what is the public interest test
The right to information system in New South Wales aims to foster responsible and representative government that is open, accountable, fair and effective.
Under the Government Information (Public Access) Act 2009 (GIPA Act), all government agencies must disclose or release information unless there is an overriding public interest against disclosure. When deciding whether to release information, staff must apply the public interest test. This means, they must weigh the factors in favour of disclosure against the public interest factors against disclosure.
Unless there is an overriding public interest against disclosure, agencies 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 an agency’s resources.
The public interest test involves three steps:
1. Identify the relevant public interest considerations in favour of disclosure
2. Identify the relevant public interest considerations against disclosure
3. Determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.
The GIPA Act provides examples of factors that agencies 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 agencies and, in particular, their 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, and
- revealing or substantiating that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
This is not an exhaustive list and agencies may identify other factors in favour of disclosure.
The Information Commissioner may also issue guidelines on additional considerations favouring disclosure.
The GIPA Act provides an exhaustive list of public interest considerations against disclosure. These are the only considerations against disclosure that agencies 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, agencies are not to take into account:
- that disclosure might cause embarrassment to, or loss of confidence in, the government or an agency
- that any information disclosed might be misinterpreted or misunderstood by any person.
Agencies must consider any submissions made by an applicant in relation to public interest considerations and may consider any factors personal to the application.
Step 3: Determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies
The identification of one or even several public interest considerations against disclosure is not sufficient justification to refuse to provide information. Agencies will make their decision after balancing the relevant considerations for and against disclosure. In each case, agencies will consider a range of factors, including:
- the nature and context of the information
- any personal factors of the application (under section 55 of the GIPA Act)
- the relative weight of public interest considerations for and against disclosure.
Agencies 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.
The ‘balancing’ approach to the public interest test applies in most circumstances. However, in relation to 12 categories of information, there is always an overriding public interest against disclosure. These are:
1. information subject to an overriding secrecy law (26 specifically named Acts)
2. Cabinet information
3. Executive Council information
4. information subject to the direction or order of a court or other body with the power to receive evidence on oath, or to Parliamentary privilege
5. information subject to legal professional privilege
6. ‘excluded information’ (judicial and prosecutorial information, information about complaints handling and investigative functions, competitive and market sensitive information, information in relation to specific functions of the Public Trustee, and information about the ranking and assessment of students completing the HSC)
7. documents affecting law enforcement and public safety
8. specific information relating to transport safety
9. specific information relation to adoption procedures and records
10. specific reports concerning the care and protection of children
11. information contained in the Register of Interests kept in relation to the Ministerial Code of Conduct, and
12. specific information relating to Aboriginal and environmental heritage.
Generally, agencies must not publish and must refuse requests to disclose information in the above categories. Formal applications for ‘excluded information’ are invalid under the GIPA Act.