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 non‑government organisations (NGOs) that deliver services to the public on behalf of government agencies to assist those entities to understand how section 121 of the GIPA Act affects them.
What is section 121 of the GIPA Act?
Section 121 of the GIPA Act allows government agencies to include a clause into its contracts providing a right of immediate access to certain information. If your organisation has such a clause, the government agency has an immediate right of access to the information your organisation holds.
Who does this apply to?
This requirement only applies to contractors, including NGOs, who provide services to the public on behalf of a government agency.
This would include, for example, an NGO that provides health or human services on a government agency’s behalf.
How do I know if it applies to my organisation?
Your contract with the government agency will inform you about whether the government agency has an immediate right of access to your information.
We suggest that you review your contract to see whether such a clause is currently in place to determine whether it applies to you.
How will a government agency know that my organisation holds information?
When a government agency receives an access application, it would make inquiries about where the information is held. The government agency would then make inquiries about where the information is held. If the information is held by your organisation, the government would make arrangements to access the information, through the section 121 provisions. The government agency would also need to consider whether it holds information relevant to the access application in its own right.
What information can government agencies access?
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 that I need to provide the information?
Section 121 of the GIPA Act 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.
Is any information excluded?
Your organisation does not need to provide the government agency with an immediate right of access to the following types of information:
- information about your organisation’s financing arrangements, financial modelling, cost structure or profit margins
- information that your organisation is prohibited from disclosing to the government agency because of another law, and
- information that could reasonably be expected to place your organisation 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 government agencies do with the information provided?
Information obtained by agencies from NGOs through this contractual clause forms part of the “government information” that agencies hold.
This means it could be the subject of an access application under the GIPA Act. If it is, 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. Your organisation may have a right to be consulted under section 54 of the GIPA Act before the agency decides to release the requested information, if it relates to your organisation. This will involve the government agency asking your organisation about its view on release of the information. The government agency will then balance these factors and come to a decision about whether or not to release the information.
If your organisation objects to information being disclosed, the government agency must take that objection into account when determining if there is an overriding public interest against disclosure, although this is not determinative. Review rights exist for third party objectors.
For more information on this process, please see the “Fact sheet - What is the public interest test?” on the IPC website.
For more information on third party consultation, please see the “Fact sheet – Third party consultation” on the IPC website.
Review rights for applicants
Applicants have the right to request a review of certain decisions  made by government agencies about the release of information under the GIPA Act. Depending on the circumstances, these reviews may be conducted by a government agency, the Information Commissioner or the NSW Civil and Administrative Tribunal.
For more information on an applicant’s review rights, please see the “Fact sheet – Your review rights under the GIPA Act” on the IPC website.
What other resources are available?
For more information on section 121, please see the “Fact sheet - Contractor’s guide to section 121 of the GIPA Act” on the IPC website.
What if my organisation remains concerned about how section 121 affects my organisation?
You are encouraged 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 Information and Privacy Commission
Freecall: 1800 472 679