Section 61TJ - Confidentiality notice

Extract of legislation

      
61TJ
Confidentiality notice

(1)
During an investigation on a public interest complaint—

(a)
if the Information Commissioner considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice—

(i)
an investigation by the IBAC or the Victorian Inspectorate; or

(ii)
the safety or reputation of a person; or

(iii)
the fair trial of a person who has been, or may be, charged with an offence—

the Information Commissioner must issue a confidentiality notice in respect of the investigation to a person (other than an IBAC officer or a Victorian Inspectorate officer) specifying the restricted matter or restricted matters in accordance with this section; and

(b)
if the Information Commissioner considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice the investigation by the Information Commissioner, the Information Commissioner may issue a confidentiality notice in respect of the investigation to a person (other than an IBAC officer or a Victorian Inspectorate officer) specifying the restricted matter or restricted matters in accordance with this section.

(2)
A confidentiality notice must—

(a)
be in the prescribed form; and

(b)
specify the restricted matter or restricted matters in respect of which the confidentiality notice is issued; and

(c)
include a copy of the provisions of subsections (3) to (7) and sections 61TK and 61TM and an explanation of the effect of those provisions; and

(d)
include a statement—

(i)
advising the person to whom the confidentiality notice is issued that additional obligations under the Public Interest Disclosures Act 2012 relating to confidentiality may apply to the person; and

(ii)
directing the person to the provisions of that Act which impose those obligations

(3)
If at any time the Information Commissioner considers on reasonable grounds that it is necessary to restrict disclosure of a different restricted matter from any of those specified in a confidentiality notice in respect of a particular investigation to ensure that the disclosure would not be likely to have the effect specified in subsection (1)(a) or (b), the Information Commissioner must issue to the person to whom the confidentiality notice was issued—

(a)
a notice cancelling the previous confidentiality notice; and

(b)
a new confidentiality notice in respect of that investigation under subsection (1).

(4)
If at any time the Information Commissioner considers on reasonable grounds that disclosure of a particular restricted matter specified in a confidentiality notice in respect of a particular investigation would no longer be likely to have the effect specified in subsection (1)(a) or (b), the Information Commissioner must issue to the person to whom the confidentiality notice was issued—

(a)
a notice cancelling the previous confidentiality notice; and

(b)
a new confidentiality notice in respect of that investigation under subsection (1).

(5)
If at any time the Information Commissioner considers on reasonable grounds that disclosure of the restricted matter or restricted matters specified in a confidentiality notice in respect of a particular investigation would no longer be likely to have the effect specified in subsection (1)(a) or (b), the Information Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice.

(6)
At the conclusion of an investigation in respect of which a confidentiality notice was issued, the Information Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless—

(a)
the Information Commissioner has applied for an order under section 61TK extending the confidentiality notice and the application has not been determined; or

(b)
the Supreme Court has made an order under section 61TK extending the confidentiality notice; or

(c)
the confidentiality notice has already been cancelled under subsection (3), (4) or (5) or section 61TK(3).

(7)
A confidentiality notice in respect of a particular investigation ceases to have effect on whichever of the following occurs first—

(a)
the date on which the Information Commissioner issues a notice cancelling the confidentiality notice under subsection (3), (4), (5) or (6) or section 61TK(3);

(b)
the date specified in an order under section 61TK extending the confidentiality notice.

(8)
A confidentiality notice under subsection (1) or a notice cancelling a confidentiality notice under subsection (3), (4), (5) or (6) may be issued to a person by serving a copy on the person in accordance with section 61W.

Guidelines

When will a confidentiality notice for public interest complaint investigations be issued?

1.1

If, during an investigation of a public interest complaint, the Information Commissioner considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice:

an investigation by the Independent Broad-based Anti-corruption Commission (IBAC) or the Victorian Inspectorate; or
the safety or reputation of a person; or
the fair trial of a person who has been, or may be, charged with an offence—

the Information Commissioner must issue a confidentiality notice to a person (other than an IBAC officer or a Victorian Inspectorate officer) specifying the restricted matter or restricted matters.³

1.2

the Information Commissioner’s investigation of that public interest complaint—

the Information Commissioner may issue a confidentiality notice to a person (other than an IBAC officer or a Victorian Inspectorate officer) specifying the restricted matter or restricted matters.⁴

What is the effect of a confidentiality notice?

1.3

A person who receives a confidentiality notice cannot disclose the restricted matter that is outlined in the notice, unless an exception applies. Any exceptions to disclosing a restricted matter will be outlined in the notice. There are penalties for disclosing a restricted matter when not permitted.⁷

1.4

There are circumstances where confidentiality notices may be disclosed. This is outlined below.

1.5

The confidentiality notice will outline the restricted matter or matters which the notice covers and include information about when the confidentiality notice ends.⁸

See Schedule 3 the Freedom of Information Regulations 2019 to see the prescribed form for issuing a confidentiality notice.

What is a restricted matter?

1.6

‘Restricted matter’ is defined in section 5 as any one of the following:

any evidence or information given to, or obtained by, OVIC;
the contents of any document produced to, or obtained by, OVIC;
the existence of, or any information about, a confidentiality notice or a requirement under section 61U(1)(a) to attend an examination before OVIC;
the subject matter of an investigation by OVIC;
any information that could enable a person who has been, or is proposed to be, examined by, or who has produced, or may produce, any document to OVIC, to be identified or located;
the fact that a person has been, or is proposed to be, examined by, or has produced, or may produce, any document to, OVIC;
the fact that a disclosure or related disclosure has been notified to an appropriate entity for assessment under Part 3 of the Public Interest Disclosures Act 2012 (Vic);
the fact that a disclosure or related disclosure has been determined under Part 3 of the Public Interest Disclosures Act 2012 (Vic) to be a public interest complaint;
the fact that OVIC intends to conduct an investigation on a public interest disclosure.

Updating or cancelling a confidentiality notice

1.7

OVIC must issue a new confidentiality notice if it believes on reasonable grounds that there is new information that must be restricted.¹² To update a confidentiality notice, OVIC must cancel the previous confidentiality notice and issue a new one.¹³

1.8

If OVIC considers on reasonable grounds that a restricted matter is no longer likely to prejudice:

an investigation by the Independent Broad-based Anti-corruption Commission (IBAC) or the Victorian Inspectorate; or
the safety or reputation of a person; or
the fair trial of a person who has been, or may be, charged with an offence; or
the Information Commissioner’s investigation of the public interest complaint—

OVIC must cancel the confidentiality notice.¹⁴

What happens to a confidentiality notice after an investigation ends?

1.9

Generally, when an investigation ends, OVIC must cancel the confidentiality notice.¹⁹ However, there are exceptions to this.

1.10

OVIC does not have to cancel a confidentiality notice at the end of an investigation if:

OVIC has applied for an order to extend the confidentiality notice and the application has not been determined;²⁰ or
the Supreme Court has made an order to extend the confidentiality notice;²¹ or
the confidentiality notice has already been cancelled.²²

When does a confidentiality notice end?

1.11

A confidentiality notice will end (meaning the person no longer has to comply with it) on the date that OVIC cancels the confidentiality notice or, if the notice has been extended, on the date specified in the order extending the confidentiality notice.²⁴ The confidentiality notice will end on whichever date is first.

1.12

However, confidentiality obligations in Part 7 of the Public Interest Disclosures Act 2012 (Vic) may still apply even where the confidentiality notice has ended.

Freedom of Information Act 1982 (Vic), section 61TJ(1).
Freedom of Information Act 1982 (Vic), section 61TJ(1)(b).
Freedom of Information Act 1982 (Vic), section 61TJ(1).
Freedom of Information Act 1982 (Vic), section 61TJ(1)(b).
Freedom of Information Act 1982 (Vic), section 61TM(1).
Beckingham v Browne [2021] VSCA 362 which considered section 42 of the Independent Broad-based Anti-corruption Act 2011 (Vic) and what is required to ‘specify the restricted matter’.
Freedom of Information Act 1982 (Vic), section 61TM(1).
Beckingham v Browne [2021] VSCA 362 which considered section 42 of the Independent Broad-based Anti-corruption Act 2011 (Vic) and what is required to ‘specify the restricted matter’.
Freedom of Information Act 1982 (Vic), section 61TJ(3).
Freedom of Information Act 1982 (Vic), section 61TJ(3).
Freedom of Information Act 1982 (Vic), section 61TJ(5).
Freedom of Information Act 1982 (Vic), section 61TJ(3).
Freedom of Information Act 1982 (Vic), section 61TJ(3).
Freedom of Information Act 1982 (Vic), section 61TJ(5).
Freedom of Information Act 1982 (Vic), section 61TJ(6).
An order to extend a confidentiality notice may be made under section 61TK.
Under section 61TK.
Freedom of Information Act 1982 (Vic), section 61TJ(6). The Information Commissioner may cancel a confidentiality notice under section 61TJ(5).
Freedom of Information Act 1982 (Vic), section 61TJ(6).
An order to extend a confidentiality notice may be made under section 61TK.
Under section 61TK.
Freedom of Information Act 1982 (Vic), section 61TJ(6). The Information Commissioner may cancel a confidentiality notice under section 61TJ(5).
Freedom of Information Act 1982 (Vic), section 61TJ(7).
Freedom of Information Act 1982 (Vic), section 61TJ(7).

Section 61TJ - Confidentiality notice

Extract of legislation

Guidelines

When will a confidentiality notice for public interest complaint investigations be issued?

What is the effect of a confidentiality notice?

What is a restricted matter?

Updating or cancelling a confidentiality notice

What happens to a confidentiality notice after an investigation ends?

When does a confidentiality notice end?

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Contents

Details

61TJ	Confidentiality notice
	(1)	During an investigation on a public interest complaint—
		(a)	if the Information Commissioner considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice—
			(i)	an investigation by the IBAC or the Victorian Inspectorate; or
			(ii)	the safety or reputation of a person; or
			(iii)	the fair trial of a person who has been, or may be, charged with an offence—
			the Information Commissioner must issue a confidentiality notice in respect of the investigation to a person (other than an IBAC officer or a Victorian Inspectorate officer) specifying the restricted matter or restricted matters in accordance with this section; and
		(b)	if the Information Commissioner considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice the investigation by the Information Commissioner, the Information Commissioner may issue a confidentiality notice in respect of the investigation to a person (other than an IBAC officer or a Victorian Inspectorate officer) specifying the restricted matter or restricted matters in accordance with this section.
	(2)	A confidentiality notice must—
		(a)	be in the prescribed form; and
		(b)	specify the restricted matter or restricted matters in respect of which the confidentiality notice is issued; and
		(c)	include a copy of the provisions of subsections (3) to (7) and sections 61TK and 61TM and an explanation of the effect of those provisions; and
		(d)	include a statement—
			(i)	advising the person to whom the confidentiality notice is issued that additional obligations under the Public Interest Disclosures Act 2012 relating to confidentiality may apply to the person; and
			(ii)	directing the person to the provisions of that Act which impose those obligations
	(3)	If at any time the Information Commissioner considers on reasonable grounds that it is necessary to restrict disclosure of a different restricted matter from any of those specified in a confidentiality notice in respect of a particular investigation to ensure that the disclosure would not be likely to have the effect specified in subsection (1)(a) or (b), the Information Commissioner must issue to the person to whom the confidentiality notice was issued—
		(a)	a notice cancelling the previous confidentiality notice; and
		(b)	a new confidentiality notice in respect of that investigation under subsection (1).
	(4)	If at any time the Information Commissioner considers on reasonable grounds that disclosure of a particular restricted matter specified in a confidentiality notice in respect of a particular investigation would no longer be likely to have the effect specified in subsection (1)(a) or (b), the Information Commissioner must issue to the person to whom the confidentiality notice was issued—
		(a)	a notice cancelling the previous confidentiality notice; and
		(b)	a new confidentiality notice in respect of that investigation under subsection (1).
	(5)	If at any time the Information Commissioner considers on reasonable grounds that disclosure of the restricted matter or restricted matters specified in a confidentiality notice in respect of a particular investigation would no longer be likely to have the effect specified in subsection (1)(a) or (b), the Information Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice.
	(6)	At the conclusion of an investigation in respect of which a confidentiality notice was issued, the Information Commissioner must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless—
		(a)	the Information Commissioner has applied for an order under section 61TK extending the confidentiality notice and the application has not been determined; or
		(b)	the Supreme Court has made an order under section 61TK extending the confidentiality notice; or
		(c)	the confidentiality notice has already been cancelled under subsection (3), (4) or (5) or section 61TK(3).
	(7)	A confidentiality notice in respect of a particular investigation ceases to have effect on whichever of the following occurs first—
		(a)	the date on which the Information Commissioner issues a notice cancelling the confidentiality notice under subsection (3), (4), (5) or (6) or section 61TK(3);
		(b)	the date specified in an order under section 61TK extending the confidentiality notice.
	(8)	A confidentiality notice under subsection (1) or a notice cancelling a confidentiality notice under subsection (3), (4), (5) or (6) may be issued to a person by serving a copy on the person in accordance with section 61W.