FOI "loophole" undiscovered for 15 years

A tip for those inside or outside government who frequently find themselves involved with freedom of information issues.

"Read the Act".

This advice is prompted by a report in today's Western Australian " Secret Cabinet papers for scrutiny just 10 years on". The article refers to "a little-known loophole in the (WA) Freedom of Information Act which the experts say will have far reaching implications for the operation of government".

Attorney General, Jim McGinty, apparently was so shocked that he has refused to rule out closing the loophole. Political commentators yesterday said it will lead Cabinet ministers to be far more careful about their discussions and deliberations.

The loophole? A provision (Clause 2(4)) that's been in the WA Act for 15 years.

It provides that after 10 years a document that at the time it was created, could attract the Cabinet document exemption provision, ceases to be a Cabinet document for the purposes of the FOI Act.

It doesn't mean that the document can't be exempt on grounds other than the Cabinet document exemption, but such a decision would turn on the nature of its content.

The provision is similar to provisions in other FOI legislation, for example NSW and Tasmania.

We drew attention some time ago to success by Tasmanian FOI expert, Rick Snell, who used the Tasmanian provision to access documents, but only after the intervention of the Ombudsman.

In comparison with some other FOI acts, the Western Australian Cabinet document exemption is generous in affording protection not only for documents prepared for submission to Cabinet, or that would reveal deliberations or decisions of Cabinet. In WA it's sufficient that a document was prepared for 'possible' submission to Cabinet. (Queensland and Victoria have even more generous Cabinet document exemptions).

"Discovery" of a provision that has been in the Act for 15 years, without any adverse effect on the operations of government, shouldn't lead to the sun failing to rise tomorrow morning in Western Australia or to ministers leaping out of windows of tall buildings.