this way. In some circumstances you may need to make a formal access application to the agency concerned.
- You may apply for access under the Privacy and Personal Information Protection Act (PIPAA), under Information Protection Principle 7.
- You may apply for access to your health information under the Health Records Information and Privacy Act (HRIPA).
The Ministry of Health's Privacy Officer can be contacted on (02) 9391 9092.
How can I amend my own personal information?
If you think that your personal or health information held by an agency is incorrect, you can ask the agency to correct it under:
- Information Protection Principle 8 in the Privacy and Personal Information Protection Act.
- Part 6A of the Privacy and Personal Information Protection Act or
- Health Privacy Principle 8 under the Health Records Information and Privacy Act (if you wish to correct your health information).
For further information on your rights under the Privacy and Personal Information Protection Act and Health Records Information and Privacy Act, please visit the Information and Privacy Commission NSW website.
Alternatively, you may contact the Ministry of Health's Privacy Officer on (02) 9391 9092.
How is my privacy protected under the Government Information (Public Access) Act 2009 (NSW)
Government information sometimes identifies people. Under the Government Information (Public Access) Act 2009 (NSW) a record that would reveal an individual's personal information would not generally be disclosed unless there are strong public interest considerations in favour of disclosure.
Under the Government Information (Public Access) Act 2009 (NSW), personal information does not include the individual's name and non-personal contact details that shows the person was exercising public functions.
In deciding whether to disclose personal information about you to a person applying for access to information, the NSW Ministry of Health must consider whether you are likely to be concerned about the release of the information and whether those concerns are relevant to the public interest. If so, the Ministry of Health must:
- consult with you, and
- take into account any objections you may have to the release of the information.
If the Ministry of Health consults you and decides to release the information anyway, it :
- must tell you of this decision and your right to have it reviewed, and
- must not release the information while you still have the right to seek review.
You may also wish to contact Information and Privacy Commission NSW (the office of the NSW Privacy Commissioner), which publishes factsheets about the handling of personal information and health information.
Who can make a formal application for information?
Any person can make a formal application for access to information held by an agency. This should be the last resort, after the informal avenues have been tried.
How do I make a formal application for information? How much does it cost?
A valid formal application for access to government information must:
- be in writing
- state that it is made under the Government Information (Public Access) Act 2009 (NSW)
- have an Australian postal address for return correspondence
- provide enough details to help the agency identify the information you want and
- enclose the application fee of $30.
You may wish to use the Ministry of Health's application form when writing your application for information under GIPPA.
Applicants may be entitled to a 50 per cent reduction of processing charges on financial hardship grounds, or if the information requested is of special benefit to the public generally.
You may be asked to pay a processing charge. Processing costs $30 per hour and covers time needed to deal efficiently with the application.
Agencies may ask an applicant to pay up to 50 per cent of the expected processing charge in advance. This request must be in writing and the applicant must be given at least four weeks to pay.
If you seek access to your own personal information, the first 20 hours of processing time are free of charge.
What do I do if I can't afford to pay the fees?
You can apply for a 50 per cent reduction in processing costs on the grounds of financial hardship, or ask for a waiver of the fee if the information will be of special benefit to the public generally.
How will the Ministry of Health process my application?
The Ministry of Health has up to five days from the day it receives your application to consider it and let you know whether or not it is valid.
If your access application is valid, the Ministry of Health will take steps to see if it has the information you want. The Ministry of Health may need to consult other people, businesses or government bodies to find the information.
When the Ministry has finished consulting, it must provide you with the information unless there is an overriding public interest against disclosure (public interest test) or the information is excluded.
If the Ministry decides your application is not valid it must tell you why. The Ministry of Health must provide you with reasonable assistance to make a valid application.
How long will my application take?
You must be notified of the decision on your application within 20 working days, unless you agree to extend the time.
The Ministry of Health may also extend the time by 10-15 days where consultation with a third party is required or if it needs to retrieve records from archives.
If access is deferred by the Ministry, it must notify you and include the reason for deferral and the date on which you will be given access. A decision to defer access is reviewable (review rights).
If the Ministry of Health does not decide your access application within 20 days, it is considered "refused". Your application fee must be refunded and you may seek internal or external review (review rights) of this refusal.
This will not apply if an extension of time has been arranged or payment of an advance deposit is pending.
Is any government information excluded?
The Government Information (Public Access) Act 2009 (NSW) provides a list of excluded information that, in the public interest, must not be disclosed. The list includes information that is required to be kept restricted under witness protection legislation, information about the identity of jurors, and details on the child protection offenders register.
Can the Ministry of Health refuse my request for information? What are my review rights?
The Ministry of Health can refuse your request if:
- the information you have asked for is already publicly available,
- you have not paid a deposit,
- your request would take an unreasonable amount of time to process,
- there is an overriding public interest against disclosure.
You have three options if you have been refused access to information:
- Internal review:
You can apply to the agency for an internal review. This is review by someone more senior than the original decision maker and there is a $40 fee. You have 20 working days from receiving notice of a decision to ask for an internal review.
- Review by the Information Commissioner:
If you are not satisfied with the internal review, or do not want one, you can ask for a review by the Information Commissioner. You have eight weeks from being notified of a decision to ask for this review.
- Review at the Administrative Decisions Tribunal:
If you are not satisfied with the decision of the Information Commissioner or the internal reviewer or if you do not want to take these options you can apply to the Administrative Decisions Tribunal (ADT). If you have already had a review by the Information Commissioner you have four weeks from notification of the decision to make this application. If you haven't had a review by the Information Commissioner you have eight weeks from notification of the decision to make this application.
Will other people have access to the information released to me?
If you receive information after making a formal application, and the Ministry of Health believes that information may of interest to other members of the public, the Ministry of Health ordinarily records it on the disclosure log which is made available on the agency's website.
The disclosure log describes the information that was provided to the applicant and, if it is available to other members of the public, how they can access it.
You can object to information being included in the disclosure log if it includes personal information about you or about a deceased person that you personally represent; the information concerns your business, commercial, professional, or financial interests or research undertaken.
What is in the public interest?
Before releasing government information, the Ministry of Health must compare the public interest in accessing the information to the public information in refusing access to that information. Agencies such as the Ministry of Heatlh can only refuse access to information if the public interest against disclosure outweighs the general public interest in favour of disclosure.
What are the public interests against releasing information?
There are only limited and specific interests against disclosure that an agency can take into account. These are:
- law enforcement and security
- individual rights, judicial processes and natural justice
- responsible and effective government
- business interests
- environment, culture, economy and other matters
- secrecy and exemption provisions in other laws
What are the public interests in favour of releasing information?
There is no limit to the matters an agency may take into account in favour of releasing information.
Can the Government release information about my business?
An agency may release information about your business in response to an access application, however, the decision will be subject to the public interest test.
If an access application covers your business information, an agency must consult you to see whether or not you object to the information being released. Your objection must relate to one or more of the five public interest considerations against disclosure set out in the Act.
If the agency decides that, on balance, the public interests against disclosure outweigh those for disclosure, then they will not release the information.
If an agency decides to release your business information, despite your objection, you have a right have this decision reviewed under the Government Information (Public Access) Act 2009 (NSW) (see FAQ Can an agency refuse my request for information? What are my review rights).
Are there any penalties if someone does not follow the GIPA Act rules?
There are a range of penalties that can be applied under the GIPA Act for the following conduct:
- an officer knowingly deciding a formal access application contrary to the requirements of the Act
- directing an officer to make a decision he or she knows is not permitted or required by the Act
- improperly influencing a decision on an access application
- knowingly misleading or deceiving an officer for the purpose of obtaining access to government information
- concealing, destroying or altering information for the purpose of preventing the release of information.
These offences attract a maximum penalty of 100 penalty units.
What are the protections under the GIPA Act?
There are a range of protections under the GIPA Act.
- There is no action for defamation or breach of confidence when a decision to disclose information is made in good faith.
- No criminal action will be taken when a decision is made or information disclosed in good faith.
- No action for personal liability is available in relation to any action by an agency, or an officer of an agency, where the action was done in good faith for the purposes of executing the Act
What happens if someone makes repeated applications for the same information?
If a person has made at least three access applications within two years that lack merit, the ADT may order that the person must get the ADT's approval before making another access application.
If a person is subject to such a restraint order they cannot apply to the ADT for approval to make an access application without first serving notice on the agency concerned and the Information Commissioner.
How can I complain about my dealings with an agency?
You can complain to the Information Commissioner.
The Commissioner may undertake formal or informal investigations and actions to assist in resolving the complaint.