Section 61TJ - Confidentiality notice

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.²

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.⁵

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

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

OVIC must issue a new confidentiality notice if it believes on reasonable grounds that there is new information that must be restricted.¹⁰ To update a confidentiality notice, OVIC must cancel the previous confidentiality notice and issue a new one.¹¹

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—

OVIC must cancel the confidentiality notice.¹²

Generally, when an investigation ends, OVIC must cancel the confidentiality notice.¹⁷ However, there are exceptions to this.

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;¹⁸ or
• the Supreme Court has made an order to extend the confidentiality notice;¹⁹ or
• the confidentiality notice has already been cancelled.²⁰

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.²² The confidentiality notice will end on whichever date is first.

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