Freedom of Information Act 1992

The Act applies to "agencies" defined broadly in the Glossary cl 1 to include Ministers, public bodies or offices, departments of the Public Service, organisations under the Public Sector Management Act 1994, the Police Force, local governments, regional local governments, regional subsidiaries, bodies established for public purposes under written law, bodies established by the Governor or a Minister, and contractors or subcontractors under custodial legislation. Courts are agencies but only in respect of administrative documents (Glossary cl 3 and cl 5). Specific units such as the Bureau of Criminal Intelligence, Witness Security Unit, Internal Affairs Unit of Police, and Internal Investigations Unit of Corrective Services are treated as separate agencies (Glossary cl 2(2)-(3)).

Exempt agencies listed in Schedule 2 are wholly outside the access regime. These include the Governor, Houses of Parliament and their committees, the Auditor General, Corruption and Crime Commission, Director of Public Prosecutions, Information Commissioner, Inspector of Custodial Services, Parliamentary Commissioner, various review boards, Royal Commissions, and certain police and corrective services units. The Public Sector Commissioner and State Solicitor are exempt only in relation to specified functions.

Applicants may be any person, including children or intellectually handicapped persons via guardians (s 98). Third parties whose personal information (s 32) or commercial information (s 33) is contained in requested documents are entitled to consultation and have review rights. The Information Commissioner and Information Access Deputy Commissioner perform oversight functions (ss 97A-97C). The Premier may issue exemption certificates (s 36). The Supreme Court hears appeals and references (ss 78, 85-93).

Agencies' principal officers are responsible for decisions unless delegated (s 100). Officers acting in good faith are protected (ss 104-106). Defunct agencies' obligations transfer to successor bodies or a nominated agency (s 99).

Agencies owe duties under s 4 to assist the public to obtain access at lowest reasonable cost, to act promptly, and to assist with ensuring personal information is accurate. They must process applications within 45 days (s 13(1)), give detailed notices (s 30), consult third parties before releasing personal or commercial information (ss 32-33), and publish information statements and internal manuals (ss 96-97).

Applicants have the right of access (s 10), the right to amendment (s 45), the right to request preferred form of access (s 12(2), s 27), the right to estimates of charges (s 17), and rights to internal review (ss 39, 54), complaints to the Commissioner (s 65), and limited appeals (s 85). Third parties have rights to be consulted and to complain or appeal if their views are overridden (ss 34, 39(2)(b), s 65(1)(b)).

The Information Commissioner must deal with complaints with minimal formality (s 70(2)), ensure non-disclosure of exempt matter (s 74), publish decisions (s 76(8)), and report annually (s 111). The Commissioner may waive consultation (s 35), extend time (s 13(4)-(7)), and refer questions of law to the Supreme Court (s 78).

The onus of proof lies on the agency in most proceedings (s 102(1)), on third parties opposing access (s 102(2)), and on applicants where public interest disclosure is required to overcome an exemption (s 102(3)).

Offences are created by s 83 (failure to comply with Commissioner's requirements: $6,000 individual, $10,000 body corporate), s 109 (obtaining access by deceit: same penalties), and s 110 (destroying documents to prevent access: $6,000). These are enforced through ordinary criminal processes.

The Act relies primarily on administrative enforcement via the review system. The Commissioner may notify Ministers or principal officers of officer misconduct (s 79) and may order costs against parties for unreasonable conduct (s 84). The Supreme Court may make costs orders (s 89) but the agency bears its own costs if it appeals (s 89(2)) and the Commissioner is generally not liable (s 89(3)).

No direct civil penalties exist for failure to comply with time limits; instead, deemed refusal triggers review rights (s 13(2)). Protection from liability provisions (ss 104-107) limit enforcement avenues for good-faith actions or consultation failures.

Section 8(1) provides that access must be given despite any prohibitions or restrictions in other enactments, and compliance does not constitute an offence, unless the other enactment is expressly stated to prevail over this Act (s 8(2)). This is subject to Sch 1 cl 14 (statutory secrecy) and the Royal Commission (Custody of Records) Act 1992 (s 8(4)). Rights to State archives remain subject to the State Records Act 2000 (s 8(5) and s 6(c)).

The Act does not apply to documents available for purchase, free distribution, inspection under other laws, State archives with existing rights, library material, or preserved art/gallery items (s 6). Private collections held by prescribed agencies are subject to donor limitations (s 7).

Interaction with privacy and data protection is implicit in the personal information exemption (Sch 1 cl 3) and amendment rights (Part 3), qualified by consent and public interest overrides. Later amendments integrate the Act with the Information Commissioner Act 2024, which defines freedom of information functions (s 97B), prevents certain delegations (s 97C), and restructures external review by deleting former Divisions 1 and 2 of Part 4.

Specific exemptions cross-reference other statutes: Sch 1 cl 4A (Bank of Western Australia Act 1995), cl 13 (Human Reproductive Technology Act 1991), cl 13A (Public Health Act 2016 Part 12C), cl 14 (Equal Opportunity Act 1984, Legal Aid Commission Act 1976, Parliamentary Commissioner Act 1971, Inspector of Custodial Services Act 2003, Health and Disability Services (Complaints) Act 1995, Disability Services Act 1993, Industry and Technology Development Act 1998, Public Interest Disclosure Act 2003, Children and Community Services Act 2004, Family Law Act 1975, Family Court Act 1997, Community Protection (Offender Reporting) Act 2004).

Legal professional privilege is preserved as an exemption (Sch 1 cl 7) and is not overridden in Commissioner or Court proceedings except as expressly provided (s 81(2), s 92(2)). The Act prevails over general secrecy obligations for the purposes of review (ss 81(1), 92(1)).

Amendments reflected in the text have progressively refined the balance between disclosure and protection. The Information Commissioner Act 2024 (No. 52 of 2024) made substantial alterations. It deleted Divisions 1 and 2 of Part 4 (ss 55-64), inserted Part 5A (ss 97A-97C), amended ss 13, 35, 48, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 81, 83, 84, 85, 89, 97, 103, 111, and updated the Glossary. These changes delineate functions between the Information Commissioner and the newly created Information Access Deputy Commissioner (s 97A(2)), provide that freedom of information functions may be performed by either subject to direction (s 97B), and prohibit delegation of core powers such as requiring document production (s 75(1)), dealing with complaints (s 76), and exemption certificate reviews (s 77) (s 97C).

The amendments also updated annual reporting obligations (s 111(2)), removed certain time-limit provisions, and aligned terminology. Earlier changes added cl 4A (Bank of Western Australia information) by No. 14 of 2012, cl 13A (abortion information) by the Abortion Legislation Reform Act 2023, and adjusted law enforcement exemptions (cl 5) to include Commissioner of Police reports and specific units.

These changes reflect a policy of streamlining oversight, strengthening independent review while protecting sensitive functions, responding to evolving privacy concerns (abortion, public interest disclosures, offender registers), and integrating freedom of information with a broader information commissioner regime. The deletion of former external review divisions and insertion of Part 5A indicate a move toward a more unified administrative model for information rights.

The Act itself creates the mechanisms for challenge rather than recording specific outcomes. Section 77 allows the Commissioner to review the grounds for an exemption certificate on application by the access applicant; if no reasonable grounds existed, the certificate lapses after 28 days unless confirmed by the Premier, who must table reasons. Section 78 permits the Commissioner to refer any question of law arising in a complaint to the Supreme Court, which may determine the question and any related issues; the Commissioner must then act consistently with the Court's decision.

Appeals to the Supreme Court under s 85 are confined to questions of law from Commissioner decisions on access complaints or amendment complaints, or from decisions refusing to find no reasonable grounds for an exemption certificate or Premier confirmation of such certificates. The Court may confirm, vary, set aside and substitute, or remit with directions (s 87(1)). It cannot order access to an exempt document (s 87(3)). Review proceedings must protect exempt matter from disclosure (s 90), may be held in closed session (s 90(2)), and may require production of documents (s 91).

Controversies implicit in the text centre on the breadth of exemptions. The "could reasonably be expected to" test appearing in many Schedule 1 clauses (e.g. cl 2(1), cl 4(2)(b), cl 5(1), cl 9(1), cl 10(1), cl 11(1)) requires predictive assessment that has generated procedural disputes about evidence and onus. Public interest tests (e.g. cl 2(2), cl 3(6), cl 6(1)(b)) place the onus on the applicant (s 102(3)) and necessitate balancing that is inherently contestable. The conclusive nature of exemption certificates (s 37), subject only to the limited s 77 review, has been a point of tension between executive control and independent scrutiny.

The Act's non-application to judicial functions of courts (Glossary cl 3) and the large Schedule 2 list of exempt agencies have limited the regime's reach. Deemed refusal provisions (s 13(2)) and strict time limits for complaints (s 66(2)-(3)) create procedural pitfalls that have led to many complaints being dismissed under s 67 as frivolous or out of time. The Commissioner's power to decline to deal with complaints (s 67) and to ensure non-disclosure of exempt matter even during review (s 74) has been controversial in ensuring procedural fairness while protecting secrecy.

Most practitioners underestimate the strictness of the 45-day period in s 13(1). If the agency gives neither a decision nor a valid extension notice, a deemed refusal arises on the 46th day and the applicant is taken to have received notice on that day. This starts the 60-day clock for complaints under s 66(2). Agencies frequently miscalculate the start date when applications are posted (deemed lodged on the fifth day after posting under s 12(4)) or transferred (deemed received on original receipt date under s 15(5)).

The consultation obligations in ss 32 and 33 are not discretionary. If a document contains third-party personal information or commercial information, the agency must take reasonably practicable steps to obtain views before deciding to grant access. Failure to consult does not create liability unless malice is shown (s 107), but it can lead to the Commissioner setting aside the decision. Conversely, if the agency decides to release despite adverse third-party views, it must notify the third party and defer access until the decision is final (s 34(1)), which can add months to timelines.

Exemption certificates under s 36 are powerful but not immune. The Premier may issue them for cl 1 or 2 matter without disclosing existence. However, s 77 allows the Commissioner to examine the grounds; if none were reasonable, the certificate lapses after 28 days unless the Premier confirms it in writing, lays the confirmation before both Houses within five sitting days, and gives it to the applicant. Many agencies overlook that the certificate must be limited to a "specified provision" of cl 1 or 2; a general certificate may be challengeable.

The public interest test in several exemptions is often misunderstood. For cl 6 deliberative processes, the agency must show both that the matter reveals opinion, advice or consultation in deliberative processes and that disclosure would, on balance, be contrary to the public interest. For cl 3, 4 and 5, the onus shifts: the applicant must establish that disclosure would, on balance, be in the public interest to overcome the exemption. Section 21 requires that, where personal information about the applicant is involved, that fact must be considered a factor favouring disclosure in any public interest weighing.

Schedule 1 cl 14 incorporates by reference secrecy provisions from a long list of statutes. Matter caught by those provisions is exempt without further test. However, s 8(1) still requires access despite other secrecy laws unless the other law expressly states it operates despite the FOI Act. The interaction is subtle and frequently litigated at the margins.

The definition of "personal information" in the Glossary is deliberately wide: information or opinion, true or not, recorded or not, from which identity is apparent or can reasonably be ascertained. This catches far more than formal personnel files. Conversely, cl 3(3) and (4) exclude prescribed details about officers and contractors, preventing routine exemption claims for routine employment information.

Amendment applications under Part 3 cannot be used to collaterally attack the correctness of a policy or decision; the information must be factually inaccurate, incomplete, out of date or misleading. Agencies may add their own reasons to any notation (s 52), and the notation travels with the information (s 51). Destruction or obliteration of the original information requires Commissioner certification (s 48(3)-(4)) and, if it would breach the State Records Act 2000, notification to the State Records Commission.

Finally, the Act's protection provisions (ss 104-106) are not absolute. They apply only where the decision-maker believed in good faith that the Act permitted or required the decision. If malice is shown in a consultation failure, liability can still attach (s 107). Officers who destroy documents to prevent access commit an offence even if no application has yet been made (s 110).

Agencies should designate a freedom of information officer (s 30(b), s 94(f)(i)) and publish clear information statements under s 96 within 12 months of establishment and annually thereafter. The statement must describe structure, functions, public participation arrangements, document types, access procedures, and amendment procedures (s 94). Internal manuals (s 95) must be available for inspection and purchase, with exempt matter deleted where practicable (s 97(1)).

Upon receiving an application, immediately check compliance with s 12. If deficient, take reasonable steps to assist the applicant to correct it (s 11(3)). Acknowledge receipt, determine whether the documents are held, whether transfer is required (s 15), and whether the request is for personal information (triggering s 21 and potential s 28 considerations).

Calculate any charges strictly in accordance with s 16 principles: only routine search time on an hourly basis, no charge for personal information about the applicant, waiver for impecuniosity, and prescribed maximum. Provide estimates if requested or if likely to exceed the prescribed threshold (s 17). Deposits may be required (s 18) but alternatives must be discussed (s 18(2)).

Search thoroughly; if documents cannot be found after reasonable steps, issue a notice under s 26, which is treated as a refusal. For identified documents, assess each exemption in Schedule 1 methodically, starting with the least controversial. Where cl 3 or 4 matter is involved, consult third parties in writing, giving them an opportunity to make submissions (ss 32-33). If consultation yields opposition but release is still intended, notify the third party of the decision, reasons, and review rights, and defer access until the decision is final (s 34).

Prepare notices under s 30 that contain every required element: date, decision-maker's name and designation, reasons, findings on material facts, reference to evidence, charge calculations, and full advice on review rights. If giving edited access, explain the deletions. If deferring, state the period.

For internal review applications under s 39 or s 54, ensure the reviewer is senior to and independent of the original decision-maker (s 41). Treat the review as a fresh access or amendment application (s 42, s 54(3)). No charge is payable (s 44).

Maintain detailed records for the annual s 111 report: numbers of applications, decisions by type, exemptions claimed, internal reviews, amendments, complaints, appeals, fees collected, and waivers. Provide this data to the Information Commissioner as required.

When dealing with Commissioner complaints, produce all requested documents (s 75) but ensure the Commissioner puts in place protective measures (s 74). Agencies are parties to every complaint (s 69(1)) and must give third parties or applicants notice of complaints in appropriate cases (s 68).

For amendment applications, focus on factual accuracy rather than policy disagreement. If refusing, advise of the right to request a notation (s 49(5)(c)). If a notation is made, ensure it travels with the information (s 51). Never obliterate information without Commissioner certification and, where required, State Records Commission notification (s 48(4)).

Train officers on the offence provisions. Implement document retention policies that prevent inadvertent destruction. Ensure decision-makers document their good-faith belief when releasing potentially sensitive material.

Regularly review and update the agency's information statement and internal manuals. Consider proactive release of non-exempt material beyond the Act's requirements, as encouraged by s 3(3). When contracting with service providers, ensure contracts identify a principal officer for FOI purposes and allocate compliance responsibilities.

By embedding these procedures in administrative systems, agencies minimise deemed refusals, reduce complaint volumes, and demonstrate the accountability the Act seeks to promote. Compliance is not merely reactive response to applications but an ongoing obligation to publish, assist, and maintain accurate records.