Greenleaf, Graham --- "Clements v Keighley-Gerardy (Information Commission) (WA)" [1995] PrivLawPRpr 5; (1995) 2(1) Privacy Law & Policy Reporter 11

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Clements v Keighley-Gerardy (Information Commissioner) (WA)

Supreme Court of WA, Commissioner Heenan QC, 9 November 1994

Freedom of Information Act 1992 (WA) - s 74 - whether Information Commissioner's failure to disclose reasons for exemption was breach of natural justice

The appellant was dissatisfied with a decision of the Information Commissioner which restricted his access to parts of the information he sought on the grounds that it was exempt or confidential. He had sought access to documents concerning his compulsory admission to a hospital to enable him to re-establish his good name by demonstrating that there was no basis for allegations against him and that he was unnecessarily confined.

The Commissioner concluded that the material was exempt (among other reasons) under cl 8(2) of Sched 1 on the grounds that its disclosure '(a) would reveal information of a confidential nature obtained in confidence and (b) could reasonably be expected to prejudice the future supply of information of that kind to the government or to an agency'. In her reasons for the decision the Commissioner said 'I am unable to explain my reasons for reaching this conclusion without breaching my duty under s 74(1)(a)' (a duty to avoid the disclosure of exempt matter).

The appellant contended that, in the absence of any such explanation, or disclosure of the documents themselves, the Commissioner had breached the rules of natural justice 'by depriving him of the opportunity to make submissions on whether or not it is truly confidential or exempt'. The court, while recognising that this placed the appellant in a 'dilemma', held that the non-disclosure was required under s 74, and therefore cannot constitute a breach of natural justice.

Comment

The case does not deal with any major principles of law, and the court's decision on the natural justice question is not surprising. The only safeguard against the Information Commissioner's characterisation of the documents is s 87, which gives the court the power to confirm, vary or set aside the Commissioner's decision and to make a decision in substitution of that decision or remit the matter to the Commissioner for further consideration. By s 90 the court is also obliged to avoid the disclosure of exempt or confidential matter. Here, the court found that '[t]he Information Commissioner carefully scrutinised [the excluded] material and there is simply no reason shown to doubt the correctness of her characterisation of it'.

Graham Greenleaf