Knowledge Update - Calculation of time and the GIPA Act

 

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 timeframes 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]

The GIPA Act provides that 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 when it is posted by the agency.[5]

Why is the date that the notice of decision is given to an access applicant 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 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 or a public holiday.[9]

Is the closedown for Christmas/ New Year excluded from the definition of working days?

Only those days in the close down period that are Saturdays, Sundays or public holidays are excluded from working days for the purposes of calculating time in the GIPA Act.

What do the words ‘given to’ mean?

A recent Tribunal decision, 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], the Tribunal’s reasoning was that the words “given to” have their ordinary meaning[10] of “delivered” or “handed over”. The Tribunal in Choi at [24] to [25] also referred to previous decisions of Tribunals which looked at the question of when a decision may be given to a party by posting a letter, served by post, which is when the letter would be delivered in the ordinary course of the post, unless it can be proved otherwise.[11]

The Tribunal in Choi found that the notice was given to the applicant when it was received by email.

The Tribunal 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 the Tribunal could not be satisfied that there was a reasonable excuse for the Applicant’s delay in lodging a request for administrative review to the Tribunal.

What is service by post?

Section 76 of the Interpretation Act 1987 provides that:

(1)   If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document:

 (a)     may be effected by properly addressing, prepaying and posting a letter containing the document, and

(b)    in Australia or in an external Territory—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourthworking day after the letter was posted, and

(c)     in another place—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.

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.[12]

The GIPA Act requires an application for external review to be made to the Tribunal within 40 working days after the notice of decision is given to the applicant,[13] or
20 working days following the completion of the Information Commissioner’s review.[14]  

There is not a provision in the GIPA Act that enables the Information Commissioner to accept applications out of time.

The Tribunal may extend the time for making an application for external review to the Tribunal if the Tribunal is of the opinion that the person has provided a reasonable excuse for the delay.[15]

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.[16]

For more information

Contact the Information and Privacy Commission
NSW (IPC):

Freecall:            1800 472 679

Email:               ipcinfo@ipc.nsw.gov.au

Website:           www.ipc.nsw.gov.au

 

[1] Section 51 GIPA Act

[2] Section 57 GIPA Act

[3] Sections 83, 90 and 101 GIPA Act

[4] Section 126(1A) GIPA Act

[5] Section 126(2) GIPA Act

[6] Section 83 GIPA Act

[7] Sections 90 and 100 GIPA Act

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

[9] Clause 1, Schedule 4 to the GIPA Act

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

[11] Melville [28] and [29]; ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19 at [9] and [10]

[12] Section 90 GIPA Act

[13] Section 101(1) GIPA Act

[14] Section 101(2) GIPA Act

[15] Section 101(4) GIPA Act

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