Section 61R - Content of investigation report

After completing an investigation, the Office of the Victorian Information Commissioner (OVIC) must make a report of its findings.²

An investigation report will generally outline the background to the investigation, how the investigation was conducted, the investigations’ findings, and recommendations from the Information Commissioner. OVIC generally publishes regulatory reports on its website.

There is certain information which cannot be included in an investigation report, including:

• information that would prejudice other legal proceedings and investigations;⁸
• information that would be exempt under section 28 or 29A;⁹
• legally privileged information;¹⁰
• findings or opinions of guilt;¹¹ and
• a recommendation or opinion that a person should be prosecuted for an offence.¹²

OVIC cannot include information in an investigation report if the information would prejudice a criminal investigation, criminal proceeding, or any investigation by the Independent Broad-based Anti-corruption Commission or the Victorian Inspectorate.¹⁴ This is unless OVIC can remove the risk of prejudice through some other means (for example, OVIC may defer publishing or tabling a report in Parliament until after the other process has concluded so that the material may be included in the report).

OVIC cannot include information in an investigation report that, if included in a document, would make the document exempt under section 28 (cabinet documents) or section 29A (documents affecting national security, defence, or international relations).¹⁶

OVIC cannot include information in an investigation report that is subject to legal professional privilege or client legal privilege.¹⁸

However, this requirement does not apply to information where privilege has been waived. Privilege will be waived where a person engages in conduct which is inconsistent with the maintenance of the privilege. If a person discloses privileged information to OVIC during an investigation, this may amount to a waiver of privilege unless special arrangements between OVIC and the agency were made.

Where an agency wishes to give privileged information to OVIC in confidence without waiving its privilege over the information, it should consider seeking legal advice and obtain OVIC’s express agreement to receive the information on a confidential basis and to not disclose the privileged information.

OVIC cannot include in an investigation report a finding that a person is guilty of or has committed, is committing, or is about to commit an offence.²¹ OVIC also cannot recommend or offer an opinion that a person should be prosecuted.²²

This restriction only prevents the Commissioner from making their own finding or recommendation of this nature. The Commissioner may refer to a finding of another body, for example, the fact that a person has been found guilty of an offence by a court or has been recommended for prosecution by a different body.

Where OVIC intends to include an adverse comment or opinion about an agency or person in an investigation report, OVIC must give them a reasonable opportunity to respond to the adverse material.²⁵ OVIC must then fairly set out each element of their response in the report.

OVIC will usually provide persons or agencies who are subject to adverse comment or opinion two opportunities to respond:

• first, an opportunity to review a preliminary version of the proposed adverse material and provide a response for OVIC to consider before the draft report is finalised;
• second, an opportunity to provide a response to the adverse material that is proposed to be included in the final report.

Where a response is provided by a person or an agency in response to their being provided with adverse material, the Commissioner must fairly set out their response in the report.²⁶

OVIC generally cannot identify a person in an investigation report who is not subject to adverse comment or opinion. This is unless OVIC is satisfied it needs or wants to include the information in the public interest and provided the information will not unreasonably damage the person’s reputation, safety or wellbeing.³⁰ OVIC must also state in the report that the person being named is not the subject of any adverse comment or opinion.³¹

Before OVIC includes an opinion or comment in an investigation report about a person (where the information is not adverse), OVIC must first provide that person with the material in which they are intended to be named.³²