Balbir Singh v Fletcher
[2025] WASC 365
•1 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BALBIR SINGH -v- FLETCHER [2025] WASC 365
CORAM: LEMONIS J
HEARD: 20 FEBRUARY, 13 MARCH & 23 MAY 2025
DELIVERED : 1 SEPTEMBER 2025
FILE NO/S: GDA 8 of 2024
BETWEEN: JASBIR BALBIR SINGH
Appellant
AND
CATHERINE FLETCHER
First Respondent
WA POLICE FORCE
Second Respondent
ON APPEAL FROM:
Jurisdiction : OFFICE OF THE INFORMATION COMMISSIONER (WA)
Coram: COMMISSIONER FLETCHER
File Number : F2023347
Catchwords:
Appellant sought access to information under the Freedom of Information Act 1992 (WA) from the second respondent - Appellant made complaint to the first respondent concerning the second respondent's response to her request - First respondent dismissed the complaint on the basis that it was lacking in substance - First respondent proceeded on erroneous premise as to the scope of the complaint - Second respondent concedes that is an error of law and the appeal should be allowed
Legislation:
Freedom of Information Act 1992 (WA)
Result:
Appeal allowed
First respondent's decision made 25 June 2024 set aside
Consequential and costs orders made
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | P Femia |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Nil
LEMONIS J:
This is an appeal under the Freedom of Information Act 1992 (WA) (the Act). On 23 May 2025, I made orders allowing the appeal. These reasons briefly explain the basis upon which I did so.
The appeal is brought pursuant to s 85 of the Act. Section 85(1) provides that an appeal lies to the Supreme Court on any question of law arising out of any decision of the Information Commissioner (Commissioner) on a complaint relating to an access application.
The background circumstances are as follows.
The appellant, Ms Balbir Singh, made a request for information under the Act to the Western Australia Police Force (the second respondent). The second respondent did not provide Ms Balbir Singh with all of the information requested. Ms Balbir Singh then made a complaint to the Commissioner pertaining to the request.
The Commissioner is the first respondent to the appeal and filed a notice of her intention to abide the outcome except as to costs. The second respondent participated in the hearing of the appeal.
On the material filed by Ms Balbir Singh, the only decision that responded to her complaint, and thus engaged s 85(1), was a decision of the Commissioner contained in a letter of 25 June 2024 from the Commissioner to Ms Balbir Singh. That letter stated that the Commissioner decided, pursuant to s 67(1)(b) of the Act, to stop dealing with Ms Balbir Singh's complaint on the basis that it was lacking in substance.
The second respondent had provided Ms Balbir Singh with some of the information she had requested. Ms Balbir Singh had however sought, and not been provided with, significantly more information.
Further to the initial provision of material to Ms Balbir Singh, on 9 January 2024 the second respondent also provided to her edited body‑worn camera footage taken on 15 December 2022.
The Commissioner's decision to dismiss the complaint was directed only to the second respondent's decision to not provide Ms Balbir Singh with unedited footage. The Commissioner's decision proceeded on the premise that was the only outstanding matter arising from Ms Balbir Singh's request for access to information.
On the appeal, Ms Balbir Singh did not press her request to be provided with unedited footage.
It became apparent during the course of the appeal hearings that in dismissing the complaint, the Commissioner proceeded on the basis that Ms Balbir Singh had agreed to reduce the ambit of her request such that the unedited footage was the only information that had not been supplied. The second respondent's counsel, Ms Femia, quite properly conceded that the Commissioner erred in proceeding on that basis. Also, Ms Femia, by careful analysis in supplementary written submissions, explained how that error constituted an error of law and necessitated the appeal being allowed.
Ms Balbir Singh's initial request
Ms Balbir Singh sought access to a large number of documents from the second respondent. Her request commenced with: 'I would like all documents pertaining to me'.
In response to the request, a Freedom of Information officer of the second respondent sent an e‑mail to Ms Balbir Singh dated 12 October 2023 identifying certain documents that 'may suit your needs'. The e‑mail concluded by asking Ms Balbir Singh if she agreed to receiving those documents. Ms Balbir Singh sent two e‑mails in response, dated 12 and 13 October 2023 respectively, in which she said 'Yes I agree to receiving all of these documents'.
Ms Balbir Singh subsequently made a complaint to the Office of the Information Commissioner by which she sought additional documents to those identified in the e‑mail dated 12 October 2023 from the second respondent.
The complaint was reviewed by an Acting Senior Review and Investigations Officer of the Office of the Commissioner (Review Officer). He sent Ms Balbir Singh an e‑mail dated 31 May 2024 setting out his assessment. In that assessment he stated that Ms Balbir Singh, by her e‑mails dated 12 and 13 October 2023, had agreed to reduce the ambit of her access application and that the further documents she sought fell outside that agreed ambit. The Review Officer concluded by stating that 'it is my assessment that the Commissioner is likely to be of the view that the [second respondent's] decision, to refuse you access to the disputed documents in this matter, is justified'. Further, the Review Officer advised that if Ms Balbir Singh did not accept his assessment, she needed to provide further submissions and the matter would be decided by the Commissioner.
Ms Balbir Singh did provide further submissions, and the complaint was referred to the Commissioner for decision.
The Commissioner's letter of 25 June 2024 to Ms Balbir Singh set out the Commissioner's decision. The Commissioner's decision proceeded on the premise that the disputed documents were limited to the unedited footage. The Commissioner noted that Ms Balbir Singh had been provided with access to edited footage. The Commissioner concluded by stating that:
1.Ms Balbir Singh had been given access to the 'personal information in the disputed documents that comes within the scope of [her] access application in this case'.
2.For the reasons given in the letter, and in the Review Officer's e‑mail dated 31 May 2024, the Commissioner had decided pursuant to s 67(1)(b) of the Act to stop dealing with the matter on the basis that it was lacking in substance.
By proceeding in this way, the Commissioner adopted the Review Officer's assessment that Ms Balbir Singh had agreed to reduce the scope of her request, such that the only document that remained in dispute was the unedited footage.
Disposition
Hardly surprisingly, the Act permits the scope of a request to be reduced with the agreement of the person seeking access. In that respect, s 14 of the Act provides that:
If it is apparent from the terms of the access application that an applicant seeks information of a certain kind contained in documents of the agency, the agency may, with the agreement of the applicant, deal with the application as if it were an application relating only to those parts of those documents that contain information of that kind.
However, Ms Balbir Singh had not agreed to reduce the scope of her request. As the second respondent quite properly concedes, the e‑mail exchanges on 12 and 13 October 2023 did not constitute an agreement by Ms Balbir Singh to reduce the scope of her request. Rather, the e‑mail exchanges constituted her agreement to receive certain documents in response to her request. Thus, the essential premise for the Commissioner's decision to dismiss Ms Balbir Singh's complaint was an error.
The second respondent also properly concedes that the Commissioner made an error of law in defining the scope of the complaint before her as limited to the unedited footage, and thus made an error of law in finding that the complaint was lacking in substance.[1]
[1] Second respondent's supplementary submissions dated 4 April 2025, par 7.
For these reasons, the Commissioner made an error of law in deciding that Ms Balbir Singh's complaint was lacking in substance. Accordingly, at the hearing of the appeal on 23 May 2025, I made the following orders:
1.The appeal is allowed.
2.The Commissioner's 25 June 2024 decision is set aside.
3.The matter is remitted to the Commissioner for reconsideration, with a recommendation that the Commissioner refer the matter to the WA Police Force's Office of Information Management to define the ambit of Ms Balbir Singh's access application precisely and in writing.
I made the third order to ensure that going forward there is no uncertainty as to the scope of Ms Balbir Singh's request.
At the hearing on 23 May 2025, Ms Balbir Singh sought costs. These fell into two categories: medical expenses and costs of administrative support for the appeal. I did not allow the claim for medical expenses. I directed Ms Balbir Singh to file an affidavit setting out the administrative costs.
The second respondent does not dispute that I have the discretion to make a costs order against it.[2] The question is whether Ms Balbir Singh has paid, or is liable to pay, costs in respect of her conduct of the appeal.
[2] The Act, s 89(1).
Ms Balbir Singh filed an affidavit sworn 5 June 2025. It sets out that because of certain injuries, she paid a casual part‑time typist $689 for 'submission typing (with [Ms Balbir Singh's] guidance and photocopying work in the process of this court proceeding'. The affidavit attaches at Appendix A, eight receipts that record payments totalling $689 for administrative costs incurred in respect of this appeal.
Having regard to the affidavit, I am satisfied that the costs of $689 are a disbursement incurred in respect of the appeal and Ms Balbir Singh should be reimbursed for that cost. I therefore order that the second respondent pay to Ms Balbir Singh costs in the sum of $689, to be paid within 21 days of delivery of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
1 SEPTEMBER 2025
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