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Planning and Environment Law Firm Perth. 

‘Freedom of information or freedom from information’

Blog

‘Freedom of information or freedom from information’

Angus McLeod

Introduction

‘Much of the work we undertake involves dealing with local and state government departments.  Whether we may, for example, act for a client who lodges a development application, objects to the imposition of infrastructure affecting property rights, or seeks compensation for losses suffered due to a government decision, information is often difficult to come by.  For this reason, we commonly make information requests on local and state government agencies under the Freedom of Information Act 1992 (WA) (Act). 

Although the Act purports to provide the public with a legally enforceable right to government information, agencies do not always grant access to information willingly.  This can be a significant obstacle for clients who want to know more about how a past, current or future government decision may affect them and their rights.

Structure of the FOI Act

The reluctance of many agencies to grant access to information is curious when in light of the underlying objectives and intention of the Act. 

Section 3 of the Act establishes the ‘general right of access to State and local government documents’ and requires that certain documents be made available to the public.  Further, section 3(3) provides that nothing in the Act is ‘intended to prevent or discourage the…giving of access to documents…otherwise than under this Act’.  The reference to ‘otherwise than under this Act’ is a reference to Schedule 1, which contains a detailed list and description of matter that may be exempt from disclosure under the Act. 

Putting aside for one moment the exemptions, it is clear that the general right of access should be the starting point for an agency receiving an information application and that the ability for an agency to claim an exemption should only be invoked as a last resort.  There should be a presumption that access to information is granted.  Unfortunately, some agencies appear to approach the task in a contrary manner, turning the application into a quest for claiming exemptions under Schedule 1.  This is add odds withan agency’s duty under section 4 of the Act to assist the public to obtain information and allow access to documents to be obtained promptly and at the lowest reasonable cost.

The types of matter exempt from disclosure include deliberations of Cabinet and Executive Council, matters that could damage inter-governmental relations, personal information, trade secrets, commercial and business information, deliberative processes of government, information subject to legal professional or parliamentary privilege, and confidential communications.  Almost every exemption contains the qualification that ‘matter is not exempt matter if its disclosure would, on balance, be in the public interest.’ 

Section 102 provides that in any proceedings, generally the burden of proof lies with the agency to establish that its decision was justified.  If however, the applicant alleges that it would be in the public interest to grant access to the information, the applicant bears to onus of proof.

FOI Process

In broad terms, obtaining documents under the Act can be divided into three stages.  The first stage is to prepare the original information application.  The application should not be too broad as the agency may, with notice, reduce the scope of the application to make it more manageable.  This process may result in the agency missing critical documents.  The application should also not be so narrow that the agency can discharge its duties by providing a single document matching the exact description of the request.  A balance is required.  Following receipt of the application, the agency must decide whether to grant or refuse access to documents or parts of documents.  Under the Act, the agency must make a decision within 45 days.  The average number of days is 22.9.[1] For applications that are complex or sensitive, our experience is that agencies take the full 45 days.  

The second stage can be entered if the agency refuses access to documents an applicant may seek an internal review.  When applying for an internal review, particulars of the original decision must be provided.  The Act does not require the applicant to make submissions or provide grounds for the review, however, this would be advisable.  The agency has another 45 days to make a decision to uphold or modify the original decision and must appoint a different decision maker who must not be subordinate to the original decision maker.

The third stage provides an applicant with the right to seek an external review of the agency’s internal review decision. The Act establishes the body responsible for hearing the external review, the Office Information Commission (OIC), and provides the process the OIC undertakes.  The OIC takes an application for external review as a complaint against the agency withholding information.  In an effort to maintain independence, the OIC is not an office of the Public Service.  The external review process is protracted and involves making brief initial submissions, participating in a conciliation conference and possibly making further detailed submissions or attending a hearing.  At the end of the process, the OIC makes a preliminary decision which it provides to the parties before publishing.  This provides a final chance for the agency to provide the documents before a public decision is published, revealing the dispute between the parties.  Even if the decision is in the favour of the agency, the agency may suffer a degree of reputational damage in the public eye.  After all, it is in essence denying the public a document that has been alleged to be in the public interest. 

In our experience, making a third party appeal to the OIC is the only way in which sufficient pressure can be placed on an agency to force it to uphold a public right.  It is unfortunate that such action has to be invoked to obtain public documents, and concerning that agencies use this to their advantage.  It is not uncommon for agencies to provide the documents at the final stage, just prior to the final decision being made.

The OIC has statistics published in its Annual Reports on which exemptions are most commonly used by agencies.  The most common exemptions claimed are the protect personal privacy, legal professional privilege , commercial or business information of private individuals and deliberative processes of government.  There is a body of decisions published on the OIC website, which inform how these exemptions have played out for information applicants who challenge the agencies decision through to the OIC external review stage.  It is our impression that the OIC generally sets the bar very high for the agency claiming the exemption.  This is considered as being consistent with the objects and intent of the Act.  It is however, disappointing that agencies continue to claim exemptions in circumstance where they struggle to meet the required burden of proof.

Interesting case

Not all disputes that arrive at OIC relate to the exemptions under Schedule 1.  There has recently been a novel matter that has been decided by the OIC, and more recently, appealed from the OIC to the Supreme Court.  Such appeals can only be on a question of law. West Australian Newspapers Ltd and Department of the Premier and Cabinet, Re [2015] WAICmr 9 involved a request by the applicant for documents relating to the government’s proposed Metro Area Express (MAX) light rail project.  The agency refused access to some documents on the grounds that they were created in Ministers’ offices during the caretaker period prior to the election and as such were not a ‘document of an agency’ as defined under clause 4 of the Glossary to the Act.  The agency alleged that the documents could not be the subject of an information request under the Act.  The OIC found that the disputed documents came within the definition of ‘relating to the affairs of another agency (not being another Minster)’ under clause 4(2) of the Glossary to the Act and ordered they be released.

As reported in a recent news article, the agency is seeking to appeal the decision of the OIC, on the grounds of ‘principle’.

We leave you with the words of the esteemed British philosopher, jurist and social reformer, Jeremy Bentham: ‘Where there is no publicity there is no justice.’[2]

[1] Western Australian Government. Office of the Information Commissioner, Annual Report 2014.

[2] Jeremy Bentham, Constitutional Code, Book II, ch. XII, sect. XIV