Why?
Freedom of Information (‘FOI’) laws exist to promote transparency and political accountability, which in turn, prevents corruption and reduces bad decision making. FOI laws exist across Australia. The purpose of the Freedom of Information Act 1992 (WA) (“FOI Act”) is to enable the public to participate in governing the State as well as making the government more accountable to the public.
What sorts of things?
FOI laws provide access to all sorts of documents held by government agencies, no matter what reason they are requested for, or why the agency might think they are being requested for (FOI Act s 10).
They require government agencies to publish information about their activities and to disclose which internal rules and processes govern their decision making.
FOI laws also allow individuals to gain access to personal information which is about them, and in some cases, to request amendment of those records.
There some exceptions to the availability of government documents.
Exempt matters are set out in Schedule 1 of the FOI Act and include things like Cabinet or Executive Council deliberations, personal information about an individual, or trade secrets.
These include materials placed in collections by private persons, documents which are otherwise available for purchase, and documents created by national security or law enforcement bodies (FOI Act ss 6, 7).
The FOI laws do not generally require private organisations to release documents or information, unless the organisation is performing a public function.
How do I go about it?
The first step is to apply to the government agency which has the documents you wish to obtain (FOI Act s 11). However, there are various reasons that your request for documents might be refused.
An application to access documents must be in writing, identify the documents requested, give an address to send notices/ documents to, give any other information if required by regulations, and be lodged at the agencies’ office with any fee payable (FOI Act s 12).
Therefore, if your application is deficient, it may be refused.
What if they refuse?
An agency can refuse to deal with your application if it considers the application would divert a substantial and unreasonable proportion of the agency’s resources away from its other operations (FOI Act s 20). The agency can also refuse if the documents is an ‘exempt document’ or it does not belong to the agency.
Likewise, an agency will not give access to a document that contains personal information about a third party unless the agency has taken steps to ascertain the views of the third party (FOI Act s 32).
Again, the agency will not give access to documents concerning trade secrets, or information of a commercial value, or information concerning the business, professional, commercial, or financial affairs of a person, without their consent (FOI Act s 33).
The FOI Act contains mechanisms for internal and external reviews. Internal reviews refer to reviews within the agency itself. In Western Australia, external review is conducted by the Information Commissioner.
If a complaint is made against a decision of an agency to either give access or not to give access, then a complaint may be made to the Information Commissioner (FOI Act s 65).
If still not satisfied, then an appeal on a point of law arising out of the Information Commissioner’s decision may be made to the Supreme Court of Western Australia. Alternatively, an appeal for judicial review for a denial of natural justice may lie.
However, it can be difficult to successful appeal a decision. In Apache Northwest Pty Ltd v Dept of Mines & Petroleum (No 2) [2011] WASC 283 the company appealed from a decision of the Information Commissioner to allow access to documents relating to oil and gas activities on Varanus Island. The appeal was based on grounds ranging from misconstruing the FOI Act, to making findings not supported by the evidence, to failing to observe natural justice. Ultimately, of the 51 pages of submissions, and 8 different grounds of appeal, none were successful.