FOI Policy & Practice Manual

Office of the Information Commissioner (WA)

FREEDOM OF INFORMATIONPolicy and Practice

November 1996(Re-printed October 1999)

FOREWORD

As Information Commissioner, I am in the unique position of having the dual responsibilityof dealing with complaints about decisions made by agencies under the Freedom ofInformation Act 1992, and of ensuring that the public and officers of State and localgovernment agencies are aware of their respective rights and obligations under thislegislation.

FOI is a new area of administrative law in Western Australia and, as such, is still developing.In this manual of policy and procedures, my office has attempted to assist with proceduralmatters and gaps in the legislation. The advice and suggestions in this manual are based onprecedent law, where applicable; FOI experience in this State and elsewhere; and mypublished decisions.

The manual is not a definitive guide, but it suggests a common sense approach to some of the“grey areas” of FOI administration, bearing in mind the objects and intent of the legislation. Icommend its contents to FOI practitioners and to the members of the public who use FOI toobtain information from government agencies.

Members of the public and FOI practitioners in agencies are encouraged to contact the Adviceand Awareness sub-program of my office if assistance is necessary, either in general or ifdifficulties are being experienced with a particular access application or an agency.

Notwithstanding the advice and suggestions herein, in keeping with my statutory obligations,I must decide complaints that come before me, impartially and on their merits, taking intoaccount the documents concerned and the evidence. Accordingly, my determinative role iscircumscribed by the FOI Act and by the decisions of the Supreme Court of WesternAustralia and not by anything contained in this manual.

B. KEIGHLEY-GERARDY

INFORMATION COMMISSIONER

For advice or assistance with any aspect of FOI procedures, orwith any part of this manual or the procedures outlined, contact:

Office of the Information Commissioner

Level 21, Exchange Plaza

2 The Esplanade

Perth WA 6000

Tel: 9220 7888

Facsimile: 9325 2152

Email: [email protected]

Internet Site: http://www.foi.wa.gov.au

Disclaimer

The content of this publication is an aid tounderstanding and provides guidance to

applicants and agencies, but cannot be substitutedfor the FOI Act and regulations.

TABLE OF CONTENTS Page

1. Introduction _____________________________________________________________9Purpose _______________________________________________________________________________ 9Assisting applicants_____________________________________________________________________ 10Documents available for purchase or inspection by the public ____________________________________ 11

2. Documents of an agency __________________________________________________13Definition ____________________________________________________________________________ 13Using Information Statements to identify requested Documents___________________________________ 14Applications for documents already available_________________________________________________ 14Documents not in existence at date of access application ________________________________________ 15Applications for future documents _________________________________________________________ 17Documents that do not exist or cannot be found _______________________________________________ 17Role and function of the Information Commissioner when documents are alleged to be missing__________ 18The lawful destruction of documents _______________________________________________________ 20Documents of Exempt Agencies ___________________________________________________________ 21Documents of Local Authorities ___________________________________________________________ 22

3. Dealing with an access application __________________________________________24The permitted period____________________________________________________________________ 24Extension/Reduction of permitted period ____________________________________________________ 25Calculation of days for the permitted period__________________________________________________ 26

Starting and stopping the clock__________________________________________________________ 26Third Party Consultation _________________________________________________________________ 28Duty to take steps that are reasonably practicable to consult _____________________________________ 30Procedure following consultation __________________________________________________________ 30Notice of Decision _____________________________________________________________________ 31Reasons for Decision____________________________________________________________________ 30Problems with Applicants ________________________________________________________________ 34

Repeated Requests ___________________________________________________________________ 34Fishing expeditions ___________________________________________________________________ 34

Documents required for civil litigation ______________________________________________________ 35The relationship between the FOI Act and the Rules of the Courts governing discovery _______________ 35Refusal to deal with an access application ___________________________________________________ 36Prior Access (Previous inspection of exempt matter) ___________________________________________ 37Applications from one agency to another ____________________________________________________ 37Hints for Agencies______________________________________________________________________ 38

4. Fees and charges ________________________________________________________40Principles_____________________________________________________________________________ 40Discretion to impose charges _____________________________________________________________ 40The application fee _____________________________________________________________________ 41Waiver/reduction of charges ______________________________________________________________ 41Estimates of charges ____________________________________________________________________ 42Non-payment of charges _________________________________________________________________ 43

5. Exemptions _____________________________________________________________44Optional not Mandatory _________________________________________________________________ 44Clause 2 - Inter-governmental relations _____________________________________________________ 45

Damage to Inter-governmental relations __________________________________________________ 45Reveal confidential information communicated in confidence __________________________________ 46

Clause 4 - Commercial or business information _______________________________________________ 46Trade secrets________________________________________________________________________ 48Information that has a commercial value __________________________________________________ 48Information about business, professional, commercial or financial affairs ________________________ 49

Clause 5 - Law enforcement, public safety and property security__________________________________ 51Clause 6 - Deliberative processes __________________________________________________________ 57

Candour and frankness ________________________________________________________________ 60Clause 7 - Legal professional privilege ______________________________________________________ 60

Waiver of privilege ___________________________________________________________________ 61Clause 8 - Confidential communications_____________________________________________________ 62

Clause 8(1) - Breach of Confidence ______________________________________________________ 62

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Clause 8(2) - Prejudice to the supply of confidential information _______________________________ 64Confidential information obtained in confidence ____________________________________________ 65Prejudice to the future supply of that kind of information _____________________________________ 65

Clause 11 - Effective operation of agencies __________________________________________________ 66Impair the effectiveness of a method or procedure for the conduct of tests, examinations or audits _____ 66Prevent the objects of any test, examination or audit from being attained _________________________ 67Substantial adverse effect ______________________________________________________________ 67

6. Personal Information_____________________________________________________69Definition ____________________________________________________________________________ 69Titles, names, addresses and telephone numbers_______________________________________________ 70Officers of agencies and contractors for services ______________________________________________ 71Applications for access to personal information concerning children_______________________________ 72Applications for access to personal information concerning intellectually handicapped persons __________ 74Deletion of third party personal information__________________________________________________ 74Personal information about applicant interwoven with other personal information ____________________ 75Disclosure of the identity of a complainant___________________________________________________ 76

Complaints to agencies making allegations about individuals __________________________________ 76

7. The Public Interest _______________________________________________________80Application to Exemptions _______________________________________________________________ 80

What is the public interest?_____________________________________________________________ 80Examples___________________________________________________________________________ 81

8. External Review _________________________________________________________84Notification of Complaint ________________________________________________________________ 84Notifying parties of external review ________________________________________________________ 85Procedures on Review___________________________________________________________________ 85Onus of Proof _________________________________________________________________________ 86Standard of Proof ______________________________________________________________________ 89Procedure following receipt of preliminary view ______________________________________________ 89Changing the basis of a claim for exemption _________________________________________________ 90The Information Commissioner’s decision ___________________________________________________ 91Status of complaints decided by the Information Commissioner __________________________________ 92Feedback on review procedures ___________________________________________________________ 92

9. Appendices _____________________________________________________________93Blank Schedule ________________________________________________________________________ 94Sample Schedule_______________________________________________________________________ 96Cases ________________________________________________________________________________ 98Checklist for applicants_________________________________________________________________ 100Flowchart - Processing an FOI Application _________________________________________________ 102

FREEDOM OF INFORMATION 1. Introduction • 9

1. Introduction

Purpose

1.1 These guidelines are issued by the InformationCommissioner in accordance with theCommissioner’s statutory obligation unders.63(2)(d), (e) and (f) of the Freedom ofInformation Act 1992 ('the FOI Act'). Thepurpose of the guidelines is to assist agencies tounderstand their obligations under the FOI Actand to assist applicants to exercise their rightsunder that Act. The guidelines also explain theapproach taken by the InformationCommissioner in dealing with complaints. Thecontents of this publication should be read inconjunction with the material contained in theProcedures Manual issued in June 1994.

1.2 In line with the clear intention of Parliament andthe FOI Act that procedures should be informal,speedy and without undue technicality, thepreferred approach of the InformationCommissioner when assisting agencies andapplicants is to emphasise the resolution ofcomplaints by conciliation and negotiationwhere possible. However, the primeresponsibility for the administration of the FOIAct rests with State and local governmentagencies and it is incumbent upon officers ofthose agencies to make the legislation workeffectively.

Principles ofAdministration


Assisting applicants

1.3 The FOI Act places certain statutory obligationsupon agencies to assist applicants to exercisetheir rights under the FOI Act. Some of themost important obligations are as follows:

* take reasonable steps to help an accessapplicant make an application in amanner that complies with the FOI Act[s.11(2)];

* take reasonable steps to help an accessapplicant to change an application so thatit complies with the requirements of theFOI Act [s.11(3)];

* deal with an access application as soonas practicable [s.13(1)];

* transfer the access application to anotheragency (where appropriate) and withoutdelay [s.15];

* take reasonable steps to help an accessapplicant to change an application toreduce the amount of work needed todeal with it [s.20(1)];

* take reasonable steps to be satisfiedabout the identity of an access applicantbefore personal information is releasedand ensure that only the person to whomthe information relates (or an authorisedagent of that person) receives personalinformation [ s.29].

1.4 Agencies are required to give effect to the FOIAct in a way that:

(i) assists the public to obtain access todocuments;

(ii) allows access to be obtained promptlyand at the lowest reasonable cost; and

(iii) assists the public to ensure that personalinformation in documents is accurate,complete, up to date and not misleading[s.4].

1.5 The FOI Act requires agencies to deal with theirresponsibilities under that Act with theprinciples in s.4 in mind. Whenever there is anydoubt about the appropriate manner of dealing


with an access application or where theprovisions of the Act are unclear, the principlesof administration should act as a guide fordecision-making. Early contact with the Adviceand Awareness sub-program in the office of theInformation Commissioner can provideassistance in this regard.

1.6 Although agencies have a discretion to releasedocuments that may technically be exempt[s.3(3)], the Information Commissioner does nothave the same discretion. However, to minimisethe number of complaints and to demonstrate acommitment to openness and accountability, theInformation Commissioner encourages agenciesto exercise their discretion in accordance withthe principles of administration. Decisions towithhold documents from release under FOIshould only be made if disclosure would resultin some identifiable harm or injury and only toprotect the most sensitive information.

Documents available for purchase or inspection bythe public

1.7 The role of the FOI Act in the provision andamendment of information is to complement orsupplement existing arrangements, not to restrictthem. It does not overrule or restrict anyobligations to give access to information or toamend records which exist under otherlegislation. However, it does override theconfidentiality and secrecy provisions oflegislation, unless that legislation expresslystates that it has effect despite the FOI Act [sees.3(3) and s.8(1)].

1.8 Some documents are excluded from the ambit ofthe FOI Act. These include:

* documents available for purchase or freedistribution by agencies [refer to agencyInformation Statements];

* documents available for inspection underan enactment whether for a fee or not;

* documents available for inspection in theState Archives;


* publicly available library or referencematerial in agencies; and

* documents made or acquired bymuseums, libraries and art galleries forpublic display or general reference [s.6].

1.9 Agencies may refuse access under the FOI Act ifdocuments are available to the public forpurchase, inspection or free distribution [s.6]. Ifthere is a statutory scheme in place under otherlegislation that allows an applicant, as a memberof the public, to have access to his or herpersonal information upon payment of a fee, butwhich would not allow other members of thepublic to have access to that information, it isarguable that those documents are availableoutside the FOI Act. That is, any pre-existinglegislative or administrative arrangements toenable people to have access to governmentinformation, whether personal or non-personal,may not be over-ridden by the FOI Act andagencies could rely upon those existingarrangements to make documents available tomembers of the public.

FREEDOM OF INFORMATION 2. Documents of an agency • 13

2. Documents of an agency

Definition

2.1 The right of access under the FOI Act is a rightto access documents rather than information.The words "document" and "record" are broadlydefined in the FOI Act and cover almost all, ifnot all, forms in which information may bestored in an agency. For example, in the courseof resolving a complaint, the InformationCommissioner was of the view that amanufacturer’s compliance plate fitted to theengine of a motor vehicle, was a "record" asdefined in the Glossary in Schedule 2 to the FOIAct and hence a "document" for the purpose ofproviding access to it under the FOI Act.

2.2 An agency need not create a document if onedoes not exist, in order to satisfy a request foraccess. However, some agencies have beenprepared to create a document to provideinformation to applicants in order to complywith the spirit of openness and accountability.The Information Commissioner encourages sucha proactive response by agencies and theadoption of policies and practices that facilitateaccess to information outside the framework ofthe FOI Act.

Access to documents


2.3 However, such practices must supplement therights of access under the FOI Act. Agencypolicies and practices must not be used tofrustrate the legal rights of access and externalreview by the Information Commissioner.

Using Information Statements to identify requestedDocuments

2.4 Agencies must publish, and make available forpublic inspection or purchase, InformationStatements containing a description of the kindsof documents that are usually held by theagency, including documents that may bepurchased from the agency or those that may beobtained free of charge [s.94(d)]. If an applicantdoes not know where or how an agency storesthe information to which access is required, or ifan applicant is unable to describe the documentrequested, he or she should ask to see theagency’s Information Statement.

2.5 If the Information Statement does not help anapplicant to describe the documents requested,the agency must assist that applicant to identifythe document required and to submit anapplication for access in the form prescribed bythe FOI Act. Such assistance may need to takethe form of a more detailed description of theagency’s record-keeping system, for example,demonstrating how a computerised data baserecords documents in order to isolate the subjectmatter or incident that is of interest to thatapplicant.

Applications for documents already available

2.6 If an application is made for access todocuments or information that is publiclyavailable in a manner described in s.6 of the FOIAct, the access applicant should be informedpromptly of the means of accessing thatinformation outside the FOI process and that anaccess application is not required. Anyapplication fee paid should be refunded or offsetagainst the purchase price of the documents ifthe applicant agrees to that course of action.


2.7 However, if it is agency policy to make only partof the information publicly available or topublicly release only an abbreviated version ofthe requested documents, the access applicantshould also be informed of that fact in case he orshe wishes to pursue his or her right under theFOI Act to access the remaining records.

Documents not in existence at date of accessapplication

2.8 An access application would normally only relateto documents in existence at the date that thedecision is made by the agency, or a date shortlybefore that date. Although an access applicationdoes not apply to all future relevant documents,it may apply to documents of an agency whichcome into existence after the date of the accessapplication but before the date of the decision.Whether or not an agency responds to an accessapplication solely with respect to documentsexisting and held by the agency at the date of therequest, or at the date of the decision, or somedate shortly before the decision, will depend onthe circumstances of the particular application.In any case, an applicant should be informed bythe agency, in its notice of decision, of the basison which the decision is made in that regard byspecifying the date selected by the agency asbeing the relevant date for that purpose.

2.9 Further, in accordance with the principles ofadministration in s.4 of the FOI Act, decision-makers are expected to take into account alldocuments known to be in existence or thatcould reasonably be expected to come intoexistence, either at the date of the accessapplication or the application for internal review,or shortly thereafter. A common sense approachto this question is likely to eliminate the need forsuccessive applications and reduce theadministrative burden on the agency concerned[refer to the decisions in Re Simonsen and Edith CowanUniversity (13 July 1994, unreported), at paragraph 16;Re Brown and Police Force of Western Australia (14July 1995, unreported), at paragraph 13-18].


2.10 If an agency receives additional documents afteran access application has been lodged, or ifadditional documents are created, it isreasonable to expect a cut-off date to applyshortly before a decision on access is made. Inany case, the notice of decision provided to theaccess applicant should specify the relevant datefor the purpose of decision-making. Forexample, a statement along the following linesmay be appropriate:

“This decision relates to all documentsidentified as being within the ambit of yourrequest held by this agency as at..........” (insertrelevant date).

Applications for future documents

2.11 The right of access under the FOI Act onlyapplies to existing documents and not todocuments that may come into existence at sometime in the future. An agency may defer givingaccess under the provision of s.25 of the FOIAct, where appropriate. Alternatively, theaccess applicant may be advised to apply againat some future date.

Documents that do not exist or cannot be found

2.12 Applicants requesting access to documents mustrely on the integrity of the searches conducted bythe relevant agency to locate those documents.However, in her formal decisions dealing with“sufficiency of search” issues, the InformationCommissioner does not believe that the FOI Actrequires agencies to guarantee that their record-keeping systems are infallible. Documents maynot readily be found for a number of reasonsincluding misfiling, poor record keepingpractices, ill-defined requests, a proliferation ofdifferent record- keeping systems within anagency, unclear policies or guidelines,inadequate training in record management or thedocuments may simply not exist. [see Re Bolandand City of Melville (11 October 1996, unreported)].

2.13 Section 26 of the FOI Act deals with therequirements of an agency in circumstances inwhich it is unable to locate documents requestedby an access applicant. If an agency is unable to


locate requested documents and there is reasonto believe that those documents should exist, anadequate statement of reasons may reassure anaccess applicant that the agency has attempted tomeet its statutory obligations but is unable to doso. The minimum requirement is a briefexplanation of the steps taken by the agency tosatisfy the request. The explanation shouldinclude the locations searched, why thoselocations were chosen and a description of howthe search was conducted- eg. computer search,manual search of file series or card index [see ReDoohan and WA Police Force (5 August 1994,unreported), at paragraph 28-29].

Role and function of the Information Commissionerwhen documents are alleged to be missing

2.14 If a complaint is made to the InformationCommissioner about “missing” documents towhich access has been refused on the groundthat those documents either cannot be found ordo not exist, the Information Commissioner willobtain information from the agency and theapplicant to answer the following questions:

1. Are there reasonable grounds to believethat the requested documents exist, orshould exist; and

2. Were the searches conducted by theagency to locate those documentsreasonable in all the circumstances?

2.15 The Information Commissioner has taken theview that the function of an InformationCommissioner is not to physically search for thedocuments on behalf of an applicant, nor toundertake a detailed examination of an agency'srecord-keeping system [see Re Doohan; Re Oset andMinistry of the Premier and Cabinet (2 September 1994,unreported); Re Lithgo and City of Perth (3 January1995, unreported); Re Tickner and Police Force ofWestern Australia (7 March 1995, unreported); ReNazaroff, Nazaroff and Nazaroff and Department ofConservation and Land Management (24 March 1995,unreported); Re Goodger and Armadale KelmscottMemorial Hospital (9 May 1995, unreported)unreported); Re Oset and Health Department ofWestern Australia (1 June 1995, unreported); and ReUren and Ministry for Planning (12 July 1995,unreported); Re Barrett and Police Force of WesternAustralia (12 September 1995, unreported); Re “M”and Princess Margaret Hospital for Children (11


December 1995), unreported); Re “N” and GraylandsHospital (12 December 1995, unreported); Re Sanfeadand State Government Insurance Commission (17January 1996, unreported); Re Boland and City ofMelville (11 October 1996, unreported)]. However,the Information Commissioner will requestadditional searches, if necessary, in order to besatisfied that the agency has acted reasonably [seeRe Oset, at paragraphs 9-11; Re Goodger, atparagraphs 6-17].

2.16 An applicant should be told, for example, of thesearches that were made, including the locationssearched, by whom the searches were made, whythose areas were chosen and the results. TheInformation Commissioner will certainly requestthat information to be provided if a complaint ismade and may suggest additional searches beconducted, including a search of the informalrecord-keeping systems of an agency such as thedesks and drawers of officers, personal diariesand the like.

The lawful destruction of documents

2.17 Sub-sections 30(2) and (3) of the Library Boardof Western Australia Act 1951 provides asfollows:

"(2) The officer in charge of a publicoffice may destroy or dispose ofany public record or class or publicrecords in the custody or under thecontrol of that public office -

(a) if the destruction or disposal isin accordance with a Retention andDisposal Schedule with the terms ofwhich an authorised officer of theBoard has concurred; or

(b) if the Board has informed thatofficer in writing that it does notrequire that public record or thatclass of public records to betransferred to the Board forinclusion among the State archives,but not otherwise.

(3) Before any public records aredestroyed or disposed of, the officerin charge of the public office in thecustody or under the control ofwhich the public records are shall


notify the Board of the intention todestroy or dispose of those publicrecords and in that notificationshall specify the nature of thepublic records concerned."

2.18 Copies of current Retention and DisposalSchedules are stored at the Library InformationService of Western Australia (LISWA).Agencies should provide applicants with a copyof their current authority to dispose of records, incircumstances where it is relevant, or obtain acopy from LISWA. Access applicants shouldask for a copy of that authority if it is notprovided by the agency in the first instance.

Documents of Exempt Agencies

2.19 The general right in s.10(1) of the FOI Act toaccess a document of an agency does not includea right to access a document of an exemptagency. Ordinarily, that limitation means thatapplications under the FOI Act directed to any ofthe exempt agencies listed in Schedule 2 to theFOI Act must fail. However the FOI Actrecognises that, from time to time, documentsoriginating in exempt agencies may be held byother agencies and thus may be accessible underthe FOI Act, the test being whether the agencyreceiving the access application has possessionor control of the documents in question,although they may be exempt for other reasons,eg. under clause 5(2).

2.20 Section 15(8) of the FOI Act requires an agencyholding requested documents that originatedwith or received from an exempt agency, tonotify the exempt agency that an accessapplication has been made for those documents.The purpose of this notification is to obtain thebenefit of consultation with the exempt agencyas to the status of the requested documents. Forexample, routine documents of an exemptagency or documents dealing with administrativematters of an exempt agency, will notnecessarily be sensitive and could be released ifrequested [see comments in Re Clements and HealthDepartment of Western Australia ( 16 March 1994,unreported), at paragraphs 10-15].


2.21 For example, a letter may have been written byan officer of an exempt agency to an officer of anon-exempt agency. If the original letter islocated on a file in the non-exempt agency and acopy is also kept on a file in the exempt agency,then the original letter will be a document of thenon-exempt agency while the copy will be adocument of the exempt agency. Whilst thelatter will not be accessible under the FOI Act,the former - subject to the various exemptionclauses - will be potentially accessible [see ReBurnett and Police Force of Western Australia (23 June1995, unreported), at paragraphs 10 and 11].

2.22 The exempt agencies named in clause 6 ofSchedule 2 to the FOI Act are unique amongstthe agencies listed as exempt agencies inSchedule 2 in that they are branches or units ofagencies and are not, other than for the purposesof the FOI Act, separate agencies in their ownrights. For the purposes of the FOI Act, they aredeemed to be separate agencies in order thatdocuments of those units or branches areprotected from disclosure under the FOI Act[clause 2(2) and (3) of Schedule 2].

2.23 The effect of clause 6 in Schedule 2 to the FOIAct is that a document of any of the unitsmentioned is not to be regarded as a document ofthe main agency merely by virtue of it being adocument of one of those units or brancheswhich, other than for the purposes of the FOIAct, form part of the main agency. However, if adocument of an exempt agency leaves thatagency and enters the possession of a non-exempt agency, then that document is adocument of the non-exempt agency and must bedealt with accordingly if an application is madefor access to that document [see Re Waghorn andChristmass and Police Force of Western Australia (22May 1995, unreported), at paragraphs 34-35; ReBurnett, at paragraphs 10-13].

Documents of Local Authorities

2.24 Local authorities should note that, in accordancewith the definitions and clause 4 of Schedule 2to the FOI Act, information generated by, or inthe possession of or under the control of the


mayor or other councillors, in their capacities asmayor or councillors and which concerns theircivic or council duties under any Act, may besubject to the FOI Act, although that point hasnot yet been subject to a determination by theInformation Commissioner.


FREEDOM OF INFORMATION 3. Dealing with an access application • 23

3. Dealing with an accessapplication

The permitted period

3.1 Agencies are required to deal with an accessapplication as soon as is practicable and beforethe end of the "permitted period" [s.13(1)]. Thepermitted period is 45 days after the accessapplication is received [s.13(3)]. The words "assoon as practicable" in s.13(1) mean thatagencies have a maximum of 45 days but mustallow access to be obtained promptly where it ispracticable to do so.

3.2 If an applicant does not receive a written noticeof the decision in the form prescribed by s.30 ofthe FOI Act within the permitted period theagency is taken to have refused access (a deemedrefusal) [s.13(2)]. In such a case, the applicantmay apply for internal review, or may apply tothe Information Commissioner to allow theagency an extension of time to comply with itsobligations [s.13(7)]. The InformationCommissioner has a discretion to grant such anextension and may attach conditions to such agrant including, but not limited to, reduction orwaiver of charges.

Extension/Reduction of permitted period

3.3 An access applicant may apply to theInformation Commissioner for a reduction of the

Duties and Obligations


permitted period [s.13(4)]. Likewise, an agencymay apply to the Information Commissioner foran extension of the permitted period [s.13(5)]. Itis the policy of the Information Commissionerthat such applications will not be consideredunless it is shown that genuine efforts have beenmade by the applicant and the agency in the firstinstance, to reach agreement on an acceptabledate for decision-making. In the case of anapplication for a reduction of the permittedperiod, it is the policy of the InformationCommissioner that the applicant must showgood reasons why the InformationCommissioner’s discretion should be exercised.If the parties are unable to reach agreement, inthe case of an application for an extension oftime, the agency must satisfy the InformationCommissioner that it has attempted to complybut that it is impracticable to do so in thecircumstances [s.13(5].

3.4 Although the right of access is not affected byany reasons an applicant may give for wishing toobtain access, in seeking to persuade theInformation Commissioner to reduce thepermitted period, reasons are both necessary anddesirable. This means the applicant may need toexplain the importance of receiving a decisionby the specified date, the reasons for believingthat the agency is able to adequately deal withthe application by that date, the adverseconsequences (if any) of not receiving a decisionby that date and any other relevant factors. TheInformation Commissioner has considered that apending action in court (criminal or civil) is asufficient reason to justify a reduction of thepermitted period.

3.5 The Information Commissioner will onlyintervene in the first instance between theapplicant and the agency without thesepreliminary steps being followed, when there arecompelling reasons to do so and it is notpracticable for the applicant to negotiate directlywith the agency concerned.

3.6 In the case of an application by an agency for anextension of the permitted period, the agencymust satisfy the Information Commissioner that


it has attempted to comply with its obligationsbut that it is impracticable to do so. TheInformation Commissioner expects the agency tobe able to demonstrate that it has taken action tocomply with its obligations (the agency’s filerecords should contain sufficient evidence in thisregard), and to establish real and substantialgrounds for claiming that it is unable to complywith the statutory time-frame.

Calculation of days for the “permitted period”

3.7 An access application is assumed to have beenlodged with an agency on the date that it isreceived by the agency, whether it arrives bypost, facsimile or by hand. If it is stamped uponreceipt, the date of the “received” stamp wouldnormally evidence the date it is lodged. For thepurpose of calculating the “permitted period”,day one commences on the day after the accessapplication was lodged and concludes at the endof day 45 [s. 61(a) and (g), Interpretation Act1984].

Starting and stopping the clock

3.8 There will be times when it is necessary for anagency to “stop the clock”, such as when anaccess applicant has been provided with anestimate of charges and the agency is awaitingadvice on whether to proceed to deal with theaccess application. The clock stops on the dayon which the notice is given and it restarts on theday on which the agency is notified that theapplicant intends to proceed [s.19(1)]. Theclock does not stop during the transfer of anaccess application from one agency to another.Therefore, any transfers that are necessary ordesirable under the FOI Act must be effected assoon as possible.


Third Party Consultation

3.9 Consultation with third parties may be requiredwhen access is sought to a document containingpersonal information about an individual otherthan the applicant (a third party) [s.32], orcommercial, business, professional or businessinformation, including trade secrets, about a thirdparty [s.33]. The purpose of consultation is toprotect the privacy of individuals and to protectthe commercial interests of individuals ororganisations that do business with thegovernment [see, inter alia, Re Veale and Town ofBassendean (25 March 1994, unreported), at paragraph34; Re Kobelke and Minister for Planning and others(27 April 1994, unreported) at paragraph 68; Re A andHeathcote Hospital (9 June 1994, unreported), atparagraph 23; Re Hayes and The State HousingCommission of Western Australia (Homeswest) (17 June1994, unreported), at paragraph 20; Re Gray andUniversity of Western Australia (23 June 1994,unreported), at paragraph 14; Re Manly and Ministry ofthe Premier and Cabinet (16 September 1994,unreported), at paragraph 46; Re “C” and Departmentfor Community Development (12 October 1994,unreported), at paragraph 22; Re Smith and StateGovernment Insurance Commission (5 December 1994,unreported), at paragraph 13; Re Edwards and Ministryof Justice (12 December 1994, unreported), at paragraph15].

3.10 Some agencies make unnecessary work forthemselves by consulting with third parties whenthey need not do so. It is not a requirementunder the FOI Act to consult with thirdparties merely because a document containspersonal or commercial or businessinformation. The duty to consult only ariseswhen an agency decides to give access to adocument that contains personal information orcommercial or business information because thedocument is not exempt (having decided that thepublic interest, on balance, favours disclosure)or, though a document is technically exempt, theagency has decided not to claim an exemptionfor it. Contact with the access applicant mayobviate the need for consultation if he or shedoes not seek access to third party information.


3.11 If a document contains personal information orcommercial or business information about athird party and an agency decides that it isexempt and claims an exemption under clause 3or clause 4, consultation with the third party isnot necessary. An agency may consult but it isnot under a duty to do so. Consultation mayprovide a factual basis for the exemptionclaimed, ie. it may inform the agency about the“commercial value” of the information and thelikely effects of disclosure.

3.12 The agency may decide to release the documentwith the relevant personal information orcommercial or business information deletedfrom the document under the provision of s.24of the FOI Act, so that it is no longer an exemptdocument. In those circumstances, there is noduty to consult.

Duty to take steps that are reasonably practicable toconsult

3.13 When the need to consult arises, the agency needonly take such steps as are reasonablypracticable for that purpose. In somecircumstances it may be more appropriate toapply to the Information Commissioner forapproval not to consult [s.35]. The InformationCommissioner will need to be satisfied abouttwo matters before approval not to consult isgiven:

(i) it would be unreasonable to requireconsultation having regard to the numberof third parties involved; and

(ii) the document does not contain exemptpersonal information or exemptcommercial or business information.

Procedure following consultation

3.14 If the agency obtains the views of a third partyand those views are that the document containsexempt matter under clause 3 or 4, and theagency decides, nonetheless, to give access, theagency must give the third party a written noticeof the decision and defer giving access until thetime for the third party to complain to theInformation Commissioner has expired and there


is no such complaint [s.34]. If there is such acomplaint, access is deferred until that complainthas been dealt with and the time for appeal to theSupreme Court has expired or, if there is anappeal, until the appeal has been dealt with[s.34].

Notice of Decision

3.15 The FOI Act provides that in proceedings arisingout of a decision the onus is on the agency tojustify any decisions that are adverse to therights of access given to an applicant by the FOIAct [s.102(1)]. The agency is required to:

(i) identify and describe each documentwithin the ambit of the accessapplication;

(ii) explain why those documents or parts ofdocuments are exempt;

(iii) specify which clause or clauses inSchedule 1 are claimed to exempt thosedocuments or parts of documents; and

(iv) provide reasons, including materialfindings of fact, to show why the clauseor clauses apply to exempt thedocuments in question.

3.16 A notice of decision is an important piece ofcommunication between an applicant and theagency (and the Information Commissioner ifthe matter proceeds to external review). Thenotice required under s.13(1) of the FOI Actshould be the result of a documented process ofconsideration and decision-making by anagency. An applicant receiving such a noticemust be able to understand the documentsidentified by the agency as being within theambit of the access application (number andtype) and, where access is refused, all of thesteps of the reasoning process involved in theagency establishing that the documents areexempt.

3.17 When dealing with a request for access to anumber of documents, each discrete documentmust be identified and a decision made inrespect of each of those documents. Each page


of a multi-page document (eg. a report) must beconsidered as well as any attachments orappendices to a document.

3.18 The use of a schedule to list and describe thedocuments identified by the agency as beingwithin the ambit of the access application, isstrongly recommended where more than a fewdocuments are involved. If this is not done fromthe outset, the Information Commissioner willrequire it to be done on external review.However, if it is done at the outset, it will assistdecision-makers to properly discharge theirduties under the FOI Act and assist applicants tounderstand the reasons for decision-making.

3.19 The schedule should list the documentssequentially by number eg. 1-10; 1-200 as thecase may be. The schedule should contain thefollowing information:

* the date of each document;

* the author of the document and theperson or persons to whom it isaddressed (or the title of the document ifit is a report or a submission of somekind);

* a brief but sufficient description of thedocument or its contents to show a primafacie claim for exemption (ie. a letterseeking legal advice which may be,prima facie, exempt under clause 7.Therefore, it should be described in sucha way as to establish the grounds forclaiming the exemption under clause 7);

* the exemption/s claimed for eachdocument;

* where the claim for exemption relates toparts of a document, a clear indication ofthe part or parts involved (eg. paragraph5, or line 3 in paragraph 5 on page 3, orfolios 27-30). A sample schedule isincluded as an appendix to theseguidelines.


Reasons for Decision

3.20 The ability to give a rational explanation for adecision is central to good decision-making inall areas of administrative law. Section 13 of theFOI Act requires that a notice be given in theform prescribed by s.30, which amongst otherthings requires the reasons for each decision andthe findings on material questions of factunderlying the reasons referring to the materialon which those findings are based. It is notsufficient compliance with s.13 and s.30 of theFOI Act if the reasons given for refusing accessmerely paraphrase the words of a particularexemption clause or, worse, merely quote theclause or clauses in full.

3.21 When access is refused a decision-maker mustadvise the applicant of the following points,dependent upon the particular requirements ofeach exemption :

* what documents are in issue, describingthem as fully as possible withoutrevealing exempt matter;

* why they are sensitive;* what exemptions are claimed for which

documents or parts of documents;* why those exemptions apply to specific

documents;* what the factual consequences of the

release may be and the reasons why thoseconsequences can reasonably beexpected to result from disclosure;

* why the expected consequences ofdisclosure are so important as to warranta refusal of access; and

* what aspects of the public interest favourthe non-disclosure of the documents andhow the agency balanced those aspectsagainst the aspects in favour of release(where applicable).

3.22 The notice of decision must contain the realreasons for not disclosing documents.Embarrassment is not a reason to deny access.


Problems with Applicants

3.23 From time to time, agencies will be required todeal with difficult applicants who sometimesmake unreasonable demands. Whilst the FOIAct places agencies under a duty to assistapplicants, there must be a correspondingobligation upon applicants and an element ofreasonableness must be implied in the process ifthe legislation is to work satisfactorily.

Repeated Requests

3.24 There is nothing in the FOI Act that prohibits anunsuccessful access applicant from makinganother access application to an agency for thesame documents which were the subject of aprevious access application to that agency, andto which access has previously been refused,particularly in circumstances in which anapplicant may have reason to believe that thelaw or the policy or the agency’s position inrespect of certain types of document may havechanged [Re Rehman and Medical Board of WesternAustralia (1 August 1995, unreported)]. Further, theFOI legislation of other jurisdictions, includingthe Commonwealth, Queensland, Victoria andNew South Wales, do not contain provisionswhich prohibit an unsuccessful access applicantfrom making a second access application for thesame documents.

3.25 There may be a point at which repeated requestsfor the same documents could be viewed asvexatious. Whilst no firm policy can beestablished that is appropriate on all occasions,early contact with the office of the InformationCommissioner (Advice and Awareness sub-program) can provide guidance and advice onoptions available.

“Fishing expeditions”

3.26 There is a requirement that an access applicantdescribe the documents sought with particularitysufficient to enable the agency to locate thosedocuments and deal with them under the FOIAct. Some applicants lodge access applicationswhich are drafted in extremely broad terms.


Typically, such requests are in the form “Alldocuments held on me”, or “All files relatingto...”. If an agency receives a request of thatnature it should assist an applicant to formulatehis or her request in more precise terms, forexample, by explaining, subject to anyexemptions, the nature and type of documentsheld, or by allowing an applicant to have accessto a record data base if that would assist toidentify the precise document required.

3.27 If an applicant persists in presenting an ill-defined application, despite repeated offers ofassistance from an agency, the agency coulddiscuss the matter with the office of theInformation Commissioner (Advice andAwareness sub-program) before refusing to dealwith an application under s.20. In this way theinterests of both the agency and the applicantcan be safeguarded while also attempting toresolve the matter informally.

Documents required for civil litigation

3.28 Section 10(2) of the FOI Act provides that aperson’s reasons for wishing to obtain access arenot relevant to the question of whether accessshould be given. The likelihood of an applicantusing documents obtained under FOI for civillitigation is not a reason to deny access. TheInformation Commissioner has considered thatthere is a public interest favouring the disclosureof information to assist people to determinewhether they have any legal rights which shouldbe pursued through the courts [Re Read and PublicService Commission (16 February 1994, unreported), atparagraph 85; Re Veale, at paragraphs 37-53].

The relationship between the FOI Act and the Rulesof the Courts governing discovery

3.29 Section 3(3) of the FOI Act states that the Act isnot intended to inhibit access being given byother legal means available. The Act creates anadditional means of gaining access todocuments which is a legally enforceable right.The exercise of another right to discoverdocuments does not extinguish the right ofaccess under the FOI Act except where an


express provision applies in particularcircumstances. [see Re Veale, at paragraph 37-52].

Refusal to deal with an access application

3.30 When a valid access application is made to anagency (other than an exempt agency), theagency must deal with that application in themanner described in s.13 of the FOI Act, exceptwhere the agency invokes s.20. If s.20 is reliedupon, the agency has a duty to attempt to reducethe amount of work need to deal with theapplication.

3.31 The agency is required to take reasonable stepsto help the applicant identify the documentsrequired and change the application so that itcomplies with s.12 of the FOI Act. Reasonablesteps include making arrangements to assist theapplicant, and explaining the record-keepingsystem and the methods of storage and retrieval.However, the agency is not required to show afile or files to an applicant, nor is it required toprovide unrestricted access to files to enable theapplicant to decide what he or she wants.

3.32 If a complaint is made to the InformationCommissioner about an agency’s decision torefuse to deal with an access application, theagency must persuade the Commissioner that thework involved in dealing with the application inthe form in which it is made, would substantiallyand unreasonably divert the resources of theagency away from its other operations. Relevantfactors include:

* the number of documents or potentialdocuments covered by the application;

* the location of those documents and thenature in which they are stored in theagency (ie. microfiche records);

* the number of people competent toidentify the documents and the normalduties of those people; and

* the assistance provided by the agency tothe applicant to change the application.


Prior Access (Previous inspection of exempt matter)

3.33 Prior access to a document, whether to an FOIapplicant or to another person, and whether byinadvertence or design on the part of the agency,might be a relevant factor in any public interestbalancing test, depending on the terms of theparticular exemption. If the access applicant hasbeen given previous access in the form ofinspection that fact should be considered by anagency as a factor warranting the exercise ofdiscretion under s.3(3) of the FOI Act.

Applications from one agency to another

3.34 There is nothing in the FOI Act that prevents oneagency from applying to another agency foraccess to documents, although one would expectthe usual protocols governing the sharing ofinformation to occur. However, if one agencywill not provide access to identifiabledocuments, an access application may be lodgedby another agency. Although the FOI Act givesevery person a right of access, in circumstanceswhere one agency seeks access to the documentsof another agency, it may advisable for theaccess application to be signed by the ChiefExecutive Officer of the agency seeking access,or some other senior manager if necessary.

Hints for Agencies

3.35 Many of the problems experienced by agenciesin dealing with FOI requests stem from a cultureof secrecy. Many of the solutions to thoseproblems can be found within the agenciesthemselves using administrative ingenuity.Some options include:

* Reserving the FOI process for only themost sensitive type of information.

* Routinely releasing documents ormaking them available outside the formalFOI process, whether for payment of afee or otherwise.

* Developing new policies to deal withaccess to information, especially personalinformation.


* Using discretion to release documentsthat may be technically exempt and onlyrefusing to disclose documents whenthere is good reason.

* Disclosing the "hidden law" (ie. theadministrative rules, guidelines andprocedures that are applied within anagency) of the agency in the InformationStatement, or elsewhere, so that thepublic is informed of the policies andpractices that affect their rights ascustomers of the agency.

* Linking existing and proposed initiatives,including Customer Service Charters tothe principles of FOI as part of theoverall accountability responsibilities ofpublic administration.

* Improving record-keeping practices.

* Maintaining awareness of the formaldecisions of the InformationCommissioner and learning from themistakes and successes of other agencies.

* Decentralising FOI decision-making forroutine matters that can be handled byapplication of existing policies andreserving the experience and judgementof senior officers for a consideration ofthe effects of releasing the most sensitivedocuments.


FREEDOM OF INFORMATION 4. Fees and charges • 37

4. Fees and charges

Principles

4.1 Applicants are entitled to have access todocuments at the lowest reasonable cost [s.4(b)].Although it is often necessary for a great deal oftime and effort to be incurred by agencies indealing with FOI requests, Parliament did notintend that a “user-pays” system should apply tothe FOI Act. Accordingly, the InformationCommissioner takes the view that any chargesfor access must be reasonable and that estimatesof charges should not be made as a deterrent toaccess.

Discretion to impose charges

4.2 Agencies have a discretion to impose charges.In many instances, charges have beensubstantially reduced by agencies or not imposedat all. Such practices demonstrate acommitment to the principles of the FOI Act andthe Information Commissioner acknowledgesand encourages appropriate decision-making inthis regard.

Charges for Access


The application fee

4.3 The Freedom of Information Regulations 1993include a schedule of fees and charges payableunder the FOI Act for access to documentscontaining non-personal information. Pursuantto s.12 of the FOI Act and those regulations, anapplication fee of $30 is payable for making avalid access application. However, no fees orcharges are payable for access to personalinformation [see comments in Part 6]. Adecision has been made by the InformationCommissioner which sets out the interpretationof when charges are payable and what can becharged for. [see Re Hesse and Shire of Mundaring(17 May 1994, unreported)].

4.4 There is no provision for reduction or waiver ofthe application fee under regulation 4. Section16(1) of the FOI Act prescribes the principles bywhich "[a]ny charge that is, in accordance withthe regulations, required to be paid by anapplicant before access to a document is given,must be calculated...". Considering the wordingof that section and, in particular, s.16(2) whichprovides that (subject to the provision relating topayment of advanced deposits) "...payment of acharge will not be required before the time atwhich the agency has notified the applicant ofthe decision to grant access to a document", theInformation Commissioner is of the view thats.16 refers to charges other than the applicationfee which is required under s.12(1)(e) to be paidat the time of lodging the access application. Inother words, under the legislation there is nodiscretion to waive the requirement that anapplication fee must be lodged with an accessapplication for non-personal information.

Waiver/reduction of charges

4.5 Section 16(1)(g) provides that a charge must bewaived or reduced if the applicant isimpecunious. Regulation 3 to the Act providesfor a reduction of 25% in the case of anapplicant who is impecunious or who holds avalid pensioner card, or other pensionerconcession card as described. It is important tonote that the entitlement to a reduction incharges arises either because an applicant is


impecunious, in the opinion of the agency, orbecause he or she holds a valid pensionerconcession card.

4.6 "Impecunious" is not defined in the FOI Act. Itmeans "having little or no money" [ConciseOxford Dictionary]. Whether or not an applicantmay be properly described as impecuniousrequires the application of common sense byagencies and the exercise of a discretionaryjudgement. It is unlikely that an agency wouldbe criticised for waiving or reducing charges andproviding access in accordance with theprinciples in s.4.

4.7 The purpose of regulation 3 is to seek to avoidhardship to a person seeking access todocuments and who has insufficient money topay the associated charges. [see Re Larson andOffice of Corrections (AAT of Victoria, Howie PM, 19June 1990, unreported)].

Estimates of charges

4.8 An applicant may request an estimate of chargeswhen making an access application [s.17(1)].Realistically, unless an applicant is anexperienced FOI user, he or she is unlikely to dothis. However, an agency must make anestimate if charges are likely to be more than$25, and the agency must notify the applicant ofits estimate and the basis on which its estimate ismade before dealing with the application.

4.9 Charges may be reduced by changing the scopeof an access application, or by an applicantwaiving the “permitted period” and allowing theagency a much longer time-frame within whichto deal with the application. Clearly, there isscope within s.18(2) for the agency and theapplicant to negotiate over the manner in whichit will deal with an access application so thatcharges for access are reduced, if not eliminated.The Information Commissioner considers thatagencies should make more use of theseprovisions in order to minimise the cost ofaccess to applicants and to reduce theadministrative burden of FOI on agencies.


Non-payment of charges

4.10 Except where advance deposits are required bythe agency, the payment of charges under theFOI Act is not required before the time at whichthe agency has notified the applicant of thedecision to grant access [s.16(2)]. To minimisethe inconvenience of documents being copiedbut not collected by an access applicant and thepayment of outstanding charges, it is suggestedthat agencies do not actually copy the documentsuntil such time as the charges are paid. In someinstances, it may be appropriate for an accessapplicant to wait while the photocopying isundertaken.

FREEDOM OF INFORMATION 5. Exemptions • 41

5. Exemptions

Optional not Mandatory

5.1 The exemptions in Schedule 1 are designed toprotect essential public and private interests.However, in accordance with the general right ofaccess provided by the FOI Act, it follows thatexemptions should not be claimed unless thereare good reasons to deny access to the requesteddocuments. Clause 3, Personal Information, iscovered in chapter 6 as it is the most frequentlyclaimed exemption and is the aspect of FOIwhich protects the privacy of individuals.

5.2 Each exemption in Schedule 1 deals with theprotection of certain types of information. Thetype of information protected by the exemptionclause is an indication of the policy or essentialpublic interest which is at issue. For example,Clause 1 provides protection for certain Cabinetdocuments and documents of an Executive bodyfor a specified period. Those documents belongto a “class” which the Parliament has decidedought to be protected, whether or not it would beharmful to disclose the contents of any particulardocument, because it is in the public interest thatthe government at its highest level is able tofunction effectively by ensuring that certaininformation can be withheld without furtherjustification if necessary.

Denying access


5.3 The following interpretations are based primarilyon decisions of the Information Commissionerand, where applicable, decisions of the WASupreme Court or other relevant precedents.Most exemptions frequently considered arecovered. For guidance on the applicability ofother exemptions, consult the FOI DecisionSupport System available through this office orthe FOI Procedures Manual.

Clause 2 - Inter-governmental relations

5.4 Clause 2(1) of Schedule 1 provides:

(1) Matter is exempt matter if its disclosure -

(a) could reasonably be expected to damagerelations between the government andany other government;

(b) would reveal information of aconfidential nature communicated inconfidence to the Government (whetherdirectly or indirectly) by any othergovernment.”

5.5 The purpose of the exemption in clause 2 is toprotect the sensitivity of documents passing inconfidence between the Government of WesternAustralia and governments of either theCommonwealth, another State or Territory, or aforeign country or state. There are two separatesub-clauses under which a document may beexempt.

Damage to Inter-governmental relations

5.6 It is not sufficient to establish an exemptionunder clause 2(1)(a) to merely claim thatdisclosure could reasonably be expected todamage relations between governments. Theremust be some probative material to establish areasonable basis for such a claim. Relevantmatters for consideration may include:

• the age of the documents. If the subjectmatter deals with events long past thathave no present relevance it may beunlikely that disclosure could reasonablybe expected to cause damage togovernment relations;


• whether the parties to the correspondenceindicate that it was a high level inter-governmental communication;

• whether the subject matter deals withroutine matters or matters involvingsensitive issues of State.

Reveal confidential information communicated inconfidence

5.7 The second possible basis for anexemption under clause 2 is where a documentcontains confidential information communicatedin confidence to the Government by another.The information must be confidential in natureand it must be given and received in confidencefor clause 2(1)(b) to apply. The mere fact that adocument records the substance of discussions ata meeting of a Ministerial Council does notmean that all information discussed and recordedat such a meeting is necessarily confidential innature [see Re Cyclists’ Rights Action Group andDepartment of Transport (20 June 1995, unreported)].Regard must be had to the contents of thedocument and whether the particular matter is inthe public domain through media statements andthe like. Further, if it can be established thatdisclosure would, on balance, be in the publicinterest, then the exemption will not apply.

Clause 4 - Commercial or businessinformation

5.8 The exemptions in clause 4 more or lessmirror those in clause 10. If a requesteddocument contains sensitive commercialinformation about government agencies, clause10 is the more appropriate exemption. If therequested document contains sensitivecommercial information about other persons,including companies and associations whetherincorporated or unincorporated [see definitionof “person” in the Interpretation Act 1984],other than government agencies, clause 4 is theappropriate exemption. Because the wording ofclauses 4 and 10 are similar, the comments inthis part are also applicable to clause 10.

5.9 Clause 4 provides:


(1) Matter is exempt matter if itsdisclosure would reveal trade secrets of aperson.

(2) Matter is exempt matter if itsdisclosure -

(a) would reveal information (otherthan trade secrets) that has acommercial value to a person; and

(b) could reasonably be expected todestroy or diminish that commercialvalue.


(a) would reveal information (otherthan trade secrets or informationreferred to in subclause (2)) about thebusiness, professional, commercial orfinancial affairs of a person; and

(b) could reasonably be expected tohave an adverse effect on those affairs orto prejudice the future supply ofinformation of that kind to thegovernment or to an agency.”

5.10 The wording of the clause makes it clear(as a matter of statutory construction) that eachsubclause applies to a different kind ofinformation and that the same informationcannot be exempt under more than one of thosesubclauses. However, an agency may argue thatcertain information is exempt under one or moresubclauses and put arguments in the alternativeas to which is applicable. The alternative baseson which matter may be exempt from disclosureunder clause 4 may be summarised as follows:

(i) if it would reveal trade secrets;OR

(ii) if it would reveal information thathas a commercial value AND thedisclosure could reasonably be expectedto destroy or diminish that commercialvalue; OR

(iii) it would reveal information aboutthe business, professional, commercial orfinancial affairs of a person ANDdisclosure could reasonably be expectedto have an adverse effect on those affairs,


OR prejudice the future supply ofinformation of that kind to theGovernment or to an agency.

Trade secrets

5.11 For information to be a trade secret itmust be secret information that is, or would be,of use in the particular trade if it were to bedisclosed. For guidance on the kind ofinformation that constitutes a “trade secret”agencies should consult the FOI ImplementationManual at page 41 and refer to the factorsidentified in Re Organon (Australia) Pty Ltdand Department of Community Services andHealth (1987) 13 ALD 588 esp at 593, as astarting point only. The meaning and scope ofthe exemption in Western Australia has not yetbeen the subject of determination by theInformation Commissioner.

Information that has a commercial value

5.12 There are few reported decisions inwhich a precise meaning of the phrase"commercial value" has been considered. TheInformation Commissioner has taken the viewthat the intended meaning is that information hascommercial value if it is valuable for thepurposes of carrying on the commercial activityin which that agency or other person is engaged[see Re Slater and State Housing Commission ofWestern Australia (22 February 1996, unreported), atparagraph 10-13; Re Hassell and Health Department ofWestern Australia (13 December 1994, unreported), atparagraph 37].

5.13 It is only by reference to the context inwhich the information is used, or exists, that thequestion of whether information is correctlycharacterised as matter that has a “commercialvalue” may be determined. In Re Hassell, theInformation Commissioner rejected an argumentthat the investment of time and money is asufficient indicator in itself of the fact thatinformation has a commercial value. It could beargued on that basis that most, if not all, of thedocuments produced by a business will have acommercial value because resources wereinvested in their production, or money expendedin their acquisition. The Information


Commissioner expressed the view that, at best,the fact that resources have been expended inproducing information, or money has beenexpended in acquiring it, are factors that may berelevant to take into account in determiningwhether information has a commercial value forthe purposes of the exemption [see Re Hassell, atparagraphs 38-40].

Information about business, professional, commercialor financial affairs

5.14 Although the precise meaning and scopeof the phrase “business, professional,commercial or financial affairs” has not been thesubject of a determination by the InformationCommissioner, the Queensland InformationCommissioner considers that the four adjectivesin the phrase "business, professional,commercial or financial affairs" were notintended, because of the substantial overlapbetween them, to establish distinct and exclusivecategories, but rather that the phrase wasintended to cover, in a compendious way, allforms of private sector commercial activity, andthereby to also cover commercial activitiescarried on by government agencies [Re Pope andQueensland Health (Hammond and Robbins, ThirdParties) (1994) 2 QAR 37, at paragraph 29].

5.15 However, the Information Commissionerconcurs with the Queensland InformationCommissioner who expressed the view in hisdecision in Re Pope that the words "professionalaffairs" is intended to cover the work activitiesof persons who are admitted to a recognisedprofession, and who ordinarily offer theirprofessional services to the community at largefor a fee, ie. to the running of a professionalpractice for the purpose of generating income[see Re Lawless and Medical Board of Western Australia(5 July 1995, unreported), at paragraphs 71-75].

5.16 There are various decisions of theInformation Commissioner in which claims forexemption under clause 4(3) have beenconsidered by the Information Commissioner.The following decisions indicate some types ofinformation that has been found to beinformation about “business, professional,


commercial or financial affairs” of a person [seeRe Kobelke, at paragraph 89; Re Kolo and Departmentof Land Administration (6 February 1995, unreported),at paragraph 22; Re Strelley Pastoral Pty Ltd andOthers and Department of Land Administration (27March 1995, unreported), at paragraphs 33 and 34; ReMaddock, Lonie and Chisholm (a firm) and Departmentof State Services (2 June 1995, unreported), atparagraph 39].

5.17 A decision-maker must makefindings of fact in order to establish that therequested document contains matter of the typedescribed. It is possible to do this by accuratelydescribing the contents of the documents, so faras is possible without disclosing matter claimedto be exempt. A company is "a person" withinthe scope of clause 4(3)(a), by virtue of thedefinition of "person" in s.4 of the InterpretationAct 1984 which provides as follows:

"person" or any word or expression descriptiveof a person includes a public body, company, orassociation or body of persons, corporate orincorporate;".

In addition, having satisfied the requirements of4(3)(a), an agency must then provide evidencethat it is reasonable to expect an adverse effectto follow from disclosure of the documents or aprejudice to the future supply of information ofthat kind to government. [4(3)(b)]

Clause 5 - Law enforcement, public safety andproperty security

5.18 Clause 5(1)(a) provides:

“(1) Matter is exempt matter if itsdisclosure could reasonably be expected to -

(a) impair the effectiveness of anylawful method or procedure forpreventing, detecting, investigating ordealing with any contravention orpossible contravention of the law;”

5.19 Subclause 5(1)(a) is capable of applyingto any law which imposes an enforceable legalduty to do or refrain from doing some thing, andnot merely to a contravention of the criminal law[see Re Egan and Medical Board of Western Australia(28 September 1995, unreported), at paragraphs 10-


15]. The Information Commissioner hasexpressed the view that the subclause is directedat investigative methods or procedures and isconcerned with protecting the means employedby agencies to investigate, detect, prevent anddeal with contraventions or possiblecontraventions of the law [see Re Manly, atparagraphs 28-32].

5.20 Further, whilst the InformationCommissioner considers that the exemption ismore likely to apply to covert rather than overtmethods of enforcement so that a unique orunusual investigative method or procedure maybe impaired merely by disclosing the fact of itsexistence, the agency must, nonetheless, be ableto identify with some particularity, the “law” towhich the investigative procedure or methodrelates, and those methods or procedures must belawful for the exemption to apply [see commentsin Re Foy and Medical Board of Western Australia (18October 1995, unreported), at paragraph 21].

5.21 The Information Commissioner hasindicated agreement with the view of theQueensland Information Commissioner that thedisclosure of methods and procedures adoptedby law enforcement agencies which are obviousand well known to the community (eg.interviewing and taking statements fromwitnesses to a crime) may not be likely to impairthe effectiveness of those methods. Forexample, if a law enforcement method orprocedure has been so widely reported as tobecome a matter of public notoriety, there maybe a real question as to whether its disclosureunder the FOI Act could be capable of impairingits effectiveness [see comments in Re Egan, atparagraph 13; Re Foy, at paragraph 12; Re Sanfeadand Medical Board of Western Australia (15 November1995, unreported), at paragraph 11].

5.22 The Information Commissionerhas expressed the view that there may be caseswhere the disclosure of particular matter will soobviously impair the effectiveness of lawenforcement methods or procedures that the casefor exemption is self-evident but, ordinarily inproceedings before her under Part 4 of the FOIAct, it will be incumbent on an agency to


explain the precise nature of the impairment tothe effectiveness of a law enforcement methodor procedure that it expects to be occasioned bydisclosure, and to satisfy the InformationCommissioner that that expectation isreasonably based [see Re Egan, at paragraph 18; ReFoy, at paragraph 18].

5.23 Clause 5(1)(b) provides:


...

(b) reveal the investigation of anycontravention of the law in a particular case,whether or not any prosecution ordisciplinary proceedings have resulted;”

5.24 The scope of the exemption and themeaning of the words "reveal the investigation"in clause 5(1)(b) of Schedule 1 to the FOI Actinitially arose for consideration by the SupremeCourt of Western Australia in Manly v Ministryof Premier and Cabinet (15 June 1995,unreported)). Owen J said, at p.25 of thejudgment:

"I think the clause is aimed at thespecifics of the investigation, and not at the merefact that there is or has been an investigation...Adocument is not exempt from disclosure simplybecause it would reveal the fact of aninvestigation. It must reveal something aboutthe content of the investigation.

I also think that it would bewrong to test the coverage of the clause bylooking at the document in isolation. It must beconsidered in the light of the surroundingcircumstances and in view of what else is knownto the parties and the public...The exemptionapplies if disclosure of that document wouldreveal the investigation. There must besomething in the document which, when lookedat in the light of the surrounding circumstances,would tend to show something about the contentof the investigation. If that material is alreadyin the public arena then it could not properly besaid that the disclosure of the document wouldreveal the investigation."


5.25 In Police Force of Western Australia vKelly and Smith (Supreme Court of WesternAustralia, 30 April 1996, unreported), theCourt also considered the meaning of the words“reveal the investigation” in clause 5(1)(b). HisHonour Judge Anderson said, at page 9:

“In my opinion the phrase “...ifits disclosure could reasonably be expectedto...reveal the investigation of any contraventionof the law in a particular case...” is apt toinclude the revelation of the fact of a particularinvestigation by police of a particular incidentinvolving people. I think there is very goodreason to accept that Parliament intended thatsuch matter be exempt from access under theAct. It is not difficult to imagine cases in whichit would be highly detrimental to goodgovernment and inimical to the administrationof law enforcement to disclose that a particularcriminal investigation is contemplated, has beenstarted or has been completed. It is notoriousthat many investigations, particularly of largescale criminality, are multi-faceted, lengthy andsensitive and involve considerable personal riskto the officers engaged in them. No doubt itwould be highly prejudicial to the practicalsuccess of many such investigations to allow orrequire the fact of them to be disclosed.

Even after an investigation hasbeen completed there may be very goodoperational reasons why there should be nodisclosure of it. For example, it may be part of awider and perhaps incomplete investigation. Ofcourse there may be no need for any secrecywhatever in a particular case and there may begood public interest reasons to give publicaccess to the documents or to give the applicantaccess to the documents. However, whilst thatmay be a relevant consideration for the agencyin exercising its discretion under s.23(1)whether to allow access to the documents to thepublic or to a particular individual, it cannothelp to determine whether the documents are infact exempt under cl 5(1)(b).” (Emphasisadded).


5.26 Making reference to the passage fromthe judgment in Manly’s case referred to above,His Honour said, at page 8:

“I think documents which revealthat there is an investigation, the identity of thepeople being investigated and generally thesubject matter of the investigation probablywould satisfy the requirement stipulated byOwen J that the document “must revealsomething about the content of theinvestigation.”

5.27 Further, at page 11, His Honourconsidered the scope of the exemption in clause5(1)(b) and added:

“...cl 5(1)(b) is not limited to newrevelations but covers all matter that of itselfreveals the things referred to, without regard forwhat other material might also reveal thosethings, or when that other material becameknown, and without regard for the actual stateof knowledge that the applicant may have on thesubject or the stage that the investigation hasreached.”

5.28 Clause 5(1)(c) provides:


...

(c) enable the existence, or non-existence, or identity of any confidentialsource of information, in relation to theenforcement or administration of thelaw, to be discovered;”

5.29 The exemption in clause 5(1)(c) refers toa “confidential source of information” and not toa source of confidential information. It isdesigned to protect the identity of the informerand has no application where the identity isknown or could easily be ascertainedindependently of the document in question [seeRe Croom and Accident Compensation Commission(1989) 3 VAR 441 at 459].


5.30 Not all information given to an agency isconfidential, or given in confidence, nor does itcome from a confidential source. A source isconfidential if the person has suppliedinformation on an understanding, express orimplied, that his or her identity will remainconfidential (for example, the “Crime Stoppers”initiative). The exemption protects the true“informer” and has no application where thatidentity is known or can easily be ascertainedindependently of the document in question. Itappears that if the identity of a witness whoprovided an investigator with information iseither well known or could easily be ascertainedindependently of a document, it is unlikely thatthe witness would be considered to be aconfidential source of information within themeaning of clause 5(1)(c) [see comments in ReCroom, at page 459].

5.31 The information supplied from aconfidential source need not be confidential(although it may be), but it must relate to theenforcement or administration of the law and the“law” should be identified. Hence, the elementsof the exemption that must be established bymaterial findings of fact are:

(i) that there exists a confidentialsource of information;

(ii) the information supplied from thesource is related to the enforcement oradministration of the law; and

(iii) disclosure could reasonably beexpected to either enable the existenceof the confidential source to beascertained, or, enable the identity of theconfidential source to be ascertained [seeRe “C” , at paragraph 43; Re Hunter andFisheries Department of Western Australia (20November 1995, unreported), at paragraph25]; Re Styles and City of Gosnells (11 October1996, unreported), at paragraphs 14-16].

5.32 Clause 5(1)(d) provides:


...


(d) prejudice the fair trial of anyperson or the impartial adjudication ofany case or hearing of disciplinaryproceedings;”

5.33 So far as is possible in the particularcircumstances, in proceedings before theInformation Commissioner there needs to besome information provided as to the broadoutline of the investigations, including the natureof the contravention of the law since the courtswill not lightly infer the reasonable expectationof prejudice to a fair trial, even when there iswidespread publicity. Relevant matters include:

(i) whether any charge is pending towhich the material is relevant;

(ii) the degree of relevance of thematerial to the charge;

(iii) the lapse of time betweendisclosure of the material and the trial inquestion;

(iv) whether the material was knownto the public;

(v) the likely impact of the materialon the mind of the public; and

(vi) the ability of an appropriatedirection at trial to negate any prejudicialeffect of the material.

[See comments in Manly v Ministry of Premierand Cabinet].

Clause 6 - Deliberative processes

5.34 Clause 6(1) provides:

(1) Matter is exempt matter if its disclosure -

(a) would reveal -

(i) any opinion, advice orrecommendation that has beenobtained, prepared or recorded; or

(ii) any consultation ordeliberation that has taken place,

in the course of, or for thepurpose of, the deliberative processes ofthe Government, a Minister or an agency;

and


(b) would, on balance, be contrary to thepublic interest."

5.35 In a number of formal decisions, theInformation Commissioner has accepted andapplied the following passage in Re Waterfordand Department of Treasury (No 2) (1984) 5ALD 588, as a correct statement of the scopeand meaning of the exemption in clause 6 (theequivalent to s.36(1) in the Commonwealth FOIAct):

"As a matter of ordinary English theexpression ’deliberative processes’ appears to usto be wide enough to include any of theprocesses of deliberation or considerationinvolved in the functions of an agency. Theaction of deliberating, in commonunderstanding, involves the weighing up orevaluation of the competing arguments orconsiderations that may have a bearing on one’scourse of action. In short, the deliberativeprocesses involved in the functions of an agencyare its thinking processes - the processes ofreflection, for example, upon the wisdom andexpediency of a proposal, a particular decisionor a course of action. Only to the extent that adocument may disclose matter in the nature ofor relating to deliberative processes doess.36(1)(a) come into play...

It by no means follows, therefore, thatevery document on a departmental file will fallinto this category. Furthermore, howeverimprecise the dividing line may appear in somecases, documents disclosing deliberativeprocesses must, in our view, be distinguishedfrom documents dealing with the purelyprocedural or administrative processes involvedin the functions of the agency...

It is documents containing opinion,advice, recommendations etc. relating tointernal processes of deliberation that arepotentially shielded from disclosure...Out of thatbroad class of documents, exemption under s.36only attaches to those documents the disclosureof which is ’contrary to the public interest’...".


[See Re Read, at paragraph 26; Re Kobelke, atparagraph 40; Re Veale, at paragraph 13; Re Taylorand Ministry of the Premier and Cabinet (23 December1994, unreported), at paragraph 23; Re Jones andShire of Swan (9 May 1994, unreported), at paragraph16; Re Jeanes and Kalgoorlie Regional Hospital andOthers (7 February 1995, unreported), at paragraph13; Re Coastal Waters Alliance of Western AustraliaIncorporated and Department of EnvironmentalProtection and Cockburn Cement Limited (28September 1995, unreported), at paragraphs 22-37; ReMineralogy Pty Ltd and Department of ResourcesDevelopment (5 January 1996, unreported), atparagraphs 42-43].

5.36 The scope of the exemption in clause6(1) is very broad and clearly includesdeliberations for decision making anddeliberations for policy making. However, itdoes not include documents dealing with thepurely procedural or administrative functions ofan agency [see Re Read, at paragraphs 24 and 25]. Ifthe particular decision that must be made can beisolated and identified then the nature andcharacter of that decision may provide anindication of whether the documents in questionare deliberative in the sense described in ReWaterford, or are administrative in nature.

5.37 If exemption under clause 6 is to beclaimed, the agency must establish not only thatthe matter in question is of the kind described inclause 6(1)(a), but also that its disclosure would,on balance, be contrary to the public interest, asrequired by part (b) of clause 6(1). [for adiscussion of the public interest see Part 7].

Candour and frankness

5.38 Agencies frequently decide thatdisclosure of a document is contrary to thepublic interest because of a perceived need forfull and frank disclosure to occur in certaindecision-making between officers of an agencyor between the agency and the Minister. Courtsand Tribunals in other jurisdictions have rejectedthe validity of the “candour and frankness”argument and so too has the InformationCommissioner [Re Jeanes, at paragraph 30]. The“candour and frankness” argument for non-disclosure should be disregarded unless there isa factual basis for the claim and that factual


basis is established by clear and unequivocalevidence.

Clause 7 - Legal professional privilege


“ (1) Matter is exempt matter if it would beprivileged from production in legal proceedingson the ground of legal professional privilege.”

5.40 To determine whether a documentattracts legal professional privilege considerationmust be given to the circumstances of itscreation. It is necessary to look at the reasonwhy it was brought into existence. The purposeof its existence is a question of fact.

5.41 To attract legal professional privilege thedocument must be brought into existence for thesole purpose of submission to legal advisers foradvice or for use in anticipated or pendingproceedings [see Grant v Downs (1976) 135 CLR 674,Baker v Campbell (1983) 153 CLR 52, Attorney-General(NT) v Kearney (1985) 158 CLR 500, Attorney-General(NT) v Maurice (1986) 161 CLR 475, and Waterford vCommonwealth of Australia (1987) 163 CLR 54].

5.42 Legal professional privilege will alsoattach to certain confidential professionalcommunications between salaried legal officersand government agencies. It must be aprofessional relationship of a sufficientlyindependent nature to secure to the advice anindependent character. A claim for privilege isnot limited in the case of such communications,to communications which have been made forthe purpose of existing or contemplatedlitigation [Trade Practices Commission v Sterling(1979) 36 FLR 244].

5.43 In a number of formal decisions theInformation Commissioner has confirmed theexempt status of documents consisting ofconfidential communications between theCrown Solicitor’s Office and agenciescontaining legal advice [for general comments seethe earlier decisions in Re Guyt and Health Departmentof Western Australia (16 March 1994, unreported), atparagraphs 12-26; Re Nazaroff, at paragraphs 16-24;


and more recently, Re Coastal Waters and Re Hunter.For a discussion concerning the application of theexemption to advice from the Director of PublicProsecutions, see Re Waghorn and Christmass, atparagraphs 20-31].

Waiver of privilege

5.44 Legal professional privilege may bewaived by the client. Waiver occurs when theclient performs an act which is inconsistent withthe confidence preserved by the privilege. Theconsequences of waiver is that the clientbecomes subject to the normal requirements ofdisclosure of the communication.

5.45 The privilege may be lost whendocuments are disclosed to another party [Websterv James Chapman and Co. (a firm) and Others [1989] 3All ER 939]. The privilege may also be lost by theact of an officer of an agency reading from aprivileged document [see Re Weeks and Shire ofSwan (24 February 1995, unreported), at paragraphs28-34]. However, the privilege is not lost if thedisclosure was unintentional or a result ofinadvertence.

Clause 8 - Confidential communications


(1) Matter is exempt matter if itsdisclosure (otherwise than under this Act oranother written law) would be a breach ofconfidence for which a legal remedy could beobtained.


(a) would reveal information of aconfidential nature obtained inconfidence; and

(b) could reasonably be expected toprejudice the future supply ofinformation of that kind to theGovernment or to an agency.”

Clause 8(1) - Breach of Confidence

5.47 The scope and meaning of theexemption in clause 8(1) has not yet been


determined by the Information Commissioner.However, the Queensland InformationCommissioner discussed the meaning of asimilar (but not identical) provision in theQueensland FOI Act in his decision Re “B” andBrisbane North Regional Health Authority(1994) 1 QAR 279. In Re “B”, the QueenslandInformation Commissioner discussed therequirements to establish an equitable action forbreach of confidence and stated that the criteriaare as follows:

(i) it must be possible to specificallyidentify the information in issue in orderto establish that it is secret, rather thangenerally available information;

(ii) the information in issue mustpossess “the necessary quality ofconfidence”, ie. it must not be trivial oruseless information, and it must possessa degree of secrecy sufficient for it to bethe subject of an obligation ofconfidence, arising from thecircumstances in or through which theinformation was communicated orobtained;

(iii) the information in issue musthave been communicated in suchcircumstances as to fix the recipient withan equitable obligation of conscience notto use the confidential information in away that is not authorised by the confiderof it;

(iv) it must be established thatdisclosure to the applicant for accessunder the FOI Act would constitute amisuse, or unauthorised use, of theconfidential information in issue; and

(v) it must be established thatdetriment is likely to be occasioned tothe original confider of the confidentialinformation if that information were tobe disclosed.

5.48 The Information Commissioner hasexpressed the view that is unlikely that thedisclosure of information to a governmentagency pursuant to the exercise of statutorypowers to compel the disclosure of such


information could give rise to any obligation ofconfidence under the general law [see RePastoralists’ and Graziers’ Association and Departmentof Land Administration (25 August 1995, unreported),at paragraphs 11-18]. For the exemption to applyit would be necessary to find some statutoryrestriction upon the use by the agency of theinformation in the documents and to considerthat restriction in light of the exemption inclause 8(1) [see the comments of Gummow J in CorrsPavey Whiting and Byrne v Collector of Customs (Vic)(1987) 74 ALR 428, at 437].

Clause 8(2) - Prejudice to the supply of confidentialinformation

5.49 When considering the application of theexemption in clause 8(2) to a document indispute, the decision-maker should ask thefollowing questions:

(i) does the document containinformation of a confidential natureobtained in confidence;

(ii) are there real and substantialgrounds to expect that disclosure couldprejudice the ability of the agency in thefuture to obtain information of the kindunder consideration; and

(iii) are there any competing intereststo be weighed against that risk and anyother public interests in maintaining thatconfidentiality such that disclosure of thedocument would, on balance, be in thepublic interest?


Confidential information obtained in confidence

5.50 Information is inherently confidential if itis not in the public domain. That is, theinformation must be known by a small numberor a limited class of persons. However, merelymarking a document “Confidential” is notsufficient to establish that the information in thatdocument is confidential in nature and that itwas both given and received in confidence. A“confidential” stamp or mark is an indicatoronly. However, there must be some othermaterial that establishes as a matter of fact, thatthe information was obtained in confidence.

Prejudice to the future supply of that kind ofinformation

5.51 The Information Commissioner hasconsidered that it may not be reasonable toexpect that information provided to an agency inorder to gain some benefit or to obtain someadvantage would not be provided in the future tothe Government or to an agency [see Re Maddock,Lonie and Chisholm]. The argument that it isreasonable to expect that information required tobe supplied pursuant to a statutory requirementwould not be supplied in the future has also beenrejected by the Information Commissioner [seeRe Pastoralists’ and Graziers’ Association].

5.52 Further, previous conventions ofconfidentiality given or understood to exist pre-FOI are insufficient to invoke a claim for non-disclosure under clause 8(2) [see Re Kobelke, atparagraphs 77 and 78 and Re Pastoralists’ andGraziers’ Association, at paragraphs 25-27 where theInformation Commissioner referred to the decision ofthe Full Federal Court in Searle Aust Pty Ltd v PublicInterest Advocacy Centre (1992) 108 ALR 163, at 180].

5.53 However, if an organisation or individualvoluntarily provides more information than isnecessary to an agency, whether by way ofbackground material or otherwise, and theadditional information is useful but not essentialfor an agency’s purposes, the fact that thatinformation is volunteered may constitute areasonable basis for expecting that the ability ofthe agency in the future to obtain usefulinformation of that kind, could be prejudiced bydisclosure [see Re Lawless; Re Sanfead and Medical


Board of Western Australia (15 November 1995,unreported)].

Clause 11 - Effective operation of agencies


(1) Matter is exempt matter if itsdisclosure could reasonably be expected to -

(a) impair the effectiveness of anymethod or procedure for the conduct oftests, examinations or audits by anagency;

(b) prevent the objects of any test,examination or audit conducted by anagency from being attained;

(c) have a substantial adverse effecton an agency’s management orassessment of its personnel; or

(d) have a substantial adverse effecton an agency’s conduct of industrialrelations.

Limit on exemptions

(2) Matter is not exempt matter undersubclause (1) if its disclosure would, onbalance, be in the public interest."

Impair the effectiveness of a method or procedurefor the conduct of tests, examinations or audits

5.55 The Information Commissioner firstconsidered the application of clause 11 in ReSimonsen and Edith Cowan University. TheInformation Commissioner held thatexamination questions for certain units in aBachelor of Nursing course were exempt underclause 11(1)(a). The Information Commissionernoted that the requirements of clause 11(1)(a)are substantially the same as the correspondingprovision in the Commonwealth FOI Act,s.40(1)(a). To establish the exemption anagency must show that disclosure of thedocument or part of the document could posemore than a possibility or risk of damage to theeffectiveness of some particular method orprocedure for conducting tests, examinations oraudits [see Re Simonsen, paragraph 24]. Another


decision, Re H and Graylands Hospital, coversthe overlap between 11(1)(a) and 11(1)(b).

Prevent the objects of any test, examination or auditfrom being attained

5.56 Although the term “audit” is defined inthe Concise Oxford Dictionary as "an officialexamination of accounts", the InformationCommissioner accepts that, at least within thePublic Service, the term is commonlyunderstood to embrace examinations of mattersother than accounts. For example, public sectoragencies' performance indicators are "audited"by the Auditor General, and the term is also usedin respect of examinations of, for example,information technology systems [see Re Hassell, atparagraph 19].

Substantial adverse effect

5.57 The words “substantial adverse effect”indicate the degree of gravity of the claimedeffect required in order to establish theexemptions provided by clauses 11(1)(c) and11(1)(d) [Harris v Australian BroadcastingCorporation (1983) 78 FCR 236 at 249: see alsocomments in Re Rindos and the University of WesternAustralia (10 July 1995, unreported]. It is notsufficient to merely quote the words of theexemption, nor is it sufficient to quote the wordsof the heading to the exemption and claim thatdisclosure would affect the effective operationsof agencies. An assessment by the agency whichdescribes the adverse effects expected and howthat conclusion was derived, based on opinionsbacked with evidence, is necessary.

FREEDOM OF INFORMATION 6. Personal Information • 63

6. Personal Information

Definition

6.1 The FOI Act allows a person to haveaccess to personal information about himself orherself, subject to some limitations. However, itprotects the personal and professional privacy ofother individuals by providing an exemption forpersonal information about a third party otherthan the access applicant and imposing a dutyupon the agency to consult any such third partyif the agency is considering disclosing personalinformation about him or her.

6.2 The exemption in clause 3(1) is mostfrequently cited as the reason for denying access.Clause 3(1) provides:

“ (1) Matter is exempt matter if itsdisclosure would reveal personal informationabout an individual (whether living or dead).”

6.3 In the Glossary in Schedule 2 to the FOIAct, "personal information" is defined asmeaning "...information or an opinion, whethertrue or not, and whether recorded in a materialform or not, about an individual, whether livingor dead-

(a) whose identity is apparent or canreasonably be ascertained from theinformation or opinion; or

(b) who can be identified byreference to an identification number or

Privacy and FOI


other identifying particular such as afingerprint, retina print or body sample."

Titles, names, addresses and telephonenumbers

6.4 The purpose of the exemption in clause3(1) is to protect the privacy of individuals. Itcan be seen from the definition that it is theidentification of a person from the informationitself that gives it the character of “personalinformation” which is, prima facie, exemptmatter under the FOI Act. Further, whilst theinformation may not specifically name a person,it may be ‘personal information” if it is the kindof information that could readily be understoodas referring to a particular individual. Forexample, a person could readily be identifiedfrom information that refers to a title or positionsuch as the Archbishop of Canterbury, the PrimeMinister, the Chief Executive Officer [of anagency]; or the Officer in Charge of [aparticular] Police Station at a particular time. Ifa document contains facts or opinions, whethertrue or false, about the CEO of an agency, at aparticular time, without naming that person, thenthat information is capable of being “personalinformation” under the FOI Act because theidentity of the person to whom it refers couldreadily be ascertained from the informationitself. It is not necessarily exempt - see 6.7 and6.8.

6.5 Although, in some instances, the meremention of a person's name may reveal "personalinformation" about that individual (such asdisclosing the identity of an informer), more isnormally required in order to establish thisexemption. Parts (a) and (b) of the definition ofpersonal information suggest that disclosure ofthe document ordinarily must reveal somethingmore about an individual than his or her name toattract the exemption [see comments in Re Veale, atparagraphs 34 and 35]. The InformationCommissioner has commented that the mereroutine recording of a person’s name in agovernment document in circumstances where itwould be reasonable to expect such informationto appear, may not be sufficient to attract theexemption [see Re “F” and Police Force of Western


Australia (14 September 1995, unreported, atparagraphs 14-16}.

6.6 A document with no heading and in nocontext containing a list of names and nothingmore would be unlikely to be exempt underclause 3. However, a document containing a listof names that also discloses something personaland private about the people mentioned on thatlist, because of the context in which the namesappear, may be exempt. It is usually thecombination of information, for example, aname, address, telephone number, that gives thewhole of the information the character of“personal information”.

Officers of agencies and contractors forservices

6.7 In relation to a person who is, or hasbeen, an officer of an agency, the following“personal information” is not exempt matterunder clause 3:

(a) the person’s name;

(b) any qualifications held by theperson relevant to the person’s positionin the agency;

(c) the position held by the person inthe agency;

(d) the functions and duties of theperson as described in any jobdescription document for the positionheld by the person; or

(e) anything done by the person inthe course of performing or purporting toperform the person’s functions or dutiesas an officer as described in any jobdescription document for the positionheld by the person [see clause 3(3) andregulation 9 of the Freedom of InformationRegulations 1993 as amended].

6.8 In relation to a person who performs, orhas performed, services for an agency under acontract for services, “personal information” ofthe following kind is not exempt under clause 3:

(a) the person’s name;


(b) any qualifications held by theperson relevant to the person’s positionor the services provided or to beprovided pursuant to the contract;

(c) the title of the position set out inthe contract;

(d) the nature of services to beprovided and described in the contract;

(e) the functions and duties of theposition or the details of the services tobe provided under the contract, asdescribed in the contract or otherwiseconveyed to the person pursuant to thecontract; or

(f) anything done by the person inthe course of performing or purporting toperform the person’s functions or dutiesor services, as described in the contractor otherwise conveyed to the personpursuant to the contract [see clause 3(3) andregulation 9 of the Freedom of InformationRegulations 1993 as amended].

Applications for access to personal informationconcerning children

6.9 Access applications may be made onbehalf of a child by the child’s guardian or theperson who has custody or care and control ofthe child [s.98(a)].

6.10 However, if a document containspersonal information and either the accessapplicant, or the person to whom the informationrelates, is a child who has not turned 16, theagency may refuse access if it is satisfied thataccess would not be in the best interests of thechild and that the child does not have thecapacity to appreciate the circumstances andmake a mature judgment as to what might be inhis or her best interests [s.23(4)].

6.11 Section 23(4) does not provide anexemption in itself. However, its effect is that,if the child is the access applicant - or is not theaccess applicant but consents to the disclosure ofpersonal information about himself or herself -the agency may still refuse access in the


circumstances described in s.23(4). Otherwiseclauses 3(3) and 3(4) would operate to limit theexemption provided by clause 3(1) and theagency could not claim that exemption [see Re“K” and Department for Family and Children’s Services(9 April 1996, unreported), at paragraphs 31 and 32].

6.12 If an agency is considering giving accessto a document containing personal informationabout a child under the age of 16 years, and theagency is of the view that the child does nothave the capacity to appreciate the circumstancesand make a mature judgment as to the nature andsignificance of the document, then the agencymay consult the child’s guardian or the personwho has custody or care of the child, rather thanthe child. [s.32(3)] Where the child is a ward ofthe State, the child’s guardian is the DirectorGeneral of the Department for Family andChildren’s Services. In that circumstance, theDepartment should generally be consulted beforegiving any person access to documentscontaining personal information about the child.

6.13 Further, in circumstances where a childis a ward of the State, the rights of the parents tohave access to personal information about thechild are no more nor less than the rights of anyother person to have access under the FOI Act topersonal information about the child. That is,personal information about the child is notnecessarily personal information about theparents of that child. Consequently, anapplication fee of $30 is payable by a parent ifaccess is sought to non-personal information ofthat type (ie. if the information is personalinformation about a third party, in this case thechild) [see Re Geary & Others and Department ofFamily and Children’s Services (18 January 1996,unreported)].

Applications for access to personal informationconcerning intellectually handicapped persons

6.14 Access applications may be made onbehalf of an intellectually handicapped person bythe person’s closest relative or guardian[s.98(b)]. If a document contains personalinformation and the applicant, or the person towhom the information relates, is an intellectually


handicapped person, the agency may refuseaccess to the document if it is satisfied thataccess would not be in the best interests of thatperson [s.23(5)].

6.15 The operation of s.23(5) is similar to thatof s.23(4) in respect of children [see paragraphs6.9-6.13 above]. That is, the right of access topersonal information may be restricted if theaccess applicant is intellectually handicapped.In those circumstances, s.32(4) provides that theviews of the handicapped person’s closestrelative or guardian may be obtained for thepurpose of deciding whether the information isexempt under clause 3. Where the guardian isthe Public Advocate it will generally benecessary to consult the Public Advocate beforegiving access to personal information. In thosecircumstances, the parents of the intellectuallyhandicapped person may have no greater right tohave access to that person’s personalinformation than any other access applicant [seeRe “Q” and Public Guardian (16 May 1996,unreported)].

Deletion of third party personal information

6.16 If an agency decides that a documentcontains personal information about a third partyand that document is the subject of an accessapplication, it may provide access to thatdocument with personal information deleted[s.24]. If the third party’s identity can beascertained from the personal information abouthim or her contained in the document, an agencymay delete so much of the personal informationthat may enable the identity of that person towhom that information relates to be ascertained.Sometimes that may require deletion of all theinformation about that person which is containedin the document, including the relevant name ofthe person to whom the information relates ifsuch a name appears. Depending on the type ofdocument concerned, that option may beunsatisfactory from an applicant's viewpoint ifall that is disclosed is a blank piece of paper.

6.17 Alternatively, if the identity of the personto whom the information relates is not able to be


ascertained from that information itself, anagency may delete the name only and provideaccess to the document and the remaininginformation. If the identity of the person cannotbe ascertained from the information thatremains, then it is no longer personalinformation as defined in the FOI Act. The testis not whether personal information about a thirdparty would be revealed to a particular accessapplicant (who may believe that he or she knowsthat information), but whether disclosure wouldreveal it to the world at large. Providing accessto a document with only the name deleted,wherever that option is possible, is in accordancewith the objects and intent of the FOI Act.

Personal information about applicant interwovenwith other personal information

6.18 Practical difficulties may arise if personalinformation about an access applicant isinterwoven with personal information about athird party. In those circumstances, the accessapplicant’s right to have access to personalinformation about him or her competes with theright of the other person to have his or herprivacy respected. The decision on access willthen generally involve a weighing of thecompeting public interests and the making of adecision as to where the balance lies. [see ReMorton and City of Stirling (5 October 1994,unreported)].

Disclosure of the identity of a complainant

6.19 From time to time agencies receivecomplaints from members of the public aboutthe activities of other people. The FOI Act hasbeen used by some people to try to gain access tocomplaints made about themselves, particularlyto discover the identity of the person making thecomplaint. Several issues arise in theconsideration of disclosure of that kind ofinformation and some of those issues have beenidentified in decisions of the InformationCommissioner.

6.20 Where a regulatory authority proposes totake action against a person in respect ofparticular alleged wrong-doing, the public


interest in the fair treatment of that personmight, according to the circumstances of theparticular case and procedural fairness, requirethe disclosure of the identity of the complainant.

Complaints to agencies making allegations aboutindividuals

6.21 Typically, complaints received by manyagencies, especially local authorities, concernneighbourhood disputes - noisy dogs, breachesof by-laws, health matters, fencing disputes andanti-social behaviour and the like. In someinstances, the friction between neighbours is ofsuch intensity that there may be a real risk ofphysical harm ensuing to the parties concernedthat may be exacerbated by the disclosure ofdocuments under the FOI Act.

6.22 The Information Commissioner hasconsistently stated that there is a public interestin a person being informed of the substance of acomplaint about him or her received by a localauthority, and being given an opportunity torespond to the complaint if necessary, and apublic interest in the complainant beinginformed of the action taken by that authority inrespect of the complaint. Ultimately, if a matterproceeds to external review, the decisionconcerning access to documents relating to acomplaint will depend on the particularprocedures adopted by a local authority fordealing with such matters [see the decisions in ReMorton and City of Stirling (5 October 1994,unreported) and Re Lithgo and City of Perth (3January 1995, unreported) for examples of differentapproaches adopted by local authorities].

6.23 However, if the procedures of an agencyare deficient and do not adequately address thepublic interest identified in paragraph 6.22, thenthe balance of the public interest may requirethat the substance of a letter of complaint bedisclosed. Agencies can take steps to minimisethe likelihood of this occurring by changingadministrative procedures and policies fordealing with neighbourhood complaints.Options may include: writing to the allegedoffending party outlining in full the matterscomplained about and seeking a response;


visiting the alleged offending party andconfirming in writing the substance of thematters discussed and things done on that visit;or creating a document containing the substanceof the complaint, if that letter of complaint ishand-written, and then providing a copy of thedocument prepared to the offending party.

6.24 The Information Commissioner haswithheld the names and addresses of people whohave lodged complaints with State Governmentagencies such as the State GovernmentInsurance Commission, the Health Department,the Department for Family and Children’sServices [see the decisions in Re Morton; Re Lithgo;Re Brandter and City of Bayswater (5 September 1995,unreported); Re Ross and City of Perth (9 October1995, unreported); Re Capelli and Fiedukowicz andTown of East Fremantle (3 November 1995,unreported)].

6.25 However, each application of this typeshould be determined on its merits andaccording to the circumstances of the particularcase. It should not be assumed that the identityof complainants nor letters of complaint willnever be disclosed. In balancing the publicinterests, relevant factors may include, but arenot limited to:

* the age of the documents;

* whether the information is already in thepublic domain;

* whether the person complained about hasotherwise been informed by the agency ofthe allegations and invited to respond tothem; and

* whether action is proposed to be takenagainst the person who is the subject of thecomplaint.


FREEDOM OF INFORMATION 7. The Public Interest • 73

7. The Public Interest

Application to Exemptions

7.1 Some exemptions incorporate a “publicinterest test”. This means that even if an agencyis able to establish that a requested document iseither of a type described in the exemptionclause (ie. a Cabinet document), or that itsdisclosure could reasonably be expected to havethe effect stated in the exemption clause (eg.prejudice the future supply of information;impair the effectiveness of a test or audit), theclaim for an exemption may be displaced bycompeting interests if it can be shown that, onbalance, disclosure of the document would be inthe public interest.

What is the public interest?

7.2 Although the public interest is notdefined in the FOI Act, it is not concerned withmatters of private interest to individuals, nor is itsomething that is of interest to the public todaybecause it is newsworthy. The concept is bestillustrated by the following comment in DPP vSmith [1991] 1 VR 63, at 65:

" The public interest is a term embracingmatters, among others, of standards of humanconduct and of the functioning of governmentand government instrumentalities tacitlyaccepted and acknowledged to be for the goodorder of society and for the well being of itsmembers...There are...several and differentfeatures and facets of interest which form the

Balancing CompetingInterests


public interest. On the other hand, in the dailyaffairs of the community events occur whichattract public attention. Such events of interestto the public may or may not be ones which arefor the benefit of the public; it follows that suchform of interest per se is not a facet of the publicinterest."

Examples

7.3 Some examples of various “publicinterests” that have been recognised by theInformation Commissioner and by the courts andtribunals in other jurisdictions will illustrate thepoint made by the Court in DPP v Smith. Theremay be a public interest in:

* understanding the decision-making processes of Government;

* knowing the range of optionsavailable to agencies in their decision-making;

* knowing how differentinformation is treated by agencies andwhat information is rejected and why it isrejected;

* understanding the way theprocesses of decision-making byGovernment are structured and whocontrols them, what is important and whyit is important;

* an applicant being able toexercise his or her right of access underthe FOI Act;

* the disclosure of comments thatare gratuitous, unfairly subjective orirrelevant;

* being able to “clear the air” overa matter of controversy;

* knowing the substance ofcomplaints made against a person andknowing how an agency deals with suchcomplaints;

* the maintenance of personalprivacy;

* State and local governmentagencies being able to effectively carry


out their functions and the business ofgovernment on behalf of the community;

* accountability for the use ofpublic funds and for decision-makingthat affects the rights and entitlements ofindividuals;

* the proper functioning of agovernment or public instrumentalitywhen there is concern and debate onissues contained in requested documents.

7.4 When deciding the applicability of anexemption, the Information Commissioner willnot always reach the same conclusion as theagency as to where the balance of the publicinterest should lie. It is to be expected that inbalancing the competing interests, theInformation Commissioner will, from time totime, place a different emphasis on the weight tobe given to those interests.


FREEDOM OF INFORMATION 8. External Review • 77

8. External Review

Notification of Complaint

8.1 When the Information Commissionerreceives a complaint about a decision of anagency, the Commissioner will notify theprincipal officer of that agency, in writing, that acomplaint has been made [s.68(1)]. At the sametime the Commissioner may serve upon theagency a notice to produce the disputeddocuments and the agency’s FOI file to theInformation Commissioner [s.75(1) ands.72(1)(b)]. If the agency’s notice of decisiondoes not meet the requirements of s.30 of theFOI Act, a requirement may also be made toprovide reasons for denying access, includingmaterial findings of fact and a reference to thematerial on which those findings are based.Copies of the letter to the principal officer andthe notices are usually sent by facsimile to theagency’s FOI Co-ordinator to ensure there are nodelays in the commencement of external review.

8.2 The FOI Act requires the InformationCommissioner to make a decision on acomplaint within 30 days, unless the InformationCommissioner considers that it is not practicableto do so. As the process of external review isdesigned to be quick and informal, theInformation Commissioner will usually placetight time-frames on requests for documents orinformation. If the access application has beenproperly dealt with, the documents and/orinformation required should be easily located

The InformationCommissioner


and produced by the agency. Those time framesare expected to be adhered to unless there aregood reasons why an agency (or a complainant)is unable to comply. In such a case a request fora reasonable extension may be granted.

Notifying parties of external review

8.3 It is the responsibility of the agency tonotify any third parties, or an access applicantwhere a complaint is made by a third party, inwriting of any applications for external reviewby the Information Commissioner. Thisresponsibility arises where the exemptionclaimed involves clause 3 (personal information)or clause 4 (commercial or business information)[s.68(2)]. Notifications should be made by theagency immediately advice is received from theInformation Commissioner that a complaint hasbeen made. In doing so, agencies must becautious about revealing the identity of acomplainant to a third party, and vice versa.

8.4 Third parties and access applicantsshould be advised to contact the InformationCommissioner if they wish to be joined asparties to the proceedings and/or if they wish tomake submissions about the exempt status orotherwise of matter in the requested documents.Once the external review process hascommenced the Information Commissioner hasjurisdiction to decide all matters that could havebeen decided by the agency in the first instance[s.76(1)(b)]. Therefore, any further contact ornegotiations between the access applicant, thirdparties and the agency will occur via theInformation Commissioner, unless theCommissioner directs otherwise.

Procedures on Review

8.5 Complaints received by the InformationCommissioner are assigned to either anInvestigations Officer or a Legal Officer.Contact will be made by that person andattempts will usually be made to conciliate thecomplaint, if possible. If conciliation fails or isnot an option, the officer handling the complaintwill, after investigating the complaint, provide a


report to the Information Commissioner andrecommend an appropriate course of action.

8.6 The Information Commissioner isempowered to give directions as to procedure forinvestigating and dealing with a complaint andmay require, for example, that all submissionsare to be in writing or may require oralsubmissions. Each party will usually haveaccess to the submissions of the other, althoughthe submissions of an agency may be edited orsummarised by the Information Commissionerin order to avoid the disclosure of exemptmatter. All material and submissions obtainedin the course of the investigation of thecomplaint are considered by the InformationCommissioner in the course of deciding acomplaint.

Onus of Proof

8.7 In proceedings before the InformationCommissioner, the agency claiming anexemption bears the onus of establishing that itsdecision to deny access to a document isjustified [s.102(1)]. Where the requesteddocument exists, has been found and is adocument of an agency, the agency mustestablish that a particular document or part of adocument contains exempt matter as describedin Schedule 1. The decision-maker does this bymaking findings of fact that establish either thatthe document is of a type described in theexemption clause claimed or, depending on theparticular exemption claimed, that it is adocument of a type described and one of theeffects described in the exemption clause couldreasonably be expected to follow if it were to bedisclosed.

8.8 Some exemptions have limitationsattached. The limitations have the effect ofmaking documents which may have otherwisebeen exempt, not exempt. In circumstanceswhere the exemption is limited by a publicinterest test, the onus shifts to the accessapplicant, but this only happens after the agencyhas established a prima facie claim forexemption. If the agency does not establish the


exemption, there is no onus on the accessapplicant and the question of whether disclosurewould, on balance, be in the public interest doesnot arise.

8.9 Even if a document is technicallyexempt, the agency does not have to deny accessto that document. Section 3(3) of the FOI Actgives the agency a discretion to release suchdocuments. Before claiming exemption theagency should carefully consider exercising thatdiscretion in accordance with the objects andintent of the legislation.

8.10 Where the exemption is limited by apublic interest test, in considering whether theexemption should be claimed, the decision-maker should turn his or her mind to what therelevant competing public interest factors mightbe and where the balance might lie. Thatconsideration should be conveyed to the accessapplicant. In particular, those public interestfactors that were considered to be so importantas to persuade the decision-maker that thedocument should not be disclosed should beidentified for the benefit of the access applicant.Only when the agency explains to an accessapplicant what public interest factors weighedagainst disclosure is that applicant able toidentify other factors that might tilt the balancein favour of disclosure in order that the accessapplicant satisfy the onus he or she bears unders.102(3) of the FOI Act.

8.11 It is the experience of the InformationCommissioner that insufficient weight issometimes given by decision-makers to anapplicant’s right of access under the FOI Act,and that exemptions are frequently claimed byagencies when the essential public and privateinterests that are sought to be protected are notapparent.


Standard of Proof

8.12 In proceedings before the InformationCommissioner, there must be some basis for aclaim that disclosure could reasonably beexpected to have certain effects. The commentsof Owen J in a decision of the Supreme Court ofWestern Australia, Manly v Ministry of Premierand Cabinet (15 June 1995, unreported)indicate the standard of proof that is required. Inthe context of considering the application of theexemption in clause 8(2) of Schedule 1 to theFOI Act, Owen J, referred to the judgment ofSheppard J in Attorney General’s Department vCockcroft (1986) 10 FCR 180 and said, at page44:

"How can the [Information]Commissioner, charged with the statutoryresponsibility to decide on the correctness orotherwise of a claim to exemption, decide thematter in the absence of some probative materialagainst which to assess the conclusion of theoriginal decision maker that he or she had "realand substantial grounds for thinking that theproduction of the document could prejudice thatsupply" or that disclosure could have an adverseeffect on business or financial affairs? In myopinion it is not sufficient for the originaldecision-maker to proffer the view. It must besupported in some way. The support does nothave to amount to proof on the balance ofprobabilities. Nonetheless, it must be persuasivein the sense that it is based on real andsubstantial grounds and must commend itself asthe opinion of a reasoned decision-maker."

Procedure following receipt of preliminaryview

8.13 The parties will normally be providedwith the Information Commissioner’spreliminary view and an opportunity to respondto that preliminary view, before the InformationCommissioner proceeds to determine the matterby a formal decision, if necessary.

8.14 The Information Commissioner’spreliminary view is to give the parties an


indication of the Commissioner’s view, on thebasis of the evidence then before theCommissioner, about the matters in dispute,whether those matters are claims concerning theexempt status of documents or parts ofdocuments, allegations about missingdocuments, documents within the ambit of theaccess application, charges and refusals to dealwith access applications, and so forth as the casemay be. Informing the parties of theCommissioner's preliminary view notifies themof any possible adverse findings beingconsidered and of the basis of such findings, andaffords an opportunity to provide furtherevidence and submissions in support of theirclaim to access, or claims for exemption, as thecase may be.

8.15 Any additional evidence or materialprovided to the Information Commissioner bythe parties following the preliminary view maychange that view. However, if no new materialis provided by the parties, the InformationCommissioner’s preliminary view and thereasons are an indication of how the complaint islikely to be finally determined.

8.16 When an agency withdraws its claims forexemption for documents or parts of documentswhich, in the Commissioner’s preliminary vieware not exempt, the agency should provide thecomplainant with access to those documentsforthwith, and inform the InformationCommissioner accordingly.

Changing the basis of a claim for exemption

8.17 It is not uncommon for agencies to claimnew exemptions after receiving the InformationCommissioner’s preliminary view that thedocuments are not exempt as originally claimed.A “shifting of the goal posts” may operateunfairly for the complainant. It also prolongs theexternal review process because the InformationCommissioner is obliged to put any new claimsfor exemption to the complainant and to givehim or her an opportunity to respond to thosenew claims.


8.18 However, it is also the case that, in thecourse of dealing with a complaint andconsidering the original reasons for claiming anexemption, the Information Commissioner willconsider whether the disputed documents areexempt for any reason not claimed by theagency. If the Information Commissionerconsiders that there is material which mayestablish that another exemption may beapplicable, the agency will be informedaccordingly and may be required to providefurther material for the purpose of determiningwhether there is any factual basis for a relianceupon a new exemption clause, either in additionto or in substitution for the exemptions claimedin the first instance. [see Re Styles and City ofGosnells (11 October 1996, unreported)].

The Information Commissioner’s decision

8.19 The decision of the InformationCommissioner upon a complaint determines theexempt status or otherwise of documents indispute between the parties. The decision is tobe regarded as the decision of the agency andhas effect accordingly [s.76(7)]. If the complaintis against a decision to refuse access to adocument and the Information Commissionerdecides that documents are not exempt and anagency does not intend to appeal against thatdecision, and there are no other parties to thecomplaint, the documents must be released tothe complainant forthwith in accordance with theInformation Commissioner’s decision.

Status of complaints decided by the InformationCommissioner

8.20 When a complaint has been dealt with inthis manner, the Information Commissioner hasdischarged the Commissioner’s statutory dutyunder the FOI Act and no longer has any role toplay in the dispute, if any, between the parties.Consequently, further correspondence betweenthe complainant and the InformationCommissioner, in respect of that matter, isunnecessary. A decision of the InformationCommissioner is final unless an appeal to theSupreme Court on any question of law arisingout of that decision is lodged [s.85(1)].


8.21 However, there is no appeal against adecision of the Information Commissioner as towhether or not to deal with a complaint, nor inrelation to any other decision of the InformationCommissioner, including a decision aboutcharges for dealing with an access application.

Feedback on review procedures

8.22 The Information Commissioner will seekfeed-back from agencies and complainants onthe processes of review (not the merits of thedecision). Agencies and complainants areencouraged to provide candid and frankcomments to the Advice and Awareness sub-program and to identify any areas where changescould be made to improve the quality ortimeliness of the review process. Theprocedures adopted by the InformationCommissioner must provide for proceduralfairness between the parties, but flexibility,informality and speed must also beaccommodated so far as is possible inaccordance with the statutory requirements, theintention of the FOI Act and the will ofParliament.

Appendices • 85

FORMAT FOR DOCUMENT SCHEDULE

THIS IS AVAILABLE ON DISK FROM THE OFFICE OF THE INFORMATION COMMISSIONER

Document Schedule:

Applicant:

____________________ Freedom of Information Application No. _______ File No._______

____________________ Decision Maker: ____________________________

Doc. No. Source / Location Description Decision Exemption Reasons for decision

EXAMPLE ONLY OF A COMPLETED SCHEDULE

Document Schedule:Applicant:

____________________ Freedom of Information Application No. _______ File No.___________________________ Decision Maker: ____________________________

Doc. No. Source / Location Description Decision Exemption Reasons for decision1. FILE 4/84

vol. 1 folios: 22a-cLetter dated23/6/94 froma member ofthe public

Release withname andaddress ofcorrespondentdeleted.

Clause(3)(1)

Letter was sent by amember of the public whoexpressed an opinion aboutan issue that had beengiven media attention. Onbalance, while the opinionitself can be released,the personal informationexemption is applicable tothe person’s name andaddress.

2. FILE 6/84vol 2 folios: 9-22:

Report dated31/7/94

- Release

N/A No personal or commercialinformation about thirdparties.

3. FILE 2/94vol 1 folio 22

File Note ByCEO dated12/8/94 - Release

N/A No difficulty in releasingin full.

4. FILE 2/94Vol 1 Folio 26

InternalMemo to CEOdated6/10/94

- Releasewith editing

Clause14

Exempt 3rd & 4th para’s.Contains information of atype referred to in Clause14(1)(C) and theParliamentary Commissionerdoes not agree to itsrelease.

Appendices • 88

CASES

Attorney General’s Department v Cockcroft (1986) 10 FCR 180 88 Attorney-General (NT) v Kearney (1985) 158 CLR 500 60 Attorney-General (NT) v Maurice (1986) 161 CLR 475 60 Baker v Campbell (1983) 153 CLR 52 60 Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 63 DPP v Smith [1991] 1 VR 63 80 Grant v Downs (1976) 135 CLR 674 60 Harris v Australian Broadcasting Corporation (1983) 78 FCR 236 67 Manly v Ministry of Premier and Cabinet (15 June 1995, unreported 53, 54, 57, 88 Police Force of Western Australia v Kelly and Smith (Supreme Court of Western Australia, 30 April

1996, unreported) 53 Re “A” and Heathcote Hospital (9 June 1994, unreported) 28 Re “B” and Brisbane North Regional Health Authority (1994) 1 QAR 279. 62 Re “C” and Department for Community Development (12 October 1994, unreported) 28, 56 Re “F” and Police Force of Western Australia (14 September 1995, unreported) 71 Re “K” and Department for Family and Children’s Services (9 April 1996, unreported) 73 Re “M” and Princess Margaret Hospital for Children (11 December 1995, unreported) 18 Re “N” and Graylands Hospital (12 December 1995, unreported) 18 Re “Q” and Public Guardian (16 May 1996, unreported) 74 Re Barrett and Police Force of Western Australia (12 September 1995, unreported) 18 Re Boland and City of Melville (11 October 1996, unreported) 16, 18 Re Brandter and City of Bayswater (5 September 1995, unreported) 77 Re Brown and Police Force of Western Australia (14 July 1995, unreported) 15 Re Burnett and Police Force of Western Australia (23 June 1995, unreported) 21 Re Capelli and Fiedukowicz and Town of East Fremantle (3 November 1995, unreported) 77 Re Clements and Health Department of Western Australia ( 16 March 1994, unreported) 20 Re Coastal Waters Alliance of Western Australia Incorporated and Department of Environmental

Protection and Cockburn Cement Limited (28 September 1995, unreported) 59, 61 Re Croom and Accident Compensation Commission (1989) 3 VAR 441 55, 56 Re Cyclists’ Rights Action Group and Department of Transport (20 June 1995, unreported) 46 Re Doohan and WA Police Force (5 August 1994, unreported) 17 Re Edwards and Ministry of Justice (12 December 1994, unreported) 28 Re Egan and Medical Board of Western Australia (28 September 1995, unreported) 51, 52 Re Foy and Medical Board of Western Australia (18 October 1995, unreported) 51, 52 Re Geary & Others and Department of Family and Children's Services (18 January 1996,

unreported) 73 Re Goodger and Armadale Kelmscott Memorial Hospital (9 May 1995, unreported) 18 Re Gray and University of Western Australia (23 June 1994, unreported) 28 Re Guyt and Health Department of Western Australia (16 March 1994, unreported) 61 Re H and Graylands Hospital (6 September 1996, unreported) 67 Re Hassell and Health Department of Western Australia (13 December 1994, unreported) 48, 67 Re Hayes and The State Housing Commission of Western Australia (Homeswest) (17 June 1994,

unreported) 28 Re Hesse and Shire of Mundaring (17 May 1994, unreported) 41 Re Hunter and Fisheries Department of Western Australia (20 November 1995, unreported) 56, 61 Re Jeanes and Kalgoorlie Regional Hospital and Others (7 February 1995, unreported) 58, 60 Re Jones and Shire of Swan (9 May 1994, unreported) 58 Re Kobelke and Minister for Planning and others (27 April 1994, unreported) 28, 50, 58, 65 Re Kolo and Department of Land Administration (6 February 1995, unreported) 50 Re Larson and Office of Corrections (AAT of Victoria, Howie PM, 19 June 1990, unreported) 42 Re Lawless and Medical Board of Western Australia (5 July 1995, unreported) 50, 66 Re Lithgo and City of Perth (3 January 1995, unreported) 18, 77 Re Maddock, Lonie and Chisholm (a firm) and Department of State Services (2 June 1995,

unreported) 50, 65 Re Manly and Ministry of the Premier and Cabinet (16 September 1994, unreported) 28, 51 Re Mineralogy Pty Ltd and Department of Resources Development (5 January 1996, unreported) 59 Re Morton and City of Stirling (5 October 1994, unreported) 76, 77

Appendices • 89

Re Nazaroff, Nazaroff and Nazaroff and Department of Conservation and Land Management (24March 1995 unreported) 18, 61

Re Organon (Australia) Pty Ltd and Department of Community Services and Health (1987) 13 ALD588 48

Re Oset and Health Department of Western Australia (1 June 1995, unreported) 18 Re Oset and Ministry of the Premier and Cabinet (2 September 1994, unreported) 17, 18 Re Pastoralists’ and Graziers’ Association and Department of Land Administration (25 August 1995,

unreported) 63, 65 Re Pope and Queensland Health (Hammond and Robbins, Third Parties) (1994) 2 QAR 37 49 Re Read and Public Service Commission (16 February 1994, unreported) 35, 58, 59 Re Rehman and Medical Board of Western Australia (1 August 1995, unreported) 34 Re Rindos and the University of Western Australia (10 July 1995, unreported) 67 Re Ross and City of Perth (9 October 1995, unreported) 77 Re Sanfead and State Government Insurance Commission (17 January 1996, unreported) 18, 52, 66 Re Simonsen and Edith Cowan University (13 July 1994, unreported) 14, 66, 67 Re Slater and State Housing Commission of Western Australia (22 February 1996, unreported) 48 Re Smith and State Government Insurance Commission (5 December 1994, unreported) 28 Re Strelley Pastoral Pty Ltd and Others and Department of Land Administration (27 March 1995,

unreported) 50 Re Styles and City of Gosnells (11 October 1996, unreported) 56, 90 Re Taylor and Ministry of the Premier and Cabinet (23 December 1994, unreported) 58 Re Tickner and Police Force of Western Australia (7 March 1995, unreported) 18 Re Uren and Ministry for Planning (12 July 1995, unreported) 18 Re Veale and Town of Bassendean (25 March 1994, unreported) 28, 35, 36, 58, 70 Re Waghorn and Christmass and Police Force of Western Australia (22 May 1995, unreported) 21, 61 Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 57, 59 Re Weeks and Shire of Swan (24 February 1995, unreported) 61 Searle Aust Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163 65 Trade Practices Commission v Sterling (1979) 36 FLR 244 61 Waterford v Commonwealth of Australia (1987) 163 CLR 54 60 Webster v James Chapman and Co. (a firm) and Others [1989] 3 All ER 939 61

Appendices • 90

CHECKLIST FOR APPLICANTS UNDER FOI

You want to exercise your right of access to government documents. Haveyou: Applied in writing to the right State or local government agency?• if you do not know which agency holds the document you want, contact the one

you think should hold the document and ask to speak to the FOI Co-ordinator.Agencies are obliged to assist you to make an application that conforms with thelegislative requirements.

• no special form is required.

ã

Identified the document required?• you should try to describe the particular document or documents you seek,

otherwise the agency may refuse to deal with your request if it is too broad. Askto see the agency’s Information Statement which contains a list of the type ofdocuments held by that agency. The FOI Co-ordinator can also assist you.

ã

Paid the application fee of $30 if the document contains non-personal information?• no application fee is payable for access to personal information about you.• if the agency wants you to pay an application fee and you disagree, ask for an

internal review of that decision. If you still disagree with the decision afterinternal review, you can seek external review by the Information Commissioner.

ã

Asked for an estimate of charges ?• you may ask for an estimate of charges when you make your access

application.• the agency must tell you if the charges might exceed $25.

ã

Paid any deposit required by the agency?• if the agency requires you to pay a deposit, you should discuss with the agency

how the application may be changed to reduce the charges payable.• you should also consider allowing the agency more time to deal with your

request on condition that charges are waived or reduced.• if the agency gives you a notice requiring a deposit to be paid and you do not

notify the agency of your intention to proceed, the agency will consider yourapplication to be withdrawn. If that occurs, any advance deposits paid by youwill be refunded.

• if you disagree with the charges imposed, ask for an internal review of thatdecision. If you still disagree with the decision after internal review, you canseek external review by the Information Commissioner.

ã

Negotiated any reduction or extension of the “permitted period”with the agency?• if you require the documents by a certain date for some specific purpose, you

can ask the agency to provide you with a decision on access within a shorterperiod than 45 days allowed by the FOI Act. You should negotiate an agreeddate with the agency.

• if you and the agency are unable to agree on a shorter period and you need thedocuments, you can ask the Information Commissioner to reduce the timeallowed to the agency to comply with the FOI Act.

ã

The agency should notify you when your application has been received.The agency must deal with your application and decide whether to give orrefuse access within 45 days after the application is received. If you do not

Appendices • 91

receive a decision from the agency within 45 days, or within such otherperiod as is agreed between the agency and you, the agency is taken tohave refused access. Your options are: If the decision was made by an officer of the agency other thanthe principal officer, apply to the agency immediately for internalreview of the “deemed refusal”• internal review is not available if the decision-maker is the principal officer of the

agency, or if you applied for documents of a Minister.

ã

If the decision was made by the principal officer of the agency ora Minister, apply immediately for external review by theInformation Commissioner• the Information Commissioner is unlikely to allow a complaint to be made if

internal review is available and you have not applied for internal review. TheInformation Commissioner may allow a complaint to be made if you show causewhy internal review should not be applied for or should not be completed.

ã

Apply to the Information Commissioner to allow the agency anextension of time on such conditions as the Commissionerthinks fit.• you can ask the Information Commissioner to reduce or waive the charges

payable if the agency is given an extension of time to deal with your accessapplication and decide whether to give access.

ã

If you have applied for internal review (where appropriate) andyou are still dissatisfied with the decision of the agency, youmay: Apply to the Information Commissioner for external review of theagency’s decision.• you must apply to the Information Commissioner within 60 days after receiving

written notice of the agency’s decision upon internal review.

ã

Appendices • 92

No fees payable. Obtain proof of identity.

Notify applicant of receipt of application. Provide contact

number.

Isorganisation or department

covered by the FOI Act?

Are documents available other than under FOI?

Determine decision-maker

Is application valid under s.12?

Application received

Consult with applicant and modify.

Serve section 20 notice.

Consult with applicant and modify.

Serve section 20 notice.

Application fee payable under regulations.

Consult applicant amend s.11(c)(3)

Respond accordingly to applicant.

Advise applicant.Explain where

documents may be inspected or purchased.

Does agency hold documents?

Can agency refuse to deal with the application or

refuse access?

FLOW CHART - PROCESSING AN FOI APPLICATION

Is it an aplication for personal information?

Step 1

YES

NO

NO

NO

NO

YES

YES

YESYES

YES

NO

YES

NO

Step 2

Step 3

Step 4

Step 5

Step 6

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Appendices • 93

Locate and identify relevant documents

Continue dealing with application

Examine documents for exempt matter. Consider

deletions under s.24

Consider applicability of s.31

Consider deferral of access

Notify applicant of decision, charges and rights of review

Provide access

Notify applicant.Discuss ways of reducing costs.

Obtain advice.Decide matter under

section 28

Advise third party of rights of review under

s.34

Defer access until rights for review made or time

expires.

Do the documents contain information of a medical or psychiatric nature?

Is consultation necessary with third parties?

Is a deposit or an estimate of costs required?

Does third party object to access?

Consult as required under section 32 and 33

Does decision-maker intend to release

documents?

YES

YES

YES

NO

NO

NO

NO

NO

YES

YES

c:\data\prod\snap\foiproc1.sg - Page 2

Step 7

Step 8

Step 9