PIDs and the Government Information (Public Access) Act

How the Public Interest Disclosures Act 1994 (PID Act) applies when considering a request under the Government Information (Public Access) Act 2009 (GIPA Act) to release information concerning a public interest disclosure (PID).

Section 22 of the PID Act

Section 22 of the PID Act prohibits a ‘disclosure’ of information that ‘might identify or tend to identify the identity of a person who has made’ a public interest disclosure (PID), subject to certain exceptions.

When a request is made under the GIPA Act for information concerning a PID, the authority needs to consider whether section 22 applies, and if so, the nature and scope of the prohibition.

Section 14 of the GIPA Act

Section 14(1) of the GIPA Act provides that it is to be ‘conclusively presumed’ there is an overriding public interest against disclosing any of the government information described in Schedule 1 of the GIPA Act.

Item 1 of that Schedule lists that there is an overriding public interest against disclosing information prohibited by – among other laws – section 22 of the PID Act. This restriction applies whether or not the section 22 prohibition is subject to specific qualifications or exceptions, and whether or not a breach of the prohibition constitutes an offence.

Applying section 22

To determine if section 22 applies, consider the meaning of 'disclosure'. The NSW Court of Appeal and the Administrative Decisions Tribunal take the view that once information is known it cannot be disclosed – unless it became known by unlawful means:

[t]he essence of disclosure of information is making known information to a person that the person did not previously know¹

This indicates that section 14(1) and Schedule 1 of the GIPA Act would not apply in relation to the PID Act if the identity of the reporter has already been revealed, disclosed or become known by lawful means.

If the identity of the reporter has not been lawfully disclosed, section 22 only applies to information that ‘might identify or tend to identify the identity of the person who has made’ a PID.

Considering a GIPA request

Operational decisions about disclosing information that might reveal the identity of a reporter under the PID Act can be made by the head of the authority or a delegated officer (such as the PID coordinator) exercising powers under section 22 of that Act. However, a Right to Information Officer exercising the powers under the GIPA Act has a much more limited discretion.

When considering a GIPA Act request for information relating to a PID, these appear to be the options:

  1. Where the identity of the reporter is either generally known or known to the GIPA applicant, it appears that section 22 of the PID Act may not apply (although some other public interest consideration against disclosure in the GIPA Act might apply).
  2. Where section 22 of the PID Act applies, it prohibits disclosure of information that might identify or tend to identify the reporter:
    • in some cases, the section 14(1) GIPA Act and section 22 PID Act prohibitions might be able to be addressed by redacting documents to remove information that might identify the reporter
    • in other circumstances, where even confirming the existence of a PID might tend to identify the reporter, authorities might be justified in relying on section 58(1)(f) of the GIPA Act to refuse to confirm or deny that such information is held by the authority.

A GIPA application may ask for more than just the name of the PID reporter. If there is no conclusive presumption against disclosure, the public interest test and considerations in sections 12–15 of the GIPA Act must be applied.

If the information includes someone’s personal information, authorities are obliged to take practical steps to consult with that person to find out whether they have any objection to disclosing some or all of the information and the reasons for any such objection (see section 54 of the GIPA Act). Depending on the information the applicant applies for, people who need to be consulted might include the reporter, any subjects of the disclosure and/or any witnesses.

The Information and Privacy Commission (IPC) provides information, advice, assistance and training to authorities and the public on the GIPA Act.

Notes

¹ Nasr v State of NSW (2007) 107 A Crim R 78 at 106 [127] – See also: Richards v Commissioner, Department of Community Services (2011) NSW ADT 98 [40]; R v Ritson: R v Stacey (2010) NSW DC 160 at [51] – [58]; Forster v Federal Commissioner of Taxation (1951) 83 CLR 606 at 614-615.

Decision-making flowchart for authorities

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