Pearlman v WA Information Commissioner

Link copied
Case Copied 69 min read

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   PEARLMAN -v- WA INFORMATION COMMISSIONER [2025] WASC 167

CORAM:   TOTTLE J

HEARD:   16 DECEMBER 2024 (FINAL SUBMISSIONS 3 FEBRUARY 2025)

DELIVERED          :   8 MAY 2025

FILE NO/S:   GDA 6 of 2024

BETWEEN:   PATRICK W PEARLMAN

Appellant

AND

WA INFORMATION COMMISSIONER

First Respondent

UNIVERSITY OF WESTERN AUSTRALIA

Second Respondent

ENVIRONMENTAL DEFENDERS OFFICE LTD

Third Respondent

ALEXANDER WALTER GARDNER

Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :   INFORMATION COMMISSIONER OF WESTERN AUSTRALIA

Coram:   INFORMATION COMMISSIONER

File Number            :   F2019240


Catchwords:

Freedom of information - Freedom of Information Act 1992 (WA) - Meaning of 'personal information' - Whether documents contain matter exempt from disclosure under cl 3(1) of schedule 1 of Freedom of Information Act 1992 (WA) - Whether limits on the exemption in cl 3(1), cl 3(2), cl 3(3) and cl 3(6) apply - Meaning of the term 'public interest' - Turns on own facts

Freedom of information - Freedom of Information Act 1992 (WA) - Nature of an appeal on a question of law - Consideration of whether irrationality or illogicality in fact finding may amount to an error of law - No irrationality or illogicality found - Turns on own facts

Freedom of information - Procedural fairness - External review application - Where applicant not provided with all materials before Information Commissioner - Where grossly inordinate delay in decision-making - Where application determined solely by reference to documents and submissions - Whether in the circumstances delay constituted procedural unfairness - No procedural unfairness established - Turns on own facts

Freedom of information - Whether Information Commissioner's decision affected by bias or reasonable apprehension of bias - No bias or reasonable apprehension of bias established - Turns on own facts

Freedom of information - Whether Information Commissioner's decision unreasonable - Decision not unreasonable - Turns on own facts

Legislation:

Associations Incorporation Act 2015 (WA)
Freedom of Information Act 1992 (WA)
Freedom of Information Regulations 1993 (WA)
Interpretation Act 1984 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : In Person
First Respondent : No appearance
Second Respondent : M Pudovskis
Third Respondent : No appearance
Fourth Respondent : M Pudovskis

Solicitors:

Appellant : In Person
First Respondent : In Person
Second Respondent : Jackson McDonald
Third Respondent : N/A
Fourth Respondent : Jackson McDonald

Cases referred to in decision:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568

Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247

Bajaj v Pekin [2024] WASCA 55

BGC (Australia) Pty Ltd v Fremantle Port Authority (2003) 28 WAR 187

Blake v Norris (1990) 20 NSWLR 300

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Department of State Development v Latro Lawyers…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Pearlman v WA Information Commissioner and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2025] WASC 167
Decision Date

CaseChat Overview and Summary

The case of Pearlman v WA Information Commissioner involved a dispute regarding the interpretation and application of the Freedom of Information Act 1992 (WA). The applicant, Mr Pearlman, sought access to documents related to communications between the Environmental Defender's Office of Western Australia (EDO) and representatives of the management committee from January 1, 2015, to June 30, 2016. The University of Western Australia (UWA) denied the request, and the matter was appealed to the Information Commissioner, who upheld the decision. Mr Pearlman then sought a judicial review of the Information Commissioner's decision.

The central legal issues were whether the documents in question constituted 'personal information' exempt from disclosure, the applicability of various exemptions under the Freedom of Information Act, and whether procedural fairness was observed in the review process. Additionally, the court examined whether the Information Commissioner's decision was affected by bias or was otherwise unreasonable.

The court found that the documents were not 'documents of an agency' as they were sent or received from UWA's email account for personal communications unrelated to UWA business. Therefore, the exemption under s23(1)(b) of the FOI Act applied, and the Information Commissioner's decision was not unreasonable. The court further held that there was no procedural unfairness as the delay did not prejudice the applicant, and no bias or reasonable apprehension of bias was established. The Information Commissioner's decision was thus upheld.

The final orders of the court confirmed the Information Commissioner's decision, affirming that the documents were not subject to disclosure under the FOI Act. The appeal was dismissed with costs awarded to the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Pearlman exercised his right under s 39(1) to have the decision of 26 August 2016 reviewed by the University (an internal review). By letter dated 3 October 2016 the University informed Mr Pearlman of its decision on the internal review.[15] Access was refused but on different grounds. The letter dated 3 October 2016 explained the decision in the following terms:[15] AB 1789.Decision on Internal Review2.1It is my decision on Internal Review that the Decision should be varied and access to the documents the subject of the Application refused in accordance with s23(1)(b) of the FOI Act, as they are not "documents of an agency".2 .2 Generally, the documents requested by the Application include "All materials relating to the communications or correspondence, written or electronic, between or involving representatives of the management Committee of the Environmental Defender's Office of Western Australia (EDO) from 1 January 2015 to 30 June 2016".2.3The EDO WA is a non-profit, non-government Community Legal Centre specialising in public interest environmental law, whose services include providing community groups and individuals with free legal advice and representation on environmental issues, promoting environment law reform, and undertaking community legal education. It is not affiliated with or part of UWA.2.4I refer you to Inglis and Curtin University of Technology [2001] WAICMR 327, 9 August 2001, where (at paragraph 29) the former Information Commissioner, B Keighley-Gerardy stated:' ... Finally, decisions in other jurisdictions in Australia where FOI legislation has been in force for some time, clearly indicate that circumstances may arise in which documents held by an officer of an agency are held by that officer in a private capacity and are not documents that he or she has a duty, as an employee of an agency, to keep: see, for example, Re Healy and The Australian National University (unreported, Commonwealth Administrative Appeals Tribunal, 23 May 1985). Similarly, documents brought into existence for a purpose other than an administrative or other relevant purpose of the agency, and which are not in the agency's control or located within the agency's record system, are not documents in the possession of the agency: see Re Horesh and Ministry of Education (1986) 1 VAR 143 ... '.2.5I also refer you to Re Healy and The Australian National University (unreported, Commonwealth Administrative Appeals Tribunal, 23 May 1985). The Commonwealth AAT considered in its decision, the definition of a 'document of an agency' in s4(1) of the Commonwealth FOI Act. Physical location does not determine the matter, as documents created or received 'on the premises' by an officer of the agency may be private rather than agency documents. Such documents may be become agency documents if the officer takes clear steps to have them officially filed or 'received' by the agency.2.6As the documents in question were sent or received from UWA's email account only, they were not required to be kept under UWA's Record Keeping Plan, nor by the State Records Act 2000. Therefore, as they are not agency documents and the staff member concerned was not acting in his capacity as an officer of an agency, but undertaking communications of a personal nature, separate to UWA business, it is my view that access should have been refused under s23(1)(b) of the FOI Act.2.7Section 10 of the FOI Act provides a right to access to documents of an agency, which is not applicable in this case. In Inglis v Curtin, the then Information Commissioner also stated (at paragraph 27):" ... I do not accept the complainant's submission that, because the Deputy Vice Chancellor undertakes his duties as a director of Channel 31 during business hours whilst being paid as an officer of the agency, he cannot be said to be acting in an independent capacity. Many officers of agencies sit in an independent capacity on external committees or do work for professional associations in business hours, sanctioned by their employers ... "2.8 For the reasons stated above, as the documents the subject of this Application are in question are, in my opinion, not documents of an agency, it is not necessary to consider whether exemptions were correctly applied in the course of the Decision, nor to consider the other matters raised in your correspondence in respect of your request for an Internal Review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.