Section 31 - Law enforcement documents
Extract of legislation
31 | Law enforcement documents | ||||
(1) | Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to— | ||||
(a) | prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance; | ||||
(b) | prejudice the fair trial of a person or the impartial adjudication of a particular case; | ||||
(c) | disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law; | ||||
(d) | disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or | ||||
(e) | endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law. | ||||
(2) | This section does not apply to any document that is— | ||||
(a) | a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; | ||||
(b) | a document revealing the use of illegal methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law; | ||||
(c) | a document containing any general outline of the structure of any programme adopted by an agency for investigating breaches of, or enforcing or administering, the law; | ||||
(d) | a report on the degree of success achieved in any programme adopted by an agency for investigating breaches of, or enforcing or administering, the law; | ||||
(e) | a report prepared in the course of routine law enforcement inspections or investigations by an agency which has the function of enforcing and regulating compliance with a particular law other than the criminal law; | ||||
(f) | a report 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— | ||||
if it is in the public interest that access to the document should be granted under this Act. | |||||
(3) | Notwithstanding anything to the contrary in this section, a document is an exempt document if it is a document created by the Bureau of Criminal Intelligence or (whether before or after the commencement of section 22 of the Terrorism (Community Protection) (Further Amendment) Act 2006) by the Intelligence and Covert Support Command of Victoria Police. | ||||
(4) | Despite anything to the contrary in this section, a document is an exempt document if it is a document contained in the Register established and maintained under section 62 of the Sex Offenders Registration Act 2004. | ||||
(5) | In deciding whether a document is an exempt document under subsection (1), an agency or Minister, if practicable, must— | ||||
(a) | notify any of the following that are relevant that the agency or Minister has received a request for access to the document— | ||||
(i) | another agency or Minister; | ||||
(ii) | an agency of the Commonwealth or another State or a Territory; | ||||
(iii) | an authority of the Commonwealth or another State or a Territory; and | ||||
(b) | seek the view of that agency, authority or Minister as to whether the document should be disclosed. | ||||
(6) | In deciding whether it is in the public interest to grant access to a document referred to in subsection (2), an agency or Minister, if practicable, must— | ||||
(a) | notify any of the following that are relevant that the agency or Minister has received a request for access to the document— | ||||
(i) | another agency or Minister; | ||||
(ii) | an agency of the Commonwealth or another State or a Territory; | ||||
(iii) | an authority of the Commonwealth or another State or a Territory; and | ||||
(b) | seek the view of that agency, authority or Minister as to whether the document should be disclosed in the public interest. |
Section 31 contains a number of exemptions, and exceptions to these exemptions.
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).
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.
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).
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
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.
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.
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
Example
Examples of agencies that enforce or regulate compliance with a particular law other than the criminal law includes:
- Victorian WorkCover Authority;
- Greyhound Racing Victoria;
- Victorian Institute of Teaching;
- Royal Society for the Prevention of Cruelty to Animals (RSPCA);
- Legal Services Board and Commissioner;
- Environment Protection Authority.
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.
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.
Case examples
XYZ v Victoria Police [2010] VCAT 255
Background
The applicant was a police officer employed by Victoria Police. The applicant was investigated by the Ethical Standards Department within Victoria Police and requested access to documents relating to that investigation. The investigation was triggered by the disclosure of information to Victoria Police in breach of the privacy provisions in Federal tax legislation.
Victoria Police relied on section 31(1)(c) to refuse access to the Ethical Standards Department’s applications for search warrants on the basis the warrant applications disclosed the identity of a confidential source of information.
The warrant applications used the information that was obtained in breach of the Federal tax legislation and misrepresented that information as having been lawfully obtained.
The applicant argued that section 31(2)(a) applied to the warrant applications, because in relying on information obtained in breach of Federal tax legislation and representing the information as being lawfully obtained, the documents revealed that the scope of the law enforcement investigation had exceeded the limits imposed by law.
Issue
Did the warrant applications fit within the exception in section 31(2)(a)? Did they reveal that the scope of a law enforcement investigation had exceeded the limits imposed by law?
Decision by the Administrative Appeals Tribunal
No. The warrant applications did not fit within the exception in section 31(2)(a). The warrant applications were exempt under section 31(1)(c) to the extent it identified or allowed the identification of the confidential source of information.
The information the Ethical Standards Department received in breach of the privacy provisions in Federal tax legislation was an ‘irregularity’ occurring in the course of the investigation. This irregularity did not mean the scope of the investigation exceeded the limits imposed by law.
The warrant applications were within the scope of the law enforcement investigation being carried out by the Ethical Standards Department. The investigation into the matters raised in the warrant application was not unlawful or improper.
Someone providing information confidentially about alleged police corruption or misconduct does not lose the protection of section 31(1)(c) because of an irregularity in the course of an investigation which is otherwise lawful in scope.
Fogarty v Office of Corrections (1989) 3 VAR 214
Background
The applicant requested access to documents relating to his detention as a prisoner. The documents included reports about the applicant prepared for the parole board and prisoner classification committee.
Issue
Did the reports about the applicant fit within the exception in section 31(2)(d)? Were they a report on the success of a program used to administer the law?
Decision by the Administrative Appeals Tribunal
No. The reports about a particular prisoner do not meet the criteria for the exception in section 31(2)(d).
In contrast, a report on a review of the classification system for all prisoners may fall within section 31(2)(d) and could be released under section 31(2) if it was in the public interest to do so.
The phrase ‘would or would be reasonably likely to’ is an element in all of the exemptions in section 31(1).
‘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:
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
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
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
‘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
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.
Examples
- If an alleged offender obtained access to their ongoing investigation file, the investigation would be prejudiced because disclosed information could be used to interfere with evidence or witnesses – section 31(1)(a).
- Information in a document that outlines how an agency deploys personnel in a prison may prejudice how that prison operates if prisoners were to become aware of that information – section 31(1)(a).
- Information in a document that outlines how an agency intends to prosecute a particular case, or details evidence to be used in a particular trial, if disclosed to the defence or otherwise made public, would provide the defence with information that could allow them to modify their defence – section 31(1)(b).
- Disclosure of the methods for determining if a lock has been tampered with could allow offenders to modify their lock tampering techniques to conceal their actions. This would prejudice effective investigations of these offences in future – section 31(1)(d).
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
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
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:
The specific instance might be identifiable through the laying of charges, or specific conduct, events, incidents, or individuals.54
Example
Information in a document that outlines how an agency deploys personnel in a particular prison or operates that particular prison’s security system safely, deals with the administration of the Corrections Act 1986 (Vic) in a specific prison.55
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
Examples
Where an investigation is complete and no further action is contemplated, there may not be any ‘particular instance’ of the enforcement or proper administration of the law that would be prejudiced by release of the report dealing with the investigation.
Whereas, a specific aspect of a concluded investigation may be a ‘particular instance’, where it is, or is intended to be used, in current or future investigations. In this situation, there is a particular instance of the enforcement or administration of the law that could be prejudiced if the specific aspect of the concluded investigation were released.
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.
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.
Steps to applying the exemption
An agency or Minister seeking to apply the section 31(1)(a) exemption should:
- Identify the specific legislation or regulation that may be breached.
- Establish there is a specific investigation about a breach or possible breach of that law.
- Identify and document how the information relates to that breach or possible breach of law.
- Ensure the information was prepared during, or for the purposes of, that investigation.
- Determine whether disclosure of the information would, or would be reasonably likely to, prejudice the investigation by establishing and documenting:
- what the prejudice is – how would disclosure harm the investigation specifically; and
- why the prejudice would, or is reasonably likely to, occur.
- In doing so, consult with any relevant officer or individual involved in conducting the investigation.
- Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.66
- 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
- Consider if it is necessary to neither confirm nor deny the existence of a requested document.68
- 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.
Case example
Akers v Victoria Police [2021] VCAT 1060
The applicant requested access to surveillance footage of his property taken by Victoria Police on a date in 2016 as he believed that his property had been under constant surveillance by the Police.
The agency refused to confirm or deny the existence of the documents on the basis that any documents would be exempt under section 31(1)(a) and 31(1)(d).
There was no evidence of any ongoing investigation into the applicant in 2016.
Consequently, disclosure of whether surveillance documents existed (or did not exist) would not prejudice any particular investigation of the enforcement of any particular law, and so the documents, if they existed, could not be exempt under section 31(1)(a).
Enforcement or proper administration of the law
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.
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.
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
Examples
The proper administration of the law includes:
- The management of prisons and prisoners,84 the classification of prisoners and the parole of prisoners85 and the ability to operate the prison security system safely.86
- Preliminary investigations and disciplinary proceedings against professionals such as registered medical practitioners,87 and police officers.88
- Investigations into suspected fraudulent activities by claimants and service providers, conducted for the purpose of protecting the Transport Accident Fund and prosecuting wrongdoing under the Transport Accident Act 1986 (Vic).89
- Child protection investigations conducted under the Children, Youth and Families Act 2005 (Vic).90
Steps to applying the exemption
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:
- Identify the specific law (legislation or regulation) that is being enforced or administered.
- Identify and document how the information relates to enforcing or administering the identified law.
- 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:
- what the prejudice is – how would disclosure harm the enforcement or proper administration of the law; and
- why the prejudice would, or is reasonably likely to, occur.
- In doing so, consult with any relevant officer or individual responsible for enforcing or administering the identified law.
- Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.93
- 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
- Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
- 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.
Case examples
Horrocks v Department of Justice [2012] VCAT 241
Background
The applicant requested access to CCTV footage of an incident in the prison involving the applicant. The CCTV footage showed how prison staff react in an emergency.
The agency argued that disclosure of the CCTV would be reasonably likely to prejudice the enforcement or proper administration of the Corrections Act as it related to the administration of the prison.
Decision
VCAT accepted that release of the footage may provide advance notice to prisoners of how prison staff react more generally in emergency situations. This information was not generally known.
Disclosure of this information would be reasonably likely to impede and therefore prejudice the proper administration of the prison.
‘EJ2’ and Department of Justice and Community Safety [2022] VICmr 111
Background
The applicant requested access to documents relating to their completion of an offending behaviour change program.
Decision
The documents included recommendations by the author to other agency employees for future case management of the applicant.
The Public Access Deputy Commissioner found the documents were exempt under section 31(1)(a).
The Commissioner found that disclosure of this information would impact the ability of agency officers to work collaboratively to support the applicant’s rehabilitative progress. This would be reasonably likely to have a detrimental effect on the agency’s proper administration of the Corrections Act, namely the supervision of the applicant’s sentence. The Commissioner was satisfied that disclosure of this information in the report would prejudice the proper administration of the law in a particular instance.
The presentation of the information in the report also revealed the relevance and weight given to certain aspects of the program, revealing the methodology used by clinicians in behaviour change programs.
The Commissioner found that release of this information could inform future participants behaviour adjustments in the program. This would be reasonably likely to have a detrimental effect on the agency’s proper administration of the Corrections Act, namely the management of prisons and prisoners. The Commissioner was satisfied that disclosure of this information in the report would prejudice the proper administration of the law in a particular instance.
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.
A ‘particular case’ means that there is an identifiable legal proceeding.
The information must relate to either the criminal trial of a person, or a specific identifiable legal proceeding.96
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
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:
- Establish the information relates to the trial of a person, or the impartial adjudication of a particular case that is either:
- a current legal proceeding; or
- an anticipated legal proceeding.
- Identify and document how the information relates to the identified trial or adjudication.
- 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:
- what the prejudice is – how would disclosure harm the trial or adjudication; and
- why the prejudice would, or is reasonably likely to, occur.
- In doing so, consult with any relevant officer or individual responsible for the trial or adjudication.
- Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.99
- 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
- Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
- 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.
Case examples
JCL v Victoria Police [2012] VCAT 1060
Background
The applicant was the victim of an alleged assault and was a key witness in a pending prosecution against his assailants.
The applicant requested access to documents relating to the alleged assault. This included documents forming part of the brief of evidence, or that would otherwise disclose evidence in the pending prosecution.
Decision
Section 31(1)(b) applied to the documents.
VCAT accepted evidence about the risk of the applicant’s evidence in the prosecution being contaminated, or the likely perception by the jury that it was contaminated, because the applicant had read the police documents before giving evidence.
VCAT accepted that this actual or perceived contamination of evidence could be extremely damaging to the prosecution’s case because it would have a serious effect on the acceptability or weight to give to the applicant’s evidence.
If a key witness altered their evidence because of what they saw in the prosecution evidence, or there was a perception that this had occurred, this would unfairly prejudice the fair trial of the accused and may cause what otherwise may be a successful prosecution to fail.
VCAT also noted that even if the evidence would be inadmissible in court, it might become available to a potential juror who would hear charges against the accused which could also prejudice the fair trial.
RFJ v Victoria Police [2013] VCAT 1267
Background
The applicant requested access to documents relating to an ongoing police investigation of a fire at the applicant mother’s home considered to be suspicious. The police did not know who was responsible for the fire and no charges had yet been laid.
Decision
Release of the documents would or would be reasonably likely to prejudice the fair trial of a person accused of arson. If information about the evidence to be given by witnesses was known, this might lead to the contamination or perception of the contamination of witness evidence or undermine the integrity of that witness’s evidence.
If the documents contain information inadmissible in a criminal trial and that information came to the attention of potential jurors, the fair trial of the accused would be prejudiced.
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
An agency or Minister seeking to apply the section 31(1)(c) exemption in relation to the identity of confidential sources of information should:
- Identify the specific information to which the exemption may apply.
- 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.
- Establish that the source of information was in fact a confidential source of information.
- Determine the information was provided in relation to the enforcement or administration of the law and identify the specific law.
- Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.103
- 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
- Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
- 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
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
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
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
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
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.
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 of the law (for example, prosecuting cases or pursuing fines and court orders).130
Example
The proper administration of the law includes:
- The management of prisons and prisoners,140 the classification of prisoners and the parole of prisoners141 and the ability to operate the prison security system safely.142
- Preliminary investigations and disciplinary proceedings against professionals such as registered medical practitioners,143 and police officers.144
- Investigations into suspected fraudulent activities by claimants and service providers, conducted for the purpose of protecting the Transport Accident Fund and prosecuting wrongdoing under the Transport Accident Act 1986 (Vic).145
- Child protection investigations conducted under the Children, Youth and Families Act 2005 (Vic).146
Case example
Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586
Background
The applicant was a prisoner in a correctional facility and requested access to anonymous handwritten notes provided to prison staff.
Decision
The anonymous notes were exempt under section 31(1)(c).
Prisoners who provide anonymous handwritten notes to prison authorities concerning other prisoners, do so confidentially.
Disclosure of the anonymous notes would enable a person to ascertain the identity of the author of the note. The author’s identity could be ascertained by their handwriting and by the prisoners named in the notes, when considered in the context that prisoners are aware of the friendships, alliances and allegiances which exist between prisoners and groups of prisoners.
Anonymous notes provided to prison authorities by a prisoner in a unit concerning other prisoners in that unit are a source of intelligence for prison authorities, relevant to the proper administration of the law, being the ongoing operations of prison security.
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
An agency or Minister seeking to apply the section 31(1)(d) exemption in relation to disclosure of methods or procedures should:
- 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.
- Establish how those methods or procedures relate to preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law.
- 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.
- 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:
- what the prejudice is – how would disclosure harm the effectiveness of those methods or procedures; and
- why the prejudice would, or is reasonably likely to, occur.
- Where relevant, consult with any others, authority, or Minister on whether the information should be disclosed.149
- 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
- Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
- 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
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.
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.
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
Example
A document contains information that shows the method used by members of Victoria Police to investigate a breach of the law.
If this information were disclosed to the person under investigation, members of Victoria Police would be prejudiced when using the method in future, because:
- the person would be able to avoid or counter police responses; and
- police officers would be very reluctant to provide similar information in future, knowing that it could be disclosed to the person under investigation.
This prejudice to the effectiveness of members of Victoria Police is the same as prejudice to the effectiveness of the method itself.
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
Case examples
Akers v Victoria Police [2003] VCAT 398
The agency claimed section 31(1)(d) in relation to a printout of a switched message. The agency claimed that it revealed a procedure for alerting members of the Police when certain events occur.
VCAT found that the information in the document did not disclose a method or procedure that was not already known to the applicant as the information had been revealed in the agency’s evidence at hearing. Consequently, the information in the document was not exempt under section 31(1)(d).
Akers v Victoria Police [2021] VCAT 1060
Background
The applicant requested CCTV footage outside a property on 5 December 2016.
The agency refused to confirm or deny the existence of the documents on the basis they would be exempt under section 31(1)(d).
The agency argued that surveillance methods it uses are necessarily covert and not widespread or well known. Revealing the existence or nonexistence of any documents concerning surveillance of the applicant on the specified date would either show that surveillance was taking place, and steps could then be taken by criminals to avoid surveillance; or no surveillance was being conducted and persons wishing to commit crimes would be at liberty to commit offences. This would prejudice the effectiveness of police methods (i.e., surveillance), that are used for preventing, detecting, investigating or dealing with breaches or evasions of the law.
The agency argued that this prejudice is the same for all police surveillance, whether the request relates to current surveillance activity or relates to events which are many years in the past, and irrespective of whether the person to whom the surveillance relates is or is likely to be the subject of existing or future investigation.
Decision
VCAT decided that the particular surveillance documents sought by the applicant were not exempt under section 31(1)(d).
VCAT rejected the agency’s submission that police surveillance documents, as a class, were exempt under section 31(1)(d). VCAT stated that a blanket exemption for any documents revealing surveillance would be inconsistent with the obligation to interpret the FOI Act as far as possible to facilitate and promote the disclosure of information. Each case needs to be determined on its own facts, and the evidence presented.
On the evidence and facts of this case, VCAT was not satisfied that the claimed prejudice was real, rather than fanciful or remote. VCAT stated at [58]-[60] of the decision:
‘Although it may be accepted that section 31(1)(d) has broader operation, it is still necessary for VicPol to establish that, despite Mr Akers’ conviction and imprisonment and the period of time that has elapsed since the events in question, disclosing that surveillance was (or was not) being conducted at the Bulla property on 5 December 2016 would prejudice the effectiveness of methods or procedures for investigating breaches or evasions of the law more generally.
While I have no doubt that DI Tymms is subjectively of the view that any disclosure about the existence of surveillance or otherwise is problematic, he expressed his views at such a level of generality and without reference to any specific examples of the impact that disclosure may have, that it is hard to accept his opinion in this regard.
Considered objectively, there are a number of considerations suggesting that any disclosure as to the existence or otherwise of surveillance at the Bulla property on 5 December 2016 would not prejudice the effectiveness of police surveillance methods and procedures more generally. In this regard:
- identifying whether any documents responsive to the request exist would only reveal whether Mr Akers was subject to surveillance in late 2016, not whether he has been subject to surveillance at any time before or after that time;
- any surveillance that was conducted in 2016 related to a property that has apparently been sold, rather than the surveillance of any property where Mr Akers currently resides, such that the disclosure that surveillance was conducted at that time and location would not reveal any methods or procedures that remain relevant to Mr Akers now;
- there is no suggestion, let alone evidence, that Mr Akers is involved in any current criminal activity or intends to engage in any such activity (a point Mr Goodwin was at pains to express in the hearing). As such, there is no evidence to suggest he is a ‘subversive’ (of the kind referred to by Deputy President Macnamara in Thorne) who may be inclined to continually check on his surveillance status in order to permit him to conduct criminal activity; and
- the processing of Mr Akers’ request does not mean that the Tribunal would necessarily reach the same view in relation to a freedom of information request made by a person with a long criminal history who might be expected to be subject to ongoing surveillance, and could therefore use knowledge of any surveillance activities to avoid detection of subsequent criminal activity. Each case would need to be determined on its own facts, and the evidence presented.’
Akers v Victoria Police [2022] VCAT 88158
Background
The applicant requested access to Interest Flags in the Victoria Police LEAP database.
Decision
VCAT found the Interest Flags were exempt under section 31(1)(d).
The creation, content, knowledge of and use of the Interest Flags are methods and procedures that Victoria Police use to detect, investigate and otherwise deal with matters arising out of breaches or evasions of the law.
The methods and procedures evident from the Interest Flags are known to and used only by Victoria Police. The information captured in Interest Flags about a person is ‘essential to make an assessment as to how to stay safe’ when engaging with that person.
If the Interest Flags were released, it would prejudice the effectiveness of Interest Flags in LEAP because Victoria Police would be less likely to use the Interest Flags and the value of the LEAP database would be eroded. Police interactions with the subjects of the records may become more dangerous and investigations may become less effective, ultimately leading to fewer prosecutions for breaches of the law. Further, if the Interest Flags were known, a person could alter their behaviour, which would substantially hinder police operations.
Although the applicant said that he knew how Victoria Police used Interest Flags, VCAT was satisfied that he had no real understanding of what things may trigger an Interest Flag being raised or how they may then be employed by Victoria Police.
Parker v Court Services Victoria [2021] VCAT 461
Background
The applicant requested access to CCTV footage from two cameras behind a specific counter at the Dandenong Magistrates’ Court on a particular day.
Decision
VCAT found that the documents were exempt under section 31(1)(d).
Whilst the location and purpose of the CCTV cameras is well known, VCAT accepted evidence that viewing footage from particular cameras would disclose aspects of the operation of the camera that is not known, including, the limits of the range of vision or the coverage of the cameras, including any blind spots and the timing of recordings.
VCAT accepted that this would be reasonably likely to undermine the effectiveness of the CCTV cameras, including as a deterrent measure, by potentially indicating how the cameras could be circumvented. VCAT accepted evidence of past threats and incidents of harm to court premises.
VCAT accepted that in a court environment in which security and law enforcement matters are a foreseeable occurrence, release of the CCTV footage, should any exist, would be reasonably likely to prejudice the effectiveness of security measures and procedures at the Court.
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
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:
- Specifically identify the information to which the exemption may apply.
- 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.
- Establish that the person whose life or physical safety is endangered is either:
- engaged in, or in connection with, law enforcement; or
- has provided confidential information in relation to the enforcement or administration of the law.
- Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed.161
- 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
- Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
- 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
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
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.
Being engaged in, or connected, with law enforcement is generally self-evident from the person’s employment.
Example
A police officer, correctional officer, or sheriff’s officer.
Provided confidential information
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
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.
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’.
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
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
Examples
The proper administration of the law includes:
- The management of prisons and prisoners,196 the classification of prisoners and the parole of prisoners197 and the ability to operate the prison security system safely.198
- Preliminary investigations and disciplinary proceedings against professionals such as registered medical practitioners,199 and police officers.200
- Investigations into suspected fraudulent activities by claimants and service providers, conducted for the purpose of protecting the Transport Accident Fund and prosecuting wrongdoing under the Transport Accident Act 1986 (Vic).201
- Child protection investigations conducted under the Children, Youth and Families Act 2005 (Vic).202
Case examples
Humane Society International Inc v Royal Botanic Gardens [2002] VCAT 1051
Background
The applicant sought access to the Flying Fox Management Strategy and operational plan for the Royal Botanic Gardens.
The agency claimed the documents were exempt under section 31(1)(e).
Decision
The documents were not exempt under section 31(1)(e).
The activities of the Royal Botanic Gardens Board relating to the control of bats did not form part of the administration of the law because it did not have a connection with:
- the criminal law; or
- the legal process of upholding or enforcing the civil law; or
- monitoring compliance with the law.
Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586
Background
The applicant was a prisoner in a correctional facility. The applicant requested access to anonymous handwritten notes provided to prison staff.
Decision
The anonymous notes were exempt under section 31(1)(e).
Prisoners who provide anonymous handwritten notes to prison authorities concerning other prisoners, do so confidentially.
Disclosure of the anonymous notes would enable a person to ascertain the identity of the author of the note. The author’s identity could be ascertained by their handwriting and by the prisoners named in the notes, when considered in the context that prisoners are aware of the friendships, alliances and allegiances which exist between prisoners and groups of prisoners.
Anonymous notes provided to prison authorities by a prisoner in a unit concerning other prisoners in that unit are a source of intelligence for prison authorities, relevant to the proper administration of the law, being the ongoing operations of prison security.
The identification of the author of the notes could endanger the lives or physical safety of that person. There is a reasonable possibility that a prisoner may punish a person they believe to be an informer or who has threatened another prisoner.
When consulting, the 30-day period for deciding a request may be extended by up to 15 days under section 21(2)(a).
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.
An agency or Minister is only required to consult with a third party where it is practicable to do so.
For more information on whether consultation is practicable, see section 33 of the FOI Guidelines.
Consultation may occur in any manner or form. For example, by telephone, email, post, or a meeting.
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.
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.
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)
When considering whether a document is exempt under section 31(1), an agency or Minister must, if 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.
Example
A local council receives a request for documents about an investigation into illegal dumping. The request includes documents the local council provided to the Environment Protection Authority (EPA) for further investigation.
Under section 31(5), the local council should notify the EPA of the request and seek the EPA’s views on whether the documents should be disclosed.
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.
Example
For the section 31(1)(a) exemption relating to an investigation, the agency or Minister should inform the third party that the exemption will only apply if it is established that:
- 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; and
- release of the information would or would be reasonably likely to prejudice that investigation.
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)
When considering whether a document should be disclosed under section 31(2), an agency or Minister must, if 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 practicable;
- how to conduct consultation;
- privacy considerations; and
- keeping records of consultation under the Professional Standards.
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
Example
An agency receives a request for documents about an ongoing, covert investigation. Any documents that acknowledged the existence of that covert investigation would likely compromise that investigation by alerting the subject to the investigation.
In this circumstance, the agency can neither confirm nor deny that a document exists pursuant to section 27(2)(b), and state that any document, if it did exist, would be exempt under section 31(1)(a).
During a review, there are special requirements for providing OVIC with a document that an agency or Minister claims is exempt under section 31.
- 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.
- See Akers v Victoria Police [2022] VCAT 884 [34]-[35] for an example of the application of section 31(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.
- Akers v Victoria Police [2022] VCAT 884 [33].
- See ‘EH9’ and Victoria Police [2022] VICmr 100 for an example of the application of section 31(4).
- 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.
- See Akers v Victoria Police [2022] VCAT 884 [34]-[35] for an example of the application of section 31(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.
- Akers v Victoria Police [2022] VCAT 884 [33].
- See ‘EH9’ and Victoria Police [2022] VICmr 100 for an example of the application of section 31(4).
- 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.
- 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.
- Freedom of Information Act 1982 (Vic), section 31(2).
- In section 31(2).
- Freedom of Information Act 1982 (Vic), section 31(2)(a).
- Freedom of Information Act 1982 (Vic), section 31(2)(b).
- Freedom of Information Act 1982 (Vic), section 31(2)(c).
- Freedom of Information Act 1982 (Vic), section 31(2)(d).
- Freedom of Information Act 1982 (Vic), section 31(2)(e).
- Freedom of Information Act 1982 (Vic), section 31(2)(f).
- Freedom of Information Act 1982 (Vic), section 31(2).
- In section 31(2).
- Freedom of Information Act 1982 (Vic), section 31(2)(a).
- Freedom of Information Act 1982 (Vic), section 31(2)(b).
- Freedom of Information Act 1982 (Vic), section 31(2)(c).
- Freedom of Information Act 1982 (Vic), section 31(2)(d).
- Freedom of Information Act 1982 (Vic), section 31(2)(e).
- Freedom of Information Act 1982 (Vic), section 31(2)(f).
- Freedom of Information Act 1982 (Vic), sections 31(1)(a), (b) and (d).
- Freedom of Information Act 1982 (Vic), section 31(1)(c).
- Freedom of Information Act 1982 (Vic), section 31(1)(d).
- Freedom of Information Act 1982 (Vic), section 31(1)(e).
- 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)].
- XYZ v Victoria Police [2010] VCAT 255 [185].
- Freedom of Information Act 1982 (Vic), sections 31(1)(a), (b) and (d).
- Freedom of Information Act 1982 (Vic), section 31(1)(c).
- Freedom of Information Act 1982 (Vic), section 31(1)(d).
- Freedom of Information Act 1982 (Vic), section 31(1)(e).
- 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)].
- XYZ v Victoria Police [2010] VCAT 255 [185].
- Bergman v Department of Justice [2012] VCAT 363 [66], referring to Sobh v Police Force of Victoria [1994] 1 VR 41, 55.
- Bergman v Department of Justice [2012] VCAT 363 [66], referring to Sobh v Police Force of Victoria [1994] 1 VR 41, 55.
- Simons v Department of Justice [2006] VCAT 2053 [36].
- 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].
- 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].
- O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
- Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [28], [50].
- 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.
- Simons v Department of Justice [2006] VCAT 2053 [36].
- 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].
- 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].
- O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
- Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [28], [50].
- 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.
- Shulver v Victoria Police Force (1995) 9 VAR 71, 76.
- O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
- Shulver v Victoria Police Force (1995) 9 VAR 71, 76.
- Shulver v Victoria Police Force (1995) 9 VAR 71, 76.
- O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175–176; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
- Shulver v Victoria Police Force (1995) 9 VAR 71, 76.
- Per section 31(5).
- Per section 31(6).
- In accordance with section 27(2)(b).
- Per section 31(5).
- Per section 31(6).
- In accordance with section 27(2)(b).
- JCL v Victoria Police [2012] VCAT 1060 [22] following O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175-176.
- JCL v Victoria Police [2012] VCAT 1060 [28].
- JCL v Victoria Police [2012] VCAT 1060 [28].
- 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.
- JCL v Victoria Police [2012] VCAT 1060 [22] following O’Sullivan v Police Force (Vic) (1986) 1 VAR 171, 175-176.
- JCL v Victoria Police [2012] VCAT 1060 [28].
- JCL v Victoria Police [2012] VCAT 1060 [28].
- 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.
- Fogarty v Office of Corrections (1989) 3 VAR 214 [48].
- Knight v Department of Justice [2012] VCAT 369 [115].
- Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [50].
- Knight v Medical Board (Vic) (1991) 5 VAR 171 [184]-[185].
- Marke v Department of Justice and Regulation [2019] VCAT 479 [42].
- Quick v Transport Accident Commission [2022] VCAT 622 [31]-[37].
- ‘CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44 [39].
- Fogarty v Office of Corrections (1989) 3 VAR 214 [48].
- Knight v Department of Justice [2012] VCAT 369 [115].
- Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [50].
- Knight v Medical Board (Vic) (1991) 5 VAR 171 [184]-[185].
- Marke v Department of Justice and Regulation [2019] VCAT 479 [42].
- Quick v Transport Accident Commission [2022] VCAT 622 [31]-[37].
- ‘CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44 [39].
- Per section 31(5).
- Per section 31(6).
- Per section 31(5).
- Per section 31(6).
- Barnes v Commissioner for Corporate Affairs (No 2) (1987) 1 VAR 438, 442.
- Barnes v Commissioner for Corporate Affairs (No 2) (1987) 1 VAR 438, 442.
- Per section 31(5).
- Per section 31(6).
- Per section 31(5).
- Per section 31(6).
- Per section 31(5).
- Per section 31(6).
- Per section 31(5).
- Per section 31(6).
- Jarvie v Magistrates’ Court [1995] 1 VR 84, 88.
- XYZ v Victoria Police [2010] VCAT 255 [154].
- Re Coleman and Director General Local Government Department (1985) 1 VAR 9, 13.
- Accident Compensation Commission v Croom [1991] 2 VR 322, 329.
- XYZ v Victoria Police [2010] VCAT 255 [155]; Accident Compensation Commission v Croom [1991] 2 VR 322, 329.
- Accident Compensation Commission v Croom [1991] 2 VR 322, 329; XYZ v Victoria Police [2010] VCAT 255 [155].
- Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255 [155], [265].
- 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).
- XYZ v Victoria Police [2010] VCAT 255 [265]; Woodford v Ombudsman [2001] VCAT 721 [95].
- Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51 [52]–[53].
- Gunawan v Department of Education (unreported, VCAT, Davis SM, 15 December 1998).
- Jarvie v Magistrates’ Court [1995] 1 VR 84, 88.
- XYZ v Victoria Police [2010] VCAT 255 [154].
- Re Coleman and Director General Local Government Department (1985) 1 VAR 9, 13.
- Accident Compensation Commission v Croom [1991] 2 VR 322, 329.
- XYZ v Victoria Police [2010] VCAT 255 [155]; Accident Compensation Commission v Croom [1991] 2 VR 322, 329.
- Accident Compensation Commission v Croom [1991] 2 VR 322, 329; XYZ v Victoria Police [2010] VCAT 255 [155].
- Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255 [155], [265].
- 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).
- XYZ v Victoria Police [2010] VCAT 255 [265]; Woodford v Ombudsman [2001] VCAT 721 [95].
- Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51 [52]–[53].
- Gunawan v Department of Education (unreported, VCAT, Davis SM, 15 December 1998).
- JCL v Victoria Police [2012] VCAT 1060.
- JCL v Victoria Police [2012] VCAT 1060 [28].
- 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.
- JCL v Victoria Police [2012] VCAT 1060.
- JCL v Victoria Police [2012] VCAT 1060 [28].
- 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.
- Fogarty v Office of Corrections (1989) 3 VAR 214 [48].
- Knight v Department of Justice [2012] VCAT 369 [115].
- Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [50].
- Knight v Medical Board (Vic) (1991) 5 VAR 171 [184]-[185].
- Marke v Department of Justice and Regulation [2019] VCAT 479, [42].
- Quick v Transport Accident Commission [2022] VCAT 622, [31]-[37].
- CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44, [39].
- Fogarty v Office of Corrections (1989) 3 VAR 214 [48].
- Knight v Department of Justice [2012] VCAT 369 [115].
- Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586 [27], [50].
- Knight v Medical Board (Vic) (1991) 5 VAR 171 [184]-[185].
- Marke v Department of Justice and Regulation [2019] VCAT 479, [42].
- Quick v Transport Accident Commission [2022] VCAT 622, [31]-[37].
- CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44, [39].
- Freedom of Information Act 1982 (Vic), section 31(5).
- Freedom of Information Act 1982 (Vic), section 31(6).
- Freedom of Information Act 1982 (Vic), section 31(5).
- Freedom of Information Act 1982 (Vic), section 31(6).
- XYZ v Victoria Police [2010] VCAT 255, [177].
- 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).
- 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)].
- XYZ v Victoria Police [2010] VCAT 255, [177].
- 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).
- 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)].
- See also Akers v Victoria Police [2023] VCAT 442.
- See also Akers v Victoria Police [2023] VCAT 442.
- Freedom of Information Act 1982 (Vic), section 31(5).
- Freedom of Information Act 1982 (Vic), section 31(6).
- Freedom of Information Act 1982 (Vic), section 31(5).
- Freedom of Information Act 1982 (Vic), section 31(6).
- Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 842.
- Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 844.
- Re Lawless and Secretary to Law Department (1985) 1 VAR 42, 50–51.
- 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].
- O’Sullivan v Police (Vic) (2005) 22 VAR 426 [19].
- O’Sullivan v Police (Vic) (2005) 22 VAR 426 [20].
- Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 842.
- Department of Agriculture and Rural Affairs v Binnie [1989] VR 836, 844.
- Re Lawless and Secretary to Law Department (1985) 1 VAR 42, 50–51.
- 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].
- O’Sullivan v Police (Vic) (2005) 22 VAR 426 [19].
- O’Sullivan v Police (Vic) (2005) 22 VAR 426 [20].
- Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255 [155], [265].
- Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
- Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51, 52–53.
- Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
- Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255 [155], [265].
- Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
- Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51, 52–53.
- Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
- JCL v Victoria Police [2012] VCAT 1060.
- JCL v Victoria Police [2012] VCAT 1060, [28].
- 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.
- Fogarty v Office of Corrections (1989) 3 VAR 214, [48].
- Knight v Department of Justice [2012] VCAT 369 [115].
- Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586, [27], [50].
- Knight v Medical Board (Vic) (1991) 5 VAR 171, [184]-[185].
- Marke v Department of Justice and Regulation [2019] VCAT 479, [42].
- Quick v Transport Accident Commission [2022] VCAT 622 [31]-[37].
- ‘CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44, [39].
- JCL v Victoria Police [2012] VCAT 1060.
- JCL v Victoria Police [2012] VCAT 1060, [28].
- 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.
- Fogarty v Office of Corrections (1989) 3 VAR 214, [48].
- Knight v Department of Justice [2012] VCAT 369 [115].
- Sloan v Secretary to the Department of Justice and Community Safety [2019] VCAT 586, [27], [50].
- Knight v Medical Board (Vic) (1991) 5 VAR 171, [184]-[185].
- Marke v Department of Justice and Regulation [2019] VCAT 479, [42].
- Quick v Transport Accident Commission [2022] VCAT 622 [31]-[37].
- ‘CQ8’ and Department of Families, Fairness and Housing [2021] VICmr 44, [39].
- Freedom of Information Act 1982 (Vic), section 31(5).
- Freedom of Information Act 1982 (Vic), section 31(6).
- Freedom of Information Act 1982 (Vic), section 31(5).
- Freedom of Information Act 1982 (Vic), section 31(6).
- Under section 27(2)(b).
- Under section 27(2)(b).