Freedom of Information / GIPA Requests

Introduction

You can request unpublished documents from virtually all NSW Government Agencies under the Government Information (public Access Act 2009 NSW (GIPA Act) and there is a standard format for doing this.

It may be of interest to request information about the meetings between the Department and the wind farm proponent using the online system.

If you lodge a valid GIPA request, the agency is obligated by law to honour it within a specified time and there are appeal rights and mechanisms if they do not do so.

What can you ask for?

Your request can cover letters, reports, emails, minutes of meetings and even extracts from databases (e.g. a database of complaints). The information you request has to exist.

You cannot use GIPA to ask a question like “Why did you decide X?” Instead, you would need to make a request “Please provide all documents, including records of meetings, related to the decision X”.

Define fairly exactly the documents you want, at least in terms of subject matter. You might include qualifiers about time (e.g. year of the documents), named officials involved (e.g. documents by/from/to a particular official).

You can ask for documents containing personal information about yourself but not about other people.

The process

There is a fee for a GIPA request, which depends on the amount of work required to satisfy your request. This is a reason to keep requests as tight as you reasonably can.

You can always go back with another GIPA request if the first has not produced all the information you seek but has helped you be clear about what additional documents would be relevant.

The GIPA request is handled by staff in the GIPA section and the process is as follows:

If the GIPA unit refuses to release some of what you requested, you have appeal rights, using either an internal appeal or an appeal to the Information Commissioner. The GIPA unit would normally provide you with a brochure about those rights when they provide their decision.

Protecting other parties

The GIPA process is normally careful to protect the interests of other parties. Personal information about other people is not normally available. However, documents that should be available to you may contain names and other information about people which the GIPA unit will want to protect and which may delay the process.

As an example, if you ask for copies of complaints an agency has received about some matter, in principle the documents should be available to you. However, they would typically include the name and possibly contact details of the complainants, in which case the GIPA unit would contact those parties to ask if they object to it being released. If you are only interested in the nature of complaints but not in who complained, you could limit delay by saying in your GIPA request that you are not interested in names and identifying information about complainants and happy to have that redacted.

What does it cost?

You have to pay a $30 deposit and then there is a standard charge of $30 per hour of work by the agency in retrieving the material and preparing it for release. That can run into hundreds of dollars or even thousands of dollars. However, the GIPA unit will not start work before first giving you an estimate of cost and you agreeing to proceed in light of that estimate.

So when you lodge a request, your only commitment is the $30 application fee.

Importantly, there is an option for the Department to provide a 50% discount, particularly on public interest grounds. So it is in your interest, when applying, to tick that box and make a good statement as to why releasing the information would have wider public benefits beyond just your interest.

Informal GIPA requests

It is also possible to seek release of information on an informal basis from government agencies, through the GIPA unit. There are no appeal rights if they decline to do so. You might decide to informally request information and then follow with a formal request if the informal is declined. Doing so may add to the time to receive information, so it rather depends on your time pressures and wish to evade any cost.

Realistically, if there is a significant amount of work required to meet a GIPA request, the agency is not going to incur that cost itself and release the documents on an informal basis. They will require you to lodge a formal request.

General observations

Staff in GIPA units try to honour requests and strive to meet the deadlines.

Sometimes they run into impediments, e.g. in contacting parties who may have objections or internal issues in availability of staff responsible for the documents. If they have problems, they will normally come back to you about it. Give them reasonable latitude and don’t be too legalistic about your rights. It is likely to work to your benefit.

When officials in agencies have meetings or material phone conversations with external parties, they are supposed to complete a record of meeting/business contact form. These are documents you can request. Typically, they don’t record a lot of detail about the contact but sometimes there is useful information and they are required to list who was involved.

Sometimes a request can be for documents the agency should have but which you suspect they don’t. For instance, if there should have been consultations with certain parties before determining a matter, or a certain analysis/review should have been done, and you believe that did not occur, you can ask for records relating to those consultations. If those documents don’t exist, the agency is obliged to tell you so. They can’t simply give you nothing and not explain why. In such cases, the absence of relevant records, confirmed by the agency, can be an important piece of evidence.

If documents covered by your request exist, the agency is required to acknowledge their existence and either give them to you or explain why they have decided not to. In the latter case you can appeal.

Jupiter Case Study

The local community put in a GIPA request for information about meetings and phone conversations between the Department and the Jupiter Wind Farm proponent during the assessment process.  Most of the documents requested were released.

Over a 53-month period, the Department had 26 meetings with the proponent and the information was useful in providing insight into just how much coaching the Department is willing to provide to steer a wind farm developer through the assessment process.

Notably the Department flagged issues of particular concern which needed to be addressed including community concerns, and the proponent was given advice and numerous opportunities to repair inadequacies in the EIS documents.

At what may have been the final meeting between the Department and the proponents, several points were made:

the Department indicated their intention to forward their assessment report to the IPC in a matter of weeks (presumably a recommendation to refuse Jupiter)

the Department also said that agreements were material to assessment and they wished to be informed if addition agreements were secured (and so it seems at the eleventh hour, the number of benefit sharing agreements would influence their report - why so?)

the proponent gave the Department an update on benefit sharing agreements for visual impact and their intention to impose a deadline on the community for acceptance of such agreements (why impose a deadline if not to pressure landowners into thinking this was their last chance to sign up for benefits?).

As it turned out the Department's recommendation to refuse Jupiter did not go to the Independent Planning Commission (IPC) until several weeks after the proponent's deadline for signing benefit sharing.  The assessment report identified the 10 landowners who signed benefit sharing agreements on a map, effectively naming them, then said they were now associated with the wind farm and discounted them from the assessment.

So the number of benefit sharing agreements was indeed material to the assessment and begs the question - how many benefit sharing agreements would it have taken for Jupiter Wind Farm to have been approved?