Decision D0172015 – Published in note form only
Re Krieg and Minister for Local Government [2015] WAICmr 17Date of Decision: 24 September 2015
Freedom of Information Act 1992: Schedule 1, clauses 3(1), 3(3) and 3(6)
Freedom of Information Regulations 1993: regulation 9(1)
Julian Krieg (the complainant) applied to the Minister for Local Government (the Minister) under the Freedom of Information Act 1992 (the FOI Act) for access to ‘a copy of the “Minority Report” to the Shire of York Show Cause Notice issued on 18 November 2014’. The Minister decided to refuse access to the requested document on the ground that it was exempt under clause 3(1) of Schedule 1 to the FOI Act.
The complainant applied to the agency for external review of the Minister’s decision. Following receipt of the complaint the Information Commissioner (the Commissioner) required the Minister to produce the original of the disputed document and his FOI file maintained in respect of the complainant’s access application. The Minister and complainant provided further submissions on the matters in dispute.
The Minister notified the third party that the complainant had sought external review of his decision, and advised him of his rights to be joined to the complaint as a third party, under section 69(2) of the FOI Act. On 11 June 2015 the third party notified this office that he wished to be joined as a third party to the complaint, and subsequently provided submissions to this office. The third party submitted that the disputed document was exempt under clause 3(1) and that disclosure of the document was not in the public interest pursuant to clause 3(6).
On 3 September 2015 after considering the information before him, the Commissioner provided the parties with his preliminary view of the matter.
It was the Commissioner’s view that, except for a small amount of personal information about third parties that is exempt under clause 3(1) (the edited matter), the disputed document is not exempt from disclosure because any personal information in the disputed document about the third party amounts to prescribed details under clause 3(3) in relation to the third party’s functions as a local government councillor.
No further submissions were made by the Minister or the third party in response to the Commissioner’s preliminary view.
Clause 3(1) provides that matter is exempt if its disclosure would reveal information about an individual (whether living or dead). Clause 3(3) provides that information is not exempt under clause 3(1) merely because its disclosure would reveal prescribed details relating to an officer’s or former officer’s functions as an officer.
Regulation 9(1)(e) of the Freedom of Information Regulations 1993 (the Regulations) provides that, in relation to an officer of an agency, prescribed details include ‘anything done by the person in the course of performing or purporting to perform the person’s functions or duties as an officer...’
Section 74(2) provides that the Commissioner must not include exempt matter in any decision. As the Commissioner considers that this obligation extends to matter that is claimed to be exempt, he is constrained from describing the disputed document in detail. However, in his notice of decision the Minister described the disputed document as ‘the Report’.
The Commissioner considered that the subject matter of the disputed document and the circumstances in which it was created by the third party indicated that the disputed document was written in the third party’s capacity as a local government councillor.
In Re K and the City of Canning [2012] WAICmr 3 at [29], the Commissioner concluded that a local government councillor was a ‘member of an agency’ and therefore an ‘officer of the agency’ where the agency was a local government.
Having examined the disputed document, the Commissioner considered that, except for the edited matter, the information in the disputed document would do no more than ‘merely’ reveal prescribed details about the third party. Matter that is not exempt under clause 3(3) is not subject to consideration about whether or not disclosure is in the public interest.
The A/Commissioner considered all of the material before her and was not dissuaded from the preliminary view that the disputed document amounted to prescribed details as provided by clause 3(3). Therefore, except for the edited matter, the disputed document was not exempt.
Accordingly, the A/Commissioner set aside the Minister’s decision.
Note: For background information about the 'Minority Report' refer to article published on Wednesday 11 March 2015.
So much for Mr Probity, Brad Jolly!
ReplyDeleteNow that the Commissioner has set the Ministers decision aside not to release the report, then theoretically the report should be released in the format the Commissioner has decided with a minimal amount of personal details redacted.
Important lesson for the incoming Councillors, 'prescribed details', look it up!
Pat Hooper is bound to object to its release, he will more than likely appeal to the Commissioner as a third party, so it may take a little while longer before the public find out just what a white ant Pat Hooper really is.
ReplyDeletePat Hooper will no doubt have to spend some considerable holiday time penning his appeal to the Commissioner - have a great holiday Pat!
DeleteWithout access to government information, citizens become mere spectators of, rather than informed participants in, the democratic process. The FOI Act gives everyone a legally enforceable right to government information. The objects of the FOI Act are to enable the public to participate more effectively in governing the State and to make the persons and bodies that are responsible for State and local government more accountable to the public. The FOI Act achieves this by creating a general right of access to documents; providing a means to ensure personal information is accurate, complete, up to date and not misleading; and requiring that certain documents concerning State and local government operations be made available to the public. Dealing with requests under the FOI Act is not merely an administrative process but is a means of dispensing justice to the people of Western Australia.
ReplyDeleteAre you sure Sven?
ReplyDeleteAbsolutely positive
DeleteI would like to think that you are correct Sven but then how come, if the FOI Act is supposed to deliver justice, Mr Krieg is not getting the whole of the document...names will be deleted, so that means that there is still some information not being released, so I dont understand how that could be delivering justice to Mr Krieg...perhaps I am missing something??
DeleteThanks
'Sven' is right on every count. I would only add that almost every piece of information relating to the expenditure of public money should with a few limitations be readily available to everyone without the necessity for FOI. The only limitations of note would arise from issues of national security, foreign affairs (up to a point) and covert police operations. These exceptions seem to have little or no relevance to local government or the DLGC. If this protocol were to be followed, corruption would soon vanish (or at least be greatly diminished). It might even have the effect of reducing waste arising from administrative incompetence, ignorance and stupidity. Well, you never know...
ReplyDeleteThen why haven't the people of York been provided the Credit Card and Recreation Centre $$$ information?
DeleteThe Shire of York Administration was the subject of Perth Radio Stations this morning - telling listeners the Major Fraud Squad is investigating them.
DeleteHope Ray was tuned in!
As author of the article 'Morris Dancing with the Mob' published on this blog on 11 March 2015, I congratulate Julian Krieg on his victory over the DLGC. That was the article that exposed the existence of Cr Hooper's minority report, his perfidy in writing it and his cowardice in concealing what he had done from his fellow councillors and the people of York.
ReplyDeleteI might add that I too complained to the Information Commissioner in relation to this document but he declined for some reason to take up the cudgels on my behalf.
Never mind! The important thing is that the report should now be available for public scrutiny. I trust Mr Krieg will do the sporting thing and publish Mr Hooper's handiwork on my blog, 'The REAL Voice of York', as well as this one.