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Section 36 - Disclosure contrary to public interest

Guidelines

Overview of section 36

1.1

There are several exemptions in section 36, which are designed to only protect ‘essential public interests’.1 The exemptions have many discrete elements and can be difficult to establish.

1.2

In summary:

  • sections 36(1)(a) and (2)(a) exempt documents that would prematurely disclose information capable of having a substantial adverse effect on the economy of the State or of a local government area; and
  • sections 36(1)(b) and (2)(b) exempt documents that would disclose instructions given to officers of an agency for their use or guidance, on the procedures to be followed or the criteria to be applied in negotiations relating to the financial, property or personnel management and assessment interests of the Crown, or of an agency, or of a council.
1.3

The exemptions in section 36(1)(a) and (b) apply to documents of a department or prescribed authority. The exemptions in section 36(2)(a) and (b) apply to documents of a council. They cover similar subject matter to the exemptions in section 36(1).

1.4

Section 36 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. This right is only limited by exemptions necessary for the protection of essential public interests and private and business affairs.2 If it is unclear whether section 36 applies to a document, the exemption should be interpreted narrowly, in a way that favours access to information.3

Discretion to disclose exempt documents

1.5

The decision to exempt a document under section 36 is a discretionary power.7 An agency can choose to provide access to information that would otherwise be exempt under section 36, where it is proper to do so and where the agency is not legally prevented from providing access.

Documents that would prematurely disclose information that would substantially adversely affect the economy

1.6

Section 36(1)(a) and section 36(2)(a) are similar. Section 36(1)(a) applies to departments and prescribed authorities. Section 36(2)(a) applies to councils.

Elements of section 36(1)(a) – documents of departments and prescribed authorities

1.7

A document is exempt under section 36(1)(a) if its premature disclosure would be contrary to the public interest because it would be reasonably likely to have a substantial adverse effect on the economy of Victoria.

1.8

A ‘substantial adverse effect on the economy of Victoria’ may include revealing consideration of:

  • a contemplated movement in bank interest rates or sales tax;
  • the imposition of credit controls;
  • the sale or acquisition of land or property by the Crown;
  • urban rezoning;
  • the formulation of land use and planning controls; and
  • the formulation of State imposts.9

Elements of section 36(2)(a) – documents of councils

1.9

A document is exempt under section 36(2)(a) if its premature disclosure would be contrary to the public interest because it would be reasonably likely to have a substantial adverse effect on the economy of the local government area.

1.10

A ‘substantial adverse effect on the economy’ of the local government area may include revealing consideration of:

  • a contemplated movement in rates, fees, charges, interest charges or other levies;
  • the sale or acquisition of land or property by the council;
  • urban rezoning;
  • the formulation of land use and planning controls; and
  • the formulation of imposts.11

Applying the exemptions

1.11

A document will only be exempt under sections 36(1)(a) and (2)(a) if its premature disclosure would be contrary to the public interest.

1.12

A document is not automatically exempt because it contains information of the same character or nature as the examples used in the exemption of information that may have a substantial adverse effect on the economy.13 For example, a document is not exempt just because it reveals consideration of urban rezoning. It must also be contrary to the public interest to release that information.

1.13

To establish that the premature disclosure of the document would be contrary to the public interest, the department, prescribed authority, or council must produce evidence of:

  • the character or nature of the information which would be disclosed by releasing the document;
  • the economy of Victoria or the relevant local government area; and
  • what the substantial adverse effect on the economy would be if the specific information in the document was prematurely disclosed.14

Contracts and legal disputes relating to financial, commercial, or labour matters

1.14

Section 36(1)(b) is similar to section 36(2)(b). Section 36(1)(b) applies to documents of departments and prescribed authorities. Section 36(2)(b) applies to documents of councils.17

1.15

A document is exempt under section 36(1)(b) or 36(2)(b) if disclosure would be contrary to the public interest because the document would disclose;

  • instructions issued to, or provided for;
  • the use or guidance of officers of an agency or council;
  • on the procedures to be followed or the criteria to be applied in negotiation, including:
    • financial, commercial and labour negotiation;
    • in the execution of contracts;
    • in the defence, prosecution and settlement of cases; and
    • in similar activities;
  • relating to the financial, property or personnel management and assessment interests of the Crown or of an agency or of a council.
1.16

The exemption is limited to documents disclosing procedures or criteria to be applied in negotiation, not to any documents relating to financial, property or personnel management in general.

1.17

The ‘contrary to the public interest’ element here focuses on the nature of the information in the requested document. This means that if the information is of the nature as that described in section 36(1)(b) or section 36(2)(b), its disclosure is contrary to the public interest.

1.18

The exemption may apply to a document containing instructions about a particular negotiation, as well as a document containing instructions on general practices and procedures relating to negotiation.18 However, this should be considered on a case-by-case basis. See the case examples below for more information about when this may apply.

  1. Victoria, Parliamentary Debates, Legislative Assembly, 14 October 1982, 1064 (John Cain, Premier of Victoria).
  2. Ryan v Department of Infrastructure [2004] VCAT 2346 [32].
  3. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 [21] referring to Ryder v Booth (1989) VR 869, 877; Smith v Department of Sustainability and Environment [2006] VCAT 1228 [15]. While these decisions do not deal with section 36, they refer to the principle set out in Ryder v Booth that because the FOI Act is remedial legislation, where ambiguity is encountered the rights given by the Act should be construed liberally and the exceptions narrowly. 
  4. Victoria, Parliamentary Debates, Legislative Assembly, 14 October 1982, 1064 (John Cain, Premier of Victoria).
  5. Ryan v Department of Infrastructure [2004] VCAT 2346 [32].
  6. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 [21] referring to Ryder v Booth (1989) VR 869, 877; Smith v Department of Sustainability and Environment [2006] VCAT 1228 [15]. While these decisions do not deal with section 36, they refer to the principle set out in Ryder v Booth that because the FOI Act is remedial legislation, where ambiguity is encountered the rights given by the Act should be construed liberally and the exceptions narrowly. 
  7. Victorian Public Service Board v Wright [1986] HCA 16 [3].
  8. Victorian Public Service Board v Wright [1986] HCA 16 [3].
  9. Freedom of Information Act 1982 (Vic), section 36(1)(a).
  10. Freedom of Information Act 1982 (Vic), section 36(1)(a).
  11. Freedom of Information Act 1982 (Vic), section 36(2)(a).
  12. Freedom of Information Act 1982 (Vic), section 36(2)(a).
  13. Pallas v Roads Corporation [2013] VCAT 1967 [26]-[28], [54].
  14. Pallas v Roads Corporation [2013] VCAT 1967 [26]-[28], [54]; Thwaites v Austin & Repatriation Medical Centre (formerly North Eastern Health Care Network) (unreported, VCAT, Davis M, 28 April 1999), [27]-[28].
  15. Pallas v Roads Corporation [2013] VCAT 1967 [26]-[28], [54].
  16. Pallas v Roads Corporation [2013] VCAT 1967 [26]-[28], [54]; Thwaites v Austin & Repatriation Medical Centre (formerly North Eastern Health Care Network) (unreported, VCAT, Davis M, 28 April 1999), [27]-[28].
  17. United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 [145] citing City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170.
  18. United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 [151]-[158].
  19. United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 [145] citing City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170.
  20. United Firefighters Union of Australia – Victoria Branch v Metropolitan Fire and Emergency Services Board [2018] VCAT 631 [151]-[158].
  21. See also ‘EH6’ and Labour Hire Authority [2022] VICmr 97 and ‘CX2’ and Department of Premier and Cabinet [2021] VICmr 102 for other examples where the evidence did not establish that the document contained information of the same nature as described in the exemption.
  22. See also ‘EH6’ and Labour Hire Authority [2022] VICmr 97 and ‘CX2’ and Department of Premier and Cabinet [2021] VICmr 102 for other examples where the evidence did not establish that the document contained information of the same nature as described in the exemption.

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Last updated 13 February 2024

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