Essential Guide

GIPA Applications in Focus: considerations against disclosure

WRITTEN BY Alice Menyhart & Victoria McGinness

This essential guide will assist Local Councils to consider and apply item (1)(d) to the table in Section 14 of the Government Information (Public Access) Act 2009 (NSW) (the Act) to access applications. That section provides that there is a public information consideration against disclosure of information where the disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions. Section 14(1)(d) is commonly relied upon by Councils where an applicant is seeking access to documents relating to a complaint or investigation, often in conjunction with 14(1)(f).

Determining an access application

The GIPA Act establishes a presumption in favour of the disclosure of information. As such, unless a Council determines that there is an overriding public interest against the disclosure of such information, it must be provided to the applicant.[1]

To determine whether information should be released to an applicant it is necessary to apply the “public interest test”[2] in accordance with the principles set out in section 15 of the GIPA Act. This involves[3]

  1. identifying the factors in favour of granting access (see section 12);
  2. then identifying the public interest factors against such disclosure (being only those items in Sch 1 or set out in the Table in section 14);
  3. considering personal factors and third-party consultation;
  4. allocating weight to each of the positive and negative factors;
  5. balancing the positive and negative elements to reach a decision as to whether access should be granted.

When dealing with a request for access of information under the GIPA Act, a Council will need to carefully consider the relevant public interest considerations to determine whether the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.  The balancing exercise ‘is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation’. It should be done for each document or category of documents for which access is sought.

Section 14 of the Act includes a table listing public interest considerations against disclosure.[4] This guide considers the application of item (1)(d).

Ground 1(d) – prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions

The relevant elements of s.14(1)(d) are[5]:

  • the information was obtained in confidence;
    • disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; and
    • the information facilitates the effective exercise of the Agency’s functions.

In confidence

Local Councils may receive information in confidence in a range of contexts, including through investigations, petitions, complaints and briefings. Whether information supplied is ‘confidential information’ is a question of fact. It well established that, even where information is not expressly stated to be provided to an agency in confidence, this can be inferred from the circumstances in which it was provided. The Tribunal provided the following guidance on when information will be ‘confidential information’ in Williams v Department Industry and Investment [2012] NSWADT 192[6]:

  • To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality;
  • The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed;
  • The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.


The term ‘prejudice’ has been given its ordinary meaning of ‘to cause detriment or disadvantage’ or ‘to impede or derogate from’[7]. In determining whether the release of information ‘could reasonably be expected’ to have the effect of causing prejudice to a Council’s exercise of its functions, it is appropriate

to consider the particular circumstances in which the information was supplied as well as, more generally, whether the Council’s ability to obtain confidential information in the future would be impaired.[8]

This question is to be answered at an ‘operational level’. It is not a question of whether a particular person may refuse to supply information in the future, but whether an inference can reasonably be drawn that the agency’s general ability to obtain such information in the future would be likely to be prejudiced.[9]

Impact on Council function

The information sought must also be information which ‘facilitates’ the effective exercise of the Agency’s functions.  In applying 14(1)(d) it is therefore necessary to identify the relevant function the Council considers would be prejudiced by release of the information. In this regard the Tribunal has acknowledged that Councils perform a broad range of functions under a wide range of legislation.

Reasonably be expected to have that effect

It is also necessary that the disclosure of the information could ‘reasonably be expected to’ have the prejudicial effect on Councils functions. This requires “a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous”[10]. The test is objective, based on what a reasonable decision-maker would consider to be the effect of disclosure[11].  In considering whether a council officer is satisfied that disclosure “could reasonably be expected” to have a particular effect, the following principles from the Tribunal’s Appeal Panel should be applied[12]:

(1)   a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2)   there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3)   prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses [or the public officer].


Councils should be conscious of the three elements of section 14, item 1(d), as set out in this guide and ensure each requirement is met before relying on this public interest consideration against disclosure.

The Information Commissioner has also issued guidelines on the public interest considerations for and against disclosure, and the application of the public interest test, which may be of assistance to Councils. They are available at

For more information, or for assistance in determining GIPA Applications, including applying item (1)(d) to the table in Section 14, contact Alice Menyhart or another member of the Planning, Environment & Local Government team.

[1] Government Information (Public Access) Act 2009 (NSW) s 5.

[2] Government Information (Public Access) Act 2009 (NSW) s 13.

[3] Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286.

[4] Government Information (Public Access) Act 2009 (NSW) s 14.

[5] Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60

[6] See also Bright v Eurobodalla Shire Council [2018] NSWCATAD 287

[7] Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]

[8] Leydon v Commissioner of Police [2019] NSWCATAD 267 at [33].

[9] Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19; Transport for NSW v Searle [2018] NSWCATAP 93

[10] Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 169

[11] Leech v Sydney Water Corporation [2010] NSWADT 298

[12] Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

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