Section 62 - Protection against actions for defamation or breach of confidence
Extract of legislation
| 62 | Protection against actions for defamation or breach of confidence | ||
| (1) | Where access has been given to a document and— | ||
| (a) | the access was required or permitted by this Act to be given; or | ||
| (b) | the access was authorized by a Minister, or by an officer having authority, in accordance with section 26 or Division 1 of Part VI, to make decisions in respect of requests, in the bona fide belief that the access was required by this Act to be given— | ||
| no action for defamation or breach of confidence lies against the Crown, an agency, a Minister or an officer by reason of the authorizing or giving of the access, and no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the giving of the access lies against the author of the document or any other person by reason of that author or other person having supplied the document to an agency or Minister. | |||
| (1A) | Subsection (1) applies in relation to a document of a council as if for “Minister” (except where lastly occurring) there were substituted “council, a member of a council”. | ||
| (2) | The giving of access to a document (including an exempt document) in consequence of a request shall not be taken for the purpose of the law relating to defamation or breach of confidence to constitute an authorization or approval of the publication of the document or its contents by the person to whom access is given. | ||
| (3) | The provision of access to a document in accordance with— | ||
| (a) | a request by the Information Commissioner; or | ||
| (b) | a notice under section 49KA or 61GA(1); or | ||
| (c) | a notice to produce or attend— | ||
| does not constitute a waiver of any privilege attaching to that document in relation to its contents. | |||
An agency, Minister, council, officer, the Crown, the author of a document, or supplier of a document to an agency or Minister, is protected against an action for defamation or breach of confidence resulting from authorising or providing access to a document under the Act.4 The protections apply where access was required or permitted by the Act and the person authorising access honestly believed access was required or permitted.
This protection helps to encourage access to information by removing the possibility of legal action for defamation or breach of confidence when giving access to documents under the Act.
A person who authorises or provides access to a document is also protected in relation to criminal offences. See section 63 – Protection in respect of offences for more information.
Defamation refers to damage to a person’s reputation.5
Breach of confidence refers to where there has been a failure to preserve the confidential character of information communicated in circumstances giving rise to an obligation of confidence.6
Will the protection apply if the applicant chooses to publish the information?
An applicant may not be protected from an action for defamation or breach of confidence if they choose to further disclose the information or document.8
Example
Toben v McCraw (unreported, Vic Sup Ct, Harper J, 5 August 1993)
In this defamation matter, Harper J made some comments about section 62. He suggested that where a newspaper obtains access to a document after making a successful FOI application and publishes its contents, a defamation suit might be brought against the newspaper for publishing the FOI document, but not against the actual author of the originating document.
The protection against defamation and breach of confidence applies where access has been given to a document and:
- the access was required or permitted by the Act to be given; or
- the Minister or authorised officer authorising access to the document held a genuine belief that the Act required access to be given.10
Access was required or permitted
The protection will apply where access has been given to a document, and that access was required or permitted by the Act:
- ‘Require’ refers to an obligation under the Act to provide access to a document. In this context, the Act will require access where a valid request has been made for a non-exempt document.13 An agency or Minister is not required to give access to an exempt document.14
- ‘Permit’ refers to where the Act allows access to a document to be provided even if it does not expressly require access.
Other instances where the Act requires access to a document be given include where an agency is required to make certain documents available for inspection and purchase under section 8.
The protections against defamation or breach of confidence, and protection against criminal liability, do not apply when documents or information are informally released. However, this should not be seen as a barrier as these protections do not have general application and will only apply when relevant.
Honest belief
The Minister or agency officer who gave access to the document may rely on the protection if they held a “bona fide” belief that access was required by the Act. “Bona fide” means ‘good faith’ or ‘honest intention.’
If a Minister or officer of an agency honestly believes that the Act required access to the document, for instance, because a valid request was made and they believed the requested documents were not exempt, then no action for defamation or breach of confidence can be made against that Minister or agency officer.
Who is protected?
The protection may apply to the author of the document or the person who originally supplied the document to the agency or Minister in a limited way. The protection is only likely to apply to any action for defamation or breach of confidence that might arise because of the giving of access to the document under the Act.
The author or supplier of the document may not be protected regarding the original provision of the information or document to the agency or Minister.20
While the protection may not apply, the person who wrote or originally supplied the document to the agency or Minister may still rely on any relevant defences under defamation or breach of confidence (for example, under defamation law they may rely on the defence of qualified privilege).
Case example
Ainsworth v Burden (2003) 56 NSWLR 620
The Court of Appeal considered whether section 64 of the NSW Freedom of Information Act 1989 (NSW FOI Act) (which was then in effect) extended to the author and anyone else involved23 in the original transmission of a document to a Minister.
Background:
- The claimant pursued an action for defamation against the defendant.
- The action was based on a letter written by the defendant, to the then Minister for Police.
- The claimant received a copy of the letter under FOI.
- The defendant applied for the action to be stayed on the ground that the publication to the Minister was protected by section 64(1)(b) of the NSW FOI Act (this section was very similar to section 62(1) of the Victorian Act).
The NSW Court of Appeal held:
- section 64(1)(b) of the NSW FOI Act protects the author or other person involved in the original transmission from defamation proceedings ‘in respect of any publication involved in or resulting from the giving of access’ under the NSW FOI Act (in relation to the publication involved in the secondary transmission)
- protection is not given for other publications, made to the public official or anyone else, including the original transmission
Handley JA said:
The section gives no protection to the author or other person merely because the plaintiff became aware of the document by obtaining access to it under the Act and would not otherwise have known that he had been defamed, or been in a position to prove this. The protection is not given against the use of the document, it is given against an action for defamation in respect of defined publications.24
The NSW Court of Appeal considered the words of section 64(1)(b) of the NSW FOI Act, noting:
- the importance of the limiting words ‘(publication) involved in, or resulting from, the giving of access’ in that section;
- these words are words of limitation and it would be contrary to the intention of Parliament to read down the liability for defamation on the original transmission;
- other case law which reached different conclusions did not consider these limiting words;
- if the protection was intended to protect defamatory publications made independently of the NSW FOI Act, the words of limitation could have been omitted by Parliament;
- the purpose of section 64 was to ensure that the NSW FOI Act did not widen liability for defamation beyond the original transmission.
Has the document been provided in another context?
The protection in section 62 will only apply where the document is released under the Act. If the same document is released through another process (for example, discovery in legal proceedings), the protection in section 62 may not apply but other protections may apply.29
Example
In Morgan v Mallard,30 the South Australian Supreme Court held that to the extent that the document was released under the FOI Act, the author was protected under the South Australian equivalent of section 62,31 however, because that document was also supplied to her as a litigant in the Magistrate’s Court where processes of discovery were used, the protection would not apply in that context.32
An element of a breach of confidence is that a person used confidential information where that person was not authorised to do so.34 Similarly, a defence to a claim of defamation is that the person to whom the information relates consented to the publication of the information.
Section 62(2) clarifies that an agency or Minister who gives access to a document under the Act (even if that document is exempt) does not authorise or approve the person receiving the document to publish it or the information in it, for the purposes of the law relating to defamation or breach of confidence.
The Information Commissioner may request or require access to documents generally, by ordering further searches under sections 49KA or 61GA(1), or by issuing a notice to produce or attend under section 61U.
Where access has been given to the Information Commissioner in these ways, this access will not constitute a waiver of any privilege attached to the document.36 For instance, where an agency claims that a document is exempt under section 32 because it is legal advice, the provision of that document to the Information Commissioner during a review of that decision will not waive legal professional privilege.
More information
A person who authorises or provides access to a document is also protected in relation to criminal offences. See section 63 – Protection in respect of offences for more information.
- Freedom of Information Act 1982 (Vic), section 62.
- The remedy of defamation arises in common law and In Victoria, under the Defamation Act 2005.
- Coco v A N Clark (Engineers) Ltd [1968] FSR 415; Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414.
- Freedom of Information Act 1982 (Vic), section 62.
- The remedy of defamation arises in common law and In Victoria, under the Defamation Act 2005.
- Coco v A N Clark (Engineers) Ltd [1968] FSR 415; Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414.
- Freedom of Information Act 1982 (Vic), section 62(2).
- Freedom of Information Act 1982 (Vic), section 62(2).
- ‘Authorised’ refers to an authorised officer under section 26.
- ‘Authorised’ refers to an authorised officer under section 26.
- Freedom of Information Act 1982 (Vic), section 20(1); section 17 outlines the requirements for making a valid request.
- Freedom of Information Act 1982 (Vic), section 20(2).
- Freedom of Information Act 1982 (Vic), section 20(1); section 17 outlines the requirements for making a valid request.
- Freedom of Information Act 1982 (Vic), section 20(2).
- Defined as the Crown in right of Victoria – Interpretation of Legislation Act 1984 (Vic), section 38.
- Freedom of Information Act 1982 (Vic), sections 62(1) and 62(1A).
- There is no Victorian case law on how far the protection in section 62 extends in relation to authors and suppliers of documents. However the following cases support the interpretation outlined above: Ainsworth v Burden (2003) 56 NSWLR 620, Re McKinnon and Department of Immigration and Ethnic Affairs (1995) 40 ALD 343, Pal v Weir (unreported, 11 March 2003). Note the South Australian Supreme Court Decision Morgan v Mallard [2001] SASC 364 observed that the protection extended to the original provision of the document and so could not be used to institute defamation proceedings, however because the applicant had obtained the document by other means she might still be able to take action.
- Defined as the Crown in right of Victoria – Interpretation of Legislation Act 1984 (Vic), section 38.
- Freedom of Information Act 1982 (Vic), sections 62(1) and 62(1A).
- There is no Victorian case law on how far the protection in section 62 extends in relation to authors and suppliers of documents. However the following cases support the interpretation outlined above: Ainsworth v Burden (2003) 56 NSWLR 620, Re McKinnon and Department of Immigration and Ethnic Affairs (1995) 40 ALD 343, Pal v Weir (unreported, 11 March 2003). Note the South Australian Supreme Court Decision Morgan v Mallard [2001] SASC 364 observed that the protection extended to the original provision of the document and so could not be used to institute defamation proceedings, however because the applicant had obtained the document by other means she might still be able to take action.
- For example, where a person other than the author sends the document to a public official (e.g., where an employee makes a report to their employer and the employer sends it to another agency).
- At paragraph 12.
- For example, where a person other than the author sends the document to a public official (e.g., where an employee makes a report to their employer and the employer sends it to another agency).
- At paragraph 12.
- Morgan v Mallard [2001] SASC 364.
- Morgan v Mallard [2001] SASC 364.
- Morgan v Mallard [2001] SASC 364.
- Morgan v Mallard [2001] SASC 364 [30].
- Morgan v Mallard [2001] SASC 364.
- Morgan v Mallard [2001] SASC 364.
- Morgan v Mallard [2001] SASC 364.
- Morgan v Mallard [2001] SASC 364 [30].
- Coco v A N Clark (Engineers) Ltd [1968] FSR 415.
- Coco v A N Clark (Engineers) Ltd [1968] FSR 415.
- Freedom of Information Act 1982 (Vic), section 62(3).
- Freedom of Information Act 1982 (Vic), section 62(3).
