In April 2024, we wrote about the Western Australian Government’s commission of a report by Dr Paul Vogel and David McFerran. Dr Vogel and Mr McFerran were asked to undertake a “short, sharp review” of environmental approval processes and procedures in WA. The result of the review was 39 recommendations, which the government published on 12 December 2023, however, the review itself was not published.
In January 2024, our client, the Conservation Council of WA (CCWA), made an application under Freedom of Information (FOI) laws for access to the full report. The Environment Minister refused to release the report claiming it was exempt under the FOI laws. Our client then asked the Information Commissioner to review of the minister’s decision. The government gave CCWA the review on 12 February 2025 when the minister finally withdrew the exemption claim after the Information Commissioner asked the minister twice to do so.
We were pleased to help our client access the review, a document of significant public interest in WA.
While this post focuses on FOI rather than the content of the review, it is worth noting the biggest changes to WA’s environmental laws in recent history were made on the basis of the review.
It is essential that government documents like these are made available in the interests of transparency and accountability, and to ensure processes for legislative change are democratic.
The FOI Act and key principles on access and exemptions
The Freedom of Information Act 1992 (WA) (FOI Act) gives the public a right to access information. The purpose of the right is to:1
- enable the public to participate more effectively in governing the state; and
- make the persons and bodies that are responsible for state and local government more accountable to the public.
FOI laws are essential to our democracy. These laws provide a public right to government information and set out duties for government agencies to support transparency and access to justice.
FOI laws are not absolute. Government agencies are not required to produce information if the information falls within identified categories of exemption. One of those categories, relevant to this matter, is often referred to as the “cabinet exemption”. This exemption applies to information where its disclosure would reveal “the deliberations or decisions of an executive body” (cabinet being an executive body), including information:
- containing policy options or recommendations prepared for possible submission to an executive body; or
- prepared to brief a minister in relation to matters prepared for possible submission to an executive body. (Schedule 1, clause 1(1)).
There are limits to this exemption, and in those circumstances the agency will have to produce information despite it falling within the above category. For example, information is not exempt if it wasn’t brought into existence for the purpose of submission for consideration by the executive body.
So, the exemption can’t be based solely on the information having been submitted to cabinet, it must instead have been created for the purpose of submission to cabinet or briefing ministers (Schedule 1, clause 1(6)).
The FOI process to obtain a copy of the review
CCWA’s application under the FOI Act for access to the review was made on 3 January 2024. The initial processing of the request was lengthy, as there was a transfer of the application between government agencies and several extensions of time requested. It was not until 11 April 2024 that the minister refused CCWA access. That decision was made pursuant to a claim that the review was subject to the cabinet exemption.
On 23 May 2024, CCWA applied to the Information Commissioner for a review of the minister’s decision. The commissioner reviewed a copy of the Vogel-McFerran document and provided preliminary views to the minister to the effect that the exemption claim was unjustified because the review did not appear to have been commissioned for the purposes of submission to cabinet2, nor did its content reveal cabinet’s actual deliberations or decisions.3 The commissioner noted that mere submission of the review to cabinet was not sufficient to establish the exemption.4 As early as 26 September 2024, the commissioner invited the minister to withdraw the claim for exemption.
On 12 February 2025, more than 13 months after CCWA’s initial application, the minister withdrew the claim for exemption, and provided a copy of the review.
TIMELINE
Key takeaways
FOI laws are designed to facilitate access to government information, supporting public participation and government accountability. However, accessing information under the FOI Act is often a lengthy process that can be difficult and frustrating for the public to engage with and to achieve access to justice.
It was disappointing in this matter for the agency responsible for processing the FOI application to continue to rely on an unjustified exemption claim for more than 13 months until the review was finally released.
In assessing FOI applications, agencies must remember:
- their statutory obligation to give effect to the FOI Act in a way that assists the public to access documents promptly and at the lowest reasonable cost (FOI Act s 4); and
- the right of access to documents subject to the FOI Act as set out in section 10.
The Information Commissioner’s preliminary views (which were not officially published) provide useful guidance on the application of the cabinet exemption, and what is needed for agencies to properly justify the use of this exemption claim.
Importantly, agencies cannot claim the exemption applies merely because a document “happens to turn up in cabinet” or that there was deliberation or decision relating to the document.
Instead, it is necessary for the document to be commissioned specifically for a cabinet purpose and for the disclosure of the document to reveal actual deliberations or decisions of cabinet.
Where these circumstances do not apply, agencies should not rely on the exemption, and unjustified claims should be withdrawn as soon as possible to minimise waste of the government’s and the applicant’s time and resources.
It is important to emphasise that exemptions should not be used to delay or deny democratic access to government information that is so critical to transparency, accountability, public participation and – ultimately – better environmental decision-making and law reform.
Members of the public who are seeking to understand the FOI Act can access our factsheet here.
Authors
Western Australia EDO Managing Lawyer Jessica Border
Senior Solicitor Ruby Hamilton
