Access to government information

After the government agency or department has made its decision about your access request, you have the following options available to you.

• Apply for an internal review with the agency or department that made the decision, or
• Apply to the NSW Information Commissioner for a review of the decision.

You do not have to do either of those things before applying to NCAT for a review of the decision.

The government agency that made the decision will tell you if the decision can be reviewed by NCAT. 

NCAT ​​has power to review the following decisions.

• That the application is not a valid application
• To transfer the application to another agency
• To refuse to give access to information because of an overriding public interest against disclosure
• To refuse to deal with the application because:
  
  • it would be unreasonably expensive or time consuming
  • the agency does not hold the information.

If you are not sure if NCAT can review your decision, check the Government Information (Public Access Act) 2009.

You can either present your own case to NCAT or have a lawyer or non-lawyer agent represent you. You will usually need to attend the hearing to give your instructions to your lawyer or agent.

Your lawyer or agent needs complete a Notice of Representation and submit to NCAT in person or by post. If a non-lawyer agent is representing you, you also need to sign the notice before it is submitted. In both cases, you have to send a copy of the notice to the government agency or department.

Your agent needs to ask for permission to represent you from the Tribunal Member the next time the case is listed. You should attend with the agent in case NCAT does not allow the agent to appear for you. A lawyer does not need to ask for permission from the Member.

You will need to provide the following information on your application:

• Your name, address and telephone number
• The name of the government agency that made the decision you want reviewed
• The date the decision and the internal review decision, if any, were made
• A copy of the original decision and internal review decision, if any
• A brief outline of why you think the decision is wrong.

You will receive a letter from NCAT with a date for you to attend a 'case conference'.

A case conference is a preliminary session held at NCAT. A Tribunal Member will talk to you and a representative from the agency about identifying the issues and exploring ways in which the dispute may be resolved.

The Information Commissioner will also be advised about your application and may attend the case conference.

The agency will be asked to complete a review sheet, to give to you and the Member at the case conference. The review sheet contains detailed information about the basis for the agency’s decision.

If the agency has not provided the following information before the case conference, the Member will direct the agency to provide it:

1. Copies of the applications and decisions made under the GIPA Act with respect to the matter
2. A schedule of documents, identifying, in tabular form, each document in dispute by number and giving details of its date, nature, and author, and of the basis on which access was refused

In addition the agency will give to the Tribunal the documents under review on a confidential basis:

(a) documents considered to be subject to a conclusive overriding public interest against disclosure to be sent to the Tribunal in a sealed envelope marked ‘conclusive presumption documents’

(b) documents considered to be subject to a non-conclusive overriding public interest against disclosure to be sent to the Tribunal in a sealed envelope marked ‘non-disclosure documents’.

At the case conference, the Member will explore options for resolving the dispute. These options are:

1. Direct neg​​​otiation among the parties
2. Mediation by a mediator provided by the Tribunal
3. Preliminary conference
4. Hearing

After the case conference, the matter will be listed for mediation if suitable. App​​lications that need further procedural directions will be listed for a directions hearing.

If you want to summons a person to produce documents or give evidence at the hearing, you should ask the Member during the case conference to approve the summons.

The Tribunal Member will tell you and the other party when you should file written material which supports your case. The material may include statements and evidence, submissions and references to cases or legislation which you will rely on.

NCAT's hearings are less formal than court hearings. In most cases, the application will be heard by a single Tribunal Member.

In administrative review hearings, the respondent (government agency) usually gives their evidence first. The applicant then presents their evidence. 

Afterwards, the Tribunal Member will decide whether the government agency made the correct decision. In most cases the member will consider the case and make their​ decision at a later date. You should receive the decision within 3 months. Complex matters may take longer.

You will receive a letter telling you of the decision that NCAT has made. You will receive a copy of the written decision, as well as information about your appeal rights. The decision will also be available on the NSW Caselaw website.