The State Government has launched Supreme Court action to avoid releasing documents on the MAX light rail and airport line that the Information Commissioner ordered the Department of Premier and Cabinet to make public.
DPC argued the documents were authored during the caretaker period before the 2013 election, so they were created for the Liberal Party and were exempt under the Freedom of Information Act.
No Australian government has made this argument before, so it is a major test case.
In April 2013,The West Australian applied for correspondence to, from and within the office of Colin Barnett relating to the election-defining projects and their $3.7 billion commitment.
DPC denied access in July 2013 on the grounds the documents were not “of an agency”, a decision confirmed in an internal review a month later, prompting an appeal to Information Commissioner Sven Bluemmel.
In a decision on May 18, Mr Bluemmel rejected DPC’s argument and ordered the release of 59 documents, saying he was “not persuaded that the application of the caretaker conventions ... results in the disputed documents failing to be documents of an agency”.
He noted the DPC accepted such a case had not gone before the WA Information Commissioner before, nor had caretaker conventions been considered for the purpose of FOI legislation in any other State or federally.
University of Notre Dame senior politics lecturer Martin Drum said the Government was going to extraordinary lengths to avoid scrutiny of the airport line and MAX, which was shelved. “If all documents authored during the caretaker period couldn’t be FOIed then that would be an exemption that was never foreseen by the legislators,” he said.
Opposition Leader Mark McGowan said if the Government was arguing the documents were party political, the Liberal Party should fund the Supreme Court action.
He said the “secretive and deceptive” Government spent $25,000 fighting the FOI release of a report into former treasurer Troy Buswell’s traffic crashes and should reveal how much it was spending on this appeal.
A DPC spokeswoman said there was nothing sensitive in the documents and the appeal was about the principle involved.