Public Interest Test

Under the Government Information (Public Access) Act 2009 (GIPA Act), all government agencies, including Council, must disclose or release information unless there is an overriding public interest against disclosure. When deciding whether to release information, staff must weigh the factors in favour of disclosure against the public interest factors against disclosure.

Government Information (Public Access) Act 2009 (GIPA ACT)

The Public Interest Test - What is it?

The new right to information system in NSW aims to foster responsible and representative government that is open, accountable, fair and effective.

Unless there is an overriding public interest against disclosure, Council must provide the information. There are some limited exceptions to this general rule, for example where dealing with an application would constitute a significant and unreasonable diversion of Council's resources.

Applying the public interest test

The public interest test involves three steps:

Step 1

Identify relevant public interest considerations for disclosure

The GIPA Act provides examples of factors that Council may consider in favour of disclosure. These are:

promoting open discussion of public affairs, enhancing government accountability or contributing to positive and informed debate on issues of public importance
informing the public about the operations of Council and, in particular, our policies and practices for dealing with members of the public
ensuring effective oversight of the expenditure of public funds
the information is personal information of the person to whom it is to be disclosed
revealing or substantiating that Council (or a member of Council) has engaged in misconduct or negligent, improper or unlawful conduct.

This is not an exhaustive list and Council may identify other factors in favour of disclosure. The Information Commissioner may also issue guidelines on additional considerations favouring disclosure.

Step 2

Identify relevant public interests against disclosure

The Act provides an exhaustive list of public interest considerations against disclosure. These are the only considerations against disclosure that Council may consider in applying the public interest test. Considerations are grouped under the following headings:

responsible and effective government
law enforcement and security
individual rights, judicial processes and natural justice
business interests of agencies and other persons
environment, culture, economy and general matters
secrecy provisions (in legislation other than those listed in Schedule 1)
exempt documents under interstate Freedom of Information legislation

The Act says that in applying the public interest test, Council are not to take into account:

that disclosure might cause embarrassment to, or loss of confidence in Council
that any information disclosed might be misinterpreted or misunderstood by any person.

Council must consider any submissions made by an applicant in relation to public interest considerations, as well as any factors personal to the applicant.

Step 3

Assess if the public interest against disclosure outweighs the public interest in favour of disclosure, giving appropriate weight to each consideration

The identification of one or even several public interest considerations against disclosure is not sufficient justification to refuse to provide information. Council will make their decision after balancing the relevant considerations for and against disclosure. In each case, Council will consider a range a factors, including:

the nature and context of the information
in the case of an informal or formal request, any factors special to the applicant
the relevant weight of public interest considerations for and against disclosure.

Council should refuse to disclose information only where, on balance, there is an overriding public interest against disclosure. Where considerations on balance favour disclosure, or are evenly balanced, the presumption in favour of disclosure stands, and information should be published or released.

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