WA Supreme Court upholds Information Commissioner's decision

Justice Kevin Martin of the Western Australian Supreme Court has dismissed an appeal by the Water Corporation against a decision by the Information Commissioner that had allowed access under the Freedom of Information Act to the full content of valuation reports by licensed valuers in respect of portions of the respondents' land the Corporation was seeking to acquire. (Water Corporation v McKay [2010] WASC 210.)

Justice Martin found no error of law arising from the Commissioner's decision that the valuations made in 2007 and 2008, while part of the deliberative process of the agency, would not if released constitute a disclosure, on balance, contrary to the public interest. There had been no failure by the Commissioner to identify as a relevant consideration in his assessment, the commerciality of the appellant's position, as regards it maintaining a viable negotiating position with the respondents[47]. In this case it was relevant that negotiations at the time had stalled and were not ongoing.  The Commissioner had properly distinguished an earlier Commission decision that disclosure of a valuation would adversely affect sensitive ongoing negotiations with private landowners and was against the public interest in maintaining an agency's ability to negotiate effectively in respect of the outstanding matters still to be settled with the landowners[51-53]. The Commissioner's evaluation [54] properly considered relevant public interest factors.