Section 31A - Documents relating to IBAC

The purpose of section 31A is to protect the:

• integrity of the Independent Broad-based Anti-corruption Commission’s (IBAC) investigations, and the effectiveness of methods and procedures for dealing with disclosures, complaints and notifications; ⁸
• identity of persons or bodies who provide information to IBAC; and
• lives or physical safety of persons involved in IBAC’s functions or who have provided information to IBAC.

To be exempt under section 31A(1), the agency or Minister must establish that disclosure of the document or information would or would be reasonably likely to:

• prejudice an investigation undertaken by the IBAC;⁹ or
• disclose, or enable a person to ascertain, the identity of any person or body (other than Victoria Police) who has provided information to the IBAC;¹⁰ or
• disclose methods or procedures for preventing, investigating or dealing with:
  • public interest disclosures;¹¹ or
  • complaints or notifications relating to corrupt conduct or police personnel conduct; and
  • the disclosure of the document or information would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures;¹² or
• endanger the lives or physical safety of persons engaged in or in connection with the IBAC’s functions or persons who have provided information to the IBAC.¹³

Section 31A should be read alongside section 194 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act).¹⁴

A document may be:

• excluded from the right of access under the FOI Act because of section 194 of the IBAC Act; or
• exempt under section 31A.

Section 31A must be read consistently with the object of the FOI Act in section 3, which is to extend as far as possible the right of the community to access government held information.

The note at the bottom of section 31A refers to section 194 of the IBAC Act. Section 194 of the IBAC Act excludes certain documents from the FOI Act. This means access to documents falling within section 194 cannot be accessed under the FOI Act.

The documents captured by section 194 of the IBAC Act fall into two categories:

• documents in the possession of ‘any person or body’;¹⁷ and
• documents in the possession of the IBAC.¹⁸

Section 194(1) of the IBAC Act applies to documents in the possession of an agency or Minister that contain information relating to:

• a recommendation made by the IBAC under the IBAC Act;²³ or
• an investigation conducted under the IBAC Act;²⁴ or
• a report, including a draft report, on an investigation conducted under the IBAC Act.²⁵

If section 194(1) of the IBAC Act applies, access to the document cannot be provided under the FOI Act.

For the purposes of section 194(1)(b), ‘an investigation conducted under the IBAC Act’ means an investigation conducted by the IBAC according to the processes and powers under the provisions of the IBAC Act. It does not mean an investigation conducted by a third party, even if that investigation was referred to the third party by the IBAC.²⁶

Section 194(2) of the IBAC Act applies to documents in the possession of IBAC that contain information relating to:

• a complaint;³¹ or
• information received by the IBAC under section 56 of the IBAC Act;³² or
• a notification made to the IBAC under a mandatory notification provision;³³ or
• a preliminary inquiry.³⁴

If section 194(2) applies, access to the document cannot be provided under the FOI Act.

Section 78 of the Public Interest Disclosures Act 2012 (Vic) (PID Act) excludes certain documents from the FOI Act. This means access to documents falling within section 78 cannot be accessed under the FOI Act.

Section 78 of the PID Act captures documents in the possession of any person or body, to the extent that the document discloses information that:

• relates to a public interest disclosure; or
• relates to an assessable disclosure; or
• is likely to lead to the identification of a person who made a public interest disclosure.

Under the PID Act, IBAC is one of the agencies responsible for receiving, assessing, and making determinations about public interest disclosures and assessable disclosures.

Public interest disclosures and assessable disclosures that are assessed to be ‘public interest complaints’ by IBAC can be investigated under the IBAC Act.

An agency or Minister should confirm whether a document falls within section 78 of the PID Act, before considering the exemption in section 31A of the FOI Act. If section 78 applies, the document cannot be requested under the FOI Act and therefore the agency does not need to consider the exemption in section 31A.

Section 174K of the Firearms Act 1996 (Vic) (Firearms Act) excludes certain documents from the FOI Act. This means access to documents falling within section 174K cannot be accessed under the FOI Act.

Section 174K captures documents in the possession of any person or body, to the extent that the document discloses information relating to the performance of the duties and functions or the exercise of the powers of the IBAC or an authorised IBAC officer under the Firearms Act.

IBAC has three oversight functions under the Firearms Act:

• quarterly review of issued firearms prohibition orders;
• a standing power to monitor the exercise of certain Victoria Police powers; and
• the provision of biennial reports to the Minister of Police.

Where relevant, an agency should confirm whether a document falls within section 174K of the Firearms Act, before considering the exemption in section 31A of the FOI Act. If section 174K applies, the document cannot be requested under the FOI Act and therefore the agency does not need to consider the exemption in section 31A.

The exemption in section 31A(1)(a) applies to a document or information, if its disclosure would or would be reasonably like to prejudice an investigation undertaken by the IBAC.

Section 194(1)(b) of the IBAC Act applies to a document containing information relating to a current IBAC investigation. If the document falls within section 194(1)(b), it cannot be requested or provided under the FOI Act.

There will be situations where a document or information does not fall under section 194(1)(b) of the IBAC Act but does fall within the exemption in section 31A(1)(a) of the FOI Act. This may occur where a document does not relate to a current IBAC investigation, but its disclosure would or would be reasonably likely to prejudice an IBAC investigation.

The phrase ‘would or would be reasonably likely to’ is also used in the section 31 exemption for law enforcement documents.

Section 31A(1)(b) applies to a document or information, if its disclosure would or would be reasonably likely to:

• disclose the identity of any person or body (other than Victoria Police); or
• enable a person to ascertain the identity of any person or body (other than Victoria Police);

who has provided information to IBAC.

The phrase ‘would or would be reasonably likely to’ is also used in the section 31 exemption for law enforcement documents.

Disclosing a person or body’s identity means their identity:

• is apparent from the information in the document; or
• can be determined by taking reasonable steps to link the information in the document with other information. This will depend on what information is in the document, what other information is available to the applicant and the feasibility of linking the information together. The other information could be publicly available information or information that the applicant knows.

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

• disclosure of the document or information would, or would be reasonably likely to disclose methods or procedures for preventing, investigating or dealing with:
• public interest disclosures;³⁹ or
• complaints or notifications relating to corrupt conduct⁴⁰ or police personnel conduct;⁴¹ and
• the disclosure of the document or information would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures.

IBAC has the power to receive and investigate public interest disclosures and complaints and notifications relating to corrupt conduct and police personnel conduct.⁴²

The elements of this exemption are substantially the same as the elements in the section 31(1)(d) exemption for law enforcement documents. Refer to this section of the FOI Guidelines for more information on when this exemption applies, including what ‘would or would be reasonably likely to’ means.

A document or information is exempt under section 31A(1)(d) 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 the IBAC’s functions; or
  • has provided information to the IBAC.

This exemption is similar to the exemption in section 31(1)(e) for law enforcement documents. Refer to this section of the FOI Guidelines for more information on when this exemption applies, including what ‘would or would be reasonably likely to’ means.

When considering whether to apply the exemption in section 31A(1), an agency or Minister must, if practicable:

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

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

An agency or Minister is only required to notify and seek the views of the IBAC where it is practicable to do so. In practice, there are unlikely to be any circumstances where it is not practicable to consult.

Consultation with IBAC may occur in any manner or form. For example, by telephone, email, post, or a meeting. An agency or Minister may email IBAC’s FOI contact email address foi@ibac.vic.gov.au.

When undertaking consultation, IBAC should be made aware of the applicable exemption and what must be established for the exemption to apply.⁴⁴ Informing IBAC of the information required to establish the elements of the exemption will help enable IBAC to provide an informed response and ensure their reasons are relevant, if they object to the document being released.

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

The decision to exempt a document under section 31A is a discretionary power.⁴⁶ An agency or Minister can choose to provide access to information that would otherwise be exempt under section 31A, where it is proper to do so and where the agency or Minister is not legally prevented from providing access.

The discretion to disclose an exempt document only applies where the document is subject to the FOI Act. The discretion does not apply to a document that falls within section 194 of the IBAC Act, section 78 of the PID Act or section 174K of the Firearms Act. These provisions exclude the FOI Act from applying to the relevant documents.

During a review, there are special requirements for providing the Office of the Victorian Information Commissioner with a document that an agency or Minister claims is exempt under section 31A.