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Section 31 - Law enforcement documents

Guidelines

Overview of section 31

1.1

Section 31 contains a number of exemptions, and exceptions to these exemptions.

1.2

The exemption in section 31(1) protects specific types of law enforcement documents (discussed further below). It does not exempt all law enforcement documents.6 However, there are instances where section 31(1) will not apply, where it is in the public interest to grant access to the document. These instances are outlined in section 31(2), which sets out the types of documents that are not exempt under section 31(1).

1.3

The exemptions in sections 31(3) and (4) apply to specific types of documents. If a document falls within these narrow exemptions, the exception in section 31(2) does not apply, and cannot be used to grant access to the document.

1.4

A document is exempt under section 31(3) if it is created by the:

  • Intelligence and Covert Support Command of Victoria Police (ICSC);7 or
  • Australian Criminal Intelligence Commission (ACIC).8
1.5

For section 31(3) to apply, it does not matter if the document is in the possession of another agency, so long as it was created by the ICSC of Victoria Police or the ACIC.9 In contrast, a document created elsewhere, that is in the possession of the ICSC of Victoria Police or the ACIC will not be exempt under section 31(3), as it was not created by these bodies, as is required by section 31(3).

1.6

A document is exempt under section 31(4) if it is contained in the Register of Sex Offenders established and maintained by the Chief Commissioner of Police under section 62 of the Sex Offenders Registration Act 2004 (Vic).10

1.7

Section 31 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.

Discretion to disclose exempt documents

1.8

The decision to exempt a document under section 31(1) is a discretionary power.12 An agency or Minister can choose to provide access to information that would otherwise be exempt under section 31(1), where it is proper to do so and where the agency or Minister is not legally prevented from providing access.

For more information, see section 16 – Access to documents apart from Act.

Documents required to be released in the public interest

1.9

There are six circumstances where the exemptions in section 31(1) do not apply.21 This is limited to where there is a public interest in granting access to the document. This means that:

  • one of the circumstances must be established;22 and
  • it must be in the public interest to release the document.
1.10

The six circumstances includes where the document:

  • reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law;23
  • reveals illegal methods or procedures were used to prevent, detect, investigate, or deal with matters arising out of breaches or evasions of the law;24
  • reveals processes an agency uses to investigate, enforce or administer the law;25
  • reports on the success of programs or processes an agency uses to investigate, enforce or administer the law;26
  • reports on routine law enforcement inspections or investigations by an agency that enforces or regulates compliance with a particular law other than the criminal law;27 or
  • reports on a law enforcement investigation, where the substance of the report has been disclosed to the person who, or the body which, was the subject of the investigation.28
1.11

Where one of these circumstances exists, an agency or Minister must then consider whether it is in the public interest that access to the document should be granted. That is, whether there is a public interest ground in favour of disclosure. This is different to the consideration of the public interest in the exemptions in sections 29, 30 and 35, which focus on whether it would be contrary to the public interest to disclose the document.

1.12

The approach to the public interest in section 31(2) is similar to the power of the Victorian Civil and Administrative Tribunal (VCAT) in section 50(4) to positively determine that the public interest requires disclosure of an otherwise exempt document.

Meaning of certain common terms and phrases

Would or would be reasonably likely to

1.13

The phrase ‘would or would be reasonably likely to’ is an element in all of the exemptions in section 31(1).

1.14

‘Would’ is a high threshold and means that a result or effect will almost certainly come about. That is, disclosure of the information would, in fact:

  • cause some identifiable prejudice;35 or
  • identify the confidential source;36 or
  • disclose the method or procedure;37 or
  • endanger the life or physical safety of a person.38

1.15

In contrast, ‘would be reasonably likely to’ is a slightly lower threshold that requires the chance to be real, but not fanciful or remote.39

1.16

When considering the likelihood of prejudice, it may be appropriate in some cases for an agency or Minister to consider the likelihood of the applicant sharing the disclosed information with others and the wider world.40

1.17

When considering the section 31(1)(c) exemption (identifying a confidential source), an agency or Minister should consider if the identity of the source of information is explicitly stated, or if the identity can be inferred from the information.

Prejudice

1.18

‘Prejudice’ is an element in the sections 31(1)(a), (b) and (d) exemptions. ‘Prejudice’ means to hinder, impair or undermine. This includes both actual prejudice as well as impending prejudice.42

1.19

An agency or Minister must articulate how disclosure of the information causes prejudice and identify the specific harm that would flow from the disclosure of the information.

Investigation, enforcement or proper administration of the law – section 31(1)(a)

1.20

Section 31(1)(a) exempts documents where disclosure would be reasonably likely to prejudice, in a particular instance:

  • the investigation of a breach or possible breach of the law; or
  • enforcement or proper administration of the law.

In a particular instance

1.21

Section 31(1)(a) requires an agency or Minister to identify some specific aspect of the law (the particular instance) to which the information relates, as opposed to a broader, non-specific or generalised area of the law.50

1.22

The words ‘in a particular instance’ qualify the words ‘investigation of a breach of the law’, ‘proper administration’ and ‘enforcement’. This narrows the scope of this exemption to a specific:

  • instance of a breach or possible breach of the law;51 or
  • aspect of investigations of breaches of the law or possible breaches of the law;52 or
  • instance or aspect of the law being enforced or administered.53

1.23

The specific instance might be identifiable through the laying of charges, or specific conduct, events, incidents, or individuals.54

1.24

To be a ‘particular instance’ the circumstances of the investigation or enforcement of the law may need to be current and relevant at the time of the decision.56

Investigation of a breach of the law

1.25

In relation to a law enforcement investigation, a document is exempt under section 31(1)(a) if three conditions are satisfied:

  • the information relates to an investigation of a breach or possible breach of the law in a particular instance; and
  • the information was prepared either during, or for the purposes of, that investigation;60 and
  • release of the information would or would be reasonably likely to prejudice that investigation.
1.26

The investigation must be an actual investigation about a breach of a specific law. The investigation will usually need to be active, not concluded, at the time of the request. However, an actual breach of the law does not need to be established. It is enough to suspect a breach, resulting in an investigation.

1.27

The information must relate to that specific investigation61 and must have been prepared during, or for the purposes of, the specific investigation identified.62

Steps to applying the exemption

1.28

An agency or Minister seeking to apply the section 31(1)(a) exemption should:

  1. Identify the specific legislation or regulation that may be breached.
  2. Establish there is a specific investigation about a breach or possible breach of that law.
  3. Identify and document how the information relates to that breach or possible breach of law.
  4. Ensure the information was prepared during, or for the purposes of, that investigation.
  5. Determine whether disclosure of the information would, or would be reasonably likely to, prejudice the investigation by establishing and documenting:
    1. what the prejudice is – how would disclosure harm the investigation specifically; and
    2. why the prejudice would, or is reasonably likely to, occur.
  6. In doing so, consult with any relevant officer or individual involved in conducting the investigation.
  7. Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.66
  8. Consider whether any exceptions set out in section 31(2) apply to the information, and if so, consult on the whether the document should be disclosed in the public interest.67
  9. Consider if it is necessary to neither confirm nor deny the existence of a requested document.68
  10. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

Enforcement or proper administration of the law

1.29

In relation to the enforcement or proper administration of the law, a document is exempt under section 31(1)(a) if two conditions are satisfied:

  • the information relates to the enforcement or proper administration of the law in a particular instance; and
  • release of the information would or would be reasonably likely to prejudice the enforcement or proper administration of that law.
1.30

An agency or Minister must identify a specific law and explain how the information relates to the enforcement or administration of the identified law.73 These terms are broad and have wide application.

1.31

There is a distinction between the ‘enforcement of the law’ and the ‘proper administration of the law’:

  • Enforcement of the law deals with the actual process of enforcing the law (for example, prosecuting cases or pursuing fines and court orders).74
  • The proper administration of the law deals with how the law is administered.75 It requires a connection with the criminal law or with the process of upholding or enforcing the civil law (for example, the collection of information to monitor compliance with the law).76

Steps to applying the exemption

1.32

An agency or Minister seeking to apply the section 31(1)(a) exemption in relation to the enforcement or proper administration of the law should:

  1. Identify the specific law (legislation or regulation) that is being enforced or administered.
  2. Identify and document how the information relates to enforcing or administering the identified law.
  3. Determine whether disclosure of the information would, or would be reasonably likely to, prejudice the enforcement or proper administration of the law by establishing and documenting:
    1. what the prejudice is – how would disclosure harm the enforcement or proper administration of the law; and
    2. why the prejudice would, or is reasonably likely to, occur.
  4. In doing so, consult with any relevant officer or individual responsible for enforcing or administering the identified law.
  5. Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.93
  6. Consider whether any exceptions set out in section 31(2) apply to the information, and if so, consult on the whether the document should be disclosed in the public interest.94
  7. Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
  8. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

Fair trial or legal proceeding – section 31(1)(b)

1.33

A document or information is exempt under section 31(1)(b) if two conditions are satisfied:

  • the information relates to the trial of a person or adjudication of a particular case; and
  • disclosure of the information would or would be reasonably likely to prejudice the fair trial of the person or adjudication of the particular case.
1.34

A ‘particular case’ means that there is an identifiable legal proceeding.

1.35

The information must relate to either the criminal trial of a person, or a specific identifiable legal proceeding.96

1.36

An agency or Minister should be able to identify the:

  • party or parties subject to the legal proceeding;
  • offence committed or cause of action (actual or anticipated);
  • relevance of the document to the legal proceeding; and
  • status of proceeding – whether it is current or anticipated.

Steps to applying the exemption

1.37

An agency or Minister seeking to apply the section 31(1)(b) exemption in relation to the trial of a person or adjudication of a particular case should:

  1. Establish the information relates to the trial of a person, or the impartial adjudication of a particular case that is either:
    1. a current legal proceeding; or
    2. an anticipated legal proceeding.
  2. Identify and document how the information relates to the identified trial or adjudication.
  3. Determine whether disclosure of the information would, or would be reasonably likely to, prejudice the fair trial of the person or adjudication of the particular case by establishing and documenting:
    1. what the prejudice is – how would disclosure harm the trial or adjudication; and
    2. why the prejudice would, or is reasonably likely to, occur.
  4. In doing so, consult with any relevant officer or individual responsible for the trial or adjudication.
  5. Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.99
  6. Consider whether any exceptions set out in section 31(2) apply to the information, and if so, consult on the whether the document should be disclosed in the public interest.100
  7. Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
  8. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

Identity of confidential sources – section 31(1)(c)

1.38

A document or information is exempt under section 31(1)(c) if two conditions are satisfied:

  • disclosure of the information would, or would be reasonably likely to disclose, or enable a person to ascertain the identity of a confidential source of information; and
  • the confidential source has provided information in the context of the enforcement or administration of the law.

Steps to applying the exemption

1.39

An agency or Minister seeking to apply the section 31(1)(c) exemption in relation to the identity of confidential sources of information should:

  1. Identify the specific information to which the exemption may apply.
  2. Determine whether disclosure of the information would be reasonably likely to disclose, or enable a person to ascertain the identity of a source of information.
  3. Establish that the source of information was in fact a confidential source of information.
  4. Determine the information was provided in relation to the enforcement or administration of the law and identify the specific law.
  5. Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.103
  6. Consider whether any exceptions set out in section 31(2) apply to the information, and if so, consult on the whether the document should be disclosed in the public interest.104
  7. Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
  8. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

Confidential source of information

1.40

Section 31(1)(c) protects the identity of confidential sources of information. A confidential source is an informer providing information that the alleged perpetrator and public do not know about. There is a public interest in preserving the anonymity of informers. Otherwise, these ‘wells of information will dry up’ and law enforcement agencies would be hindered from preventing and detecting crime or administering the law.116

1.41

Section 31(1)(c) protects the identities of persons providing confidential information to those responsible for investigating corruption, misconduct, or a breach of the law.117

1.42

Section 31(1)(c) does not protect:

  • Sources of information whose identity is public or obvious.118 For example, where the identity of the author of the document is known to the applicant.119
  • Reluctant sources of information.120 For example, a potential witness in a civil proceeding who would prefer not to be identified before the legal hearing.121

1.43

Whether a person is a confidential source of information is a question of fact, determined by having regard to the following factors:

  • confidentiality can be express or implied from the circumstances and can be inferred from the nature and contents of a document;122
  • merely marking a document ‘confidential’ is not sufficient evidence of an intention that the information was provided confidentially or would remain confidential;123
  • a legislative basis for information being provided in a confidential manner supports the application of the exemption;124
  • whether the information is reliable or unreliable, true or false, does not impact whether it was communicated in confidence;125 and
  • information that would not, by itself, identify the confidential source of information but that would tend to result in the identification of such a confidential source could be exempt.126

Provided in the context of the enforcement or administration of the law

1.44

An agency or Minister must be able to identify and document how the specific information provided relates to the enforcement of the law or the administration of the law. These terms are broad and have wide application.

1.45

There is a distinction between the ‘enforcement of the law’ and the ‘proper administration of the law’.

1.46

Enforcement of the law deals with the actual process of enforcing of the law (for example, prosecuting cases or pursuing fines and court orders).130

1.47

The proper administration of the law deals with how the law is administered.131 It requires a connection with the criminal law or with the process of upholding or enforcing the civil law (for example, collecting information to monitor compliance with the law).132

Methods or procedures – section 31(1)(d)

1.48

A document or information is exempt under section 31(1)(d) if two conditions are satisfied:

  • disclosure of the information would, or would be reasonably likely to disclose methods or procedures for preventing, detecting, investigating, or dealing with breaches of the law; and
  • release of the information would, or would be reasonably likely to prejudice the effectiveness of those methods or procedures.

Steps to applying the exemption

1.49

An agency or Minister seeking to apply the section 31(1)(d) exemption in relation to disclosure of methods or procedures should:

  1. Identify the specific law (legislation or regulation) that is being administered and the specific information – the methods or procedures – to which the exemption may apply.
  2. Establish how those methods or procedures relate to preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law.
  3. Determine if disclosure of the information would be reasonably likely to disclose the identified methods or procedures, having consideration to whether knowledge of the methods or procedures are widespread or known.
  4. Determine whether disclosure of the information would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures by establishing and documenting:
    1. what the prejudice is – how would disclosure harm the effectiveness of those methods or procedures; and
    2. why the prejudice would, or is reasonably likely to, occur.
  5. Where relevant, consult with any others, authority, or Minister on whether the information should be disclosed.149
  6. Consider whether any exceptions set out in section 31(2) apply to the information, and if so, consult on the whether the document should be disclosed in the public interest.150
  7. Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
  8. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

Methods or procedures

1.50

The methods or procedures identified must not be widespread and well-known.154 Where methods or procedures are well known, then it is unlikely to cause prejudice to the effectiveness of those methods or procedures. This includes standard investigatory practices like conducting interviews or gathering evidence in a way that could be reasonably inferred from knowledge of the offence being investigated.

1.51

An agency or Minister should precisely identify and document how those methods or procedures relate to preventing, detecting, investigating, or dealing with matters arising from breaches or evasions of the law. For example, a document that describes a specific technique or process for investigating a certain type of criminal offence.

1.52

If disclosure would prejudice the effectiveness of persons using the methods or procedures, this is the same as if the methods or procedures themselves were prejudiced.155

1.53

An agency or Minister should carefully consider whether disclosure of the document ‘would’ or ‘would be reasonably likely’ to prejudice the effectiveness of the identified method or procedure. The prejudice must be real, and not fanciful or remote.156

Endanger life or physical safety – section 31(1)(e)

1.54

A document or information is exempt under section 31(1)(e) where:

  • disclosure of the document or information would or would be reasonably likely to endanger the life or physical safety of a person; and
  • where that person:
    • is engaged in, or connected with law enforcement; or
    • has provided confidential information in relation to the enforcement or administration of the law.

Steps to applying the exemption

1.55

An agency or Minister seeking to apply the section 31(1)(e) exemption in relation to information likely to endanger the life or physical safety of a person, should:

  1. Specifically identify the information to which the exemption may apply.
  2. Determine whether disclosure of the information would, or would be reasonably likely to endanger the life or physical safety of a person with reference to the factors outlined in these Guidelines.
  3. Establish that the person whose life or physical safety is endangered is either:
    1. engaged in, or in connection with, law enforcement; or
    2. has provided confidential information in relation to the enforcement or administration of the law.
  4. Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.161
  5. Consider whether any exceptions set out in section 31(2) apply to the information, and if so, consult on the whether the document should be disclosed in the public interest.162
  6. Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
  7. If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

Would or would be reasonably likely to endanger the life or physical safety of a person

1.56

When deciding if disclosure of a document would be reasonably likely to endanger the lives or physical safety of relevant persons, an agency or Minister should consider:

  • there must be a real chance of the harm occurring, rather than a fanciful or remote chance;169
  • the danger need only be reasonably likely, not a certainty;170
  • the danger to the relevant persons must arise from the disclosure of the specific document rather than from other circumstances;171
  • the danger could arise from the applicant, but also from others if the information becomes generally known;172
  • physical safety not only includes actual safety but also the relevant person’s perception of whether they are safe;173
  • it is the impact on the relevant person that is relevant, not the motives of the applicant.174

Engaged in, or in connection with law enforcement

1.57

To establish the section 31(1)(e) exemption, the person whose life or physical safety is endangered must:

  • be engaged in, or in connection with, law enforcement; or
  • have provided confidential information in relation to the enforcement or administration of the law.
1.58

Being engaged in, or connected, with law enforcement is generally self-evident from the person’s employment.

Provided confidential information

1.59

Whether a person has provided confidential information is a question of fact, determined by having regard to the following factors:

  • confidentiality can be express or implied from the circumstances and can be inferred from the nature and contents of a document;179
  • merely marking a document ‘confidential’ is not sufficient evidence of an intention that the information was provided confidentially or would remain confidential;180
  • a legislative basis for information being provided in a confidential manner supports the application of the exemption;
  • whether the information is reliable or unreliable, true or false, does not impact whether it was communicated in confidence;181 and
  • information that would not, by itself, identify the confidential source of information but that would tend to result in the identification of such a confidential source could be exempt.182

In the context of the enforcement or administration of the law

1.59

An agency or Minister must be able to identify and document how the specific information provided relates to the enforcement of the law or the administration of the law. These terms are broad and have wide application.

1.60

There is a distinction between the ‘enforcement of the law’ and the ‘proper administration of the law’. There is a distinction between the ‘enforcement of the law’ and the ‘proper administration of the law’.

1.61

Enforcement of the law deals with the actual process of enforcing of the law (for example, prosecuting cases or pursuing fines and court orders).193

1.62

The proper administration of the law deals with how the law is administered.194 It requires a connection with the criminal law or with the process of upholding or enforcing the civil law (for example, collecting information to monitor compliance with the law).195

Consulting relevant third parties – sections 31(5) and (6)

1.64

Section 31 requires an agency or Minister to consult with a relevant third party in two instances:

  • to understand whether the exemption in section 31(1) applies;205 and
  • to decide whether it would be in the public interest to disclose a document captured by section 31(2).206
1.65

When consulting, the 30-day period for deciding a request may be extended by up to 15 days under section 21(2)(a).

1.66

Consultation usually arises when the information relates to another agency, or where another agency is involved in the matter. In some cases, there may be no relevant third party to consult.

1.67

An agency or Minister is only required to consult with a third party where it is resonably practicable to do so.

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

1.68

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

1.69

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

1.70

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 under the Act.

1.71

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

Consultation when deciding whether a document is exempt – section 31(5)

1.72

When considering whether a document is exempt under section 31(1), an agency or Minister must, if reasonably practicable:

  • notify any relevant Minister or Commonwealth, State, or Territory agency or authority that a request has been received for the document; and
  • seek the third party’s views about whether the document or information should be disclosed.
1.73

When undertaking consultation, an agency or Minister should inform a third party of the relevant subsection of section 31(1) that may be engaged, and what conditions must be established for that exemption to apply.

1.74

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.

Consultation when deciding whether it is in the public interest to grant access to a document – section 31(6)

1.75

When considering whether a document should be disclosed under section 31(2), an agency or Minister must, if reasonably practicable:

  • notify any relevant Minister or Commonwealth, State, or Territory agency or authority that a request has been received for the document; and
  • seek the third party’s views about whether there is a public interest in disclosing the document or information.

More information

See section 33 of the FOI Guidelines for more information about:

  • determining whether consultation is reasonably practicable;
  • how to conduct consultation;
  • privacy considerations; and
  • keeping records of consultation under the Professional Standards.

Neither confirming nor denying the existence of a document

1.76

In some cases, merely acknowledging that a document does, or does not exist, can harm or prejudice an investigation. In this situation, an agency or Minister may make a decision in terms that neither confirms nor denies the existence of the requested document.208

Review by Information Commissioner

1.77

During a review, there are special requirements for providing OVIC with a document that an agency or Minister claims is exempt under section 31.

For more information, see section 63D – Special requirements for production of documents claimed to be exempt under section 28, 29A, 31 or 31A.

  1. Penhalluriack v Department of Labour and Industry (unreported, County Court of Victoria, Lazarus J, 19 December 1983) 39; See also O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 177. 
  2. See Akers v Victoria Police [2022] VCAT 884 [34]-[35] for an example of the application of section 31(3).
  3. The Act refers to the Bureau of Criminal Intelligence. The Australian Criminal Intelligence Commission supersedes the National Crime Authority and Bureau of Criminal Intelligence.
  4. Akers v Victoria Police [2022] VCAT 884 [33].
  5. See ‘EH9’ and Victoria Police [2022] VICmr 100 for an example of the application of section 31(4).
  6. Penhalluriack v Department of Labour and Industry (unreported, County Court of Victoria, Lazarus J, 19 December 1983) 39; See also O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 177. 
  7. See Akers v Victoria Police [2022] VCAT 884 [34]-[35] for an example of the application of section 31(3).
  8. The Act refers to the Bureau of Criminal Intelligence. The Australian Criminal Intelligence Commission supersedes the National Crime Authority and Bureau of Criminal Intelligence.
  9. Akers v Victoria Police [2022] VCAT 884 [33].
  10. See ‘EH9’ and Victoria Police [2022] VICmr 100 for an example of the application of section 31(4).
  11. Smith v Victoria Police [2005] VCAT 654, [60]; section 16(2) acknowledges that decision makers can release exempt information as long as they are not legally prevented from doing so.
  12. Smith v Victoria Police [2005] VCAT 654, [60]; section 16(2) acknowledges that decision makers can release exempt information as long as they are not legally prevented from doing so.
  13. Freedom of Information Act 1982 (Vic), section 31(2).
  14. In section 31(2).
  15. Freedom of Information Act 1982 (Vic), section 31(2)(a).
  16. Freedom of Information Act 1982 (Vic), section 31(2)(b).
  17. Freedom of Information Act 1982 (Vic), section 31(2)(c).
  18. Freedom of Information Act 1982 (Vic), section 31(2)(d).
  19. Freedom of Information Act 1982 (Vic), section 31(2)(e).
  20. Freedom of Information Act 1982 (Vic), section 31(2)(f).
  21. Freedom of Information Act 1982 (Vic), section 31(2).
  22. In section 31(2).
  23. Freedom of Information Act 1982 (Vic), section 31(2)(a).
  24. Freedom of Information Act 1982 (Vic), section 31(2)(b).
  25. Freedom of Information Act 1982 (Vic), section 31(2)(c).
  26. Freedom of Information Act 1982 (Vic), section 31(2)(d).
  27. Freedom of Information Act 1982 (Vic), section 31(2)(e).
  28. Freedom of Information Act 1982 (Vic), section 31(2)(f).
  29. Freedom of Information Act 1982 (Vic), sections 31(1)(a), (b) and (d).
  30. Freedom of Information Act 1982 (Vic), section 31(1)(c).
  31. Freedom of Information Act 1982 (Vic), section 31(1)(d).
  32. Freedom of Information Act 1982 (Vic), section 31(1)(e).
  33. Akers v Victoria Police [2022] VCAT 979 [26] quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836; Tucker v Commissioner of State Revenue [2019] VCAT 2018 [113(b)].
  34. XYZ v Victoria Police [2010] VCAT 255 [185].
  35. Freedom of Information Act 1982 (Vic), sections 31(1)(a), (b) and (d).
  36. Freedom of Information Act 1982 (Vic), section 31(1)(c).
  37. Freedom of Information Act 1982 (Vic), section 31(1)(d).
  38. Freedom of Information Act 1982 (Vic), section 31(1)(e).
  39. Akers v Victoria Police [2022] VCAT 979 [26] quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836; Tucker v Commissioner of State Revenue [2019] VCAT 2018 [113(b)].
  40. XYZ v Victoria Police [2010] VCAT 255 [185].
  41. Bergman v Department of Justice [2012] VCAT 363 [66], referring to Sobh v Police Force of Victoria [1994] 1 VR 41, 55.
  42. Bergman v Department of Justice [2012] VCAT 363 [66], referring to Sobh v Police Force of Victoria [1994] 1 VR 41, 55.
  43. Simons v Department of Justice [2006] VCAT 2053 [36].
  44. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
  45. Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 [69].
  46. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283; Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 [69].
  47. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
  48. Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [28], [50].
  49. Re Coleman and Director-General, Local Government Department, Pentland (1985) 1 VAR 9, 12; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283, 309-310.
  50. Simons v Department of Justice [2006] VCAT 2053 [36].
  51. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
  52. Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 [69].
  53. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283; Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 [69].
  54. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
  55. Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [28], [50].
  56. Re Coleman and Director-General, Local Government Department, Pentland (1985) 1 VAR 9, 12; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283, 309-310.
  57. Shulver v Victoria Police Force (1995) 9 VAR 71, 76.
  58. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
  59. Shulver v Victoria Police Force (1995) 9 VAR 71, 76.
  60. Shulver v Victoria Police Force (1995) 9 VAR 71, 76.
  61. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
  62. Shulver v Victoria Police Force (1995) 9 VAR 71, 76.
  63. Per section 31(5).
  64. Per section 31(6).
  65. In accordance with section 27(2)(b).
  66. Per section 31(5).
  67. Per section 31(6).
  68. In accordance with section 27(2)(b).
  69. JCL v Victoria Police [2012] VCAT 1060 [22] following O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175-176.
  70. JCL v Victoria Police [2012] VCAT 1060 [28].
  71. JCL v Victoria Police [2012] VCAT 1060 [28].
  72. Accident Compensation Commission v Croom [1991] 2 VR 322, 324; Cichello v Department of Justice [2014] VCAT 340 [23], referring to JCL v Victoria Police [2012] VCAT 1060 [28] and Accident Compensation Commission v Croom [1991] 2 VR 322.
  73. JCL v Victoria Police [2012] VCAT 1060 [22] following O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175-176.
  74. JCL v Victoria Police [2012] VCAT 1060 [28].
  75. JCL v Victoria Police [2012] VCAT 1060 [28].
  76. Accident Compensation Commission v Croom [1991] 2 VR 322, 324; Cichello v Department of Justice [2014] VCAT 340 [23], referring to JCL v Victoria Police [2012] VCAT 1060 [28] and Accident Compensation Commission v Croom [1991] 2 VR 322.
  77. Fogarty v Office of Corrections (1989) 3 VAR 214 [48].
  78. Knight v Department of Justice [2012] VCAT 369 [115].
  79. Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [50].
  80. Knight v Medical Board (Vic) (1991) 5 VAR 171 [184]-[185].
  81. Marke v Department of Justice and Regulation [2019] VCAT 479 [42].
  82. Quick v Transport Accident Commission [2022] VCAT 622 [31]-[37].
  83. ‘CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44 [39].
  84. Fogarty v Office of Corrections (1989) 3 VAR 214 [48].
  85. Knight v Department of Justice [2012] VCAT 369 [115].
  86. Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [50].
  87. Knight v Medical Board (Vic) (1991) 5 VAR 171 [184]-[185].
  88. Marke v Department of Justice and Regulation [2019] VCAT 479 [42].
  89. Quick v Transport Accident Commission [2022] VCAT 622 [31]-[37].
  90. ‘CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44 [39].
  91. Per section 31(5).
  92. Per section 31(6).
  93. Per section 31(5).
  94. Per section 31(6).
  95. Barnes v Commissioner for Corporate Affairs (No 2) (1987) 1 VAR 438, 442.
  96. Barnes v Commissioner for Corporate Affairs (No 2) (1987) 1 VAR 438, 442.
  97. Per section 31(5).
  98. Per section 31(6).
  99. Per section 31(5).
  100. Per section 31(6).
  101. Per section 31(5).
  102. Per section 31(6).
  103. Per section 31(5).
  104. Per section 31(6).
  105. Jarvie v Magistrates’ Court [1995] 1 VR 84, 88.
  106. XYZ v Victoria Police [2010] VCAT 255 [154].
  107. Re Coleman and Director General Local Government Department (1985) 1 VAR 9, 13.
  108. Accident Compensation Commission v Croom [1991] 2 VR 322, 329.
  109. XYZ v Victoria Police [2010] VCAT 255 [155]; Accident Compensation Commission v Croom [1991] 2 VR 322, 329.
  110. Accident Compensation Commission v Croom [1991] 2 VR 322, 329; XYZ v Victoria Police [2010] VCAT 255 [155].
  111. Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255 [155], [265].
  112. See Graze v Commissioner of State Revenue [2013] VCAT 869 [33]. Whilst this decision relates to the section 35 exemption, the legal principle is equally applicable to section 31(1)(c).
  113. XYZ v Victoria Police [2010] VCAT 255 [265]; Woodford v Ombudsman [2001] VCAT 721 [95].
  114. Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51 [52]–[53].
  115. Gunawan v Department of Education (unreported, VCAT, Davis SM, 15 December 1998).
  116. Jarvie v Magistrates’ Court [1995] 1 VR 84, 88.
  117. XYZ v Victoria Police [2010] VCAT 255 [154].
  118. Re Coleman and Director General Local Government Department (1985) 1 VAR 9, 13.
  119. Accident Compensation Commission v Croom [1991] 2 VR 322, 329.
  120. XYZ v Victoria Police [2010] VCAT 255 [155]; Accident Compensation Commission v Croom [1991] 2 VR 322, 329.
  121. Accident Compensation Commission v Croom [1991] 2 VR 322, 329; XYZ v Victoria Police [2010] VCAT 255 [155].
  122. Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255 [155], [265].
  123. See Graze v Commissioner of State Revenue [2013] VCAT 869 [33]. Whilst this decision relates to the section 35 exemption, the legal principle is equally applicable to section 31(1)(c).
  124. XYZ v Victoria Police [2010] VCAT 255 [265]; Woodford v Ombudsman [2001] VCAT 721 [95].
  125. Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51 [52]–[53].
  126. Gunawan v Department of Education (unreported, VCAT, Davis SM, 15 December 1998).
  127. JCL v Victoria Police [2012] VCAT 1060.
  128. JCL v Victoria Police [2012] VCAT 1060 [28].
  129. Accident Compensation Commission v Croom [1991] 2 VR 322, 324. Cichello v Department of Justice [2014] VCAT 340 [23], referring to JCL v Victoria Police [2012] VCAT 1060 [28] and Accident Compensation Commission v Croom [1991] 2 VR 322.
  130. JCL v Victoria Police [2012] VCAT 1060.
  131. JCL v Victoria Police [2012] VCAT 1060 [28].
  132. Accident Compensation Commission v Croom [1991] 2 VR 322, 324. Cichello v Department of Justice [2014] VCAT 340 [23], referring to JCL v Victoria Police [2012] VCAT 1060 [28] and Accident Compensation Commission v Croom [1991] 2 VR 322.
  133. Fogarty v Office of Corrections (1989) 3 VAR 214 [48].
  134. Knight v Department of Justice [2012] VCAT 369 [115].
  135. Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [50].
  136. Knight v Medical Board (Vic) (1991) 5 VAR 171 [184]-[185].
  137. Marke v Department of Justice and Regulation [2019] VCAT 479, [42].
  138. Quick v Transport Accident Commission [2022] VCAT 622, [31]-[37].
  139. CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44, [39].
  140. Fogarty v Office of Corrections (1989) 3 VAR 214 [48].
  141. Knight v Department of Justice [2012] VCAT 369 [115].
  142. Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [50].
  143. Knight v Medical Board (Vic) (1991) 5 VAR 171 [184]-[185].
  144. Marke v Department of Justice and Regulation [2019] VCAT 479, [42].
  145. Quick v Transport Accident Commission [2022] VCAT 622, [31]-[37].
  146. CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44, [39].
  147. Freedom of Information Act 1982 (Vic), section 31(5).
  148. Freedom of Information Act 1982 (Vic), section 31(6).
  149. Freedom of Information Act 1982 (Vic), section 31(5).
  150. Freedom of Information Act 1982 (Vic), section 31(6).
  151. XYZ v Victoria Police [2010] VCAT 255, [177].
  152. Akers v Victoria Police [2022] VCAT 979 [38], [39] and JCL v Victoria Police [2012] VCAT 1060 [59] approving Western Suburbs Legal Service v Victoria Police (unreported, Administrative Appeals Tribunal of Victoria, Galvin DP, 18 August 1995).
  153. Akers v Victoria Police [2022] VCAT 979 [26] quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836; Tucker v Commissioner of State Revenue [2019] VCAT 2018 [113(b)].
  154. XYZ v Victoria Police [2010] VCAT 255, [177].
  155. Akers v Victoria Police [2022] VCAT 979 [38], [39] and JCL v Victoria Police [2012] VCAT 1060 [59] approving Western Suburbs Legal Service v Victoria Police (unreported, Administrative Appeals Tribunal of Victoria, Galvin DP, 18 August 1995).
  156. Akers v Victoria Police [2022] VCAT 979 [26] quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836; Tucker v Commissioner of State Revenue [2019] VCAT 2018 [113(b)].
  157. See also Akers v Victoria Police [2023] VCAT 442.
  158. See also Akers v Victoria Police [2023] VCAT 442.
  159. Freedom of Information Act 1982 (Vic), section 31(5).
  160. Freedom of Information Act 1982 (Vic), section 31(6).
  161. Freedom of Information Act 1982 (Vic), section 31(5).
  162. Freedom of Information Act 1982 (Vic), section 31(6).
  163. Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 842.
  164. Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 844.
  165. Re Lawless and Secretary to Law Department (1985) 1 VAR 42, 50–51.
  166. Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 844; Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [52].
  167. O’Sullivan v Police (Vic) (2005) 22 VAR 426 [19].
  168. O’Sullivan v Police (Vic) (2005) 22 VAR 426 [20].
  169. Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 842.
  170. Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 844.
  171. Re Lawless and Secretary to Law Department (1985) 1 VAR 42, 50–51.
  172. Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 844; Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [52].
  173. O’Sullivan v Police (Vic) (2005) 22 VAR 426 [19].
  174. O’Sullivan v Police (Vic) (2005) 22 VAR 426 [20].
  175. Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255 [155], [265].
  176. Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
  177. Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51, 52–53.
  178. Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
  179. Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255 [155], [265].
  180. Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
  181. Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51, 52–53.
  182. Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
  183. JCL v Victoria Police [2012] VCAT 1060.
  184. JCL v Victoria Police [2012] VCAT 1060, [28].
  185. Accident Compensation Commission v Croom [1991] 2 VR 322, 324. Cichello v Department of Justice [2014] VCAT 340 [23], referring to JCL v Victoria Police [2012] VCAT 1060 [28] and Accident Compensation Commission v Croom [1991] 2 VR 322.
  186. Fogarty v Office of Corrections (1989) 3 VAR 214, [48].
  187. Knight v Department of Justice [2012] VCAT 369 [115].
  188. Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586, [27], [50].
  189. Knight v Medical Board (Vic) (1991) 5 VAR 171, [184]-[185].
  190. Marke v Department of Justice and Regulation [2019] VCAT 479, [42].
  191. Quick v Transport Accident Commission [2022] VCAT 622 [31]-[37].
  192. ‘CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44, [39].
  193. JCL v Victoria Police [2012] VCAT 1060.
  194. JCL v Victoria Police [2012] VCAT 1060, [28].
  195. Accident Compensation Commission v Croom [1991] 2 VR 322, 324. Cichello v Department of Justice [2014] VCAT 340 [23], referring to JCL v Victoria Police [2012] VCAT 1060 [28] and Accident Compensation Commission v Croom [1991] 2 VR 322.
  196. Fogarty v Office of Corrections (1989) 3 VAR 214, [48].
  197. Knight v Department of Justice [2012] VCAT 369 [115].
  198. Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586, [27], [50].
  199. Knight v Medical Board (Vic) (1991) 5 VAR 171, [184]-[185].
  200. Marke v Department of Justice and Regulation [2019] VCAT 479, [42].
  201. Quick v Transport Accident Commission [2022] VCAT 622 [31]-[37].
  202. ‘CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44, [39].
  203. Freedom of Information Act 1982 (Vic), section 31(5).
  204. Freedom of Information Act 1982 (Vic), section 31(6).
  205. Freedom of Information Act 1982 (Vic), section 31(5).
  206. Freedom of Information Act 1982 (Vic), section 31(6).
  207. Under section 27(2)(b).
  208. Under section 27(2)(b).

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Last updated 13 November 2024

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