Section 63E - Use of documents claimed to be exempt
Extract of legislation
| 63E | Use of documents claimed to be exempt | ||
| (1) | The Information Commissioner must do all things necessary to ensure that only a specified person has access to the document or its contents. | ||
| (2) | A person who is or has been a specified person must not intentionally or recklessly disclose the document or its contents to any person other than— | ||
| (a) | to a specified person in the course of performing the person’s functions under this or any other Act or acting for or on behalf of a specified person in the performance of those functions; or | ||
| (b) | to a representative of the agency or Minister who produced the document. | ||
| Penalty: 240 penalty units or imprisonment for 2 years or both. | |||
| (3) | A specified person may, to the extent practicable without disclosing any exempt matter, disclose the nature of the document to the applicant for review or the complainant (as the case requires) if— | ||
| (a) | the specified person considers that the disclosure may assist in the resolution of the review or complaint; and | ||
| (b) | the agency head, principal officer or Minister, or a person nominated by the agency head, principal officer or Minister, gives prior written consent to the disclosure. | ||
| (4) | Subject to section 63D, the Information Commissioner may copy the document, but only to the extent necessary for the performance of the Information Commissioner’s functions in conducting the review, complaint or investigation. | ||
| (5) | On completion of the review, complaint or investigation process, the Information Commissioner must— | ||
| (a) | return the document to the agency that produced it; and | ||
| (b) | return to that agency, or destroy, any copies of the document. | ||
| (6) | In this section— | ||
| former Commissioner means a person who was appointed as— | |||
| (a) | the Freedom of Information Commissioner; or | ||
| (b) | an Assistant Commissioner; | ||
| specified person means— | |||
| (a) | the Information Commissioner; or | ||
| (b) | the Public Access Deputy Commissioner; or | ||
| (c) | a member of staff of the Office of the Victorian Information Commissioner; or | ||
| (d) | a former Commissioner, acting former Commissioner or employee, contractor or agent employed or engaged by a former Commissioner. | ||
Section 63E ensures the confidentiality of documents which are claimed to be exempt, and which are produced to the Information Commissioner during a review, complaint, or investigation.3
The Information Commissioner, Public Access Deputy Commissioner, a staff member of the Office of the Victorian Information Commissioner (OVIC) (and any former Commissioners, employees, contractors or agents) cannot intentionally or recklessly disclose a document (or what it says) to:
- anyone who is not a specified person; or
- a representative of the agency or Minister who provided the document,4
or a penalty will apply.
This means OVIC can discuss a document subject to review within OVIC, but generally cannot disclose the contents of the document with anyone outside of OVIC. OVIC can, however, discuss the contents of a document subject to review with the agency or Minister who provided it.
A ‘specified person’ includes:
- the Information Commissioner; or
- the Public Access Deputy Commissioner; or
- a member of staff of the Office of the Victorian Information Commissioner; or
- a former Commissioner, acting former Commissioner or employee, contractor or agent employed or engaged by a former Commissioner.
For the FOI Guidelines on section 63E, a reference to ‘OVIC’ means a reference to a ‘specified person’.
Can OVIC discuss exempt documents with an applicant?
OVIC may, without disclosing any exempt matter, disclose the nature of the document to the applicant or the complainant if:
- OVIC considers disclosing information about the document may help to resolve the review or complaint; and
- the agency or Minister consents to OVIC disclosing the document.6
Exempt matter is defined in section 5. It means matter which, if included in a document, causes the document to be an exempt document.
OVIC may make a copy of a document claimed to be exempt for the purpose of conducting a review, complaint, or investigation.
If OVIC requires an agency or Minister to provide a document that is claimed to be exempt under section 28, 29A, 31 or 31A, then OVIC may request to inspect the document electronically.
For more information on inspecting documents electronically, see section 63D – Special requirements for production of documents claimed to be exempt under section 28, 29A, 31 or 31A.
After OVIC completes the review, complaint or investigation, it must return the document to the agency or Minister that provided it and either return or destroy any copies that OVIC made.
- Section 63C clarifies that sections 63D and 63E apply to a document that is claimed to be an exempt document and is, or is to be, produced to the Information Commissioner during a review, complaint, or investigation.
- Freedom of Information Act 1982 (Vic), section 63E(2).
- Section 63C clarifies that sections 63D and 63E apply to a document that is claimed to be an exempt document and is, or is to be, produced to the Information Commissioner during a review, complaint, or investigation.
- Freedom of Information Act 1982 (Vic), section 63E(2).
- The consent must come from the agency head, principal officer or Minister, or from a person nominated by the agency head, principal officer, or Minister (section 63E(3)(b).
- The consent must come from the agency head, principal officer or Minister, or from a person nominated by the agency head, principal officer, or Minister (section 63E(3)(b).
