Fact Sheet - Contractor's guide to section 121 of the GIPA Act

This fact sheet appears below or can be viewed and downloaded here Fact Sheet - Contractor's guide to section 121 of the GIPA Act March 2017

Section 121 of the Government Information (Public Access) Act 2009 (GIPA Act) requires government agencies to insert a mechanism in their contracts to obtain access to certain information held by contractors when they provide services to the public on behalf of the government agency.

This fact sheet provides information to contractors that deliver services to the public on behalf of government agencies to assist those entities in understanding how section 121 of the GIPA Act affects them. 

Who does this apply to?

This requirement only applies to contractors who provide services to the public on behalf of a government agency. These contractors can include private, non-government and not-for-profit organisations.

How do I know if it applies to me?

Your contract with the government agency will inform you about whether the government agency has an immediate right of access to your information.

Section 121 allows agencies to insert a clause into its contracts giving a right of immediate access to certain information you hold. If you have such a clause, the government agency has an immediate right of access to your information.

It is common for government agencies to already have a clause within their standard contracts that allows them to obtain an immediate right of access to your information where the contractor would be delivering a service to the public on their behalf.

We suggest that you review your contract to see whether such a clause is currently in place to determine whether it applies to you.

Why should I provide information to the government agency?

Government agencies may require access to information for a variety of reasons. It may be for operational reasons to help them evaluate the performance of the contract. It may be for service delivery reasons. Typically, it will be to enable a response to an access request made to the government agency.

The GIPA Act provides members of the public with a right to access government information. This is aimed at increasing levels of accountability and transparency in decision-making within government agencies. As a result, government agencies may receive requests from members of the public for government information that they must consider.

The information that you have can form a part of the information that government agencies need to consider when dealing with access requests from members of the public. There are strict time frames in which government agencies must deal with access requests. This is why they need your cooperation to help them to deal with such requests for information where it may involve information that you hold.

You are a key part of the government’s commitment towards increased transparency and accountability in decision-making.

What information can government agencies access?

Government agencies can obtain access to your information through the GIPA Act. In general a clause in your contract with them will outline the information that must be provided to the government agency.

Section 121 requires government agencies to ensure that their contracts provide them with an immediate right of access to information:

  • relating directly to the performance of services by the contractor
  • that is collected by the contractor from members of the public to whom it provides, or offers to provide, the services, and
  • that is received by the contractor from the agency to enable the contractor to provide the services.
What is the time frame in which I need to provide the information?

Section 121 allows agencies to insert a clause requiring that you provide an “immediate right of access”. This may depend on the circumstances and upon your contractual terms. However, in general you will be required to ensure that you manage this information so that it is able to be accessed promptly by the government agency.

If a government agency has requested information from you as a result of an access application made by a member of the public, the government agency is bound by set time frames to deal with that application.

In such circumstances, the government agency needs your cooperation to help them to meet their time frames.

You must use your best efforts to provide the information to the government agency as quickly as possible. You should speak to the government agency if you have any concerns. 

What information is excluded?

You do not need to provide the government agency with an immediate right of access to the following types of information:

•     information about your financing arrangements, financial modelling, cost structure or profit margins.

•     information that you are prohibited from disclosing to the government agency because of another law.

•     information that could reasonably be expected to place you at a substantial commercial disadvantage in relation to the government agency at present or into the future.

This means that you do not need to provide government agencies with this type of information if they ask for it through this specific clause of your contract.

However, there may be other terms within your contract or other laws and regulations that may require you to provide government agencies with this type of information. If you have concerns about providing the government agency with information that they have requested from you, we suggest that you first speak to them about your concerns or seek independent legal advice.

What do agencies do with the information provided?

If you have provided information to the government agency to deal with an access request made by a member of the public under the GIPA Act, the government agency will consider whether it should release that information to the member of the public.

Government agencies follow a prescribed process for deciding whether or not the access applicant should be provided with access to the information. The government agency will consider factors in favour of and against the release of the information. They may ask you for your view on release of the information, if it relates to you. The government agency will then balance these factors and come to a decision about whether or not to release the information.

For more information on this process, please see the “Fact sheet - What is the public interest test?” on the IPC website.

What if I remain concerned about how section 121 affects my organisation?

We encourage you to raise these concerns with the government agency so that you can work out a solution together.

You may also contact the Information and Privacy Commission (IPC) and we will try to assist you.

For more information

Contact the IPC:

Freecall:            1800 472 679

Email:               ipcinfo@ipc.nsw.gov.au

Website:           www.ipc.nsw.gov.au


Page updated: April 2017.