Environment Law in the Northern Territory

Information held by the Northern Territory Government

Introduction

The Northern Territory Information Act provides a right for the public to access public information held by public sector organisations in the Northern Territory. The Information Act also sets out a procedure for individuals to access their personal information and sets requirements for how records and archives should be managed by public sector organisations.

This Fact Sheet provides information about how to access public information held in the Northern Territory. If you need information about how to access personal information in the Northern Territory contact the Office of the Information Commissioner Northern Territory. For information on how to access information held by Commonwealth government organisations, see Fact Sheet on Commonwealth Freedom of Information.

Which organisations have to provide information?

The Information Act applies to public sector organisations. Public sector organisations are:

  • Local authorities – this means local councils
  • A court of the Northern Territory (except in relation to its judicial functions and a coroner in relation to an inquest or an inquiry)
  • A tribunal of the Northern Territory (except in relation to its decision-making functions)
  • A person declared to be a public sector organisation – this includes the Chief Executive Officer of an organisation, and any officer, employee or agent, and persons who provide services to the public sector organisation.

What information can be accessed?

Government information can be accessed under the Information Act. Government information is means a record held by or on behalf of a public sector organisation. A record means recorded information in any form (including data in a computer system) that is required to be kept by, or on behalf of, a public sector organisation as evidence of the activities or operations of the organisation. It includes copies of records and parts of records. For example, records could include emails, documents, plans, photographs or reports.

Making an application

An application for access to information under the Information Act must:

  • be in writing
  • include your name – this can be an individual or an incorporated group. Unincorporated groups should make applications in the names of the members of the group
  • include an address for correspondence
  • contain enough information to identify the records you are requesting
  • include proof of your identity  – usually a copy of an identity document such as a driver’s licence or passport is sufficient. If you make the application in person, you may be allowed to show your identity document to an official without needing to provide a copy.

You must also pay an application fee (see below).

Some public sector organisations have their own application form. However, you can make an application without a form provided you comply with the requirements set out above. If you wish to use an application form, the Office of the Information Commissioner has provided a blank application form on its website.

It is important to make your application for access to information to the organisation that holds the information you wish to access. If you do not send it to the correct organisation, there could be a delay while the organisation transfers your request to the correct organisation.

It is also important to state as clearly as possible what information you wish to obtain. For example, if you are aware of specific documents that you wish to seek access to, providing details such as the date or approximate date of the document; the type of document; the author; the title of the document; or the subject or event that it relates to, can assist in the processing of your application. If you are unsure how to write your request, for example, because you don’t know how much relevant information is held by the organisation or what types of documents exist, it may be useful to contact the organisation in advance of making your application. Contact details for freedom of information officers of several public sector organisations are shown on the Office of the Information Commissioner’s website.

Costs

There is a $30 application fee for making an application to access public information.6 A public sector organisation may also charge costs for processing an application.

Processing costs are:

  • $25 per hour for searching for, retrieving and returning information
  • $25 per hour for considering the information and making a decision, including consultation
  • $25 per hour for supervising examination of information
  • 20c per page for photocopying A4 copies of documents in black and white

The provision of documents (such as sending them by post) is charged at the actual cost to the organisation.

You can request that an organisation provides you with an estimate of the costs of processing your application before it is processed. If there are many documents, the organisation may also write to you with an estimate of costs. If the organisation provides a cost estimate, it will not start processing the application until you confirm that you will pay the costs. The organisation may also ask you for a deposit to be paid before it starts processing the application. If a cost estimate is provided by the organisation, the maximum cost you will pay is what is written in the estimate. If the actual cost is less than what was estimated, you will only pay for the actual costs.

An organisation may waive or reduce processing costs if an applicant requests this. A waiver or reduction in costs can be requested in an application or on when a cost estimate is received. In deciding whether or not to waive or reduce costs, an organisation will consider:

  • the circumstances of the application
  • the financial means of the applicant
  • the purpose of the Information Act – which includes providing the Northern Territory to access government information.

If you wish to dispute a decision not to waive or reduce processing fees, you can apply to the organisation for an internal review of the decision.

Application procedure and timescale

Once an application has been submitted, the organisation has 30 days from the date it receives the application to write to the applicant with its decision. The decision will state whether access has been approved, or approved in part, or denied. The 30 day period stops running if the organisation writes to you with a cost estimate. The time starts running again when you confirm you will pay the costs.

The 30 day time period can also be extended by the organisation in certain circumstances. These are:

  • if the application relates to a large amount of information
  • extensive searches are required to locate the information
  • further time is required to consult with a third party – for example, if your request relates to information which includes commercial information, the organization may contact the company which produced that information to confirm whether it consents to the information being disclosed
  • complying with the 30 day timescale would unreasonably interfere with the operations of the organisation
  • the organisation transfers your application to another organisation. (The first organisation has 15 days to transfer your application. The other organisation then has 30 days from the date of transfer to make a decision.)

If the organisation does extend the time period, it must write to you and tell you the reason why more time is required. It must also provide you with a time estimate when a decision will be made. If you do not receive a decision within 30 days and you are not informed of any reason for extending the time period, the organisation is deemed to have refused your application for access to information.  You can seek an internal review in this situation.

Decision and exemptions

Access to information must be done either by providing a copy of the information if this is possible or by allowing the applicant to examine the information. The Notice of Decision must state how the copy will be provided or the place and time at which the information can be examined.

If an organisation does not provide full access to the information, it must explain the reasons why it is not providing full access in its decision letter. The only situation when the organisation does not have to tell you about its reasons for restricting access, are when it would not be in the public interest to know whether the information exists or not.

There are two reasons that organisations can deny or restrict access to documents:

  • an organisation can deny access if processing the application will unreasonably interfere with the operation of the organisation. This will occur when a large number of documents have been requested and it would take too many resources for the organisation to search for the records and process them. The organisation must give you the opportunity to re-word your application so that you can agree with them on making an application that is reasonable to process.
  • an organisation can deny access if there is an exemption under the Information Act. There are two different types of exemptions. The first type of exemptions applies when an organisation is not required to provide access to information because disclosure is not in the public interest.  The Information Act states that certain types of information are exempt from disclosure because to release them would not be in the public interest. This means that if information falls into the category of the exemption, the decision maker does not need to consider whether or not it would be in the public interest to disclose the document. The second type of exemptions is where the decision-maker must balance the public interest reasons for or against restricting or providing access to information. The decision-maker must then identify all the public interest factors for and against providing the information. He or she must then weigh up the factors to decide whether or not it is in the public interest to provide the information. The Office of the Information Commissioner has more information about how the public interest test is applied. Under the second type of exemption, information is only exempt if it is not in the public interest to disclose the information.

Examples of the first type of general exemptions are:

  • documents created for consideration by the Cabinet, Executive Council, or documents that if disclosed would prejudice or damage the economy of the Northern Territory, or give an unfair benefit or detriment to a person. This exemption does not apply if the information is over 10 years old
  • documents that would prejudice the security or defence of the Commonwealth or a State or Territory, or prejudice law enforcement in the Northern Territory
  • information created or obtained in an investigation, audit or inquiry

Examples of the second type of exemptions where the public interest is required to be considered are:

  • Health, safety, environment and place of significance – information may be exempt from disclosure if providing it would pose a serious threat to life or health of a person, or prejudice measures for protection of public health and safety, or harm or prejudice measures to protect flora and fauna, or harm or prejudice measures to protect places of scientific, cultural or historical significance.
  • Inter-governmental relations – information may be exempt if it would prejudice inter-governmental relations between an Australian body politic and a body politic overseas or between two or more bodies politic in Australia or in the Territory.
  • Deliberative processes – an opinion, advice or recommendation brought into existence by or on behalf of a public sector organisation in the course of, or for the purposes of, the deliberative processes that are part of the functions of the organisation; or (b) a record of consultations or deliberations of a public sector organisation in the course of, or for the purposes of, such deliberative processes may be exempt.
  • Effective operations of public sector organisations – where information would prejudice management or operations of a public sector organisation .
  • Commercial and business information, research, examination papers – information may be exempt if it is obtained from a business, commercial or financial entity and is a trade secret or other commercial information that if released might unreasonably disadvantage the entity.
  • Financial and property interests of the Northern Territory or public sector organisation – where the information is reasonably likely to have a substantial, adverse effect on the financial or property interests of the Territory or of a public sector organisation.

Sufficiency of searches

Under the Information Act, a public sector organisation that receives an application must deal with the application as promptly and efficiently, and as fairly and openly, as is reasonably possible. The Office of the Information Commissioner provides information about the sufficiency of searches that public sector organisations are required to undertake. This states that “an organisation must conduct thorough and adequate searches to locate the information requested”.

If an applicant is not satisfied that all reasonable steps have been taken to find the information, the applicant can lodge an application for an internal review (see below). If the applicant is not happy with the outcome of the internal review, he or she can make a complaint to the Information Commissioner (see below). Usually, the Information Commissioner will ask the applicant for the reasons that they believe that the searches were inadequate. For example, if you have been provided with a document that refers to the existence of other documents that were not provided to you, this may be evidence that the search was not adequate to locate those other documents. The Information Commissioner has the power to require an organisation to conduct further searches or inquiries.

Internal review

If you are unhappy with a decision made by an organisation to restrict or deny access to information or to charge a fee for providing access, the first step to resolving the dispute is to make an application for an internal review. This is a type of review which is conducted by the organisation itself. The review will be conducted by a different officer of the public sector organisation to the one who made the first decision.

An application for internal review must be made within 30 days of receiving the initial decision. Otherwise, the organisation can refuse to review the decision and it will be taken to have confirmed the decision.

An application for an internal review of a decision must:

  • be in writing
  • state the name of the applicant
  • include the decision and the details of the application that the decision relates to
  • include the reasons for the applicant making its decision
  • include an address for correspondence

The organisation must review the decision within 30 days of receiving an application for internal review and must notify the applicant in writing of the outcome of the review. The letter must also include the reasons for the outcome of the review. If you do not receive notice of the outcome of the internal review within 30 days, the organisation is deemed to have upheld its initial decision and in this situation, you can make a complaint to the Information Commissioner.

Complaints to the Information Commissioner

The Information Commissioner is an independent officer appointed to oversee the Information Act. One of the roles of the Information Commissioner is to resolve complaints between applicants and organisations regarding access to public information. The Information Commissioner has the powers to access records held by a public sector organisation, require records to be produced and serve compliance notices on public sector organisations.

If you are unhappy with a public sector organisation’s decision to refuse access to information or to charge a fee for processing information, you may make a complaint to the Northern Territory Information Commissioner . A complaint to the Information Commissioner must only be made after an applicant has applied to the organisation for an internal review of a decision and has received the outcome of the internal review.

A complaint to the Information Commissioner must be made within 90 days from the date on which the internal review decision was received. A complaint must be made using a form provided by the Information Commissioner. There is no fee for making a complaint.

When the Office of the Information Commissioner receives a complaint, it will decide whether it can accept the complaint. The Office will check that the complaint has been made within the 90 day time limit and that the applicant has first been through the internal review process. The Office will also decide whether the Information Commissioner has the power to deal with a complaint. The Information Commissioner will make a decision to accept or reject a complaint within 90 days of receiving the complaint and will write to confirm the decision.

If the Information Commissioner accepts a complaint, he or she will make investigations about the complaint. Following the investigation, the Information Commissioner will notify the parties in writing whether or not there is sufficient evidence to support or dismiss the complaint. If there is sufficient evidence, a mediation will take place..

A mediation is an informal way to resolve a complaint. The applicant and the public sector organisation meet with a Mediator, who will try to help the parties negotiate a way to resolve a complaint. Mediation proceedings can be held in person or by telephone or may be conducted by writing to the parties.

If the parties cannot agree at the mediation how to resolve the matter, the matter may proceed to a formal hearing before the Information Commissioner. Each party has an opportunity to present their case and to present evidence. Parties can represent themselves or can be represented by a lawyer.  Each party must pay its own costs of the hearing unless there are exceptional circumstances, in which case the Information Commissioner has the power to order that a person must pay the legal costs of the other parties if they are unsuccessful. The Information Commissioner will hear the parties’ arguments and evidence. The Information Commissioner is not bound by rules of evidence, but records of the hearing must be kept.

The Information Commissioner has the power to make a determination on a complaint. The Information Commissioner may confirm or vary the decision complained of in whole or in part or may revoke the decision in whole or in part. After the hearing, the Information Commissioner will give a written decision with the reasons for the decision.

Appeals to the Supreme Court

If a person is unhappy with the decision of the Information Commissioner, he or she may appeal the decision to the Supreme Court of the Northern Territory. The right to appeal is only on a question of law. This means that the Supreme Court cannot hear arguments about the parties about the merits of Information Commissioner’s decision, only arguments about whether or not the Information Commissioner has correctly applied the law. Appeals to the Supreme Court must be made within 28 days of the decision of the Information Commissioner.  If you are unsuccessful in the Supreme Court, you may be ordered to pay the legal costs of the other parties.

Outside the rights of appeal provided by the Information Act, there is no right to apply for judicial review of the decision of a public sector organisation or the Information Commissioner.