WALGA FOI IMMUNITY CHALLENGED

PERTH lawyer Sandra Boulter has launched a public fundraiser to fight a decision by WA’s Freedom of Information Commission that the WA Local Government Association is immune to FOI.
The Local Government Elected Members’ Association chair said Commissioner Catherine Fletcher denied LGEMA access to WALGA records because WALGA was not a public body subject to the FOI Act. The decision is available at https://lgema.asn.au/wp-content/uploads/2024/12/F2023056_Decision_Comp.pdf.
“This unfortunate decision denies public accountability for the indirect expenditure of the money YOU are required to pay as rates to your local government,” Ms Boulter says at https://lgema.asn.au. “Access to government records is an essential tenet of our representative democracy.”
Not for profits, LGEMA is run by volunteers and consists of current and former councillors supporting elected members in WA and WALGA lobbies and negotiates on behalf of local governments in WA.
In December 2022, LGEMA wrote to WALGA and requested under FOI information about its nominations to State government committees, panels and other organisations; a list of bodies to which WALGA makes nominations; names of current WALGA nominees and their renumeration; and a copy of minutes for the previous 24 months of the WALGA committee responsible for deciding which persons are nominated.
WALGA provided a substantive response, outlining the nomination selection process, but not the minutes as they ‘contain personal information’ exempt under the Act. LGEMA then applied for external review.
The FOI Commissioner noted: “Although WALGA referred to a specific provision of the FOI Act as grounds for its decision not to give access to certain documents, WALGA did not specifically state whether it accepted, or did not accept, that it is an agency subject to the FOI Act.”
Commissioner Fletcher said she wrote to WALGA requesting information as to whether it accepts or disputes that it is an agency under the Act. On April 18, 2023, WALGA accepted it is a ‘public body’ subject to the Act, but the Commissioner states WALGA did not provide, “any substantive submissions in support of its position, including in relation to several specific issues on which I invited its submissions”.
On November 22, 2023, she advised the parties, “notwithstanding WALGA’s apparent acceptance that it is an agency under the FOI Act, I was not persuaded that there was sufficient information before me to proceed on the basis that WALGA is an agency under the FOI Act and that I have jurisdiction to deal with this application for external review”.
The Commissioner said WALGA’s statutory powers or functions are largely permissive: “They allow WALGA to do certain things but do not require it to do anything. That is to be contrasted with statutory functions of the type given to, for example, a Law Society which regulates the legal profession, or responsibilities given to a turf club to licence racehorses.”
She added: “In my view, WALGA is better described as an advocacy body for local government with some statutorily conferred functions consistent with its role. However, I do not consider that those functions rise to the level required to establish that WALGA’s purposes are public purposes.”
Run by volunteers, LGEMA needs to raise $70,000 for legal costs and filing fees including the Commissioner’s costs if the challenge is unsuccessful.