Freedom Of Information (FOI) (WA)

Freedom of Information (FOI) law is designed to promote accountable, transparent and responsible government, and in Western Australia this law is contained in the Freedom of Information Act 1992. The Act gives the public the right to access government-held information about themselves or policies, unless there is exemption.

What Information Can I Access?

A person can access FOI documents held by an agency or a minister that contains personal information, or is used to make policy or administrative decisions.

A “document” is defined as a document that is in the possession or under the control of a government agency, whether created or received by the agency. An “agency” means a department, a local government, a public authority, a government-owned corporation or a subsidiary of a government-owned corporation.

An FOI application can be made online. The Act allows 45 days to process an application, but the Commissioner can reduce or extend that period.

Access to the document can be granted in several ways, including as hard copy; in electronic form; as an opportunity to inspect, listen or view (if the document is sounds or images); or as a written transcript if the information is recorded as audio, or shorthand or other encoded format.

The agency has a right to delete information from a document if it considers the information to be exempt.

A person can also apply to have their personal information corrected or amended where it is inaccurate, incomplete, out of date or misleading.

Exempt documents

There is a range of documents which are classed as exempt under the Act, and therefore cannot be released to the public under an FOI application. Exempt documents include:

• an official record of any deliberation or decision of the Cabinet, including agendas, copies or drafts of a document, as well as documents prepared to brief a minister;
• those which would divulge information communicated in confidence between governments;
• those which disclose trade secrets or other critical business, commercial or financial information;
• law enforcement documents which disclose methods for preventing, detecting, investigating or dealing with crime;
• those which contain information that could prejudice court proceedings;
• those which contain information that could endanger the physical safety of any person or endanger the security of any property;
• those which contain information that could facilitate the escape of a prisoner or endanger the security of any person.
• those covered by legal professional privilege;
• those which would unreasonably disclose someone’s personal information;
• those which would reveal information about the adoption of a child.

FOI decisions

An agency can refuse access to a document if the document is an exempt document, the agency does not have the document, or the document is held in a private collection in an art gallery, museum, library or other agency.

It can also refuse access if the document contains personal information about a child or an intellectually handicapped person and the agency believes access would not be in the best interests of the child or handicapped person.

The agency can decide to refuse to deal with an application if it believes the work in processing the request would require an unreasonable and substantial diversion of an agency’s resources. Before refusing an application on these grounds, the agency must give the applicant an opportunity to amend the application.

A person is not entitled to access a document that contains information about trade secrets, or information that has commercial value, or information that concerns the business, professional, commercial or financial affairs of another person, unless the other person consents.

In relation to exempt documents, the Premier can sign an exemption certificate that states a document contains information that is exempt. It can be issued in form that neither confirms nor denies the existence of a document, but if it did exist, it would contain information that would  be exempt. The certificate lasts for 2 years.

Review of FOI decisions

An applicant has a right to review a decision made by an agency. The decision may have been to:

• give access to an edited copy of the document;
• refuse to deal with the application;
• refuse access to a document;
• defer access to a document;
• refuse access on the basis disclosure of information may adversely affect the physical or mental health of the applicant;
• impose a charge or require a deposit that the applicant considers to be unreasonable;
• refuse access because the document contains personal information about a third party and the third party objects.

An application for review must be lodged within 30 days of written notice of the decision. The review must be decided within 15 days. The original decision can be confirmed, varied or reversed.

FOI offences

The Act contains several offences related to access to FOI documents.

If a person knowingly misleads or deceives an agency when they apply for access to a document that contains personal information about another person, or information about another person’s business, professional, commercial or financial affairs, they face a maximum penalty of a $6000 fine.

The same penalty applies to a person who hides, destroys or disposes of a document or part of a document to avoid it being accessed under an FOI application.

For advice or representation in any legal matter, please contact Armstrong Legal.