Event recap: Information Access Series – sections 34(1) and 34(4) of the Freedom of Information Act 1982

On Monday 29 July 2019, OVIC explored sections 34(1) and 34(4) of the Freedom of Information Act 1982 (Vic) (FOI Act), as part of our Information Access seminars.

Sections 34(1) and 34(4)

Sections 34(1) and 34(4) of the FOI Act contain exemptions relating to trade secrets and business, commercial or financial information of an undertaking or an agency engaged in trade or commerce. The key difference between section 34(1) and section 34(4) being:

• section 34(1)’s objective is to protect certain information of an undertaking
• section 34(4)’s objective is to protect certain information of agencies

The seminar provided a helpful overview of the requirements of sections 34(1)(a), 34(1)(b) and 34(4)(a)(ii) and when to apply them. To help illustrate what the sections mean, the seminar went through several VCAT cases, including:

• Byrne v Swan Hill Rural City Council [2000] VCAT 666; and
• Pallas v Roads Corporation (Review and Regulation) [2013] VCAT 1967.

Key tips

Some key tips from the seminar include:

• The FOI Act contemplates a certain level of disadvantage when releasing business, commercial or financial information – to use the exemptions in section 34, the disadvantage to the undertaking or the agency engaged in trade or commerce must be unreasonable.
• For an FOI practitioner determining whether their agency is an agency engaged in trade or commerce, consider who the agency’s competitor would be (if any).
• The considerations in section 34(2) only apply when applying section 34(1) to an undertaking’s business, commercial or financial information. It does not apply if relying on section 34(4) in relation to an agency engaged in trade or commerce.
• Look at the facts when applying the exemptions.
• The Information Commissioner and Public Access Deputy Commissioner have taken the view in several FOI reviews that release of the relevant document would not prejudice an agency’s ability to carry out future tender processes, and in many cases the agency no longer has a contractual relationship with the relevant undertaking. The decisions are also finding the release of the information would not impact relevant competitive positions. OVIC review decisions are now published, so if you’re interested in reading some of these, make sure to check out OVIC’s website.

The seminar finished with some practical tips of how agencies can assist OVIC if they have an FOI review.

Make sure to check out the seminar and the presentation slides. They contain helpful summaries of sections 34(1) and 34(4), including some examples of when they might apply.

Thank you to everyone who attended the seminar. If you were not able to make it, or wish to watch it again, the recording of the session is available on OVIC’s Periscope channel. You can also view the slides from the session here.

If you have any feedback on the seminar, or wish to propose a topic, please contact us at training@ovic.vic.gov.au.