Fact Sheet - Calculation of time and the GIPA Act

Read the document below or download the document Fact Sheet - Calculation of Time and the GIPA Act, updated November 2019
 
The Government Information (Public Access) Act 2009 (GIPA Act) specifies time periods for agencies to make decisions and for applicants to apply for internal or external reviews when notice is given to an access applicant.
 
The GIPA Act sets out time frames for:
  • deciding that an application for access to government information is valid,[1]
  • deciding an access application, including any  extensions, [2] and
  • review rights.[3]
     
Requirements for notices given by agencies

Section 126 of the GIPA Act outlines the requirements that apply to any notice that agencies are required to give under the GIPA Act. Notices may be posted to a person at the address they have provided or by another method as agreed.[4]

For notices posted by the agency to the postal address provided by the person in their correspondence, the notice is considered to be given to the person on the date that it is posted by the agency.[5]
 

Why is the date of the notice of decision significant?

The GIPA Act sets out specific time frames for a person seeking a review of decisions by an agency in response to their request for access to government information.

The date that a notice is given is significant, as it is that date from which the clock commences in determining whether an application for internal[6] or external review[7] is made within the statutory time frame for review that is required under the GIPA Act.
 

What is a working day?
  • Under the GIPA Act, the required period for making decisions is by reference to working days.[8]
  • A working day means any day that is not a Saturday a Sunday, a public holiday or any day during the period declared by the Premier as the Christmas Closedown period.[9]
     
What do the words ‘given to’ mean?

A recent decision by the NSW Civil and Administrative Tribunal (NCAT), Choi v University of Technology Sydney [2017] NSWCATAD 198, considered the meaning of the words ‘given to’ in looking at whether an application for internal review had been made within time.

In Choi, at [23], NCAT’s reasoning was that the words “given to” have their ordinary meaning[10] of “delivered” or “handed over”. NCAT in Choi found that the notice was given to the applicant when it was received by email.

NCAT observed that the email notice was sent by the agency to the applicant and there was no dispute that the email was received. In those circumstances it could not be satisfied that there was a reasonable excuse for the applicant’s delay in lodging a request for administrative review to NCAT.
 

What is service by post?

Where the GIPA Act provides that a notice is to be given, that notice, may be given to a person by being posted. [11]Where an Agency posts a notice, under the GIPA Act the notice is considered to have been given to the person when it is posted by the Agency.[12]

Once the act of "posting the notice to the postal address provided is completed, notice is considered to have been "given” by the Agency.

This means that the date that the notice is “given” is when the particular act to give the notice is performed by the Agency.[13]

Accordingly, calculating time commences on the first working day after the notice is posted.

 

Can an application for internal review be made more than 20 days after the notice of decision was given to the applicant?

Yes. Section 83(2) of the GIPA Act allows an agency to agree to accept an application for internal review out of time. However, the agency is not obliged to accept an application made out of time.

 

What is the timeframe for seeking an external review by the Information Commissioner?

Section 90 of the GIPA Act provides that an application for external review to the Information Commissioner must be made within 40 working days after the notice of decision is given to the applicant.
 

Can an application for external review be made out of time?

The GIPA Act requires an application for external review to be made to the Information Commissioner within 40 working days of being given the notice of decision.[14]

The GIPA Act requires an application for external review to be made to NCAT within 40 working days after the notice of decision is given to the applicant,[15] or 20 working days following the completion of the Information Commissioner’s review.[16] 

There is no provision in the GIPA Act that enables the Information Commissioner to accept applications out of time.

NCAT may extend the time for making an application for external review by the NCAT where it is of the opinion that the person has provided a reasonable excuse for the delay.[17]
 

What if the notice of decision was agreed to be sent by email?

A notice of decision sent by email is considered to be given to an applicant when the applicant receives it by email.[18]

 

For more information

Information and Privacy Commission NSW (IPC):

Freecall:           1800 472 679
Email:             ipcinfo@ipc.nsw.gov.au
Website:           www.ipc.nsw.gov.au

NSW Civil and Administrative NCAT (NCAT)

Telephone:        1300 00 NCAT or 1300 006 228
and follow the prompts

Website:           www.ncat.nsw.gov.au

Interpreter Service (TIS): 13 14 50

National Relay Service for TTY Users: 13 36 77

 

 

[1] GIPA Act section 51

[2] GIPA Act section 57

[3] GIPA Act sections 83, 90 and 101

[4] GIPA Act section 126(1A)

[5] GIPA Act section 126(2)

[6] GIPA Act section 83

[7] GIPA Act section 90 and 100

[8] GIPA Act sections 51(2), 57, 83, 86, 90 and 101

[9]GIPA Act clause 1 of Schedule 4

[10] Melville v Townsville City Council [2004] 1 Qd R 530 at [27]

[11] GIPA Act section 126(1A)

[12] ANQ v Depaftment of Attorney General and Justice, Corective Services {[2012] NSWADT 271 at [8]- [11]

[13] Kyogle Shire Council v

Muli Muli(2005) 62 NSWLR 361 at t30l-1501.

[14] GIPA Act section 90

[15] GIPA Act section 101(1)

[16] GIPA Act section 101(2)

[17] GIPA Act section 101(4)

[18] Choi v University of Technology,Sydney [2017] NSWCATAD 198 at [26]