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Information Access Series: Secrecy and Confidentiality in a Time of Openness

To kick off the Information Access Series for 2019, on 14 February the Office of the Victorian Information Commissioner’s (OVIC) legal team delivered an interesting seminar to a sold out room on section 38 of the Freedom of Information Act 1982 (Vic) (FOI Act) and secrecy provisions.

Section 38 of the FOI Act has an important role in ensuring the FOI Act works consistently with secrecy provisions in other pieces of legislation – however applying it is not always straightforward. As many may agree, it is helpful if the Victorian Civil and Administrative Tribunal (VCAT) has already considered whether a certain section from a different piece of legislation is a secrecy provision – but what do you do if that’s not the case?

Our Acting General Counsel, Bryan, and Lawyer, Tessa, took us through how to apply section 38 of the FOI Act, going through the relevant limbs that an FOI officer must consider, and be satisfied of, before claiming the information is exempt under section 38. They offered practical insights into applying the section and noted some things to look out for when making your assessment (for example – be wary if the information is from the Commonwealth).

They highlighted that often the most difficult part of establishing whether a certain section of a different Act is a secrecy provision is satisfying the second limb of section 38 – that it specifically applies to information of a kind contained in the document. To help clarify and explain how to approach this, Bryan and Tessa took us through some helpful VCAT decisions to show how VCAT has interpreted different secrecy provisions in the context of section 38.

OVIC’s legal team has also developed a list of provisions which VCAT has determined are or are not secrecy provisions captured by section 38 of the FOI Act, which you can access here.

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 – please note that due to a technical difficulty, the session is recorded in two parts. 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 OVIC at

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