An employee creates documents in their ‘personal capacity’: do they become ‘agency records’ under FOI legislation?

The Supreme Court's decision in Pearlman v WA Information Commissioner [2025] WASC 167 confirms the broad scope of documents that may be held by an agency under Western Australian freedom of information legislation. 

For agencies subject to FOI (including universities, councils, government agencies, and statutory authorities), documents stored by them can be the subject of an access request even where they don’t relate to agency functions. 

As a result of this decision, agencies should review their document management processes and consider measures (discussed below) to minimise exposure to requests for access to non-agency records via the Freedom of Information Act 1992 (WA) (FOI Act). 

While, ultimately, exemptions under the FOI Act are likely to limit access to ‘personal’ documents, the issue can be avoided from the beginning if agency records are limited to records that are relevant to an agency and its work.  

Background

Mr Pearlman was employed as Principal Solicitor by the Environmental Defender's Office of Western Australia (EDOWA) (a not-for-profit incorporated association) until about 30 June 2016.  Professor Alex Gardner, a Law Professor of the University of Western Australia (UWA), was the Convener of the Management Committee of EDOWA at that time.

In around June 2016, there was a dispute between Mr Pearlman and EDOWA about Mr Pearlman’s performance of his duties as Principal Solicitor. 

On 30 June 2016, Mr Pearlman applied under the FOI Act to UWA for access to correspondence (to which Professor Gardener was party) relating to the circumstances leading to the end of his employment EDOWA. Relevantly, Professor Gardner used his UWA email account, computer and office when carrying out EDOWA-related activities.  

The Information Commissioner and the Supreme Court of Western Australia (on appeal) determined that the communications were documents of UWA for FOI purposes because they were created, sent, and stored on UWA’s systems, but that they were nevertheless exempt from disclosure under FOI because they contained personal information about Professor Gardner that was unrelated to his duties as an officer of UWA. 

This decision highlights how, even where staff create documents in a personal capacity, the FOI Act requires that those documents are considered in response to any access request.  In determining whether documents had a sufficient connection to UWA, the key factor was that UWA’s systems were used. Authorship, capacity and intention were not determinative. 

Mitigation measures  

Below are measures to promote better records management having regard to the unique responsibilities of agencies subject to the FOI Act. 

Educate and train staff on the scope of the Freedom of Information Act 

• FOI can be a novel concept for those who are new to working at an agency.
• People may be unaware of the important role of FOI and the types of considerations that must be weighed in considering each application for access.
• Training should recur at regular intervals and discuss recent scenarios and outcomes. 

Implement records management policies

• Agencies should implement clear, documented internal policies prohibiting use of agency resources to conduct non-agency business.  
• Direct all staff to manage their personal affairs using non-agency equipment and personal email addresses.
• Educate staff on policies on a recurring basis. 

Monitor compliance and enforce policies 

• Compliance should be monitored through audits and in-team discussions.
• Policies should be enforced with further training and disciplinary action.  

Regularly review policies 

• Policies will require regular review for being fit-for-purpose, especially considering new ways of working (e.g. remote working) and new technology (e.g. informal chat functions). 

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This article was written by Emma Cohen, Associate at Jackson McDonald.