Section 36 - Disclosure contrary to public interest
Extract of legislation
| 36 | Disclosure contrary to the public interest | ||
| (1) | A document is an exempt document if— | ||
| (a) | in the case of documents of a department or prescribed authority its premature disclosure under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to have a substantial adverse effect on the economy of Victoria, including but not limited to, revealing consideration of a contemplated movement in bank interest rates or in sales tax, the imposition of credit controls, the sale or acquisition of land or property by the Crown, urban re-zoning, the formulation of land use and planning controls and the formulation of State imposts; or | ||
| (b) | in the case of documents of a department or prescribed authority its disclosure under this Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use or guidance of, officers of an agency on the procedures to be followed or the criteria to be applied in negotiation, including financial, commercial and labour negotiation, in the execution of contracts, in the defence, prosecution and settlement of cases, and in similar activities relating to the financial property or personnel management and assessment interests of the Crown or of an agency. | ||
| (2) | A document is an exempt document if— | ||
| (a) | in the case of a document of a council, its premature disclosure under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to have a substantial adverse effect on the economy of the municipal district, including but not limited to, revealing consideration of a contemplated movement in rates, fees, charges, interest charges or other levies, the sale or acquisition of land or property by the council, urban re-zoning, the formulation of land use and planning controls and the formation of imposts; or | ||
| (b) | in the case of a document of a council, its disclosure under this Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use of guidance of, officers of a council on the procedures to be followed or the criteria to be applied in negotiation, including financial, commercial and labour negotiation, in the execution of contracts, in the defence, prosecution and settlement of cases, and in similar activities relating to the financial property or personnel management and assessment interests of the council. | ||
There are several exemptions in section 36, which are designed to only protect ‘essential public interests’.4 The exemptions have many discrete elements and can be difficult to establish.
In summary:
- sections 36(1)(a) and (2)(a) exempt documents that would prematurely disclose information capable of having a substantial adverse effect on the economy of the State or of a local government area; and
- sections 36(1)(b) and (2)(b) exempt documents that would disclose instructions given to officers of an agency for their use or guidance, on the procedures to be followed or the criteria to be applied in negotiations relating to the financial, property or personnel management and assessment interests of the Crown, or of an agency, or of a council.
The exemptions in section 36(1)(a) and (b) apply to documents of a department or prescribed authority. The exemptions in section 36(2)(a) and (b) apply to documents of a council. They cover similar subject matter to the exemptions in section 36(1).
Section 36 must be read consistently with the object of the Act in section 3, which is to extend as far as possible the right of the community to access government held information. This right is only limited by exemptions necessary for the protection of essential public interests and private and business affairs.5 If it is unclear whether section 36 applies to a document, the exemption should be interpreted narrowly, in a way that favours access to information.6
The decision to exempt a document under section 36 is a discretionary power.8 An agency can choose to provide access to information that would otherwise be exempt under section 36, where it is proper to do so and where the agency is not legally prevented from providing access.
Documents that would prematurely disclose information that would substantially adversely affect the economy
Section 36(1)(a) and section 36(2)(a) are similar. Section 36(1)(a) applies to departments and prescribed authorities. Section 36(2)(a) applies to councils.
Elements of section 36(1)(a) – documents of departments and prescribed authorities
A document is exempt under section 36(1)(a) if its premature disclosure would be contrary to the public interest because it would be reasonably likely to have a substantial adverse effect on the economy of Victoria.
A ‘substantial adverse effect on the economy of Victoria’ may include revealing consideration of:
- a contemplated movement in bank interest rates or sales tax;
- the imposition of credit controls;
- the sale or acquisition of land or property by the Crown;
- urban rezoning;
- the formulation of land use and planning controls; and
- the formulation of State imposts.10
Elements of section 36(2)(a) – documents of councils
A document is exempt under section 36(2)(a) if its premature disclosure would be contrary to the public interest because it would be reasonably likely to have a substantial adverse effect on the economy of the local government area.
A ‘substantial adverse effect on the economy’ of the local government area may include revealing consideration of:
- a contemplated movement in rates, fees, charges, interest charges or other levies;
- the sale or acquisition of land or property by the council;
- urban rezoning;
- the formulation of land use and planning controls; and
- the formulation of imposts.12
Applying the exemptions
A document will only be exempt under sections 36(1)(a) and (2)(a) if its premature disclosure would be contrary to the public interest.
A document is not automatically exempt because it contains information of the same character or nature as the examples used in the exemption of information that may have a substantial adverse effect on the economy.15 For example, a document is not exempt just because it reveals consideration of urban rezoning. It must also be contrary to the public interest to release that information.
To establish that the premature disclosure of the document would be contrary to the public interest, the department, prescribed authority, or council must produce evidence of:
- the character or nature of the information which would be disclosed by releasing the document;
- the economy of Victoria or the relevant local government area; and
- what the substantial adverse effect on the economy would be if the specific information in the document was prematurely disclosed.16
Case examples where the exemption did not apply
Thwaites v Austin & Repatriation Medical Centre (formerly North Eastern Health Care Network) (unreported, VCAT, Davis M, 28 April 1999)
Background
The applicant requested access to two documents, being a consultant’s report prepared on behalf of the agency and a submission prepared by the agency for the Victorian government relating to options for utilising the private sector in a proposed redevelopment and funding model for the Austin public hospital.
At the time of the applicant’s request, the private sector tender process was anticipated to begin later that year. The potential tenderers were to be given a project brief that did not contain financial information of the kind in the requested documents.
The agency refused access to the documents relying on the exemptions in sections 34(1)(a), 34(4)(a) and 36(1)(a).
The agency undertook to provide the applicant with the requested documents once the tender process had been completed.
Agency’s reason for applying section 36(1)(a)
The agency argued that payment to the successful tenderer for the supply of medical and health services relating to the new Austin Hospital would be $8-10 billion over a period of 15-20 years. As this was a large payment, it would have a substantial effect on the Victorian economy.
The agency did not produce evidence of the Victorian budget or what the economic loss would be if the documents were released.
Decision on section 36(1)(a)
To establish section 36(1)(a), it is necessary for the agency to show evidence of the economy of Victoria and how the disclosure of the documents would have a substantial adverse effect on it. For example, producing evidence of the gross state product or the expenditures and receipts of the economy of Victoria, and evidence of the percentage potential adverse impact that release of the documents would have on the Victorian economy.
The agency produced some evidence to suggest that the potential bidders may be able to couch their bids in a certain form if they were aware of the monetary amount at which the State would be better off to privatise rather than keep the health service in the public sector.
However, this evidence was insufficient to show a substantial adverse effect on the economy of Victoria.
Pallas v Roads Corporation [2013] VCAT 1967
Background
The applicant requested access to documents provided by the agency to the Minister for Roads in 2010, relating to a study of options to address traffic congestion on a major arterial road in Melbourne. The applicant initiated the study in 2008, when he was the Minister for Roads.
The agency refused access to some documents which were in draft form and had not been endorsed by the agency or the Government. The agency relied on several exemptions, including section 36(1)(a).
Issue
The agency argued that release of the draft documents would provide information of a character described in section 36(1)(a): ‘the sale or acquisition of land or property by the Crown, urban rezoning and the formulation of land use and planning controls’.
The agency argued that the character of the information alone was enough to establish that disclosure would be reasonably likely to have a substantial adverse effect on the economy and that it was not necessary to provide further evidence of the economic impact of release.
Decision
The documents were not exempt under section 36(1)(a).
The mere nature of the information in the document is not enough, on its own, to establish the exemption. To establish the exemption, it is necessary for the agency to produce evidence that:
- characterises the material that would be disclosed; and
- establishes a necessary substantial, adverse effect on the economy by its premature disclosure.
The agency did not produce any evidence of how the information in the document would be reasonably likely to have a substantial adverse effect on the economy of Victoria.
Case example where the exemption applied
Clark v Department of Treasury and Finance [2002] VCAT 1040
Background
The applicant requested access to two documents that recorded advice of agency officers regarding Victoria’s preferred position in certain inter-governmental negotiations concerning the goods and services tax (GST).
Decision
The documents were exempt under section 36(1)(a).
Disclosure of the documents would be premature whilst the Inter-Governmental Agreement (IGA) that was entered into when the GST was introduced remained operative.
Disclosure of the documents would be reasonably likely to have a substantial adverse effect on the economy of Victoria.
Reasons
The IGA dealt with key and substantial economic matters and the negotiations involved very large amounts of money.
Disclosure of advice concerning Victoria’s preferred position concerning the GST would reveal this information to the other party to the negotiations (the Commonwealth) and to other States competing for part of the GST. This would put Victoria at a disadvantage in those negotiations.
Section 36(1)(b) is similar to section 36(2)(b). Section 36(1)(b) applies to documents of departments and prescribed authorities. Section 36(2)(b) applies to documents of councils.19
A document is exempt under section 36(1)(b) or 36(2)(b) if disclosure would be contrary to the public interest because the document would disclose;
- instructions issued to, or provided for;
- the use or guidance of officers of an agency or council;
- on the procedures to be followed or the criteria to be applied in negotiation, including:
- financial, commercial and labour negotiation;
- in the execution of contracts;
- in the defence, prosecution and settlement of cases; and
- in similar activities;
- relating to the financial, property or personnel management and assessment interests of the Crown or of an agency or of a council.
The exemption is limited to documents disclosing procedures or criteria to be applied in negotiation, not to any documents relating to financial, property or personnel management in general.
The ‘contrary to the public interest’ element here focuses on the nature of the information in the requested document. This means that if the information is of the nature as that described in section 36(1)(b) or section 36(2)(b), its disclosure is contrary to the public interest.
The exemption may apply to a document containing instructions about a particular negotiation, as well as a document containing instructions on general practices and procedures relating to negotiation.20 However, this should be considered on a case-by-case basis. See the case examples below for more information about when this may apply.
Examples
Exemption established
The requested documents formed part of internal communications about the agency’s negotiating position for the purposes of its enterprise bargaining process with the applicant.
Senior Member Proctor held that the exemption in section 36(1)(b) may apply to a document containing instructions about a particular negotiation, as well as a document containing instructions on general practices and procedures relating to negotiation.
They found section 36(1)(b) applied to the documents because their disclosure would be contrary to the public interest because it would disclose instructions issued to, or provided for, the use or guidance of agency officers concerning the criteria to be applied in labour negotiation relating to the financial and/or personnel management interests of the agency. Disclosure of the documents could undermine the agency’s industrial negotiations with the applicant.
Exemption not established
‘BV4’ and Glen Eira City Council [2020] VICmr 20522
The requested documents were in relation to a workplace investigation into discrete issues relating to particular circumstances.
Section 36(2)(b) did not apply to the documents. The information in the documents did not fall within the scope of the exemption and the information was not of a nature contemplated by the exemption. The Public Access Deputy Commissioner noted:
I am not satisfied the relevant information falls within the scope of this exemption, nor is it information of the nature contemplated by this exemption. The document can be distinguished from those reviewed by VCAT in the United Firefighters Union decision, as they do not involve labour negotiations intended to apply to a class of persons. Nor am I satisfied disclosure of the document would be likely to weaken the bargaining position of the Agency in future labour and personnel management negotiations. Accordingly, I am not satisfied the document is exempt under section 36(2).
The documents did not involve labour negotiations intended to apply to a class of persons. Disclosure of the documents would not be likely to weaken the bargaining position of the agency in future labour and personnel management negotiations.
- Victoria, Parliamentary Debates, Legislative Assembly, 14 October 1982, 1064 (John Cain, Premier of Victoria).
- Ryan v Department of Infrastructure [2004] VCAT 2346 [32].
- Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 [21] referring to Ryder v Booth (1989) VR 869, 877; Smith v Department of Sustainability and Environment [2006] VCAT 1228 [15]. While these decisions do not deal with section 36, they refer to the principle set out in Ryder v Booth that because the FOI Act is remedial legislation, where ambiguity is encountered the rights given by the Act should be construed liberally and the exceptions narrowly.
- Victoria, Parliamentary Debates, Legislative Assembly, 14 October 1982, 1064 (John Cain, Premier of Victoria).
- Ryan v Department of Infrastructure [2004] VCAT 2346 [32].
- Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 [21] referring to Ryder v Booth (1989) VR 869, 877; Smith v Department of Sustainability and Environment [2006] VCAT 1228 [15]. While these decisions do not deal with section 36, they refer to the principle set out in Ryder v Booth that because the FOI Act is remedial legislation, where ambiguity is encountered the rights given by the Act should be construed liberally and the exceptions narrowly.
- Victorian Public Service Board v Wright [1986] HCA 16 [3].
- Victorian Public Service Board v Wright [1986] HCA 16 [3].
- Freedom of Information Act 1982 (Vic), section 36(1)(a).
- Freedom of Information Act 1982 (Vic), section 36(1)(a).
- Freedom of Information Act 1982 (Vic), section 36(2)(a).
- Freedom of Information Act 1982 (Vic), section 36(2)(a).
- Pallas v Roads Corporation [2013] VCAT 1967 [26]-[28], [54].
- Pallas v Roads Corporation [2013] VCAT 1967 [26]-[28], [54]; Thwaites v Austin & Repatriation Medical Centre (formerly North Eastern Health Care Network) (unreported, VCAT, Davis M, 28 April 1999), [27]-[28].
- Pallas v Roads Corporation [2013] VCAT 1967 [26]-[28], [54].
- Pallas v Roads Corporation [2013] VCAT 1967 [26]-[28], [54]; Thwaites v Austin & Repatriation Medical Centre (formerly North Eastern Health Care Network) (unreported, VCAT, Davis M, 28 April 1999), [27]-[28].
- United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 [145] citing City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170.
- United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 [151]-[158].
- United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 [145] citing City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170.
- United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 [151]-[158].
- See also ‘EH6’ and Labour Hire Authority [2022] VICmr 97 and ‘CX2’ and Department of Premier and Cabinet [2021] VICmr 102 for other examples where the evidence did not establish that the document contained information of the same nature as described in the exemption.
- See also ‘EH6’ and Labour Hire Authority [2022] VICmr 97 and ‘CX2’ and Department of Premier and Cabinet [2021] VICmr 102 for other examples where the evidence did not establish that the document contained information of the same nature as described in the exemption.
