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Section 38 - Documents to which secrecy provisions of enactments apply

Guidelines

The exemption

1.1

A document is exempt under section 38 when three conditions are satisfied:

  1. there is a section of a Victorian Act (an enactment) that is in force; and
  2. the enactment applies specifically to information contained in the document; and
  3. the enactment prohibits specific persons from disclosing the specified information.

Purpose and scope of the exemption

1.2

Section 38 exempts documents where information in those documents is protected by a secrecy provision.

1.3

Before the introduction of the Act, there were secrecy provisions in other enactments that prevented the disclosure of certain information. Section 38 was intended to preserve the continued operation of those secrecy provisions.1

1.4

The section 38 exemption applies to secrecy provisions that are in force. It does not matter whether the provision came into effect before or after the commencement of the Act.2

1.5

Section 38 applies to secrecy provisions contained in Victorian enactments only.3

Secrecy provisions in Commonwealth laws

1.6

The section 38 exemption does not apply to Commonwealth laws.7

1.7

However, an applicant will still be prevented from accessing information under the Act, if a secrecy provision or a confidentiality provision in a Commonwealth law prohibits disclosure of certain information.8 This is because section 109 of the Commonwealth Constitution provides that a Commonwealth law prevails where there is an inconsistency between a State law and a Commonwealth law.

See section 13 of the FOI Guidelines for more information about the interaction between the right of access under the Act and Commonwealth laws that prohibit disclosure of information.

Steps to applying section 38

1.8

An agency or Minister seeking to apply the section 38 exemption should:

  • Identify the enactment that may apply to the information.
  • Ensure the enactment is in force.
  • Specifically identify the information to be exempted.
  • Determine whether the enactment specifically applies to the information under consideration and be able to explain how or why the enactment specifically applies to the information.
  • Consider whether the enactment prohibits persons referred to in the enactment from disclosing the specific kind of information under consideration.
  • Check to see if the enactment has any exceptions that may apply.

What is an enactment?

1.9

An enactment is defined broadly in section 5. It means an Act or instrument made under an Act, including rules, regulations, local laws, or by-laws. For example, the Corrections Act 1986 (Vic).

Is the enactment in force?

1.10

The identified enactment must be in force. This means, it is currently operating and must not have been repealed or otherwise lapsed at the time a decision is made on a request.11

1.11

If a secrecy provision was previously in force but is no longer in force at the time of the decision, it cannot be applied to exempt a document from release under section 38.

Does the enactment refer specifically to the information in the document?

1.12

For section 38 to apply, the secrecy provision must refer specifically to the kind of information in the document.

1.13

One way to determine this, is to consider whether the enactment talks about content versus context. An enactment that describes the actual content of a document (or the information) is more likely to be exempt under section 38, compared with an enactment that is concerned with the context of the document’s creation or existence.

1.14

The following sections contain other general principles from case law, that can be used to help determine whether the secrecy provision applies specifically to the kind of information in the document and prohibits persons from disclosing information of that kind.

Indicators of when an enactment applies specifically

1.15

An enactment ‘applies specifically’ when:

  • the enactment is formulated with such precision it refers with particularity to the information;13
  • the enactment is concerned with the specific nature and quality of the relevant information contained in the document. For example, the enactment identifies the information as ‘information relating to the affairs of another person’. 14
  • it focuses on the information in the document;15 or
  • the secrecy provision applies to a document’s contents, as opposed to only applying based on who is in possession of the document.16

Indicators of when an enactment does not apply specifically

1.16

An enactment does not ‘apply specifically’ when it:

  • is too general in its application.21
  • makes a blanket reference to ‘information’;22
  • is formulated in such general terms it would encompass the particular information without expressly referring to it;23
  • is concerned with the context in which the document exists;24
  • identifies the information only as information obtained in pursuance of the Act in which the provision is found, or information obtained by an officer in the course of their duty.25 This wording is too broad to apply specifically to the information in the document. It says nothing directly about the kind of information, which, depending on the role of the officers, may be of a very wide, almost limitless nature;26
  • focuses on the document or its status, source, or destination instead of the particular information in the document;27 For example, a provision referring to ‘Cabinet documents’ does not apply specifically to information of any kind.
  • identifies the ‘kind’ of information only by reference to the capacity of the person who is in possession of the information.28 For example, a provision referring to information ‘prepared for or in the custody of officers of the Department of Health’ does not apply specifically to information of any kind. Whereas a provision referring to ‘biometric information’ is specific enough to identify and apply to information of that kind in a requested document; or
  • prohibits disclosure only on the basis of who has possession of the information.29

Does the enactment prohibit persons referred to from disclosing the information?

A prohibition

1.17

The provision must prohibit a person from disclosing the specified information.

1.18

A prohibition is usually framed to prevent a person from releasing or disclosing information. Many prohibitions are accompanied by a penalty provision. For example, a fine or imprisonment for not following the prohibition. Where a penalty provision does exist, it is a persuasive (but not determinative) indication that the enactment falls within section 38.39

1.19

Disclosure is not prohibited where the instrument:

  • creates a positive right allowing a person to inspect all documents of a class except certain documents of a particular class;40 or
  • expresses preferred, rather than mandatory, conduct.41

Persons referred to in the enactment

1.20

This element is easily satisfied. All that is required is for the enactment to prohibit a person or persons (either generally, specifically or otherwise defined) from disclosing the specific information under consideration.

1.21

This element does not require the enactment to prohibit disclosure of the relevant information by:

  • the person in possession of the document;
  • the person to whom the document was provided; or
  • the person to whom the document was addressed.45

Are there any exceptions to the secrecy provision?

1.22

When considering the prohibition, an agency should look to see if there are exceptions to the prohibition. If an exception applies to the particular situation, then the document will not be exempt under section 38.

1.23

For example, if an enactment states that the information may be released with the written consent of the subject of the information, and the applicant is that subject, then the exception is made out and the prohibition does not apply. This is because the FOI request itself is usually considered written consent.47

1.24

Some secrecy provisions permit disclosure of information ‘in performance of functions of the agency’ or where disclosure ‘is required or authorised by law for another purpose.’ VCAT has decided in a number of decisions that exceptions of this nature do not permit the disclosure of information under the FOI Act.49

Councils and section 125 of the Local Government Act 2020

1.25

Section 125(1) of the Local Government Act 2020 (Vic) (LG Act) protects ‘confidential information’ from unauthorised disclosure.

1.26

The section states:

Unless subsection (2) or (3) applies, a person who is, or has been, a Councillor, a member of a delegated committee or a member of Council staff, must not intentionally or recklessly disclose information that the person knows, or should reasonably know, is confidential information.

Penalty: 120 penalty units.

1.27

Section 125(1) of the LG Act is a secrecy provision for the purposes of section 38 of the FOI Act. However, its application to documents sought under an FOI request is limited by sections 125(4) and 125(5) of the LG Act.

What is confidential information under section 125(1) of the Local Government Act?

1.28

Section 3 of the LG Act defines 12 categories of ‘confidential information’ for the purposes of section 125(1) of the LG Act. Each category of confidential information is listed below.

When can’t I use section 125(1) of the Local Government Act with section 38 of the FOI Act?

1.29

Sections 125(4) and 125(5) of the LG Act limits when section 125(1) of the LG Act can be used with section 38 of the FOI Act. They state:

(4) Despite section 38 of the Freedom of Information Act 1982, a document containing information of the kind described in paragraph (a), (b), (c), (d), (e), (f) or (g) of the definition of confidential information is not an exempt document within the meaning of the Freedom of Information Act 1982 by virtue of section 38 of that Act.

(5) Despite section 38 of the Freedom of Information Act 1982, a document containing information prescribed to be confidential information for the purposes of paragraph (k) of the definition of confidential information is not an exempt document within the meaning of the Freedom of Information Act 1982 by virtue of section 38 of that Act if, for the purposes of this subsection, it is a prescribed non-exempt document or prescribed class of non-exempt document.

Note

A document referred to in subsection (4) or (5) may still be an exempt document by virtue of another provision of Part IV of the Freedom of Information Act 1982.

What is the effect of section 125(4) of the Local Government Act?

1.30

The effect of section 125(4) of the LG Act is that section 38 of the FOI Act cannot be used to exempt the following categories of ‘confidential information:’

  1. council business information, being information that would prejudice the Council’s position in commercial negotiations if prematurely released.
  2. security information, being information that if released is likely to endanger the security of Council property or the safety of any person.
  3. land use planning information, being information that if prematurely released is likely to encourage speculation in land values.
  4. law enforcement information, being information which if released would be reasonably likely to prejudice the investigation into an alleged breach of the law or the fair trial or hearing of any person.
  5. privileged information, being information to which legal professional privilege or client legal privilege applies.
  6. personal information, being information which if released would result in the unreasonable disclosure of information about any person or their personal affairs.
  7. private commercial information, being information provided by a business, commercial or financial undertaking that relates to trade secrets; or if released, would unreasonably expose the business, commercial or financial undertaking to disadvantage.

What is the effect of section 125(5) of the Local Government Act?

1.31

The effect of section 125(5) of the LG Act is that section 38 of the FOI Act cannot be used to exempt information that is prescribed by the regulations to be confidential information, if the regulations have also prescribed the information to be a non-exempt document or prescribed class of non-exempt document.

1.32

As of 31 July 2023, there is no prescribed ‘confidential information’ or prescribed non-exempt document or class of non-exempt document in the regulations.

What does this mean?

1.33

Where requested information falls within one of the categories of ‘confidential information’ referred to in section 125(4) or 125(5) of the LG Act, a Council must disclose the ‘confidential information’ in response to a freedom of information request, unless the information is exempt from release under a different exemption in Part IV of the FOI Act.

When can I use section 125(1) of the Local Government Act with section 38 of the FOI Act?

1.34

Councils may use section 125(1) of the LG Act with section 38 of the FOI Act to exempt the following categories of ‘confidential information:’

  • confidential meeting information, being the records of meetings closed to the public under section 66(2)(a).
  • internal arbitration information, being information specified in section 145.
  • Councillor Conduct Panel confidential information, being information specified in section 169.
  • information prescribed by the regulations to be ‘confidential information’, that has not been prescribed to be a non-exempt document or class of non-exempt document.
  • information that was confidential information for the purposes of section 77 of the Local Government Act 1989 (Vic).
1.35

A decision to rely on section 125(1) of the LG Act with section 38 of the FOI Act must be supported by detailed reasons. This includes the relevant facts, and an explanation of how and why the information falls into one of the four above categories of ‘confidential information.’

Table of section 38 secrecy provisions

1.36

This table outlines enactments that have been interpreted as secrecy provisions for the purpose of the Act. Section 38 applies to these enactments.

Legislation Section Title Decision
Adoption Act 1984 83 Restriction on access to reports and records
Australian Grand Prix Act 1994 25(6) Business plan
Business Licensing Authority Act 1998 18 Secrecy
Children, Youth and Families Act 2005 16ZE Prohibition on publishing certain information
41 Identity of reporter or referrer confidential
191 Confidentiality
209 Confidentiality
534 Restriction on publication of proceedings
552 Confidentiality of reports
Commission for Children and Young People Act 2012 55 Disclosure of information prohibited
Corrections Act 1986

 

104ZZA Offence to use or disclose personal or confidential information unless authorised
Coroner’s Act 2008 115(6) Access to documents
Crimes Act 1958 464JA(4) Offences in relation to recordings
  • Akers v Victoria Police (Corrected) [2022] VCAT 720
Equal Opportunity Act 2010 176 Secrecy
Evidence (Miscellaneous Provisions) Act 1958 21M Confidentiality
Family Violence Protection Act 2008 144C Meaning of excluded information
144R Unauthorised use and disclosure of confidential information
166(2) Restriction on Publication of Proceeding in Magistrate’s Court
Health Complaints Act 2016 151 Non-disclosure of information – complaint resolution process
152 Non-disclosure of information given in conciliation
Health Records Act 2001 27 No access to health information where information given in confidence
Health Services Act 1988 141 Confidentiality
Gambling Regulation Act 2003

 

10.1.30 General duty of confidentiality
10.1.34 Third party disclosures
Judicial Proceedings Reports Act 1958 4(1A) Prohibition of reporting of names
Labour Hire Licensing Act 2018 103 Secrecy provision
Legal Aid Act 1978 40K Freedom of Information Act 1982
43 Officers of VLA not to reveal any information without consent of VLA
Legal Profession Uniform Law Application Act 2014 462 Prohibition on disclosure of information
Local Government Act 2020 125  
Livestock Disease Control Act 1994 107C Secrecy
Mental Health Act 2014 175 Secrecy
Mineral Resources (Sustainable Development) Act 1990 119(2) Secrecy
Residential Tenancies Act 1997 499 Confidentiality
Road Safety Act 1986 Part 7B Use and disclosure of information
90P Freedom of Information Act 1982
Road Safety Camera Commissioner Act 2011 20 Law enforcement documents
Surveillance Devices Act 1999 30D What is protected information?
30E Prohibition of use, communication or publication of protected information
Taxation Administration Act 1997 91 Prohibition on certain disclosures of information by tax officers
Transport Accident Act 1986 131 Secrecy Provision
Unclaimed Money Act 2008 76 Prohibition on certain disclosures of information by authorised persons

Table of provisions that section 38 does not apply to

1.37

This table outlines enactments that have been interpreted to not be secrecy provisions for the purpose of the Act. Section 38 does not apply to the enactments listed in the table.

  1. See Graze v Commissioner of State Revenue (Review and Regulation) [2013] VCAT 869, [37].
  2. Department of Premier and Cabinet v Hulls [1999] VSCA 117, [40].
  3. Interpretation of Legislation Act 1984 (Vic), section 38: “Act means an Act passed by the Parliament of Victoria”.
  4. See Graze v Commissioner of State Revenue (Review and Regulation) [2013] VCAT 869, [37].
  5. Department of Premier and Cabinet v Hulls [1999] VSCA 117, [40].
  6. Interpretation of Legislation Act 1984 (Vic), section 38: “Act means an Act passed by the Parliament of Victoria”.
  7. Rich v Victoria Police (unreported, AAT of Vic, Preuss PM, 14 February 1997), 43-44.
  8. XYZ v Victoria Police [2010] VCAT 255, [49].
  9. Rich v Victoria Police (unreported, AAT of Vic, Preuss PM, 14 February 1997), 43-44.
  10. XYZ v Victoria Police [2010] VCAT 255, [49].
  11. Van Der Craats v City of Stonnington [2015] VCAT 2039, [27].
  12. Van Der Craats v City of Stonnington [2015] VCAT 2039, [27].
  13. News Corporation Ltd v National Competition & Securities Commission (1984) 1 FCR 64, 68; Re Horesh and Ombudsman (1986) 1 VAR 149 cited in Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 495.
  14. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 496.
  15. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 496; Dept of Premier and Cabinet v Birrell (No 2) [1990] VR 51, per Murphy J.
  16. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68, [21].
  17. News Corporation Ltd v National Competition & Securities Commission (1984) 1 FCR 64, 68; Re Horesh and Ombudsman (1986) 1 VAR 149 cited in Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 495.
  18. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 496.
  19. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 496; Dept of Premier and Cabinet v Birrell (No 2) [1990] VR 51, per Murphy J.
  20. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68, [21].
  21. News Corporation Ltd v National Competition & Securities Commission (1984) 1 FCR 64, 68; Firmstone v State Revenue Office [2003] VCAT 953, [27].
  22. Tilley v VicRoads [2010] VCAT 483, [58]; Al Hakim v Ombudsman [2001] VCAT 1972, [37].
  23. News Corporation Ltd v National Competition & Securities Commission (1984) 1 FCR 64, 68.
  24. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 496.
  25. Al Hakim v Ombudsman [2001] VCAT 1972, [39]; Firmstone v State Revenue Office [2003] VCAT 953, [27].
  26. Kavvadias v Commonwealth Ombudsman [1984] FCA 55, [9]-[10].
  27. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483; Dept of Premier and Cabinet v Birrell (No 2) [1990] VR 51, per Murphy J.
  28. News Corporation Ltd v National Competition & Securities Commission (1984) 1 FCR 64, 68; Richardson v Business Licensing Authority [2003] VCAT 1053, [14].
  29. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68, [21].
  30. News Corporation Ltd v National Competition & Securities Commission (1984) 1 FCR 64, 68; Firmstone v State Revenue Office [2003] VCAT 953, [27].
  31. Tilley v VicRoads [2010] VCAT 483, [58]; Al Hakim v Ombudsman [2001] VCAT 1972, [37].
  32. News Corporation Ltd v National Competition & Securities Commission (1984) 1 FCR 64, 68.
  33. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483, 496.
  34. Al Hakim v Ombudsman [2001] VCAT 1972, [39]; Firmstone v State Revenue Office [2003] VCAT 953, [27].
  35. Kavvadias v Commonwealth Ombudsman [1984] FCA 55, [9]-[10].
  36. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483; Dept of Premier and Cabinet v Birrell (No 2) [1990] VR 51, per Murphy J.
  37. News Corporation Ltd v National Competition & Securities Commission (1984) 1 FCR 64, 68; Richardson v Business Licensing Authority [2003] VCAT 1053, [14].
  38. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68, [21].
  39. Telstra Corp v Vic Roads [2001] VCAT 1699, [17].
  40. Barnes v Commissioner for Corporate Affairs (No 2) (1987) 1 VAR 438, 440-441.
  41. McCulloch v University of Melbourne [2001] VCAT 2246, [41]-[43].
  42. Telstra Corp v Vic Roads [2001] VCAT 1699, [17].
  43. Barnes v Commissioner for Corporate Affairs (No 2) (1987) 1 VAR 438, 440-441.
  44. McCulloch v University of Melbourne [2001] VCAT 2246, [41]-[43].
  45. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68, [21].
  46. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68, [21].
  47. Gullquist v Victorian Legal Services Commissioner [2017] VCAT 764, [80].
  48. Gullquist v Victorian Legal Services Commissioner [2017] VCAT 764, [80].
  49. See examples, Akers v Victoria Police [2022] VCAT 723, [67]; Smeaton v Transport Accident Commission [2017] VCAT 1486; XYZ v Victoria Police [2010] VCAT 255; Tilley v VicRoads [2010] VCAT 483.
  50. See examples, Akers v Victoria Police [2022] VCAT 723, [67]; Smeaton v Transport Accident Commission [2017] VCAT 1486; XYZ v Victoria Police [2010] VCAT 255; Tilley v VicRoads [2010] VCAT 483.

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Last updated 22 February 2024

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