Greenlead, Graham --- "WA Information Commissioner's First Annual Report" [1995] PrivLawPRpr 26; (1995) 2(2) Privacy Law & Policy Reporter 36

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WA INFORMATION COMMISSIONER'S FIRST ANNUAL REPORT

Information Commissioner (WA), Freedom of Information Annual Report 1993-1994 (September 1994)

Information Commissioner Bronwyn Keighley-Gerardy's first annual report sets a high standard in documenting the operation of WA's Freedom of Information Act 1992. It outlines her office's functions, gives measures of corporate performance, and contains her report on the operation of the Act, including detailed summaries of important decisions, since the Act's inception on 1 July 1993. Like all other Australian FOI Acts, the WA Act includes rights of correction in relation to personal information, and to that extent implements one of the most important privacy rights, at least in relation to state and local government records.

The WA Act is unique in Australia in that it gives the body which reviews access and correction decisions (the Information Commissioner) an additional role in educating both agencies and the public in their obligations and rights under the Act (s 63). The Commissioner's staff of 14 therefore includes both an 'advice and awareness' division and a 'review and complaint resolution' division. The report contains a valuable table listing 25 powers and decision-making functions of the Commissioner, their legislative basis, the officers in the Commissioner's structure responsible for exercising them, and the general criteria of application.

The Act also empowers the Commissioner to recommend to Parliament legislative or administrative changes that could help the objects of the Act be achieved (s 111(4)). The Commissioner may refer questions of law to the Supreme Court (s 78(1)).

The report details the Commissioner's procedures in reviewing complaints against agency decisions, and some aspects of this are worth noting. The Commissioner reads each complaint before passing it to her complaints division. The Act requires the Commissioner to reach a decision within 30 days of a complaint being lodged. Where the officer handling the complaint considers that conciliation is possible, the Commissioner will suspend formal investigation (s 71(1)), which has the effect that 'the statutory clock stops and does not restart until the conciliation process is complete'. If either party takes a view that does not allow for conciliation, the Commissioner will put her preliminary view to that party, inviting them to reconsider their position if necessary.

Once this process is unsuccessfully exhausted, the complaint is forwarded to the Commissioner for formal resolution (and the clock starts to run again). Submissions will then be invited from the parties and from any person or body who might be affected by the decision (s 69(4)).

For the 61 formal complaints dealt with in the first year, the average time taken to reach a formal decision (where one was necessary) was 32.5 days, plus an average 34.8 days for conciliation efforts. Where a complaint was resolved by conciliation the average time taken was 44.6 days.

After a formal decision is made (s 76), the decision and reasons are then published. The identity of both the agency and the complainant is usually included in the report, but the Commissioner exercises discretion not to disclose the identity of the complainant (or third parties) where to do so would unduly affect their privacy.

Decisions about personal information

Of the 2128 applications received by agencies under the Act in its first eight months of operation, 75 per cent concerned personal information (a percentage identical to the first year of the Qld Act). However, only 23 per cent of the applications to local government agencies concerned personal information. The overwhelming bulk of the applications to State agencies were for access to personal information held by the WA Health Department or by WA government hospitals (over 1,300 applications, 62 per cent of all applications). In operation the Act has therefore been primarily a 'personal information' Act, even if (as some suggest) the real test of an FOI Act is how well it provides access to non-personal (policy) information.

State government agencies provided full access to personal information in 87 per cent of cases, and edited access in another 9 per cent, whereas local government agencies provided full access in 48 per cent, edited access in 26 per cent, and refused access in 26 per cent of applications.

The Act provides for an internal review by the State or local government agency where a dissatisfied applicant so requests. In the 103 cases where an applicant did so request, the decision was reversed in 12 per cent of cases and varied in another 28 per cent. The Commissioner comments that this suggests that, in general, agencies are taking internal review seriously and not merely 'rubber stamping' the initial decision.

Of the 61 formal complaints against these decisions received by the Commissioner in the first year, only 26 had been finalised by the end of the reporting period, 11 of which proceeded to a formal decision (all of which are summarised in the report - see below). Only one decision by the Commissioner had been appealed to the Supreme Court (concerning public interest immunity).

Some important decisions

Of the 11 decisions reported, a number involve significant issues concerning personal information, but none involve questions of correction.

• Re Read and the Public Service Commission (16 February 1994). The applicant, a public sector employee, sought access to documents relating to grievances he had lodged with the Office of Merit Protection. The Commissioner rejected exemptions based on the documents being part of the deliberative process because they were created as part of the investigative process prior to any evaluation or weighing up of options. However, some documents were exempt because the informal system of investigation involved assurances of confidentiality. The Commissioner considered it significant that the amount of access (including access to edited documents) involved recognition that a public sector employee was entitled to know the substance of what others had said about him.
• Re Hayes and The State Housing Commission of WA (Homeswest) (17 June 1994). In a similar case where an agency had granted access to 154 documents and edited access to nine others, refusal of access to nine documents was justified because of the privacy interests of third parties. The Commissioner considered that the amount of access allowed satisfied 'the public interest in a person being informed of the substance of what has been said about him or her'.
• Re Veale and Town of Bassendean (25 March 1994). The applicant's access to a memorandum from the former town clerk to councillors concerning the applicant and the Ratepayer's Association he represented was not protected by the confidentiality exemption because it could not reasonably be expected to prejudice the future supply of information of that kind.
• Re Kiernan and WA Police Force (17 June 1994). In a similar case, a superintendent of police sought access to a report from another police officer which contained personal information about him. The Commissioner held that although the document had been given and received in confidence, the agency was unable to satisfy her that the future supply of reports by police officers, pursuant to their statutory obligations, could be expected to be prejudiced.

Legislative recommendations

The Commissioner considered it premature to consider major legislative amendments in this report, but did recommend clarification of the meaning of 'non-personal information' (see Legislation & Guidelines in this issue), and noted that her interpretation of the stopping of the 'statutory clock' during conciliation was the only way to make the 30-day limit workable.

(The report is available from the Information Commissioner, Level 21, Exchange Plaza, 2 The Esplanade, Perth WA 6000, fax [phone]. The Commissioner also issues four-page FOI Bulletins every two months.)

Comment

Like the first annual report of the Qld Information Commissioner (see (1995) 2 PLPR 13), this report demonstrates the value of having a single statutory 2 PLPR 13), this report demonstrates the value of having a single statutory officer responsible for initial review of agency FOI decisions, particularly if this is coupled with other responsibilities for ensuring that FOI works fairly and efficiently, and that its operation is known to agencies, the public and parliament. In contrast to the 'old' FOI jurisdictions in Australia (Commonwealth, Victoria and NSW) where each review decision is made by a differently constituted Administrative Appeal Tribunals or District Court, and the fair and efficient operation of FOI is just one of the many responsibilities of the Ombudsman, the new Information Commissioner model seems to have a lot in its favour.

Graham Greenleaf