Privacy Law and Policy Reporter
The Premier of WA had called for a personal explanation from Mr Wayde Smith, a member of the Legislative Assembly, concerning his financial dealings. The applicant subsequently applied to the respondent for access to documents to Mr Smith's financial affairs, which application the respondent refused. The appellant complained to the Information Commissioner, but the Commissioner's decision confirmed the exempt status of the documents. The appellant then appealed to the Supreme Court, under s 85(1) Freedom of Information Act 1992 (WA) which provides that an appeal lies to the Supreme Court on any question of law arising out of a decision of the Commissioner on a complaint relating to an access application.
Owen J refused to overturn the Commissioner's decision, as no error was demonstrated in the Commissioner's decision that the document which remained in question was exempt under Sched 1 cl 5(1)(b) (matter the disclosure of which could reasonably be expected to 'reveal the investigation ... in a particular case'). He held that the Commissioner had not misinterpreted the phrase 'reveal the investigation'. It was not limited to disclosures of the 'investigator's file' (as the appellant contended), but extended to 'the specifics of the investigation' (though not the mere fact that there was an investigation of some kind'). He
held that, although the Commissioner's reference to her feeling 'compelled' to accept the advice of the Department of Public Prosecutions (DPP) and the Police Commissioner that the documents were part of an ongoing police investigation 'is a little unfortunate', the Commissioner had also relied on her own reading of the documents in question, and the court could
not conclude that the decision she reached was 'was one that simply was not open to a reasonable decision maker'.
Owen J stated that, were it not for this conclusion concerning cl 5(1)(b), he would have sent the matter back to the Commissioner for reconsideration. This was because her decision that the documents were exempt under cl 5(1)(d) (matter the disclosure of which could reasonably be expected to 'prejudice the fair trial of any person') was not supported by anything in the documents in question.
Under Sched 1 cl 3(1), matter is exempt if its disclosure would reveal personal information about an individual, except (under cl 3(6)) 'if its disclosure would, on balance, be in the public interest'. The Commissioner had not made an explicit finding that the
cl 3(1) exemption applied, and the respondent (the Ministry) sought the court's confirmation that it did apply. The fact that the information was 'personal information' was not contested, so the only issue was how the privacy interest was to be balanced against the public interest in 'the accountability of publicly elected officials'. Owen J held that the implied constitutional freedom of communication on political matters identified by the High Court in Theophanous v Herald and Weekly Times; Stephens v West Australian Newspapers (1994) 1 PLPR 170, 'was a relevant consideration that the Commissioner was obliged to take into account in determining the public interest'. Here, the court held 'the Commissioner has decided that the public interest in ensuring that Mr Smith, as the holder of elected public office, is accountable does not require that the Mann Report be freely available. There are, the Commissioner has determined, other means by which that level of accountability can be carried into effect, namely the scrutiny of the material by law enforcement authorities.' Owen J found no basis to conclude that the Commissioner had wrongly applied the public interest test.
Owen J also considered questions arising under s 90, which provides, inter alia, that
(1) In hearing and determining review proceedings the Court has to avoid disclosure of -
(a) exempt matter; or
(2) If in the opinion of the Supreme Court it is necessary to do so in order to prevent disclosure of exempt matter - the Supreme Court may receive evidence and hear argument in the absence of the public and any party or representative of a party.
The question was whether the court is at liberty to make the contested material available to counsel for the party seeking access for the purposes of the appeal. Owen J took into account from the Minister's second reading speech when introducing the 1992 Bill that the WA legislature had in mind the freedom of information regimes in other jurisdictions. He noted that the Commonwealth (s 63), Victorian (s 56(3)) and SA Freedom of Information Acts distinguished in various ways between information which could be made available to a party and the representative of a party. Since s 90 made no such distinction, he held that 'this comparison of statutory regimes suggests to me that s 90 ought to be construed strictly according to its tenor'. The court therefore had no discretion to disclose any exempt matter to the applicant's legal representatives.
Owen J suggested that the absence of any discretion in the court to disclose exempt documents to the applicant's legal representatives 'is something the legislature could look at when next it is reviewing the operation of the Act'. He noted that s 55(6) of the NSW Freedom of Information Act 1989 was in similar terms.
Although the implied freedom of political speech did not make any difference to the finding in this case, the recognition that it is a factor to be taken into account raises interesting potential limitations on the scope of some 'personal information' exemptions where information relevant to the political process is concerned.