FOI and section 125 of the Local Government Act 2020
Under the Freedom of Information Act 1982 (Vic) (FOI Act), Councils must provide access to a requested document unless it is an exempt document.
Section 38 of the FOI Act exempts a document from release where it is subject to a secrecy provision under other legislation.
Section 125(1) of the Local Government Act 2020 (Vic) (LG Act) protects ‘confidential information’ from unauthorised disclosure through a secrecy provision in section 125(1) of the LG Act:
(1) Unless subsection (2) or (3) applies, a person who is, or has been, a Councillor, a member of a delegated committee or a member of Council staff, must not intentionally or recklessly disclose information that the person knows, or should reasonably know, is confidential information.
Penalty: 120 penalty units.
Section 125(1) is a secrecy provision for the purpose of section 38 of the FOI Act. However, its application when considering a freedom of information request is limited by sections 125(4) and 125(5) of the LG Act.
What is ‘confidential information’ under section 125(1) of the LG Act?
Section 3 of the LG Act defines 12 categories of ‘confidential information’ for the purpose of section 125(1) of the LG Act. Each category of ‘confidential information’ is listed below.
When can’t I use section 125(1) of the LG Act with section 38 of the FOI Act?
Sections 125(4) and 125(5) of the LG Act limit when section 125(1) of the LG Act can be used with section 38 of the FOI Act. They state:
(4) Despite section 38 of the Freedom of Information Act 1982, a document containing information of the kind described in paragraph (a), (b), (c), (d), (e), (f) or (g) of the definition of confidential information is not an exempt document within the meaning of the Freedom of Information Act 1982 by virtue of section 38 of that Act.
(5) Despite section 38 of the Freedom of Information Act 1982, a document containing information prescribed to be confidential information for the purposes of paragraph (k) of the definition of confidential information is not an exempt document within the meaning of the Freedom of Information Act 1982 by virtue of section 38 of that Act if, for the purposes of this subsection, it is a prescribed non-exempt document or prescribed class of non-exempt document.
Note
A document referred to in subsection (4) or (5) may still be an exempt document by virtue of another provision of Part IV of the Freedom of Information Act 1982.
What is the effect of section 125(4) of the LG Act?
The effect of section 125(4) of the LG Act is that section 38 of the FOI Act cannot be used to exempt the following categories of ‘confidential information’:
(a) council business information, being information that would prejudice the Council’s position in commercial negotiations if prematurely released.
(b) security information, being information that if released is likely to endanger the security of Council property or the safety of any person.
(c) land use planning information, being information that if prematurely released is likely to encourage speculation in land values.
(d) law enforcement information, being information which if released would be reasonably likely to prejudice the investigation into an alleged breach of the law or the fair trial or hearing of any person.
(e) privileged information, being information to which legal professional privilege or client legal privilege applies.
(f) personal information, being information which if released would result in the unreasonable disclosure of information about any person or their personal affairs.
(g) private commercial information, being information provided by a business, commercial or financial undertaking that relates to trade secrets; or if released, would unreasonably expose the business, commercial or financial undertaking to disadvantage.
[emphasis added]
What is the effect of section 125(5) of the LG Act?
The effect of section 125(5) of the LG Act is that section 38 of the FOI Act cannot be used to exempt information that is prescribed to be confidential information if it is a prescribed non-exempt document or prescribed class of non-exempt document. As of 10 August 2022, there is no prescribed ‘confidential information’.
What does this mean?
Where requested information falls within one of the above categories of ‘confidential information’, a Council must disclose the ‘confidential information’ in response to a freedom of information request, unless the information is exempt from release under an exemption in Part IV of the FOI Act.
When can I use section 125(1) of the LG Act with section 38 of the FOI Act?
Councils may use section 125(1) of the LG Act with section 38 of the FOI Act to exempt the following categories of ‘confidential information’:
(h) confidential meeting information, being the records of meetings closed to the public under section 66(2)(a).
(i) internal arbitration information, being information specified in section 145.
(j) Councillor Conduct Panel confidential information, being information specified in section 169.
(l) information that was confidential information for the purposes of section 77 of the Local Government Act 1989 (Vic).
[emphasis added]
A decision to rely on section 125(1) of the LG Act with section 38 of the FOI Act must be supported by detailed reasons, including the relevant facts, how and why the information falls into one of the four above categories of ‘confidential information’.
