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Section 29 - Documents containing matter communicated by any other State

Guidelines

Purpose and scope of section 29

1.1

Under section 29(1), a document is exempt if disclosure:

  • would be contrary to the public interest; and
  • disclosure would either:
    • prejudice relations between the State of Victoria and the Commonwealth or between the State of Victoria and any other State or Territory;4 or
    • divulge any information or matter communicated in confidence by or on behalf of the government of another country, or the Commonwealth, or any other State or Territory to the government of the State of Victoria or a person receiving a communication on behalf of the State of Victoria.5
1.2

This exemption is hard to establish. Both subsections of the exemption require the agency or Minister to establish that disclosure of the document would be contrary to the public interest. If this first limb can be met, the agency or Minister must also establish that disclosure would prejudice relations with another government or divulge information communicated in confidence by another government.

1.3

If consultation with the other affected government or governments is reasonably practicable, an agency or Minister must consult before applying the exemption.6

Discretion to disclose exempt documents

1.4

The decision to exempt a document under section 29 is a discretionary power.8 An agency or Minister can choose to provide access to information that would otherwise be exempt, where it is proper to do so and where the agency or Minister is not legally prevented from providing access.

For more information on providing access to information outside of the Act, see section 16 – Access to documents apart from Act.

Disclosure would be contrary to the public interest

1.5

To be exempt, the agency or Minister must establish that the document’s disclosure would be contrary to the public interest.

1.6

‘Would’ requires certainty that an event will occur, rather than a mere possibility or likelihood.17

1.7

An agency or Minister’s decision must be made consistently with the object of the Act in section 3, which is to release information as far as possible, and to only use exemptions to protect essential public interests. The balancing of public interest considerations does not begin from empty scales or a blank page. Instead, the Act requires the balancing to occur from and within a default position that the document or information should be released.18 If it is unclear whether section 29 applies to a document, the exemption should be interpreted narrowly, in a way that favours access to information.19

1.8

An agency or Minister should, in its decision, explicitly state the relevant public interest considerations on which the decision is based. This requires the agency or Minister to carefully consider, on a case-by-case basis, the relevant public interest considerations for and against disclosure. The decision should explain how they apply to the specific documents or information in the context of the requested document and the potential consequences of its disclosure, referring to the facts, evidence and reasons for the agency or Minister’s decision.

For more information on writing a decision, see section 27 of the FOI Guidelines.

1.9

For a document to be exempt under section 29, there must be clear evidence supporting the public interest consideration relied on by the agency or Minister.20

1.10

Public interest considerations may be relevant to determining whether disclosure would be contrary to the public interest. They are not a fixed set of criteria.

1.11

The Victorian Civil and Administrative Tribunal (VCAT) has found that disclosure of a document would be contrary to the public interest under section 29 where:

  • it would impede the free and candid exchange of information between State, Territory or Commonwealth departments in relation to child protection21 and family violence matters.22
  • it would impede the frank and confidential communication of intelligence between law enforcement agencies in different jurisdictions in relation to law enforcement matters. 23

Case example

Public interest considerations – against disclosure

1.12

Public interest considerations that may indicate disclosure of a document would be contrary to the public interest, and therefore should not be released, include the importance of:27

  • protecting uninhibited exchanges between the governments of Australia on questions of policy and resource allocation;
  • encouraging cooperative federalism within Australia;
  • protecting processes that contribute to high quality policy development by the governments of Australia;
  • ensuring the public have access to accurate and reliable information that gives a true indication of the basis for government policy;
  • protecting against unnecessary confusion and debate by avoiding the premature release of documents that represent a stage in the decision-making process;28
  • ensuring that the Victorian government remains able to meet private undertakings’ legitimate expectations of confidentiality;
  • ensuring that private undertakings remain willing to share information with the State.

Public interest considerations – in favour of disclosure

1.13

Public interest considerations that may indicate disclosure would not be contrary to the public interest, and that the information should be released, include:30

  • an understanding that the applicant and members of the public may be capable of understanding that a document was produced at a particular point in time and may not represent the government’s final views; and
  • the public interest in the community being aware of the information in the documents:
    • so that they can make decisions about their own safety based on accurate information;
    • to create greater transparency about the reasons for decisions made by government that have a significant impact on the community; and
    • to assist members of the public to hold government to account for its decisions.
1.14

If a document only sets out part of the reasons for a course of action or decision, or is overtaken by events, and the agency is concerned release of the document would be misleading to the public, agencies should consider releasing the document, accompanied by an explanation that places the document in context and removes the risk of confusion.

Case examples

Would prejudice relations – 29(1)(a)

1.15

To be exempt under section 29(1)(a), the agency or Minister must establish that disclosure of the document would prejudice relations:

  • between the State of Victoria and the Commonwealth; or
  • between the State of Victoria and any other State or Territory.

Prejudice

1.16

‘Prejudice’ means ‘to the detriment of’, or to produce a ‘loss of faith, to turn bad, or the like’ to ‘sour inter-governmental relationships’.33

1.17

The word ‘prejudice’ also appears in the section 31 exemptions.

1.18

The agency or Minister must produce evidence of prejudice. For example, evidence to show that an agency or Minister would be reluctant to provide information of the same kind in future if the document were released and the specific harm this would cause to inter-governmental relations.34

Relations

1.19

Relations means ‘what one person or thing has to do with another’.36

1.20

In contrast, disclosure may prejudice relations between the Victorian government and the Commonwealth government and between the State of Victoria and other States where the disclosure:

  • would publicly reveal negotiations between the Victorian government and the Commonwealth government on a matter where there is competition between the States as to Commonwealth funding and resource allocation; and
  • the negotiations are at a premature stage where no final decision has been reached.41

Would divulge information communicated in confidence – 29(1)(b)

1.21

To be exempt under section 29(1)(b), the agency or Minister must establish that disclosure of the information would divulge information communicated in confidence by another government to the State of Victoria.

Communicated from

1.22

The confidential communication must come from (by or on behalf of):

  • the government of another country;
  • the Commonwealth government of Australia; or
  • a State or Territory government other than Victoria.

Communicated to

1.23

The recipient of the confidential communication must be the State of Victoria or a person receiving the communication on behalf of the State of Victoria.44

Communicated in confidence

1.24

‘Communicated in confidence’ is a phrase that is also used in the section 35 exemption.

1.25

The agency or Minister will need to produce evidence to prove the communication was made in confidence.

Consultation with third parties – section 29(2)

1.26

When considering whether to apply the exemption in section 29(1), an agency or Minister must:

  • notify relevant third parties that the agency or Minister has received a request for the document; and
  • obtain the third party’s views about whether the document or information should be disclosed.
1.27

Identifying the relevant third parties will depend on the context and nature of the requested document. Relevant third parties may be another Victorian government agency or Minister, or an agency or authority of another country, the Commonwealth or another State or Territory.

1.28

An agency or Minister is only required to notify and seek the views of a third party where it is reasonably practicable to do so.

For more information on whether consultation is reasonably practicable, see section 33 of the FOI Guidelines.

1.29

Consultation may occur in any manner or form. For example, by telephone, email, post, or a meeting.

1.30

Professional Standard 7.3 requires an agency to keep a record of the consultation undertaken. This includes who was consulted, whether they consented or objected, and any reasons provided.

1.31

When undertaking consultation, an agency or Minister should make the third party aware of the applicable exemption and what must be established for the exemption to apply. For the section 29 exemption, this means informing the third party that the agency or Minister must establish that:

  • disclosure would be contrary to the public interest; and
  • would prejudice relations between the State of Victoria and the Commonwealth or any other State or Territory; or
  • would divulge information communicated in confidence by another government to the State of Victoria.
1.32

Informing the third party of the elements of the exemption will help enable the third party to provide an informed response and ensure their reasons are relevant, if they object to the document being released.

1.33

There is no requirement to notify the third party of the agency or Minister’s decision on the request. However, an agency or Minister should consider whether to inform the third party of the outcome of the decision – whether it is to release or refuse access to the document.

1.34

The third party does not have any review rights if they object to disclosure or disagree with a decision to release information.

  1. Freedom of Information Act 1982 (Vic), section 29(1)(a).
  2. Freedom of Information Act 1982 (Vic), section 29(1)(b).
  3. Freedom of Information Act 1982 (Vic), section 29(2).
  4. Freedom of Information Act 1982 (Vic), section 29(1)(a).
  5. Freedom of Information Act 1982 (Vic), section 29(1)(b).
  6. Freedom of Information Act 1982 (Vic), section 29(2).
  7. Victorian Public Service Board v Wright [1986] HCA 16, [3].
  8. Victorian Public Service Board v Wright [1986] HCA 16, [3].
  9. DY2’ and Department of Health [2022] VICmr 11, [18]. See also, Victoria Police v Marke [2008] VSCA 218, [97] in the context of the word “would” in the section 33 exemption.
  10. McKinnon v Department of Treasury [2006] HCA 45, [19], in the context of the Freedom of Information Act 1982 (Cth).
  11. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [21] and Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [29], both referring to Ryder v Booth (1989) VR 869, 877. While these decisions do not deal with section 29, 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 exceptions narrowly. 
  12. Pescott v Department of Conservation and Environment (1991) 5 VAR 54.
  13. O’Sullivan and Department of Health and Community Services (No 2) (1995) 9 VAR 1.
  14. Akers v Victoria Police [2003] VCAT 398, [21].
  15. See Nilsen v Victoria Police (unreported, AAT of Vic, Megay DP, 15 January 1997).
  16. Nilsen v Victoria Police (unreported, AAT of Vic, Megay DP, 15 January 1997).
  17. DY2’ and Department of Health [2022] VICmr 11, [18]. See also, Victoria Police v Marke [2008] VSCA 218, [97] in the context of the word “would” in the section 33 exemption.
  18. McKinnon v Department of Treasury [2006] HCA 45, [19], in the context of the Freedom of Information Act 1982 (Cth).
  19. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [21] and Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [29], both referring to Ryder v Booth (1989) VR 869, 877. While these decisions do not deal with section 29, 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 exceptions narrowly. 
  20. Pescott v Department of Conservation and Environment (1991) 5 VAR 54.
  21. O’Sullivan and Department of Health and Community Services (No 2) (1995) 9 VAR 1.
  22. Akers v Victoria Police [2003] VCAT 398, [21].
  23. See Nilsen v Victoria Police (unreported, AAT of Vic, Megay DP, 15 January 1997).
  24. Nilsen v Victoria Police (unreported, AAT of Vic, Megay DP, 15 January 1997).
  25. These factors were submitted by the Respondent and accepted by VCAT in Millar v Department of Premier and Cabinet [2011] VCAT 1230 and considered by the Information Commissioner in ‘DY2’ and Department of Health [2022] VICmr 11.
  26. See example Clark v Department of Treasury and Finance [2002] VCAT 1040.
  27. These factors were submitted by the Respondent and accepted by VCAT in Millar v Department of Premier and Cabinet [2011] VCAT 1230 and considered by the Information Commissioner in ‘DY2’ and Department of Health [2022] VICmr 11.
  28. See example Clark v Department of Treasury and Finance [2002] VCAT 1040.
  29. See ‘DY2’ and Department of Health [2022] VICmr 11;  ‘DH3’ and Department of Health [2021] VICmr 193; ‘DU2’ and Department of Health [2021] VICmr 309
  30. See ‘DY2’ and Department of Health [2022] VICmr 11;  ‘DH3’ and Department of Health [2021] VICmr 193; ‘DU2’ and Department of Health [2021] VICmr 309
  31. Clark v Department of Treasury and Finance [2002] VCAT 1040, [23]-[27].
  32. Pescott v Department of Conservation and Environment (1991) 5 VAR 54.
  33. Clark v Department of Treasury and Finance [2002] VCAT 1040, [23]-[27].
  34. Pescott v Department of Conservation and Environment (1991) 5 VAR 54.
  35. Clark v Department of Treasury and Finance [2002] VCAT 1040, [24].
  36. Clark v Department of Treasury and Finance [2002] VCAT 1040, [24].
  37. Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719, [267]-[268].
  38. Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719, [267]-[268].
  39. See examples, Clark v Department of Treasury and Finance [2002] VCAT 1040; Evans v Ministry for the Arts (1986) 1 VAR 315, 323; Millar v Department of Premier and Cabinet [2011] VCAT 1230.
  40. Clark v Department of Treasury and Finance [2002] VCAT 1040, [26].
  41. See examples, Clark v Department of Treasury and Finance [2002] VCAT 1040; Evans v Ministry for the Arts (1986) 1 VAR 315, 323; Millar v Department of Premier and Cabinet [2011] VCAT 1230.
  42. Clark v Department of Treasury and Finance [2002] VCAT 1040, [26].
  43. Commentators have expressed the view that the words “or Territory” (where second occurring) in section 29(1)(b) is a legislative drafting error, because the recipient of the information is the State of Victoria: see Emrys Nekvapil SC, Westlaw AU, Victorian Administrative Law (online at 6 November 2023) [FOI.29.120].
  44. Commentators have expressed the view that the words “or Territory” (where second occurring) in section 29(1)(b) is a legislative drafting error, because the recipient of the information is the State of Victoria: see Emrys Nekvapil SC, Westlaw AU, Victorian Administrative Law (online at 6 November 2023) [FOI.29.120].
  45. Millar v Department of Premier and Cabinet [2011] VCAT 1230, [67].
  46. Millar v Department of Premier and Cabinet [2011] VCAT 1230, [67].

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Last updated 13 November 2024

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