What are the exemptions
An applicant is entitled to access a document unless it is an exempt document. An agency is obliged to release a document with exempt material deleted if an applicant indicates they are willing to accept an edited copy of the document. While a document may be released with exempt material deleted, an agency may choose to refuse access to the document in full if it is not practicable for the document to be edited or an edited version of the document would be rendered meaningless due to the number of redactions required. More than one exemption may apply to a single document.
The exemptions, which are set out in Part IV of the Freedom of Information Act 1982 (Vic) are summarised below.
Section 28 – Cabinet documents
A document may be exempt if it is:
- the official record of any deliberation or decision of the Cabinet;
- a document prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;
- a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet; or
- a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.
Section 29 – Matter communicated by any other State
The Commonwealth government, Territories and other States have constant lines of communication with Victorian Government Ministers and agencies. These documents may be exempt if disclosure would be contrary to the public interest and release of documents would prejudice relations between Victoria and the Commonwealth, Territories or other States, or would divulge matter communicated in confidence.
Section 29A – Documents affecting national security, defence or international relations
In order to protect national security, some documents are created and circulated in secret due to their sensitive nature. These documents are exempt if their disclosure would or could reasonably be expected to cause damage to the security of the Commonwealth or any State or Territory, the defence of the Commonwealth or the international relations of the Commonwealth.
Section 29B – Documents of Court Services Victoria
Documents held by Court Services Victoria relating to the exercise of judicial or quasi-judicial functions of a court or the Victorian Civil and Administrative Tribunal are exempt.
Section 30 – Internal working documents
Ministers and public service officers provide opinions, advice, recommendations and engage in consultation and deliberation in performing their functions. A document may be exempt if its release would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister for the purpose of performing the functions of the agency, Minister or the government, and release of the document would be contrary to the public interest.
Section 31 – Law enforcement documents
A document may be exempt if its disclosure would:
- prejudice the investigation of a breach of the law or prejudice the enforcement or proper administration of the law in a particular instance;
- prejudice the fair trial of a person, or the impartial adjudication of a particular case;
- disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law;
- disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law disclosure of which would be reasonably likely to prejudice the effectiveness of those methods or procedures; or
- endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law.
Section 31A – Documents relating to IBAC
A document may be exempt if its disclosure would:
- prejudice an investigation undertaken by the IBAC;
- disclose, or enable a person to ascertain, the identity of any person or body (other than Victoria Police) who has provided information to the IBAC;
- disclose methods or procedures for preventing, investigating or dealing with protected disclosures, complaints or notifications relating to corrupt conduct or police personnel conduct the disclosure of which would be reasonably likely to prejudice the effectiveness of those methods or procedures; or
- endanger the lives or physical safety of persons engaged in or in connection with the IBAC’s functions or persons who have provided information to the IBAC.
Section 32 – Documents affecting legal proceedings
Any document which is subject to legal professional privilege or client legal privilege is exempt.
Section 33 – Documents affecting personal privacy
A document is exempt if releasing it would unreasonably disclose information about a person (including a deceased person). This includes information that identifies a person or discloses their address or location, or from which this can reasonably be determined.
Section 34 – Documents relating to trade secrets etc.
Documents that are acquired from a business, commercial or financial undertaking are exempt if the document relates to trade secrets or other matters of a business, commercial or financial nature, and disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.
Documents are also exempt if they contain the trade secrets of an agency or, where the agency is engaged in trade or commerce, documents which contain information of a business, commercial or financial nature, if disclosure would be likely to expose the agency unreasonably to disadvantage.
Section 35 – Documents containing material obtained in confidence
A document is exempt if it contains information that has been communicated in confidence by a person or entity to a government agency and the release of the information would be contrary to the public interest by reason that it would be likely to impair the ability of an agency or Minister to obtain similar information in the future.
Section 36 – Disclosure contrary to public interest
A document may be exempt on the grounds that it would be contrary to the public interest if the release of the document would have a negative impact on the economy of Victoria or local council or would negatively impact the running of an agency or the council.
Section 37 – Certain documents arising out of companies and securities legislation
A document is exempt if it is a copy or part of, or contains an extract from:
- a document for the purposes of the Ministerial Council for Companies and Securities, prepared or received by an agency or Minister from the Commonwealth or another State;
- a document the disclosure of which would disclose the deliberations or decisions of the Ministerial Council for Companies and Securities, other than a document by which a decision of that council was officially published; or
- a document furnished to the National Companies and Securities Commission or the Australian Securities and Investments Commission by the Commonwealth or another State and relating solely to the functions of the Commission in relation to the law of the Commonwealth or another State.
Section 38 – Documents to which secrecy provisions of enactments apply
A document is exempt if another piece of legislation prohibits the release of information contained within the document.
Section 38A – Council documents
A document may be exempt if it is an official record of any deliberation or decision of a closed council meeting, or a document that was brought into existence for the purpose of submission for consideration by a closed meeting.