WA government argues 'caretaker' period takes documents outside the reach of Freedom of information Act

The Western Australian Government has lodged an appeal to the Supreme Court on a question of law following the decision of Information Commissioner Sven Bluemmel in Western Australian Newspapers Ltd and Department of the Premier and Cabinet that documents held by the Office of the Premier created during the caretaker period before the 2013 election are 'documents of an agency' and subject to the Freedom of Information Act.

(Update: The West Australian reports the Supreme Court dismissed the appeal and upheld the cross appeal by WAN on the basis the original FOI application had been to a department — DPC — not the Premier, therefore the question of whether the documents related to the affairs of another agency was irrelevant.)

The 59 documents in dispute are in the main emails, including attachments, sent or received by the Office of the Premier between 4 February 2013 and 6 March 2013 (the caretaker period was 6 February-6 March) that relate to MAX Light Rail and the Airport Link projects.  (This report suggests rethinking of transport priorities in any event.)

Section 23(1)(b) of the FOI Act provides that an agency may refuse access to a document if the document is not a "document of the agency." A minister is an agency for the purposes of the act. A "document of an agency"  (Glossary Clause 4) in the case of a minister is a document held by the minister that relates to the affairs of another agency, that agency not being another Minister or the document in question not being a document of an agency for which the Minister is responsible.

The commissioner was satisfied on the evidence that the documents were held by the office and [47-49] relate to the affairs of another agency, the Department of Transport and the Public Transport Authority, who had commenced some work on the projects before the writs for the State election were issued on 6 February 2013.

Caretaker Conventions
In what appears to be an Australian first, the agency argued that the documents in dispute created or received by the Office of the Premier during the period when the Caretaker Conventions apply were outside the scope of the FOI act as  [at 40], ‘much of what occurs in Ministerial Offices during the caretaker period no longer relates to an agency.’ 

Commissioner Bluemmel [50] said even "if that were so, the relevant issue in this case is whether the disputed documents themselves relate to the affairs of another agency."

The agency further submitted [54] that, during the period that the Caretaker Conventions (pdf) P21 are in force, those Conventions may alter or affect:   

• the nature of the business of agencies and the decision-making authority of Ministers;

• how Ministers and agencies interact;

• the relationship between a Minister and his agency;

• the matters about which a Minister might make decisions;

• the way in which information is disseminated by Ministers and their officers; and
• the conduct of the public sector in how it performs its duties.

Commissioner Bluemmel concluded:

55. Even if I accepted those submissions, I do not accept the agency’s claim that documents produced during the caretaker period are necessarily of a different character than those produced during other times in the electoral cycle. In my view, there is nothing in the Caretaker Conventions to support that claim.
56. Similarly, I do not agree that it follows that the disputed documents or ‘many, if not most, of the documents created in Ministerial Offices during the period in which the Conventions are in force’, do not ‘relate to the affairs of an agency’, as the agency submits. As noted at [41], the agency disagrees with my conclusion in this regard and contends that ‘[t]he nature of the Caretaker Conventions is such that they expressly alter the manner in which Ministerial Offi ces function and, as a consequence, the documents which are created in Ministerial Offices during that time’.
57. However, having considered all of the material before me, including the Caretaker Conventions and the agency’s submissions, I am not persuaded that the application of the Caretaker Conventions to the particular facts of this matter results in the disputed documents failing to be documents of an agency.

As the commissioner noted [70] the issue whether the documents are Minister's documents subject to the FOI act may not have arisen if the application and review had proceeded as initiated by the applicant:

’Under the Freedom of Information Regulations 1993 (the FOI Regulations), the Office of the Premier is a related agency to the Department of the Premier and Cabinet. Consequently, under clause 2(4) of the Glossary to the FOI Act, the Office of the Premier is not to be regarded as a separate agency but is to be regarded as part of the Department of the Premier and Cabinet for the purposes of the FOI Act.
71. In this case, the complainant initially made and addressed its access application to the ‘Department of Premier and Cabinet’, not the ‘Office of the Premier . That is, the application was for documents held by the Department of the Premier and Cabinet, not the Office of the Premier. On that basis, I consider it is arguable that the issue of whether the disputed documents are documents of a Minister does not arise, on the basis that the disputed documents are documents of the Department of the Premier and Cabinet and, consequently, are documents of an agency within clause 4(1) of the Glossary to the FOI Act.
72. However, as I understand it, following negotiations with the complainant to reduce the scope of the application, the agency proceeded on the basis that the application was for documents held by the Office of the Premier only. In light of my finding at [69], it is unnecessary for me to make a finding in this regard.

The appeal should prove interesting but Commissioner Bluemmel's reasoning seems sound to me.