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Section 30 - Internal working documents

Guidelines

Overview

1.1

Section 30(1) exempts documents that contain opinion, advice or recommendation, or consultation or deliberation, where disclosure would be contrary to the public interest. A document is not exempt simply because it is an internal working document.4

1.2

Section 30 must be read consistently with the objects 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 30(1) applies to a document, the exemption should be interpreted narrowly, in a way that favours access to information.6

Discretion to disclose exempt documents

1.3

The decision to exempt a document under section 30(1) is a discretionary power.8 In accordance with the object of the Act, any discretions should be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

1.4

An agency or Minister can choose to provide access to information that would otherwise be exempt under section 30(1), 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.

The exemption

1.5

To be exempt under section 30(1), three conditions must be satisfied:

  • the document or information is matter in the nature of:
    • opinion, advice or recommendation prepared by an agency officer or a Minister; or
    • consultation or deliberation that has taken place between agency officers or Ministers; and
  • the matter was created during the deliberative process of an agency, Minister, or the government’s functions; and
  • disclosure of the matter would be contrary to the public interest.

Steps to applying the exemption

1.6

An agency or Minister seeking to apply section 30(1) should:

  • Identify the information and confirm from its content and context that the information is:
    • opinion, advice, or recommendation prepared by an agency officer or Minister; or
    • consultation or deliberation that has taken place between agency officers, between Ministers, or between an officer and a Minister;

(collectively referred to as ‘deliberative information’ for the purpose of the Guidelines).

  • Identify whether an exception applies:
    • guidance or policy used for making decisions that must be available for inspection or purchase under section 8(1);14
    • purely factual information; 15
    • a final decision, order or ruling from an adjudicative function and reasons for that decision, order or ruling;16 or
    • a document more than 10 years old.17
  • Identify the legislative or operational functions of the agency or Minister that the deliberative information relates to and confirm that it was created in relation to those functions.
  • Determine if it would be contrary to the public interest to disclose the information taking into account relevant factors. Where disclosure is contrary to the public interest, the decision must clearly explain why disclosure is contrary to the public interest.18
  • If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document anyways.

When section 30(1) does not apply

1.7

There are four circumstances where section 30(1) does not apply:

  • documents required to be made available for inspection and purchase under section 8;23
  • purely factual information;24
  • certain documents relating to adjudicative functions;25 and
  • documents more than 10 years old.26

1.8

Other legislation may also limit the application of the exemption to certain documents. An agency or Minister should look at their enabling or other legislation to identify whether it contains this kind of limit.

Documents required to be made available for inspection and purchase – section 30(2)

1.9

Section 8 requires an agency to make certain documents available for inspection and purchase. This includes documents such as manuals, policy and guidance material used by the agency in its operations.

1.10

If a document is required to be made available for inspection and purchase under section 8, then the agency or Minister cannot refuse access to the document under section 30.28

Purely factual information – section 30(3)

1.11

Section 30(1) does not apply to purely factual information.36

1.12

Factual information is information without any opinion or inference – it is information that is objectively the same for any individual.

1.13

Common examples of factual information include:

  • statistics, data, times, or dates;
  • backgrounds,37 summaries or chronologies of events. For example, recounting of facts as seen by individuals during an investigation,38 development of a policy, or file notes informing or recounting past events such as a conversation with a manager.39 Information of this nature does not cease to be factual simply because there might be some future debate about its accuracy;40 and
  • actual financial expenditure, as opposed to financial advice based on estimates and assumptions.41

1.14

When deliberative information is intertwined with factual information and cannot be separated, that intertwined information is exempt.42

1.15

However, an agency or Minister must critically examine the information to ensure that the intertwined information is truly inseparable. In many instances it will be practicable to sever the deliberative information from the factual information by redacting a document.

Adjudicative functions – section 30(4)

1.16

Section 30(1) does not apply to a record of a final decision, order, or ruling when exercising an adjudicative function.44 It also does not apply to any reasons which explain the decision, order, or ruling.

1.17

An ‘adjudicative function’ generally refers to a judge acting within a court or tribunal, or where a person decides disputes between parties. For example, court or tribunal decisions, and arbitration decisions.

Documents that are more than 10 years old – section 30(6)

1.18

Section 30(1) does not apply to a document when 10 years has passed since the last day of the year when the document was created.46

1.19

Section 30(6) does not apply to documents created before 5 July 1983 (being the day after commencement of section 30).

Officer of an agency

1.20

Section 30(1) applies to opinion, advice, or recommendation prepared by an officer and consultation or deliberation between officers. As such, an agency must establish that the individuals involved are ‘officers’ for the purposes of the Act.

1.21

The term ‘officer’ is defined in section 5(1). It includes independent contractors, consultants and legal advisers engaged by an agency to carry out work or provide services.48

Opinion, advice, or recommendation

1.22

The words ‘opinion’, ‘advice’ and ‘recommendation’ should be given their plain English meaning.

1.23

Their dictionary definitions are:54

  • Opinion: a personal view, an estimation, judgement, or belief.
  • Advice: an opinion recommended, or offered, as worthy to be followed, or a formal or professional opinion given.
  • Recommendation: a representation in favour of a person or thing, or anything that serves to recommend or induce acceptance or favour.
1.24

‘Advice’ must be something better than mere ‘informing’ or ‘recounting’ events that have occurred.55

1.25

To be exempt, the opinion, advice or recommendation must come from an agency officer or Minister, not another source such as a complainant, witness or third party.56

1.26

The agency officer or Minister expressing the opinion, advice or recommendation does not need to be from the same agency or Minister that is processing the request.57

1.27

It is not necessary for the document to be opinion, advice or recommendation. The issue is whether release of the document would disclose matter of that nature.58

1.28

Often, documents with deliberative information are rarely exempt in full because they usually include factual information like a background or description of events leading up to a decision or statistical information to support a course of action.

1.29

Factual records such as meeting minutes and agenda, terms of reference or instructions from one agency officer to another officer generally are not opinion, advice or recommendation.

Consultation or deliberation

1.30

‘Consultation’ and ‘deliberation’ should be given their plain English meaning.

1.31

Their dictionary definitions are:61

  • Consultation: the action or process of formally consulting or discussing.
  • Deliberation: careful consideration before decision.
1.32

To be exempt, the consultation or deliberation must be between agency officers or Ministers. Consultation or deliberation between an officer or Minister and an external third party (that is not engaged by the agency) is not exempt under section 30(1).

1.33

‘Deliberations between officers’ includes deliberations between officers of different agencies and does not have to involve officers from the agency processing the request.62

Deliberative process

1.34

Where a document contains deliberative information, an agency or Minister must also determine whether the deliberative information was created in a ‘deliberative process’ related to the functions of an agency, Minister, or the government.

1.35

‘Deliberative process’ is widely interpreted to include most processes undertaken by an agency or Minister in relation to their functions.64 When considering if deliberative information was generated as part of an agency or Minister’s deliberative process, an agency or Minister should be able to identify:

  • what the agency or Minister’s functions are (for example, as set out in legislation); and
  • that the information relates to those functions and contributes to how those functions are exercised.
1.36

A document created after the completion of a deliberative process, but which records that process, can fall within section 30(1).73

1.37

The deliberative process does not have to relate to the functions of the agency processing the request.74 The deliberative process may relate to functions of another agency, or Minister or of the government.

Disclosure would be contrary to the public interest

1.38

For section 30(1) to apply, the agency or Minister must establish that disclosure of deliberative information would be contrary to the public interest.

1.39

‘Would’ requires certainty that an event will occur, rather than a mere possibility or likelihood.81 The need for a high degree of confidence reflects the object of the Act in section 3 to provide public access as far as possible.82

1.40

There are many factors that may be relevant to determining whether it would be contrary to the public interest to disclose a document or information.83 The trend towards modern, transparent and accountable government, has resulted in courts and tribunals limiting these factors.

1.41

An agency or Minister’s decision must be made consistently with the object of the Act, which is to release information as far as possible, and to only use exemptions to protect essential public interests. The balancing of public interest factors for and against disclosure 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.84

1.42

An agency or Minister must, in its decision under section 27, state the public interest factors on which the decision is based.85 This requires the agency or Minister to carefully consider the relevant public interest factors on a case-by-case basis.86 The decision should explain how the factors apply to the specific documents or information in the context of the requested document and the potential consequences of its disclosure. The decision should refer to the facts, evidence and reasons for the agency or Minister’s decision.

Factors relevant to the public interest

1.43

Public interest factors are not a fixed, determinative set of criteria.95 Rather, they are a list matters that may be relevant. Each request balances these factors based on the unique circumstances of the matter.

1.44

Public interest factors that are given weight in the context of a modern, transparent and accountable government include:

  • the right of every person to gain access to documents under the Act;
  • the sensitivity of the issues involved and the broader context of how the documents were created;
  • the stage of a decision or policy development at the time the communications were made;
  • whether disclosure of the documents would be likely to inhibit communications between agency officers that are essential for the agency to make an informed and well-considered decision or for those officers to properly participate in a process of the agency’s functions (such as an audit or investigation, regulatory or law enforcement function);96
  • whether disclosure of the documents would give merely a part explanation, rather than a complete explanation, for the taking of a particular decision or the outcome of a process, but only where the agency would not otherwise be able to explain upon disclosure of the documents;97
  • the impact of disclosing documents in draft form, including disclosure not clearly or accurately representing a final decision by an agency or Minister;
  • the likelihood that disclosure would inhibit the independence of officers, including their ability to conduct proper research and make detailed submissions;
  • the public interest in the community being better informed about an agency’s deliberative, consultative and decision-making processes;98
  • the public interest in government transparency and accountability by enabling scrutiny or criticism of decisions and the decision-making process99 and building the community’s trust in government and its decision making processes;100
  • whether there is controversy or impropriety around the decision or the decision-making process.

1.45

In the context of clinical assessment reports for an offender in relation to a prevention of violence program, there is a public interest in whether disclosure may interfere with the integrity of the assessment process, in that release of the reports may give prisoners additional insights into clinicians’ methods which they could employ to subvert the effectiveness of assessments.101

1.46

In the context of public schools, there is a strong public interest in protecting the integrity of staff management processes, including enquiries into staff medical fitness and conduct that depend on information provided confidentially not being subsequently disclosed.102

Case studies – document contains an incomplete explanation for an agency decision or action

1.47

Modern government assumes that members of the public are able to understand that documents are produced at particular points in time and that a document, in isolation, may not represent the complete or final position or decision of an agency or Minister.105

1.48

If there are concerns about potential confusion in releasing a document, an agency or Minister should consider providing additional information to the applicant when releasing the document. The additional information could provide the necessary context or clarity to understand the information contained in the document and if relevant, how the information in the document was later used during a decision-making process.106

Factors that should not be given too much weight in the context of modern government

1.49

A modern, transparent and accountable government will not give significant weight to the following factors.

Draft documents

1.50

The draft nature of a document and whether a final version is available are both relevant considerations. However, a document will not be exempt under section 30(1) only because it is in draft form, regardless of whether a final document exists.

1.51

A draft document that simply shows an agency or Minister has changed its position does not mean it is exempt. The disclosure of drafts can show an agency or Minister diligently carried out its functions. Draft documents are only exempt where an agency or Minister can demonstrate that disclosure would be contrary to the public interest.

1.52

Each document must be considered in light of the object of the Act and the public interest factors to determine whether disclosure would be contrary to the public interest in the circumstances.

1.53

An agency or Minister should engage with an applicant at an early stage to confirm whether they seek access to draft documents. Asking the applicant this question can assist to narrow the scope of a request. This potentially limits the number of documents needed to be processed, saving the agency or Minister’s time and resources, and promoting timely access to information.

Inhibiting frankness and candour

1.54

The public interest factor that disclosure would ‘inhibit frankness and candour’ can only be relied upon in very limited situations and must be supported by detailed evidence and reasoning as to why disclosure would be contrary to the public interest.116 It takes more than a mere assertion that an agency officer would be inhibited from providing frank and candid advice to exempt a document under section 30(1).

1.55

Agencies and Ministers should keep in mind:

  • Government trust is built on transparency and government leaders must champion a culture of accountability and transparency.117
  • It is the duty of public servants to give frank and fearless advice. Greater transparency over this advice, whether under the Act or otherwise, does not change this duty. It should not deter officers from providing robust and full advice in future.118
  • Public transparency and scrutiny may improve the quality of advice provided to decision-makers.119
  • There must be evidence to show that officers have actually been inhibited because of the release of the information, and that ‘frankness has been a casualty of the legislation’.120

1.56

Consistent with these statements, the object of the Act (to make the maximum amount of information available), and the breadth of the public interest test in section 30(1), an agency or Minister should be cautious about using the frankness and candour argument.

1.57

An agency should also keep in mind the professional obligations to provide robust and frank advice under the Code of Conduct for Public Sector Employees (Responsiveness, Integrity, Impartiality, Accountability and Leadership). The Code of Conduct requires agency officers to maintain accurate and reliable records, and to make these records available when required. These obligations help to ensure that officers ‘implement government policy in an open and transparent manner’.121

1.58

Agency officers are responsible for ensuring advice provided to agencies, Ministers and the government is accurate, properly considered and impartial regardless of whether such information is intended to be publicly released.122

Sensitivity of information

1.59

The sensitivity of information is generally diminished where that information is:

  • relatively dated, innocuous, or not of particular significance;125
  • already publicly known;
  • only likely to result in mere embarrassment to an officer, agency or Minister; or
  • reflects a decision that has already been made or publicly announced.
1.60

In contrast:

  • The disclosure of information about a current significant issue or project still to be decided may undermine the decision-making process.
  • Where the content of a document would disclose information more closely connected to the circumstances of a third party than the applicant, the degree of sensitivity associated with the information is higher.126
1.61

When determining the sensitivity of information, an agency or Minister should carefully consider whether the information is, in fact, sensitive with reference to the status of the information and the surrounding circumstances.

Factors that should not be taken into account

1.62

The fact there may be ‘no point’ in releasing a document or that nothing would be achieved by releasing it, does not mean that it is not in the public interest to release the document.131

1.63

An agency or Minister must not prescribe a class of documents as being contrary to the public interest to disclose.132 All circumstances must be examined and weighed on a case by case basis, with reference to the specific documents or information claimed to be exempt.

1.64

Concerns about the reputation of an agency are not relevant.134

  1. Graze v Commissioner of State Revenue [2013] VCAT 869, 25.
  2. Ryan v Department of Infrastructure [2004] VCAT 2346, [32].
  3. 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 30, 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. 
  4. Graze v Commissioner of State Revenue [2013] VCAT 869, 25.
  5. Ryan v Department of Infrastructure [2004] VCAT 2346, [32].
  6. 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 30, 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. 
  7. Smith v Victoria Police [2005] VCAT 654, [60].
  8. Smith v Victoria Police [2005] VCAT 654, [60].
  9. Freedom of Information Act 1982 (Vic), section 30(2).
  10. Freedom of Information Act 1982 (Vic), section 30(3).
  11. Freedom of Information Act 1982 (Vic), section 30(4).
  12. Freedom of Information Act 1982 (Vic), section 30(6).
  13. Freedom of Information Act 1982 (Vic), section 30(5).
  14. Freedom of Information Act 1982 (Vic), section 30(2).
  15. Freedom of Information Act 1982 (Vic), section 30(3).
  16. Freedom of Information Act 1982 (Vic), section 30(4).
  17. Freedom of Information Act 1982 (Vic), section 30(6).
  18. Freedom of Information Act 1982 (Vic), section 30(5).
  19. Freedom of Information Act 1982 (Vic), section 30(2).
  20. Freedom of Information Act 1982 (Vic), section 30(3).
  21. Freedom of Information Act 1982 (Vic), section 30(4).
  22. Freedom of Information Act 1982 (Vic), section 30(6).
  23. Freedom of Information Act 1982 (Vic), section 30(2).
  24. Freedom of Information Act 1982 (Vic), section 30(3).
  25. Freedom of Information Act 1982 (Vic), section 30(4).
  26. Freedom of Information Act 1982 (Vic), section 30(6).
  27. Freedom of Information Act 1982 (Vic), section 30(2).
  28. Freedom of Information Act 1982 (Vic), section 30(2).
  29. Freedom of Information Act 1982 (Vic), section 30(3).
  30. See example, NKY v Department of Education and Training [2022] VCAT 302, [83]-[87].
  31. See example, Baker v Department of Education and Training [2005] VCAT 2263, 11.
  32. See example, Conyers v Monash University [2005] VCAT 2509, [32], [35].
  33. Porter v Victoria Police [2005] VCAT 962, [23].
  34. Doyle v Department of Human Services [2002] VCAT 1768, [20].
  35. Mees v University of Melbourne [2009] VCAT 782, [29]-[30].
  36. Freedom of Information Act 1982 (Vic), section 30(3).
  37. See example, NKY v Department of Education and Training [2022] VCAT 302, [83]-[87].
  38. See example, Baker v Department of Education and Training [2005] VCAT 2263, 11.
  39. See example, Conyers v Monash University [2005] VCAT 2509, [32], [35].
  40. Porter v Victoria Police [2005] VCAT 962, [23].
  41. Doyle v Department of Human Services [2002] VCAT 1768, [20].
  42. Mees v University of Melbourne [2009] VCAT 782, [29]-[30].
  43. Freedom of Information Act 1982 (Vic), section 30(4).
  44. Freedom of Information Act 1982 (Vic), section 30(4).
  45. Freedom of Information Act 1982 (Vic), section 30(6).
  46. Freedom of Information Act 1982 (Vic), section 30(6).
  47. See example, Mees v University of Melbourne (General) [2009] VCAT 782, [31].
  48. See example, Mees v University of Melbourne (General) [2009] VCAT 782, [31].
  49. See the Macquarie Dictionary.
  50. Porter v Victoria Police [2005] VCAT 962, [23]; Baker v Department of Education and Training [2005] VCAT 2263, [11].
  51. Shaw v Department of Justice and Regulation [2018] VCAT 2038, [33] citing Deasey v Geshke (unreported, County Court, 1 November 1984) per Judge Hasset at 38.
  52. Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 207.
  53. Mildenhall v Department of Education (1998) 14 VAR 87.
  54. See the Macquarie Dictionary.
  55. Porter v Victoria Police [2005] VCAT 962, [23]; Baker v Department of Education and Training [2005] VCAT 2263, [11].
  56. Shaw v Department of Justice and Regulation [2018] VCAT 2038, [33] citing Deasey v Geshke (unreported, County Court, 1 November 1984) per Judge Hasset at 38.
  57. Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 207.
  58. Mildenhall v Department of Education (1998) 14 VAR 87.
  59. See the Macquarie Dictionary.
  60. Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 207.
  61. See the Macquarie Dictionary.
  62. Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 207.
  63. Re Waterford and Department of Treasury (No.2) (1981) 1 AAR 1 referred to in Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 208.
  64. Re Waterford and Department of Treasury (No.2) (1981) 1 AAR 1 referred to in Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 208.
  65. See examples Marke v Victoria Police [2006] VCAT 1364, [63]; Rosen v Department of Human Services [2006] VCAT 691, [62]-[63].
  66. See Nichols v Department of Education and Training [2021] VCAT 1244 and Stark v Department of Education and Training [2015] VCAT 625.
  67. Kotsiras v Department of Premier & Cabinet [2003] VCAT 472, [20].
  68. See examples Marke v Victoria Police [2006] VCAT 1364, [63]; Rosen v Department of Human Services [2006] VCAT 691, [62]-[63].
  69. See Nichols v Department of Education and Training [2021] VCAT 1244 and Stark v Department of Education and Training [2015] VCAT 625.
  70. Kotsiras v Department of Premier & Cabinet [2003] VCAT 472, [20].
  71. Scott v Office of the Assistant Treasurer [2013] VCAT 2015, [24], [26].
  72. United Firefighters Union of Australia – Victoria Branch v Country Fire Authority [2018] VCAT 630, [98]-[99]; Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 207.
  73. Scott v Office of the Assistant Treasurer [2013] VCAT 2015, [24], [26].
  74. United Firefighters Union of Australia – Victoria Branch v Country Fire Authority [2018] VCAT 630, [98]-[99]; Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 207.
  75. See ‘DY2’ and Department of Health [2022] VICmr 11, [18] in the context of the word “would” in the same phrase used in the section 29 exemption. See also Victoria Police v Marke [2008] VSCA 218, [97] in the context of the word “would” in the section 33 exemption.
  76. Victoria Police v Marke [2008] VSCA 218, [96]-[98].
  77. For example, see Coulson v Department of Premier and Cabinet [2018] VCAT 229, [25]; Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483, 488; Secretary to Department of Justice v Osland (2007) 26 VAR 425, [77].
  78. McKinnon v Department of Treasury [2006] HCA 45, [19].
  79. Freedom of Information Act 1982 (Vic), section 30(5).
  80. McIntosh v Department of Premier and Cabinet [2009] VCAT 1528, [22].
  81. See ‘DY2’ and Department of Health [2022] VICmr 11, [18] in the context of the word “would” in the same phrase used in the section 29 exemption. See also Victoria Police v Marke [2008] VSCA 218, [97] in the context of the word “would” in the section 33 exemption.
  82. Victoria Police v Marke [2008] VSCA 218, [96]-[98].
  83. For example, see Coulson v Department of Premier and Cabinet [2018] VCAT 229, [25]; Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483, 488; Secretary to Department of Justice v Osland (2007) 26 VAR 425, [77].
  84. McKinnon v Department of Treasury [2006] HCA 45, [19].
  85. Freedom of Information Act 1982 (Vic), section 30(5).
  86. McIntosh v Department of Premier and Cabinet [2009] VCAT 1528, [22].
  87. Landes v Vic Roads [2009] VCAT 2403, [46].
  88. See examples, ‘EL7’ and University of Melbourne (Freedom of Information) [2022] VICmr 134, Annexure 1; ‘EH8′ and Mornington Peninsula Shire (Freedom of Information) [2022] VICmr 99, [51]; Debono v Department of Justice [2008] VCAT 1791; ‘EM4′ and Northern Health (Freedom of Information) [2022] VICmr 140, [59-[60].
  89. See example where this ground was made out in Major Transport Infrastructure Authority v Davis [2022] VCAT 123, [79]-[89], and not made out in ‘ES4’ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 195.
  90. See example, ‘EW7’ and Victorian Building Authority [2022] VICmr 235; ‘EQ9’ and Department of Environment, Land, Water and Planning [2022] VICmr 181.
  91. See examples ‘EU9’ and Yarra City Council (Freedom of Information) [2022] VICmr 218 and ‘EU4’ and Game Management Authority [2022] VICmr 213.
  92. ‘ES4’ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 195, [45].
  93. Debono v Department of Justice [2008] VCAT 1791, [20]; ‘EJ2′ and Department of Justice and Community Safety (Freedom of Information) [2022] VICmr 111.
  94. Stark v Department of Education and Training [2015] VCAT 625, [39] relied on in Nichols v Department of Education and Training [2021] VCAT 1244, [39].
  95. Landes v Vic Roads [2009] VCAT 2403, [46].
  96. See examples, ‘EL7’ and University of Melbourne (Freedom of Information) [2022] VICmr 134, Annexure 1; ‘EH8′ and Mornington Peninsula Shire (Freedom of Information) [2022] VICmr 99, [51]; Debono v Department of Justice [2008] VCAT 1791; ‘EM4′ and Northern Health (Freedom of Information) [2022] VICmr 140, [59-[60].
  97. See example where this ground was made out in Major Transport Infrastructure Authority v Davis [2022] VCAT 123, [79]-[89], and not made out in ‘ES4’ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 195.
  98. See example, ‘EW7’ and Victorian Building Authority [2022] VICmr 235; ‘EQ9’ and Department of Environment, Land, Water and Planning [2022] VICmr 181.
  99. See examples ‘EU9’ and Yarra City Council (Freedom of Information) [2022] VICmr 218 and ‘EU4’ and Game Management Authority [2022] VICmr 213.
  100. ‘ES4’ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 195, [45].
  101. Debono v Department of Justice [2008] VCAT 1791, [20]; ‘EJ2′ and Department of Justice and Community Safety (Freedom of Information) [2022] VICmr 111.
  102. Stark v Department of Education and Training [2015] VCAT 625, [39] relied on in Nichols v Department of Education and Training [2021] VCAT 1244, [39].
  103. In New South Wales, the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account when deciding whether there is an overriding public interest against disclosure of government information: Government Information (Public Access) Act 2009 (NSW), section 15(d); in Queensland the fact that disclosure of the information could reasonably be expected to result in the applicant misinterpreting or misunderstanding the document is an irrelevant consideration when deciding if it would be contrary to the public interest to disclose a document: Right to Information Act 2009 (Qld), Schedule , Part 1.
  104. EV5’ and Department of Health (Freedom of Information) [2022] VICmr 223, [70].
  105. In New South Wales, the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account when deciding whether there is an overriding public interest against disclosure of government information: Government Information (Public Access) Act 2009 (NSW), section 15(d); in Queensland the fact that disclosure of the information could reasonably be expected to result in the applicant misinterpreting or misunderstanding the document is an irrelevant consideration when deciding if it would be contrary to the public interest to disclose a document: Right to Information Act 2009 (Qld), Schedule , Part 1.
  106. EV5’ and Department of Health (Freedom of Information) [2022] VICmr 223, [70].
  107. See also ‘EY6’ and Department of Health [2022] VICmr 252, [42]-[53] (decisions made by government agencies that directly affect members of the public or their business); ‘DN9’ and COVID-19 Quarantine Victoria [2021] VICmr 253, [23] (expert ventilation reports under the covid-19 hotel quarantine program); ‘BQ2’ and National Gallery of Victoria [2020] VICmr 154, [45] (emails recording discussions between agency officers on the use of function areas).
  108. See also ‘EY6’ and Department of Health [2022] VICmr 252, [42]-[53] (decisions made by government agencies that directly affect members of the public or their business); ‘DN9’ and COVID-19 Quarantine Victoria [2021] VICmr 253, [23] (expert ventilation reports under the covid-19 hotel quarantine program); ‘BQ2’ and National Gallery of Victoria [2020] VICmr 154, [45] (emails recording discussions between agency officers on the use of function areas).
  109. See example where this ground was upheld in Nichols v Department of Education and Training [2021] VCAT 1244, [37].
  110. Association of Information Access Commissioners of Australia and New Zealand, 2023 communique.
  111. Yarra City Council v Roads Corporation [2009] VCAT 2646, [38]. Association of Information Access Commissioners of Australia and New Zealand, 2023 communique.
  112. Graze v Commissioner of State Revenue [2013] VCAT 869, [26].
  113. Bracks v Department of State Development (unreported, AAT, 10 September 1996), 9.
  114. Code of Conduct for Victorian Public Sector Employees, section 8: “Demonstrating Accountability”.
  115. ‘ES4′ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 195.
  116. See example where this ground was upheld in Nichols v Department of Education and Training [2021] VCAT 1244, [37].
  117. Association of Information Access Commissioners of Australia and New Zealand, 2023 communique.
  118. Yarra City Council v Roads Corporation [2009] VCAT 2646, [38]. Association of Information Access Commissioners of Australia and New Zealand, 2023 communique.
  119. Graze v Commissioner of State Revenue [2013] VCAT 869, [26].
  120. Bracks v Department of State Development (unreported, AAT, 10 September 1996), 9.
  121. Code of Conduct for Victorian Public Sector Employees, section 8: “Demonstrating Accountability”.
  122. ‘ES4′ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 195.
  123. Thomas v Department of Natural Resources and Environment [2002] VCAT 533, [27].
  124. See ‘EH8′ and Mornington Peninsula Shire (Freedom of Information) [2022] VICmr 99, [51](b).
  125. Thomas v Department of Natural Resources and Environment [2002] VCAT 533, [27].
  126. See ‘EH8′ and Mornington Peninsula Shire (Freedom of Information) [2022] VICmr 99, [51](b).
  127. Dean v Department of Justice [2001] VCAT 2031, [28].
  128. Wells v Department of Premier and Cabinet [2001] VCAT 1800, [37].
  129. McIntosh v Department of Premier and Cabinet [2009] VCAT 1528, [22], [62], [70]; Wells v Department of Premier and Cabinet [2001] VCAT 1800.
  130. ‘ES4′ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 195, [45]. See also, in New South Wales and Queensland, the fact that disclosure of information could reasonably be expected to cause embarrassment to, or loss of confidence in, the Government is irrelevant when deciding whether it would be contrary to the public interest to disclose a document: Government Information (Public Access) Act 2009 (NSW), section 15(c); Right to Information Act 2009 (Qld), Schedule 4, Part 1.
  131. Dean v Department of Justice [2001] VCAT 2031, [28].
  132. Wells v Department of Premier and Cabinet [2001] VCAT 1800, [37].
  133. McIntosh v Department of Premier and Cabinet [2009] VCAT 1528, [22], [62], [70]; Wells v Department of Premier and Cabinet [2001] VCAT 1800.
  134. ‘ES4′ and Department of Jobs, Precincts and Regions (Freedom of Information) [2022] VICmr 195, [45]. See also, in New South Wales and Queensland, the fact that disclosure of information could reasonably be expected to cause embarrassment to, or loss of confidence in, the Government is irrelevant when deciding whether it would be contrary to the public interest to disclose a document: Government Information (Public Access) Act 2009 (NSW), section 15(c); Right to Information Act 2009 (Qld), Schedule 4, Part 1.

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Last updated 13 November 2024

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