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Thursday, November 27, 2008

Documents held by former councillor still within FOI reach, maybe.

John Lightowlers

The Acting WA Information Commissioner, John Lightowlers, has ruled that any documents, including emails and other digital information held by a former member of the council of a local authority, are documents of the council for the purposes of the Western Australian Freedom of Information Act if they relate to the performance of the councillor's role as a member of the council, and were created or received by the councillor in his or her official capacity while an elected representative. Ross William Leighton and Shire of Kalamunda [2008] WAICmr 52.

The Acting Commissioner [ 56-57] based his decision on the definition in the Act of documents of an agency, which encompasses documents to which an agency is entitled to access, even where the documents are not in the actual possession or custody of the agency, and provisions of the Local Government Act and the State Records Act regarding duties to maintain and recover government records.

This seems like a first where an FOI application has been found to extend to documents currently held by a person no longer serving as a councillor.On the basis of the reasons outlined by the Acting Commissioner it would likely be the same result under FOI legislation in other states, and probably applies also to documents held by former ministers and public servants.

The NSW Ombudsman ( Joint Premier's/Ombudsman FOI Manual 2007 at 3.5.4) hasn't had any doubts that documents held by current councillors in their elected capacity and which concern their civic or council duties under any act are documents held by the council for the purposes of the FOI Act.The WA decision takes one more logical step.

Unfortunately for the WA applicant, the Acting Commissioner was satisfied that the former councillor had destroyed all relevant documents and purged her computer of records after she ceased being a member of the council, so the victory on the scope of the application turned out to be rather academic.

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