Pearlman v WA Information Commissioner
[2025] WASC 167
•8 MAY 2025
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 [2016] WASC 108
DPP v Smith [1991] 1 VR 63
ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 97 ALJR 509
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Fox v Australian Industrial Relations Commission [2007] FCAFC 150; (2007) 161 FCR 263
G v O [2018] WASCA 211
H v Department of Education [2015] WASC 276
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315
Harvey v Minister for Primary Industry and Resources [2024] HCA 1
I v Department of Agriculture and Food [No 2] [2016] WASC 272
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Kioa v West (1985) 159 CLR 550
Lee v Department of Health [2020] WASC 260
Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142
Manly v Ministry of Premier & Cabinet (1995) 14 WAR 550
Medical Board of Australia v Arunkalaivanan [2023] WASCA 117
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Mondelez Australia Pty Ltd v The Australian Manufacturing Workers Union (AMWU) [2020] HCA 29; (2020) 271 CLR 495
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470
Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
Pearlman v University of Western Australia [2018] WASC 245
Police Force of Western Australia v Kelly (1997) 17 WAR 9
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72
S v Department for Child Protection and Family Support [2017] WASC 305
Silkchime Pty Ltd v Valuer-General [2023] WASCA 114
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Western Australia Police Force v Ayton [1999] WASCA 233
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38
WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 19
Table of Contents
Introduction
The statutory framework
The facts
The parties
The access application
Internal review decision - 3 October 2016
Application for external review - 1 December 2016
15 September 2017 decision on external review
Pearlman No 1
Remittal to Commissioner
Pearlman No 2
Second remittal to the Commissioner
Preliminary view
Final decision
An outline of the Commissioner's reasons
The nature of an appeal under the Act
Summary of grounds of appeal
Principles of statutory construction
Ground 1
The Commissioner's reasons
A summary of the parties' contentions
Disposition
Ground 2
A summary of the parties' contentions
Disposition
Ground 3
The Commissioner's reasons
A summary of the parties' contentions
Disposition
Ground 4
The Commissioner's reasons
A summary of the parties' contentions
Disposition
Illogicality or irrationality in decision-making - applicable principles
The prescribed details for the purpose of cl 3(3)
Job description document
Functions and duties
Misconstruing the importance of academics' workload allocations
Misconstruing the Consultancy policy
Irrationally relying on confected evidence
Ignoring job description documents specific to Professor Gardner
Ignoring the University's views regarding cl 3(3)
Ground 5
The Commissioner's reasons
The parties' contentions
Disposition
Ground 6
The Commissioner's reasons
The parties' contentions
Disposition
Non provision of documents
2 December 2021 submissions
Leave emails
Confidentiality statement
Inordinate delay
Ground 7
The parties' contentions
Disposition
Prejudgment
Partisanship or adverse animus
Ground 8
The Commissioner's reasons
The parties' contentions
Disposition
Relevant statutory provisions
The meaning of proceeding
No reversal of the burden of proof
Ground 9
The parties' contentions
Disposition
Relevant legal principles
Outcome unreasonableness
Process unreasonableness
Conclusion
APPENDIX
TOTTLE J:
Introduction
Mr Patrick Pearlman (the appellant) appeals from a decision of the Information Commissioner (the first respondent) made on 28 March 2024 by which she set aside a decision of the University of Western Australia (the second respondent) made on 3 October 2016 to refuse access to documents sought by Mr Pearlman on the ground they were not documents of the University and to substitute a decision to the effect the documents were 'exempt documents'.[1] The appeal is brought under s 85(1) of the Freedom of Information Act 1992 (WA) (the Act).[2]
[1] The decision is constituted by a letter from the Commissioner to Mr Pearlman dated 28 March 2024 which incorporates by reference reasoning set out in an earlier letter from the Commissioner to Mr Pearlman dated 16 March 2020.
[2] Unless otherwise stated or is otherwise clear from the context, all references to statutory provisions are references to provisions of the Freedom of Information Act 1992 (WA).
Mr Pearlman was the Principal Solicitor of the now deregistered Environmental Defender's Office of Western Australia (the EDOWA). The documents sought by his access application were generated in the course of the management of the EDOWA. The documents concerned the circumstances in which Mr Pearlman's employment with the EDOWA came to an end. The EDOWA was not an agency within the meaning of the Act. Professor Alex Gardner (the fourth respondent), a Professor of Law at the University was however the convenor of the management committee of the EDOWA and was involved in the events that led to the termination of Mr Pearlman's employment. Professor Gardner used his university email account, his university computer and university office when undertaking activities on behalf of the EDOWA. This appears to have led to the Commissioner treating the EDOWA's documents as documents of the University.
As will be seen from the account of the facts set out later in these reasons, the process of Mr Pearlman's external review application was tortuous. It has involved two appeals to this Court from earlier decisions (one from a decision of the present Commissioner's predecessor and one from the present Commissioner in her capacity as Acting Commissioner).[3] There were inordinate delays in the process. Unfortunately, but of particular relevance to this appeal, approximately 28 months elapsed between the receipt by the Commissioner of the final written submissions and the delivery of her decision.
[3] Pearlman v University of Western Australia [2018] WASC 245 (Pearlman No 1); Pearlman v WA Acting Information Commissioner [2019] WASC 257 (Pearlman No 2).
In opening his oral submissions to this court Mr Pearlman characterised the Commissioner's decision-making process as one in which all roads led to non-disclosure. In broad terms Mr Pearlman contended this was a consequence of two matters: first, the Commissioner failing to take a purposive approach in her construction of various provisions of the Act, that is, so he contended, an approach which recognised the paramountcy of an access applicant's right of access; and, second, various forms of procedural unfairness and bias on the Commissioner's part. Mr Pearlman's frustration with the process is understandable. As I will explain, however, all roads led to non-disclosure because the Commissioner's construction of the Act was correct and there was no error in her application of its provisions to the circumstances of the case.
The Commissioner's decision rested on three intermediate conclusions that may be summarised as follows: first, the documents contained matter which if disclosed would reveal personal information about Professor Gardner and were thus exempt from disclosure, second, Professor Gardner's EDOWA activities were not undertaken by him in the course of performing his functions or duties as an officer of the University but were private activities and thus were not excluded from the personal information exemption and third, the disclosure of documents was not, on balance, in the public interest. The Commissioner's conclusions on these matters were correct and her decision not to permit access to the documents was also correct.
Other than to ensure that the record was provided to the court the Commissioner did not participate in the appeal. The Environmental Defenders Office Ltd (the third respondent), the body that effectively replaced the EDOWA, did not participate in the appeal. The University and Professor Gardner (collectively 'the respondents') were represented by counsel.
Before outlining the facts it is helpful to outline the statutory framework.
The statutory framework
The long title of the Act states that it is 'An Act to provide for public access to documents, and to enable the public to ensure that personal information in documents is accurate, complete, up to date and not misleading, and for related purposes.'
The objects of the Act are set out in section 3:
(1)The objects of this Act are to –
(a) enable the public to participate more effectively in governing the State; and
(b) make the persons and bodies that are responsible for State and local government more accountable to the public
(2)The objects of this Act are to be achieved by –
(a)creating a general right of access to State and local government documents; and
(b)providing means to ensure that personal information held by State and local governments is accurate, complete, up to date and not misleading; and
(c)requiring that certain documents concerning State and local government operations be made available to the public.
(3) Nothing in this Act is intended to prevent or discourage the publication of information, or the giving of access to documents (including documents containing exempt matter), or the amendment of personal information, otherwise than under this Act if that can properly be done or is permitted or required by law to be done.
Part 2 of the Act contains provisions that govern access to documents of an agency (agency means a minister or a public body or office)[4]. In particular:
[4] Freedom of Information Act 1992 (WA), s 9 and cl 1 of the Glossary.
(a)Section 10(1) provides that a person has a right to be given access to the documents of an agency (other than an exempt agency) 'subject to and in accordance with this Act'.
(b)Section 20(1) provides that if the agency considers that the work involved in dealing with an access application would divert a substantial and unreasonable portion of the agency's resources away from its other operations, the agency may take reasonable steps to help the applicant to change the application to reduce the amount of work needed to deal with it. Section 20(2) provides that if after help has been given to change the access application the agency still considers the work involved in dealing with the application would divert a substantial and unreasonable portion of the agency's resources away from its other operations, the agency may refuse to deal with the application.
(c)Section 21 provides that if the applicant has requested access to a document containing personal information about the applicant, the fact that matter is personal information about the applicant must be considered as a factor in favour of disclosure for the purpose of making a decision as to whether it is in the public interest for the matter to be disclosed or the effect that disclosure of the matter might have.
(d)Section 9 provides that terms used in the Act are defined in the glossary. 'Personal Information' is defined in the glossary as:[5]
[5] Freedom of Information Act 1992 (WA), sch 2 cl 1.
information or an opinion, whether true or not, and whether recorded in a material form or not, about an individual, whether living or dead –
(a) whose identity is apparent or can reasonably be ascertained from the information or opinion; or
(b) who can be identified by reference to an identification number or other identifying particular such as a fingerprint, retina print or body sample.
(e)Subject to s 24, s 23 provides grounds on which an agency may refuse access to a document. The grounds are if:
(i)the document is an exempt document; or
(ii)the document is not a document of the agency; or
(iii)giving access to the document would contravene a limitation referred to in section 7.
(The limitation in section 7 is not engaged by the circumstances of this case)
(f) 'Exempt document' is defined in the glossary as a document that contains exempt matter and 'exempt matter' means matter that is exempt under sch 1.
(g)Section 24 provides where a document contains exempt matter and it is practicable for the agency to give access to a document from which the exempt matter has been deleted, the agency must do so if it considers the applicant would want access to an edited copy.[6]
[6] Freedom of Information Act 1992 (WA), s 24.
(h) Clause 3 of sch 1 states:
(1) Matter is exempt matter if its disclosure would reveal personal information about an individual (whether living or dead).
(2) Matter is not exempt matter under subclause (1) merely because its disclosure would reveal personal information about the applicant.
(3)Matter is not exempt matter under subclause (1) merely because its disclosure would reveal, in relation to a person who is or has been an officer of an agency, prescribed details relating to —
(a) the person; or
(b)the person's position or functions as an officer; or
(c)things done by the person in the course of performing functions as an officer.
(4)Matter is not exempt matter under subclause (1) merely because its disclosure would reveal, in relation to a person who performs, or has performed, services for an agency under a contract for services, prescribed details relating to —
(a) the person; or
(b) the contract; or
(c)things done by the person in performing services under the contract.
(5)Matter is not exempt matter under subclause (1) if the applicant provides evidence establishing that the individual concerned consents to the disclosure of the matter to the applicant.
(6) Matter is not exempt matter under subclause (1) if its disclosure would, on balance, be in the public interest.
The 'prescribed details' referred to in cl 3(3) are specified in reg 9(1) of the Freedom of Information Regulations 1993 (WA). I reproduce the full text of reg 9(1) when dealing with ground 4 ([116]).
Division 3 of pt 2 contains provisions setting out procedures to be followed when a document contains personal information about a third party[7] or commercial information, trade secrets or business information of a third party.[8] In summary an agency is not to give access to such documents unless it has taken such steps as are reasonably practicable to obtain the views of the third party as to whether the document contains matter that is exempt under cl 3 of sch 1 (in the case of personal information)[9] or cl 4 of sch 1 (in the case of commercial information, trade secrets or business information)[10].
[7] Freedom of Information Act 1992 (WA), s 32.
[8] Freedom of Information Act 1992 (WA), s 33.
[9] Freedom of Information Act 1992 (WA), s 32(2).
[10] Freedom of Information Act 1992 (WA), s 33(2).
Division 5 of pt 2 provides for the internal review of decisions made by agencies about access to documents. Section 39 provides a person aggrieved by a decision of an agency in relation to an access application has a right to have the matter internally reviewed by the agency and s 40 to s 44 sets out the procedure to be followed.
Part 3 governs the rights of an individual to apply to an agency to amend personal information about the person contained in a document of the agency if the information is inaccurate, incomplete, out of date or misleading.[11]
[11] Freedom of Information Act 1992 (WA), s 45.
Part 4 provides for external review of decisions about access to documents. To this end s 55 creates the office of the 'Information Commissioner'. Section 59 provides for the appointment of an Acting Information Commissioner in certain circumstances. The main function of the Commissioner is to deal with complaints under pt 4 about decisions made by agencies in respect of access applications and applications for the amendment of personal information.[12]
[12] Freedom of Information Act 1992 (WA), s 63.
Section 65 provides a complaint to the Commissioner may be made against an agency's decision on an access application either by an access applicant or a third party. Section 69(2) provides that a third party may be joined as a party to a complaint on giving written notice to the Commissioner.
Section 70 governs the procedure for dealing with complaints. I reproduce the full text of s 70 later in these reasons. In summary it provides for an inquisitorial process to be conducted with as little formality and technicality and with as much expedition as possible. The Commissioner is not bound by the rules of evidence.
Section 76(1) provides in dealing with a complaint the Commissioner has power to review any decision that has been made by the agency in respect of the access application and decide any matter in relation to the access application that could, under the Act, have been decided by the agency. Section 76(2) provides the Commissioner has to make a decision in writing on a complaint, either confirming, varying or substituting the agency's decision. Section 76(3) provides the Commissioner has to make a decision on a complaint within 30 days after the complaint was made unless the Commissioner considers it is impracticable to do so. Section 76(8) provides the Commissioner has to arrange for a decision to be published in full or in an abbreviated, summary or note form (whichever is appropriate) in order to ensure the public is adequately informed of the grounds on which such a decision is made.
Division 5 of pt 4 governs appeals to this Court from decisions of the Commissioner. Section 85(1) provides that an appeal lies to the Supreme Court on any question of law arising out of any decision of the Commissioner on a complaint relating to an access application.
Part 6 contains miscellaneous provisions. These include s 102 that governs the burden of proof. I refer to s 102 in more detail at [198] ‑ [206].
The facts
The parties
Until about 30 June 2016 Mr Pearlman was the Principal Solicitor of the EDOWA.
The EDOWA was an incorporated association under the Associations Incorporation Act 2015 (WA). As recorded earlier it was not an agency within the meaning of the Act. The EDOWA was the subject of a voluntary de-registration on 13 July 2020.
In 2016 Professor Gardner held the position of convenor of the EDOWA. He took up that position in December 2015. As foreshadowed in the introduction, one of the hotly contested issues between Mr Pearlman and Professor Gardner was whether Professor Gardner's EDOWA activities were undertaken in performance of his functions or duties as an officer (employee) of the University.
The access application
On 30 June 2016 Mr Pearlman made an access application by which he sought access to various categories of documents from the University. The access application was made against the background of a dispute between Mr Pearlman and the EDOWA about Mr Pearlman's performance of his duties as its Principal Solicitor. The categories of documents sought by Mr Pearlman are reproduced in the appendix to these reasons. In summary, Mr Pearlman sought communications or correspondence between or involving named representatives of the EDOWA from 1 January 2015 to 30 June 2016 (this period was referred to by the Commissioner as the 'relevant period').
The University identified 414 documents as falling within the scope of Mr Pearlman's access application. By letter dated 26 August 2016 the University informed Mr Pearlman that it considered the documents were exempt from disclosure and would not be released to him.[13] The University's letter of 26 August 2016 was accompanied by a formal notice of decision containing a short statement of the reasons for the decision. The material parts of the statement were as follows:[14]
[13] AB 161.
[14] AB 164.
As previously advised, during UWA's initial assessment of the documents, it was identified that all documents pertaining to your Application were documents relating to the business, human resource and commercial affairs of EDO WA. As a result, UWA engaged in extensive third party consultation with EDO WA. UWA's decision in relation to your Application has been guided principally by the views of EDO WA on whether any documents are exempt from disclosure and why.
UWA has determined all documents pertaining to your Application are exempt from disclosure in accordance with clause 4(3) of Schedule 1 of the FOI Act, on the basis that:
·the content of all documents relate to the management of the business of EDO WA, including confidential human resource matters. The disclosure of this information would reveal business or professional affairs of EOD WA; and
·if the information was disclosed, this would be expected to prejudice the future supply of the business and professional affairs of charitable or non-for profit organisations to University staff, a significant number of whom regularly volunteer their time in Board or community roles.
UWA has also identified, based on consideration of the views of EDO WA, that a number of documents are subject to exemption from disclosure in accordance with clause 3 and/or clause 7 of Schedule 1 of the FOI Act.
MATERIAL ON WHICH FINDINGS OF FACT ARE BASED
·Schedule of Documents – Documents 1 to 392
·Schedule of Screenshots – Documents 1s to 22s
Internal review decision - 3 October 2016
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 Review
2.1It 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.
Application for external review - 1 December 2016
On 1 December 2016 Mr Pearlman applied for external review of the University's internal review decision.[16]
[16] AB 1794.
A lengthy process involving the exchange of contentious correspondence and submissions followed. At one point in this process the University contended that it was justified in refusing to deal with Mr Pearlman's access application on the ground specified in s 20(1), namely that dealing with the application would divert a substantial and unreasonable portion of the University's resources away from its other operations. Although the contention was raised, no decision based on the contention was made by the University.
15 September 2017 decision on external review
On 15 September 2017, the Commissioner (the predecessor to the present Commissioner) decided under s 67(1) not to deal with the external review application. The basis for this decision was that Mr Pearlman had proposed to reduce the scope of his application to 175 documents identified by him and the University had agreed to deal with the application on that basis. The Commissioner considered that as there was nothing remaining in dispute that he was required to determine the complaint was resolved by conciliation and the file was closed.
Pearlman No 1
Mr Pearlman appealed against the Commissioner's decision. Smith J upheld the appeal and on 15 August 2018 ordered that the Commissioner's decision be set aside.[17] Her Honour held:
[17] Pearlman No 1.
(a)A decision not to issue a final decision on grounds that an application for external review has been disposed of by an agreement through conciliation can be characterised as a substantive and final decision as such a decision irrevocably disposes of the external review access complaint.[18]
[18] Pearlman No 1 [81].
(b)Mr Pearlman's complaint had not been resolved. In particular:[19]
[19] Pearlman No 1 [62].
(i)Mr Pearlman had not agreed that the University would review whether access could be given to a reduced number of documents; and
(ii)all that the University had agreed to do at that time was to review the reduced number of documents referred to in Mr Pearlman's further submissions and provide Mr Pearlman with a notice of decision in relation to each of those documents.
(c)There was no evidence that there was an agreement between the parties resolving the complaint.[20]
(d)While an appeal under s 85(1) does not generally lie to correct errors of fact, a question of law can arise when a finding of fact is made in the absence of any evidence to support the finding of fact, which on the facts found, causally gives rise to an error of law.[21]
(e)A question of whether a decision-maker has made a finding which is manifestly unreasonable, in the sense that no reasonable decision-maker could also make that finding, also raises an error of law.[22]
(f)In the absence of a concluded agreement between the parties, the Commissioner was not empowered by s 71 or any other provision of the Act, to make a decision not to issue a final decision that complied with s 76.[23]
Remittal to Commissioner
[20] Pearlman No 1 [64].
[21] Pearlman No 1 [88].
[22] Pearlman No 1 [90].
[23] Pearlman No 1 [91].
The matter was remitted to the Commissioner to deal with the external review application in accordance with Smith J's reasons. A further process involving the exchange of correspondence and submissions ensued. On 25 October 2018 the Commissioner purported to direct the University to 'deal with' Mr Pearlman's access application.
By letter dated 7 December 2018 the University informed Mr Pearlman that it had 'dealt with' the access application.[24] The University determined that 155 of the 175 documents remaining the subject of the application were exempt from disclosure. The letter was accompanied by a formal notice of decision in which the reasons for the decision were expressed as follows:[25]
[24] AB 185 - 186.
[25] AB 187 - 190.
DECISION
Non-disclosable documents
In consideration of the above, I, Jeremy Rigg, University Lawyer, have this date made the decision that 155 of the documents the subject of your Application are exempt from disclosure and therefore will not be released. Please see the attached Schedule of Documents which contain details of each document assessed by UWA, the decision of UWA not to release the document and the exemption/s claimed by UWA to support the decision not to release the document.
As previously advised, during UWA's initial assessment of the documents, it was identified that all documents pertaining to your Application were documents relating to the business affairs of EDO WA. As a result, UWA engaged in extensive third party consultation with EDO WA. UWA's decision in relation to your application has been guided principally by the views of EDO WA on whether any documents are exempt from disclosure and why.
UWA has determined the documents pertaining to your application are exempt from disclosure in accordance with clause 4(3) of Schedule 1 of the FOI Act, on the basis that:
·the content of all documents relate to the management of the business of EDO WA, including confidential human resource matters. The disclosure of this information would reveal business affairs of EDO WA;
·if the information was disclosed, this would be expected to prejudice the future supply of the business and professional affairs of charitable or non-for profit organisations to university staff, a significant number of whom regularly volunteer their time in Board or community roles.
UWA has determined, based on consideration of the views of EDO WA, that a number of documents are subject to exemption from disclosure in accordance with clause 3(1) of Schedule 1 of the FOI Act, as its disclosure would reveal personal information about an individual. The individuals concerned are not officers of UWA and to disclose the matter would reveal details that result in their identity being readily discernible.
UWA has also determined, based on consideration of the views of EDO WA, that some of the documents (as marked in the following Schedule of Documents) are the subject of legal professional privilege and disclosure would reveal matter the subject of legal professional privilege.
UWA has further determined, based on consideration of the views of EDO WA, that the documents are exempt under clause 8(2) of Schedule 1 of the FOI Act, on the basis that:
·the content of the documents are relate to information of a confidential nature obtained in confidence pertaining to the management affairs of the EDO WA; and
·if the information was disclosed, this would be expected to prejudice the future supply of the business and professional affairs of charitable or non-for profit organisations to university staff, a significant number of whom regularly volunteer their time in Board or community roles.
Disclosable documents
In addition to the documents provided to you on 25 June 2018, I have also determined that a further two documents are disclosable however have identified some exempt matter, being personal information of third parties, pursuant to clause 3 of Schedule 1 of the FOI Act.
Pursuant to section 24 of the FOI Act, any such exempt matter has been deleted from these documents.
UWA has determined the relevant matter to be exempt by reason of its finding that the individuals concerned are not officers of UWA and to disclose the matter would reveal details that result in their identity being readily discernible.
All findings were based on the documents themselves and no further material questions of fact arose from these materials.
On 4 January 2019 Mr Pearlman notified the Commissioner and the University that he did not accept the University's decision of 7 December 2018 as satisfactory or legally effective.
On 8 February 2019 the Commissioner (the present Commissioner who was then the Acting Information Commissioner) determined to cease dealing with Mr Pearlman's application for external review on the grounds that it lacked substance. The decision was communicated in a letter to Mr Pearlman the material parts of which were as follows:
Consideration
37.In considering a claim under section 20, it is necessary to decide whether an agency's decision to refuse to deal with a matter is justified. In doing so, I am required to consider information about the amount of work involved in dealing with the application and the resources of the agency required to deal with the application.
38.Given the number of documents in dispute and the resources the agency requires to deal with the access application, I consider that the agency could have decided to refuse to deal with the access application under section 20.
39.However, given the complainant's reduction in the scope of his access application, the agency withdrew its claim under section 20 that to deal with the application would divert a substantial and unreasonable portion of its resources from its other operations and has now agreed to deal with the application.
40.As the agency agreed to deal with the application, there is nothing remaining in dispute in relation to section 20 for me to determine.
41.Under section 67(l)(b), I may decide to stop dealing with a complaint, as follows:
The Commissioner may, at any time after receiving a complaint, decide not to deal with the complaint, or to stop dealing with the complaint, because –
(b)it is frivolous, vexatious, misconceived or lacking in substance.
CONCLUSION
42Given the matters set out above, I find that the complaint is now lacking in substance and I have decided to stop dealing with it pursuant to section 67(1)(b) of the FOI Act.
Pearlman No 2
Mr Pearlman appealed against the Commissioner's decision of 8 February 2019. Once again Smith J upheld the appeal.[26] The gravamen of her Honour's reasoning on the central issue was that once an access complaint is made by a person pursuant to s 65, an access complaint cannot be disposed of by remittal to an agency to 'deal with' the complaint ab initio in circumstances where it is clear, as it was in this case, that such a course would not resolve the complaint.[27] The Commissioner had no power to direct the University to deal with the application.
Second remittal to the Commissioner
[26] Pearlman No 2.
[27] Pearlman No 2 [117].
On 19 July 2019 the matter was remitted to the Commissioner for reconsideration.
On 12 August 2019 the Commissioner asked the University's solicitors to produce all 'disputed documents' the subject of the 7 December 2018 decision, to highlight all matter claimed to be exempt personal information under cl 3(1) of sch 1, to provide written reasons as to why the matter claimed to be exempt under cl 7(1), cl 8(2) and cl 4(3) is exempt under those clauses, and if the University sought to maintain those exemption claims.[28]
[28] AB 362.
On 5 September 2019 the University's solicitors provided the disputed documents, of which there were 161, to the Commissioner.[29] In an accompanying letter the University's solicitors recorded a change in the University's position as to the basis on which it was asserted that documents were exempt. Relevantly, the University's solicitors stated their client's position as follows:[30]
[29] AB 321.
[30] AB 321.
Revised views on the disputed documents
The Agency has previously indicated to your office that throughout the course of this matter, it has engaged in extensive third party consultation under Part 2, Division 3 of the FOI Act. Accordingly, many of the exemptions relied upon at the time of the 7 December 2018 'decision' were guided by the views of the Environmental Defender's Office of Western Australia (EDOWA).
While not strictly required under the FOI Act in the course of this most recent review, the Agency notified the EDOWA that it considered many of the exemptions previously claimed could not be meritoriously maintained in accordance with the FOI Act.
However, to assist the Agency in this current review, it did request that the EDOWA advise it of any specific documents within the bundle of disputed documents that would, if disclosed, have an adverse effect of the business, professional, commercial or financial affairs of the EDOWA per clause 4(3) of Schedule 1 of the FOI Act. This request was made in accordance with the Agency's obligations under section 33(2) of the FOI Act.
While the EDOWA did provide the Agency with its general views·in respect of the subject matter in the documents being exempt from disclosure under this clause, the EDOWA did not advise the Agency what adverse effect, if any, disclosure may have on the EDOWA within the required timeframe. For this reason, the Agency does not maintain its exemption claims under clause 4(3) of Schedule 1 of the FOI Act.
Similarly, the Agency does not consider the disputed documents contain exempt material under clause 8(2) of Schedule 1 of the FOI Act. This is because the subject matter of the disputed documents is not information of a confidential nature obtained in confidence that could reasonably be expected to prejudice the future supply of information of that kind to the Agency.
The Agency has formed this view on the basis of changes made to its internal policies relating to Agency employees conducting non-Agency business in the course of their employment and using Agency resources. Accordingly, the Agency no longer maintains its exemption claims under clause 8(2) of Schedule 1 of the FOI Act.
Exemptions maintained by the Agency
However, the Agency does maintain that some of the disputed documents contain exempt matter under clause 7(1) of Schedule 1 of the FOI Act.
As requested in your letter of 12 August 2019, we set out the basis for maintaining these exemptions in a table at Annexure A to this letter.
The Agency notes any legal privilege attaching to the relevant documents is the privilege of the EDOWA, not the Agency. However, out of an abundance of caution in order to avoid any implied or express waiver of any legal privilege of the EDOWA attaching to those documents specified in Annexure A, the Agency seeks to maintain its exemption under clause 7(1) of Schedule 1 of the FOI Act in respect to those documents. The Agency has also maintained these exemptions on the basis of the wording of clause 7(1) of Schedule 1 of the FOI Act encompassing legal professional privilege that is not necessarily the privilege of the Agency.
Following the change in the University's position the Commissioner communicated directly with EDOWA and Professor Gardner. In March 2020 EDOWA and Professor Gardner were joined as parties to Mr Pearlman's complaint under s 69. Following the de-registration of EDOWA on 13 July 2020 and the University's change of position as set out in its letter of 5 September 2019, Professor Gardner has been the principal contradictor in the access application. Professor Gardner maintains that all the disputed documents are exempt under cl 3(1) of sch 1 on the ground they deal with his personal activities which are completely separate from his role as a professor employed by the University.
Preliminary view
By letter to Mr Pearlman dated 16 October 2020 the Commissioner communicated her 'preliminary view' that the disputed documents were exempt in their entirety under cl 3(1) as claimed by Professor Gardner.[31] The Commissioner's reasons for forming her preliminary view are referred to in more detail later in these reasons. I will refer to the Commissioner's letter dated 16 October 2020 as 'the Preliminary View'.
[31] AB 677 - 698.
Between 2 November 2020 and 2 December 2021 ten sets of written submissions were provided by Mr Pearlman and Professor Gardner. At [147] the sequence of the exchange of submissions is set out in tabular form.
Final decision
By letter to Mr Pearlman dated 28 March 2024 the Commissioner communicated her final decision to Mr Pearlman.[32] I will refer to this letter as 'the Final Decision'. The Final Decision effectively incorporated aspects of the reasoning contained in the Preliminary View.
[32] AB 1535 - 1577.
An outline of the Commissioner's reasons
The decision under appeal in these proceedings was expressed in paragraph [149] of the Final Decision as follows:[33]
The decision of the agency to refuse access to documents pursuant to section 23(1)(b) of the FOI Act, because they are not documents of an agency, is set aside. For the reasons given in my letter dated 16 October 2020 and in this letter, in substitution I find that the disputed documents are exempt in full pursuant to clause 3(1) of Schedule 1 to the FOI Act.
[33] AB1535 - 1577 at [149].
The reference to the 'disputed documents' was a reference to the 161 documents that remained in dispute. These had been listed by Mr Pearlman in submissions made by him to the Commissioner dated 2 November 2020.
The structure of the reasons was as follows:
(a)The Commissioner set out a brief synopsis of the communications following the provision of the Preliminary View.[34]
[34] AB 1535 - 1577 at [1] - [16].
(b)The Commissioner addressed Mr Pearlman's concerns that she had not accorded him procedural fairness.[35]
[35] AB 1535 - 1577 at [7] - [17].
(c)The Commissioner referred to the decision under review and to the 'latest position' of the University as set out in its solicitors' letter of 5 September 2019 and noted the number of documents in dispute (161).[36]
[36] AB 1535 - 1577 at [18] - [22].
(d)The Commissioner referred to the fact that EDOWA had been deregistered. She noted that she was empowered to obtain information from such persons and sources as she thought fit and recorded that Mr Pearlman had accepted that there was no obstacle to her considering submissions made by EDOWA prior to its deregistration. She recorded that no submissions had been received from EDOWA after the Preliminary View.[37]
[37] AB 1535 - 1577 at [23] - [29].
(e)The Commissioner then dealt with the issue of the burden of proof.[38] She reproduced the text of s 102. The Commissioner stated, in effect, that she remained of the view expressed in the Preliminary View, that Professor Gardner carried the onus of making out that the disputed documents were exempt in their entirety and whether the limit in cl 3(3) of sch 1 applied and that Mr Pearlman carried the onus of establishing that cl 3.6 applied, that is, disclosure of the documents would, on balance, be in the public interest.
[38] AB 1535 - 1577 at [30] - [33].
(f)The Commissioner then referred to her view that the documents were exempt under cl 3(1). She recited the reasons why she reached that conclusion in the following terms:
41My preliminary view concluded that the disputed documents are exempt under clause 3(1) for the following reasons:
·The disputed documents comprised exempt 'personal information' under clause 3(1) about the third party and other individuals.
·The identity of the individuals who sent or received the communications comprising the disputed documents was ascertainable from the terms of the access application and the list of disputed documents dated 7 December 2018 provided to you by the agency.
·The exemption in clause 3(1) is not limited by clause 3(3) because the disputed documents did not consist merely of prescribed details of the third party.
·I did not consider that the agency was obliged to give you access to edited copies of the disputed documents, as described in section 24 of the FOI Act, because it was not practicable for the agency to edit the documents so as not to disclose personal information about other individuals.
·In balancing the competing public interests, I was not persuaded that disclosure of the disputed documents would, on balance, be in the public interest under clause 3(6). [emphasis added]
(g)The Commissioner listed the submissions and correspondence received from Mr Pearlman and Professor Gardner's lawyer.[39]
[39] AB 1535 - 1577 at [46].
(h)The Commissioner recited in detail the further submissions she had received in relation to the application of cl 3(3).[40] The Commissioner set out her conclusion on Mr Pearlman's contention that Professor Gardner's activities as the convenor of the EDOWA formed part of his role as a professor at the University in the following terms:[41]
[40] AB 1535 - 1577 at [47] - [117].
[41] AB 1535 - 1577 at [118].
Based on my consideration of all of the information before me, it remains my view that [Professor Gardner] did, as you assert, occupy two roles at the relevant time as EDOWA Convenor and as a professor at the UWA law school. Relevantly, however, those roles were, in my view, distinct and one did not form part of the other. That is, in carrying out the role of EDOWA Convenor, [Professor Gardner] was not performing or purporting to perform his functions or duties as an officer of the agency.
(i)The Commissioner addressed Mr Pearlman's submissions in relation to the application of cl 3(6).[42]. The Commissioner rejected Mr Pearlman's submission that:[43]
[42] AB 1535 - 1577 at [119] - [127].
[43] AB 1535 - 1577 at [120].
Standing alone, the privacy interests of the third parties do not outweigh the extremely strong interest I, as the access applicant, have in obtaining personal information about me contained in UWA's records. That public interest supporting my access prevails, even if that means personal information of third parties that is 'inextricably intertwined' with mine is disclosed.
The Commissioner held that Mr Pearlman's submission was at odds with the meaning on the face of the various sub-clauses of cl 3 and contrary to the weight of decided cases in relation to those sub-clauses. She considered the submission ignored that cl 3(6) contains a statutory balancing test and instead asserted that the interest of one party must inevitably prevail. The Commissioner also rejected Mr Pearlman's submission that:[44]
[44] AB 1535 - 1577 at [122] - [123].
In order for any real weight to be given to the privacy interests of third parties, their personal information should actually be private. Where that information has already been disclosed and is known not only to the access applicant, but to a broader segment of the community, there is little interest in preventing its disclosure.
The Commissioner considered the submission was against the weight of decided cases and referred to the observations made by Anderson J in Police Force of Western Australia v Kelly.[45]
[45] Police Force of Western Australia v Kelly (1997) 17 WAR 9, 14.
(j)The Commissioner addressed Mr Pearlman's submission that s 21 favoured granting him access to the documents.[46] In effect, she stated that s 21 was just one factor among several to be taken into account.
(k)The Commissioner addressed and rejected Mr Pearlman's submissions that she had failed to take a purposive approach to the interpretation of the Act.[47]
(l)The Commissioner addressed and rejected Mr Pearlman's submission that the documents may contain material about him that is defamatory and that is a public interest factor that favours disclosure of the documents.[48]
(m)The Commissioner addressed and rejected Mr Pearlman's submission that the documents might reveal misconduct on the part of Professor Gardner and that is a public interest factor that favours disclosure of the documents.[49]
(n)The Commissioner summarised her conclusions as follows:[50]
146.In summary, I am not persuaded by your submissions that the work [Professor Gardner] carried out as EDOWA Convenor during the relevant time, including the communications comprising the disputed documents, were undertaken by [Professor Gardner] during the course of performing or purporting to perform his functions or duties as an officer of the agency.
147.Therefore, the disclosure of [Professor Gardner']s personal information in the disputed documents would not 'merely' reveal prescribed details about [Professor Gardner] and so the limit on the exemption in clause 3(3) does not apply to the disputed documents.
148.Further, I am not persuaded by your submissions that the public interest in protecting [Professor Gardner]'s privacy when acting in his personal capacity is outweighed by the public interest in releasing that information to you under the FOI Act. In balancing the competing public interests, I am not dissuaded from the view I expressed in my preliminary view that the public interests favouring disclosure of the disputed documents do not outweigh the strong public interest in the protection of personal privacy. The disputed documents, although available on the agency's email server, are documents exclusively to do with the business of a now deregistered community legal centre. They do not relate to the operations of the agency or to the actions of an officer of an agency carrying out, or purporting to carry out, their functions or duties as an officer of an agency. I am therefore, of the view that the limit on the exemption in clause 3(6) does not apply to the disputed documents.
[46] AB 1535 - 1577 at [125] - [127].
[47] AB 1535 - 1577 at [128] - [141].
[48] AB 1535 - 1577 at [142] - [143].
[49] AB 1535 - 1577 at [144] - [145].
[50] AB 1535 - 1577 at [146] - [148].
The nature of an appeal under the Act
As noted earlier an appeal lies to this Court from decisions of the Commissioner on any question of law.
Section 85 confers original jurisdiction in the nature of judicial review, as opposed to appellate jurisdiction.[51] In applications for judicial review courts are concerned to ensure that administrative decisions are made lawfully, that is, within and in accordance with the applicable statutory framework.
[51] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [18] (French CJ, Gummow & Bell JJ); Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue(Vic) [2001] HCA 49; (2001) 207 CLR 72 [15] (Gaudron, Gummow, Hayne & Callinan JJ); H v Department of Education [2015] WASC 276 [7] - [10] (Chaney J).
In Silkchime Pty Ltd v Valuer-General,[52] the Court of Appeal explained the nature of an appeal on a question of law as follows:[53]
As has been explained in many cases, while termed an appeal, the 'appeal' is in the nature of judicial review. The function of the court is, and is only, to examine what the Tribunal has done for legal error. Where, as here, an appeal lies 'on a question of law', the question (or questions) of law is the entirety of the subject matter of the appeal. If, on proper analysis, the question raised by a litigant is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law.
In a summary of principles adopted by this court on numerous occasions since, in Paridis v Settlement Agents Supervisory Board, Buss JA, as his Honour then was, stated the following further propositions (Wheeler and Pullin JJA agreeing):
(1)A question of mixed fact and law is not a question of law within s 105(2).
(2)A ground of appeal which asserts the decision is against the evidence and the weight of the evidence does not raise a question of law.
(3)A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis.
(4)A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law.
(5)A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account alleges an error of law. (citations omitted)
[52] Silkchime Pty Ltd v Valuer-General [2023] WASCA 114.
[53] Silkchime Pty Ltd v Valuer-General [71] - [72].
Many of Mr Pearlman's grounds allege errors in the Commissioner's approach to statutory construction. There is only one correct construction of a statutory provision and ultimately whether the Commissioner erred in her approach to statutory construction is of limited relevance. The critical questions are (i) what is the correct construction? (ii) did the Commissioner adopt the correct construction?
Summary of grounds of appeal
There are nine grounds of appeal. Each ground is formulated in the form of a question, being the question of law Mr Pearlman contends is the subject of the appeal. In summary:
(a)Ground 1 contends the Commissioner misconstrued or misunderstood various provisions of the Act, namely s 21, and cl 3(1), cl 3(2), cl 3(3) and cl 3(6) of sch 1. The central argument made in support of this ground is the Commissioner did not adopt a purposive approach to the construction of the Act.
(b)Ground 2 contends the Commissioner erred in the construction and application of cl 3(1) because she ignored the reasoning in Western Australia Police Force v Ayton,[54] which Mr Pearlman contended was to the effect that the exemption in cl 3(1) must be interpreted narrowly.
(c)Ground 3 contends the Commissioner misconstrued or misunderstood s 21, cl 3(1), cl 3(2) and cl 3(6) because she concluded that the strong privacy interest embodied in cl 3(1) outweighed the public interest in an applicant accessing information about himself or herself.
(d)Ground 4 challenges the Commissioner's reasoning in relation to the application of cl 3(3). Mr Pearlman contends the Commissioner misconstrued or misunderstood 'the prescribed details' in reg 9(10) of the Regulations. Mr Pearlman contends the Commissioner erred by not finding that the material facts that had been established brought Professor Gardner's role and activities as EDOWA convenor within the scope of the prescribed details.
(e)Ground 5 contends the Commissioner asked the wrong question or applied the wrong test in determining whether disclosure was in the public interest under cl 3(6). Specifically, Mr Pearlman contends that the Commissioner erred by applying the observations about the concept of the public interest that were made in DPP v Smith.[55]
(f)Ground 6 contends the Commissioner failed to accord Mr Pearlman procedural fairness.
(g)Ground 7 contends the Commissioner's decision was affected by bias.
(h)Ground 8 contends the Commissioner failed to have proper regard to the onus of proof borne by Professor Gardner under s 102(2), and in considering the evidence, erroneously reversed the onus.
(i)Ground 9 contends the Commissioner's decision was manifestly unreasonable.
[54] Western Australia Police Force v Ayton [1999] WASCA 233.
[55] DPP v Smith (1991) 1 VR 63.
Principles of statutory construction
In Wyloo Metals Pty Ltd v Quarry Park Pty Ltd,[56] Buss P and Livesey AJA summarised the principles of statutory construction relevant to the circumstances of that case and cited the authorities in which the principles were stated. The principles summarised by their Honours were as follows:[57]
[56] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38.
[57] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [200].
(a)The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.
(b)The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.[58]
[58] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].(c)The context includes the legislative history and extrinsic materials.[59]
(d)At common law, apart from any reliance upon s 19 of the Interpretation Act 1984 (WA), a court may have regard to reports of law reform bodies to ascertain the mischief which a statutory provision is intended to remedy.[60]
(e)Legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself.[61]
(f)The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[62] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.[63]
(g)There are circumstances in which the court may adopt a construction that departs from the literal meaning of the words of a provision. Buss P and Livesey AJA cited the following observations of Gordon, Edelman, Steward and Gleeson JJ in ENT19 v Minister for Home Affairs:[64]
The context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78]). One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Project Blue Sky (1998) 194 CLR 355 at 381 - 382 [70]). As expressed by Gageler J in SAS Trustee Corporation v Miles, 'statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means' ([2018] HCA 55; (2018) 265 CLR 137 at 157 [41] (footnotes omitted)). Where conflict appears to arise in construing an Act, 'the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions', and this 'will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"' (Project Blue Sky (1998) 194 CLR 355 at 382 [70], quoting Institute of Patent Agents v Lockwood [1894] AC 347 at 360). Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended (Project Blue Sky (1998) 194 CLR 355 at 384 [78]. See also Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at 455 - 456 [28]; Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428 at 460 ‑ 461 [76]).
(h)Section 18 of the Interpretation Act provides that, in the interpretation of a provision of a written law (defined in s 5 as 'all Acts for the time being in force'), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects.[65]
(i)The function of a definition in a statute is not, except in rare cases, to enact substantive law. Rather, its function is to provide aid in construing the substantive enactment that contains the defined term. The meaning of the definition depends on the context, and the purpose or object, of the substantive enactment.[66]
[59] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408[60] CIC Insurance Ltd v Bankstown Football Club Ltd [408].
[61] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ); Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121] (Kiefel & Keane JJ).
[62] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J);
[63] Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
[64] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd, [206] citing ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 97 ALJR 509 at [87].
[65] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).
[66] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J); Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] (McHugh J).
The absolute nature of the principle stated in the first sentence in (e) above may require reconsideration in the light of the High Court's reliance on an explanatory memorandum as an aid to the construction of the statute under consideration in Harvey v Minister for Primary Industry and Resources,[67] and in particular in the light of the observations of Edelman J.[68] That is not a matter that needs to be explored in these reasons because construction difficulties of the nature encountered in Harvey do not arise in this case.
[67] Harvey v Minister for Primary Industry and Resources [2024] HCA 1.
[68] Harvey v Minister for Primary Industry and Resources [106] - [116].
Mr Pearlman relied on Harvey for the proposition that having regard to extrinsic material when construing a statute was not 'discretionary' and that extrinsic material is a mandatory relevant factor the courts must consider in assessing the context of a statutory provision. The proposition for which Mr Pearlman contended is not supported by dicta in Harvey. Moreover, the principles of statutory construction are applied to a wide variety of legislation. Not every construction exercise will engage every principle and to speak of factors as being 'not discretionary' or 'mandatory relevant factors' is inconsistent with the reasoning process that must be brought to bear on construction issues.
Ground 1
Ground 1 is expressed as follows:
Question of Law 1:
Whether the Commissioner misconstrued or misunderstood relevant provisions of the FOI Act – particularly s 21 and cll 3(1), 3(2), 3(3) (as further defined by reg 9(1) of the FOI Regulations) and 3(6) of Schedule 1 – in concluding that:
(a)all the documents in dispute were exempt from disclosure under the 'personal information' exemption in cl 3(1) (see, e.g., Preliminary View at p 14; Decision at [49]);
(b)that the exceptions to cl 3(1) provided in cll 3(2) and 3(3) (as further defined by reg 9(1) of the FOI Regulations) did not apply (see, e.g., Preliminary View at pp 15-16; Decision at [47]‑[118]); and
(c) that application of the public interest balancing test in cl 3(6) weighed against disclosure (see, e.g., Preliminary View at pp 17-18; Decision at [119]-[145])?
Grounds
(1a) The Commissioner erred in law in failing to interpret and apply the relevant provisions of the FOI Act in accordance with either common law principles of statutory interpretation or the requirements of the Interpretation Act 1984 (WA).
(1b) In light of the FOI Act's purposes and the mischief to which it was directed, the Commissioner's interpretation and application of the FOI Act's provisions produces absurd or unreasonable results.
The Commissioner's reasons
In the Preliminary View the Commissioner recited Professor Gardner's submission to the effect that the documents contained matter exempt under cl 3(1). The submission was as follows:[69]
All of the documents relating to Professor Gardner (which appear to be all of them) relate to his activities as Convener of the EDO. None of the documents relate to the business or activities of the agency.
The EDO is not an "agency" within the meaning of the FOI Act so its documents would not, ordinarily, be discoverable under the FOI Act. The only reason they may be (to some extent) in the present case is because they happen to have been generated using a UWA email address or mobile phone corporate account. The present point is that to the extent the documents are "in the possession or control of the agency' it is purely technical.
The documents contain personal information about Professor Gardner because they deal with his personal activities that are completely separate from his role as a professor at UWA.
The identities of persons who sent or received the communications constituting the disputed documents can be 'reasonably ascertained because the agency's 'decision' of 7 December 2018 names all the persons involved in each of the disputed documents. 'It is sufficient that one person has the necessary information to ascertain their identity or the identity of another person': Public Transport Authority [2018] WASC 47 at [69]-[71].
[69] AB 686.
Although the Commissioner did not expressly state that she accepted Professor Gardner's submission, it may be inferred she did so because she stated:[70]
The definition of 'personal information' makes it clear that any information or opinion about a person whose identity is apparent - or whose identity can reasonably be ascertained from the information or opinion - is, on the face of it, exempt information under clause 3(1), subject to the application of the limits on exemption in clauses 3(2)‑3(6). The information need not be in any way 'sensitive' or 'private' in order to be exempt under clause 3(1).
I have examined the disputed documents and I am satisfied that they comprise personal information as defined in the FOI Act because they include information about individuals whose identities can be reasonably ascertained from that information.
The access application requested documents, including correspondence, between numerous named individuals described in the 7 categories of documents set out in the access application. The 'legend' in the agency's letter of 7 December 2018 also sets out the names of numerous individuals referred to in the access application and their connection to each of the disputed documents. As a result, it is clear that you seek access to information about other individuals whose identity is apparent from the access application. Therefore, the access application seeks personal information about other individuals.
[70] AB 690.
The focus of the Commissioner's reasoning in the Final Decision was on the parties' contentions in respect of the limits on the cl 3(1) exemption contained in cl 3(2), cl 3(3) and cl 3(6). In the Final Decision the Commissioner effectively adopted the reasoning in respect of cl 3(1) contained in the Preliminary View.[71]
A summary of the parties' contentions
[71] AB 1543 [41].
Mr Pearlman's principal contentions may be summarised as follows:
(a)Mr Pearlman's overarching contention was the Commissioner failed to apply a purposive approach to the interpretation of the Act as she was obliged to do.[72] Mr Pearlman contended this failure led to the Commissioner making the errors in the interpretation of cl (3)(1), cl 3(2), cl 3(3) and cl 3(6) of sch 1 and reg 9 described in the following paragraphs. In support of his criticism of the Commissioner's 'overall approach' Mr Pearlman noted the Commissioner had quoted 'a snippet' of the second reading speech and argued the Commissioner:
[72] Appellant's submissions [5].
·ignored later passages in the 1991 Second Reading Speech that contradicted her reasons and highlighted, yet again, the critical importance of s 21;
·only mentioned the interest reflected in s 3(1)(a) of the FOI Act, ignoring the more directly relevant interest in s 3(1)(b) and other provisions of the Act discussed in my submissions (including ss 3(2)(b), 4(c) and 8(1)), which all reinforce the interest of applicants accessing personal information about themselves;
·ignored my submissions exhaustively reviewing the Parliamentary debates emphasising the importance of s 21 and the very strong public interest applicants have in access information about themselves;
·also ignored the context provided by ss 32-34 of the FOI Act, which undercut the interests of third parties in protecting their information, as discussed extensively in my submissions;
·after ignoring my submissions and supporting materials, suggested that it was I who had 'misinterpret[ed]' the Act by reading provisions of Part 1 of the FOI Act 'in isolation from the rest of the Act,' and by 'failing to consider provisions of a statute which are inconvenient to a desired result.'
(b)As to the construction of cl 3(1) Mr Pearlman contended:[73]
The [Commissioner] made no effort to apply a purposive approach in interpreting and applying cl 3(1). While she considered the text, particularly in the Glossary, she made no attempt to consider the context of cl 3(1), 'in the widest sense,' such as by reviewing other provisions of the FOI Act (like s 21 or cl 3(2)) or extrinsic material. Nor did she consider whether her interpretation yielded unreasonable or absurd results given the FOI Act's purposes and objects. These errors are also at play in Question of Law 2.
(c)Mr Pearlman contended the Commissioner misconstrued cl 3(2) 'by disconnecting the modifier 'merely' from 'because' and repositioning it to modify the phrase 'reveal personal information about the applicant'.[74] He argued the Commissioner's approach 'turned a limit on the exception effectively into a limit on the limit'. Further Mr Pearlman contended the Commissioner failed to consider extrinsic materials that indicated that the word 'merely' was included in cl 3(2) because a matter may be exempt under another exemption.[75]
(d)Mr Pearlman contended the Commissioner misconstrued cl 3(3) and reg 9. As to cl 3(3) Mr Pearlman contended the Commissioner fell into the same error as that described in (c) by repositioning the term 'merely'. Mr Pearlman also argued that the Commissioner failed to have regard to the canon of construction that requires remedial statutes to be construed liberally and exceptions construed narrowly.
(e)As to cl 3(6) Mr Pearlman contended the provisions of the Act, in particular s 21 and s 32 to s 35 inclusive demonstrate that the public interest in third parties seeking to limit disclosure of their personal information is 'not nearly as strong' as that of applicants seeking access to information about themselves.[76] Mr Pearlman contended the Commissioner failed to consider the following statement made in the course of the second reading speech:[77]
To further recognise the special relationship a person has to information about himself or herself, [s 21] allows that special interest to be taken into account as an additional factor in applying exemptions, thus affording even greater opportunity for access.
[73] Appellant's submissions [10].
[74] Appellant's submissions [12].
[75] Appellant's submissions [11] - [ 14].
[76] Appellant's submissions [19].
[77] Western Australia, Parliamentary Debates, Legislative Assembly, 28 November 1991, 7170-7171 (David L Smith).
The respondents' principal contentions may be summarised as follows:
(a)The respondents noted that Mr Pearlman did not appear to contend any particular misconstruction of cl 3(1) followed from the alleged errors in statutory construction made by the Commissioner.[78] The respondents also noted that no party made submissions to the Commissioner about the construction of cl 3(1). They contended the absence of such submissions explained why the Commissioner did not address the correct construction of cl 3(1).[79] The respondents acknowledged that the Commissioner's reasons for her view that the disputed documents contained personal information were not explained in any detail but contended that no error is disclosed.[80]
[78] Respondents' submissions [26].
[79] Respondents' submissions [27].
[80] Respondents' submissions [29].
(b)The respondents contended that having regard to the text, context and purpose of cl 3 read as a whole, including in the context of the Act as a whole, it is clear that cl 3(2) means, on its proper construction, that matter will fall within cl 3(2) (and thus not be exempt under cl 3(1)) if the disclosure of the matter would merely disclose personal information about the access applicant, in the sense that it would disclose personal information about the access applicant and no other person. The Commissioner made no error in her construction. The respondents made the following points in support of this construction:[81]
[81] Respondents' submissions [37] - [41].
(i)First, the construction follows from the plain text of the provision, in particular, the use of the word 'merely'. The respondents relied on the ordinary meaning of the word, that is, 'only as specified, and nothing more; simply'. They argued the use of this word signified a legislative intent that the exception would apply only if the disclosure would reveal personal information about the applicant and no one else.
(ii)Second, the respondents contended Mr Pearlman's construction would require the clause to be read as '[m]atter is not exempt matter under subclause (1) if its disclosure would reveal personal information about the applicant'. The respondents argued that if this is what the legislature intended, cl 3(2) could clearly (and more simply) have been drafted this way and reading 'merely because' as 'if' is a tortuous construction and should not be accepted unless there were very clearly contextual indications that this is what was intended. They contended no such contextual indications existed.
(iii)Third, the respondents argued the focus of cl. 3(1) is on the protection of the personal privacy of individuals and not on the interests of access applicants. This favours a narrow construction of cl. 3(2). If it were otherwise and Mr Pearlman's construction were correct, it would mean that, subject to s 24(b), an agency and the Commissioner would be obliged to disclose a document that contained any personal information about an access applicant, however slight and minor, notwithstanding the nature or extent of personal information about third parties that may be contained in the same document. They argued this would entirely thwart the object of cl 3(1) and would render essentially meaningless the protection of personal privacy under the Act.
(iv)Fourth, the respondents contended the parliamentary debates cited by Mr Pearlman confirmed the construction that appears from the textual and purposive matters discussed. In particular, they argued it appears from the excerpts cited that the legislature used the word 'merely' to ensure that if a matter was exempt under another clause of schedule 1, such as, for example, cl 8 (confidential information), then it would not be exempt under cl 3(2) even if it contained personal information about the access applicant. They argued this reinforced the construction posited by them - that cl 3(2) operates when the only way in which matter might be exempt is that it discloses personal information about the access applicant, and no one else.
(c)The respondents contended the Commissioner's discussion of the principles of statutory construction at paragraphs [128] ‑ [141] of the Final Decision demonstrate that she understood and applied the correct principles.[82]
(d)The respondents repeated their submissions about the use of 'merely' in cl 3(2) in relation to Mr Pearlman's criticisms of the Commissioner's approach to cl 3(3).
(e)The respondents contended that although Mr Pearlman criticises the Commissioner's approach to the construction of cl 3(6) he does not allege the Commissioner's construction was wrong as a matter of law.
The Commissioner's reasons
The Commissioner referred to the burden of proof in the Preliminary View and in the Final Decision. In the Preliminary View she expressed the view that because (relevantly) Professor Gardner had applied to be joined as a third party under s 69(2) he was to be regarded as bringing proceedings for the purposes of s 102(2). The Commissioner went on to say:[169]
In this case, the agency has withdrawn a number of claims and in relation to clause 3(1) and claims only that certain edited matter is exempt. In contrast, the third parties claim that all of the disputed documents are exempt under clause 3(1). Therefore, I consider that the third parties carry the onus of making out that the disputed documents are exempt in their entirety under clause 3(1).
[169] AB 677 at 685.
In the Final Decision the Commissioner set out the full text of s 102 and recited the paragraph of the Preliminary View set out in the preceding paragraph and referring to it, she stated:[170]
32.Due to the operation of section 102(2), that remains the case in relation to the arguments about whether the limit in clause 3(3) applies.
33.Due to the operation of section l02(3), in relation to the arguments about clause 3(6), you bear the onus or proof.
[170] AB 1536 at 1540.
Mr Pearlman places particular emphasis on the following passages of the Final Decision:
96.I am satisfied, based on all of the material before me, of the following:
. . .
·During the relevant time, [Professor Gardner]'s requirement for 'service' under the 2016 workload allocation was satisfied in its entirety by his work as Editor of the ARELJ.
·This is borne out by the submissions of [Professor Gardner]'s lawyer about [Professor Gardner]'s employment arrangements, which he is best placed to comment on, and supported by various documents, including an email dated 19 December 2016 from [Professor Gardner] to the Dean of the Law School, appended to your 2 November 2020 submissions, in which [Professor Gardner]states:
To date, the principal service role that I've had within the Faculty has been as Editor of the ARELJ... It has constituted the full set of service points under the workloads policy.
. . .
111I note that [Professor Gardner] is best placed to provide evidence of the nature of his engagement at UWA and that the submissions made by him and his lawyer are supported by documentary material, including the following:
. . .
The parties' contentions
Mr Pearlman's contentions were as follows:
73.While she was right in assigning the burden to Mr Gardner, in practice, the IC reversed the burden of proof by:
·concluding that Mr Gardner's 2016 'service' workload allocation was: (i) 'satisfied in its entirety by his work as Editor of the [Australian Resources Environment Law Journal],' and (ii) that '[t]his is borne out by the submissions of [Professor Gardner]'s lawyer about [Professor Gardner]'s employment arrangements, which he is best placed to comment on;' and
·concluding that Mr Gardner 'is best placed to provide evidence on the nature of his engagement at UWA' in her determination that his EDOWA convener role was outside his duties or functions as an agency officer.
74.Moreover, the IC's deference to Mr Gardner's assessment of his role was contradicted by UWA's view that the information related to him fell within the cl 3(3) limitation for 'prescribed details,' a fact acknowledged by the IC in early December 2019 but, significantly, that fact was omitted from her reasons.
The respondents' contentions were to the following effect: on its proper construction s 102(2) only applies when a third party has made a complaint under s 65(2)(b) of the Act and not when a third party exercises the entitlement to be joined as a party to a complaint by giving notice to the Commissioner under s 69(2). The provision of notice and the automatic joinder of a third party to a complaint cannot be characterised as 'initiating' or 'bringing' 'proceedings'. The respondents raised this issue 'as a matter of formality' and provided the brief submission I have summarised in support of it. The balance of their submissions proceeded on the assumption that s 102(2) applied and contended the Commissioner's reasoning was consistent with accepting that Professor Gardner bore the burden of proof and discharged that burden.
Disposition
Relevant statutory provisions
Section 65 provides:
65.Complaint against agency's decision, making
(1)A complaint may be made against an agency's decision —
(a)to give access to a document; or
(b)to give access to an edited copy of a document; or
(c)to refuse to deal with an access application; or
(d)to refuse access to a document; or
(e)to defer the giving of access to a document; or
(f)to give access to a document in the manner referred to in section 28 or withhold access under that section; or
(g)to impose a charge or require the payment of a deposit.
(2)A complaint under subsection (1) may be made by —
(a)the access applicant; or
(b)a third party.
(3)A complaint may be made against an agency's decision —
(a)not to amend information in accordance with an application for amendment under Part 3; or
(b)not to comply with a request by the applicant for amendment to make a notation or attachment to information.
(4)A complaint under subsection (3) may be made by the applicant for amendment.
Section 69 provides:
69.Complaint, who are parties to etc.
(1)The complainant and the agency are parties to every complaint.
(2)In the case of a complaint made by an access applicant any third party is entitled to be joined as a party on giving written notice to the Commissioner.
(3)In the case of a complaint made by a third party the access applicant is entitled to be joined as a party on giving written notice to the Commissioner.
(4)Without limiting section 70(1), if the Commissioner is satisfied that another person or body might be affected by a decision made on the complaint the Commissioner may obtain information or receive submissions from that person or body.
Section 102 provides:
102.Burden of proof
(1)Except where subsection (2) or (3) applies, in any proceedings concerning a decision made under this Act by an agency, the onus is on the agency to establish that its decision was justified or that a decision adverse to another party should be made.
(2)If a third party initiates or brings proceedings opposing the giving of access to a document, the onus is on the third party to establish that access should not be given or that a decision adverse to the access applicant should be made.
(3)If, under a provision of Schedule 1, matter is not exempt matter if its disclosure would, on balance, be in the public interest, the onus is on the access applicant to establish that disclosure would, on balance, be in the public interest.
The meaning of proceeding
The dictionary definitions of 'proceeding' include 'the institution or carrying on of an action at law' and 'a legal step or measure: to institute proceedings against a person'.[171] In Blake v Norris,[172] Smart J held that 'proceedings' could mean either an action itself or a step taken in such an action and that any assistance as to the word's meaning has to be derived from the statutory context and the objects of the legislation in question.[173]
[171] Macquarie online dictionary 16 April 2025.
[172] Blake v Norris (1990) 20 NSWLR 300.
[173] Blake v Norris, 306.
It is unnecessary for me to reach a conclusion on whether s 102(2) applies to a third party who has been joined to a complaint following the giving of notice to the Commissioner and, in the absence of more comprehensive submissions from the parties, I will proceed on the assumption that it does apply. This assumption accords with my tentative view the term 'proceedings' should be given a broad construction. Further, imposing a burden of proof on a third party is consistent with the general position that ordinarily the burden of establishing a proposition rests with the person asserting it.
No reversal of the burden of proof
The passages of the Preliminary View and the Final Decision to which I have referred make it plain that the Commissioner accepted Professor Gardner bore the burden of proof. The question raised by this ground is whether the passages of the Final Decision on which Mr Pearlman relies establishes that she reversed the onus.
The first passage relied on by Mr Pearlman is found in the Commissioner's explanation of why she accepted that Professor Gardner's 'service' requirement under the workload allocation was satisfied by his work as editor of the Australian Resources and Energy Law Journal. In the paragraph on which Mr Pearlman focuses the Commissioner explained that her conclusion about the service requirement was based on her acceptance of the submissions made by Professor Gardner's lawyers about his working arrangements and documents provided in support. The Commissioner's observation that Professor Gardner was 'best placed to comment' on those matters did not indicate a reversal of the burden of proof but reflected her assessment of the weight she attached to Professor Gardner's submissions and the evidence.
The same observation may be made about the second passage relied on by Mr Pearlman, 'I note [Professor Gardner] is best placed to provide evidence on the nature of his engagement at UWA'. Again, this does not convey a reversal of the burden of proof but an assessment of the weight attached to Professor Gardner's evidence by the Commissioner.
The final contention made by Mr Pearlman that, 'the [Commissioner's] deference to [Professor Gardner's] assessment of his role was contradicted by UWA's view' does not raise an error of law. It asserts an error in fact finding and no more.
Ground 9
Ground 9 was expressed as follows:
Question of Law 9:
Whether the Commissioner's Decision was manifestly unreasonable (consistent with Wednesbury unreasonableness)?
The parties' contentions
Mr Pearlman referred to the distinction drawn between unreasonableness in outcome and unreasonableness in process. As to the former he contended:
77.The unreasonableness of the IC's decisions is manifested in the following outcomes, measured against the FOI Act's purposes and objects, namely:
·her refusal to disclose any information related to me in 161 documents based on an 'ambit' claim it was all 'inextricably intertwined' with third parties' 'personal information;' and
·her decision that edited access to documents could not be provided under s 24 of the FOI Act.
78.Both outcomes stem from her overly broad interpretation of cl 3(1), which is contrary to Ayton and is also contradicted by relevant extrinsic material (discussed at paragraph 25, above). It is difficult to conceive an outcome more offensive to the FOI Act's objects and purposes than the IC's decision, or one more clearly validating Wheeler J's concerns about adopting an overly wide interpretation of cl 3(1).
Mr Pearlman's contentions in relation to process unreasonableness were as follows:
79Unreasonableness is also manifested in the IC's serious irrationality in aspects of her decision-making process, including:
·First, in the IC's chronically ignoring most of my submissions, and the evidence and extrinsic material supporting them, violating a necessary condition of her decision-making authority.
·Second, in the fact the IC provided, literally, no reasons for her decision to set aside UWA's 3 October 2016 IRD. However, from the material before her, her decision was based on an unreasonable belief the IRD had been 'superseded' by: (i) UWA's 7 December 2018 'decision;' and/or (ii) its 5 September 2019 letter abandoning most of its previously-held grounds for non-disclosure. Neither was legally effective.
·Third, in her reliance on Mr Gardner's confidentiality agreement with EDOWA and submissions made about it, in concluding his convener activities were outside the scope of his UWA 'duties' or 'functions' for purposes of cl 3(3). However, the material before the IC shows Mr Gardner's confidentiality agreement was not submitted in support of his cl 3(3) claims but rather was submitted by EDOWA as the basis for an exemption claim based on cl 8(1).
·Fourth, the IC dismissed my submissions, supported by substantial evidence, that fraud or misconduct in Mr Gardner's and EDOWA's dealings with me tipped the public interest in favour of disclosure under cl 3(6), as 'speculative,' without providing any reasons for that conclusion. She also rejected my submissions and supporting evidence regarding potentially defamatory comments about me by erroneously relying on DPP v Smith's formulation of the 'public interest.'
The respondents' contentions were as follows:
156.The precise "outcome" complained of by [Mr Pearlman] is unclear, though it appears to be that, having found that all 161 documents were exempt for containing "personal information", it was unreasonable in the legal sense for the Commissioner to decline to provide edited access to the documents under s 24 of the FOI Act. Properly understood, this was a decision under s 24(b) of the Act that it was not "practicable" for the University to give access to a copy of the disputed documents from which the exempt matter had been deleted.
157.The Commissioner's reasoning in relation to this decision is set out in the Preliminary View at AB 694-695. It was that "[i]n my view, it would not be practicable for the agency to give you access to a copy of the disputed documents with the exempt matter deleted, because the severe editing that would be required to avoid disclosure of the exempt matter would render that document unintelligible": AB 695. Accordingly, the Commissioner's decision was not lacking an "evident and intelligible justification", nor was it "arbitrary, capricious or without common sense". It was therefore not unreasonable in an "outcome" sense: see S v DoC, [51(d)]; Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32, [108] (Buss P, Murphy JA, Beech JA); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [28] (French CJ); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, [82] (Nettle and Gordon JJ);
158The concept of "process" unreasonableness refers to "irrationality grounds" such as, inter alia, the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality in the sense used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625, 643 and 648: Viva Energy Australia Pty Ltd v Contaminated Sites Committee (2018) 230 LGERA 243, [216] (Smith AJ), citing Jacob v Save Beelier Wetlands (Inc) (2016) 50 WAR 313, [67]-[68] (McLure P, with whom Buss JA agreed); see also SZVFW, [81] (Nettle and Gordon JJ). It is distinct from "outcome" unreasonableness, which is concerned with whether a decision has an intelligible justification.
159.The matters cited in AS [79] are not of a nature that invokes the concept of unreasonableness (whether "process" or "outcome"-focused, properly understood). In particular, no particular type of legal error is identified, nor is serious irrationality alleged. To the extent it may implicitly be, no serious irrationality is disclosed. Further:
(a)The first and fourth matters complain of the Commissioner's failure to refer to [Mr Pearlman]'s submissions and evidence. . . . In short, the Commissioner was not obliged to refer to all [Mr Pearlman]'s materials, so any failure to do so did not constitute an error of law.
(b)The second matter refers to a failure to give reasons in respect of an extraneous matter that is not, of itself, said to constitute an error of law.
(c)The third matter refers to the Commissioner's reference to the confidentiality agreement, which was a document the Commissioner was entitled to consider and place weight upon. There was no error of law in connection with the Commissioner's use of this document.
Disposition
Relevant legal principles
In Silkchime v Valuer-General,[174] the Court of Appeal explained the principles underlying the concept of legal unreasonableness as follows:[175]
The concept of legal unreasonableness is not a vehicle for the court to remake the decision according to its view as to reasonableness and, by implication, thereby find that a contrary view is unreasonable.
A decision may be legally unreasonable on process-related grounds. Alternatively, a decision may be legally unreasonable on outcome-related grounds. Process-related grounds encompass specific kinds of error - for example, the failure to take into account mandatory relevant considerations, taking into account irrelevant considerations and acting for an improper purpose, as well as unreasonableness in the conduct of the hearing or other procedure adopted.
Manifest unreasonableness as regards outcome may be found in a decision that is arbitrary, capricious or fanciful, a decision that lacks an evident and intelligible justification, or a decision where, in the circumstances, 'the result itself bespeaks error'. These descriptive terms should not be given canonical force.
Determining whether legal unreasonableness is established requires a close focus on the particular circumstances of the exercise of statutory power. The conclusion is drawn 'from the facts and from the matters falling for consideration in the exercise of the statutory power'. [Footnoes omitted]
Outcome unreasonableness
[174] Silkchime Pty Ltd v Valuer-General [2023] WASCA 114.
[175] Silkchime Pty Ltd v Valuer-General [80] - [83].
Mr Pearlman's challenge to the Commissioner's conclusion that the 161 documents were exempt because they contained personal information is, in effect, a reformulation of ground 2 and for the reasons given in relation to ground 2, no error is established. Mr Pearlman's challenge to the Commissioner's conclusion that it was not practicable to edit the documents in accordance with s 24(b) is not established for the reasons developed by the respondents in their submissions. In short, the decision was not lacking an 'evident and intelligible justification'.
Process unreasonableness
I do not accept Mr Pearlman's contentions to the effect that the Commissioner ignored or dismissed his submissions and the evidence he adduced. That the Commissioner did not refer to matters relied on by Mr Pearlman does not compel the conclusion she ignored or improperly failed to have regard to those matters. Mr Pearlman's submissions were voluminous. The Commissioner engaged with the central issues raised by the external review application and addressed them logically.
As the respondents point out no error of law is alleged in respect of the Commissioner setting aside the University's decision to refuse access on the ground the documents were not documents of the agency. Not only was this aspect of the Final Decision material to the matters of which Mr Pearlman complains but it does not demonstrate process unreasonableness.
Finally, at best Mr Pearlman's complaint about the Commissioner's reliance on the confidentiality agreement (more accurately the confidentiality statement) amounts to an error in fact-finding that does not rise to the level of irrationality in fact finding. Moreover, the basis on which the confidentiality agreement was put before the Commissioner is immaterial. The weight to be attached to the confidentiality agreement may be contested but the Commissioner did not make an error by taking it into account.
Ground 9 is not made out.
Conclusion
The appeal is dismissed and I will hear from the parties in relation to costs.
APPENDIX
1All materials relating to communications or correspondence, written or electronic between Professor Alex Gardner and Ms Howells from 1 January 2013 to present.
2All materials relating to communications or correspondence, written or electronic, regarding Ms Howells, between Professor Alex Gardner and any of the following persons: Henry Jackson, Michael Bennett, Peter Robertson, Peter Rogers, Clare Wood, Natasza Bariacto, or Mitchell Brown from 1 January 2015 to present.
3All materials relating to communications or correspondence, written or electronic, regarding Patrick Pearlman and/or the role of Principal Solicitor of the Environmental Defender's Office WA (Inc) (EDOWA) between Professor Alex Gardner and any of the following persons: Henry Jackson, Michael Bennett, Peter Robertson, Peter Rogers, Clare Wood, Natasza Bariacto, or Mitchell Brown from 1 January 2015 to present.
4All materials relating to communications or correspondence, written or electronic, regarding potential donors who would or would not provide funding to EDOWA while Patrick Pearlman was employed as the EDOWA 's Principal Solicitor, between Professor Alex Gardner and any of the following persons: Henry Jackson, Michael Bennett, Peter Robertson, Peter Rogers, Clare Wood, Natasza Bariacto, or Mitchell Brown from 1 January 2015 to present.
5All materials relating to communications or correspondence, written or electronic, regarding the appointment of any "independent expert", including but not limited to Ms Shayla Strapps, for the purpose of evaluating the performance of Patrick Pearlman as EDOWA 's Principal Solicitor, between Professor Alex Gardner and any of the following persons: Henry Jackson, Michael Bennett, Peter Robertson, Peter Rogers, Clare Wood, Natasza Bariacto, or Mitchell Brown from 1 January 2015 to present.
6All materials relating to communications or correspondence, written or electronic, regarding stakeholder comments regarding EDOWA's Principal Solicitor, Patrick Pearlman, between Professor Alex Gardner and any of the following persons: Henry Jackson, Michael Bennett, Peter Robertson, Peter Rogers. Clare Wood, Natasza Bariacto, or Mitchell Brown from 1 January 2015 to present.
7.All materials relating to communications or correspondence, written or electronic, regarding the review of the performance of EDOWA's Principal Solicitor, Patrick Pearlman, between Professor Alex Gardner and any of the following persons: Henry Jackson, Michael Bennett, Peter Robertson, Peter Rogers, Clare Wood, Natasza Bariacto, or Mitchell Brown from 1 January 2015 to present.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
8 MAY 2025
(McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ).
(Brennan CJ, Dawson, Toohey & Gummow JJ); Mondelez Australia Pty Ltd v The Australian Manufacturing Workers Union (AMWU) [2020] HCA 29; (2020) 271 CLR 495 [13] (Kiefel CJ, Nettle & Gordon JJ).
35
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