Section 30 – Opinion, advice, recommendation, consultation or deliberation

Section 30 of the Freedom of Information Act 1982 (Vic) (the Act) exempts documents containing opinion, advice, recommendation or consultation about government deliberation where disclosure would be contrary to the public interest.

This Practice Note sets out the exemption, summarises the steps to take when applying it, and then discusses each element in detail. All legislative references are to the Act unless otherwise stated.

THE EXEMPTION

A document or information is exempt under section 30(1) if three conditions are satisfied:

the document or information is matter in the nature of:
1. opinion, advice or recommendation prepared by an agency officer or a Minister; or
2. consultation or deliberation that has taken place between agency officers or Ministers; and
the matter was created during the deliberative process an agency, Minister, or the government; and
disclosure of the matter would be contrary to the public interest.

HOW TO APPLY THE EXEMPTION – A SUMMARY

Identify the ‘deliberative information’ and confirm from its content and context that the information is:
1. opinion, advice, or recommendation that has been prepared by an agency officer or Minister; or
2. consultation or deliberation that has taken place between agency officers, between Ministers, or between an officer and a Minister;
Confirm the application of section 30(1) to the deliberative information is not expressly excluded by sections 30(2), (3), (4) or (6):
1. guidance or policy used for making decisions that must be available for inspection or purchase under section 8(1) – section 30(2);
2. purely factual information – section 30(3);
3. a final decision, order or ruling from an adjudicative function and reasons for that decision, order or ruling – section 30(4); or
4. a document more than 10 years old – section 30(6).
Identify the legislative or operational functions of the agency or Minister that the deliberative information relates to, and confirm that it was created in relation to those functions.
Determine if it would be contrary to the public interest to disclose the information taking into account relevant factors, including those discussed in this Practice Note. Where disclosure is contrary to the public interest, the decision letter must clearly explain why disclosure is contrary to the public interest.¹
If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite the exemption applying.

WHEN SECTION 30(1) DOES NOT APPLY

Sections 30(2), 30(3), 30(4) and 30(6) list four circumstances where this exemption does not apply.

Section 30(2) – Documents required to be made available for inspection and purchase

Section 8 of the Act requires an agency to make available for inspection and purchase documents such as manuals, policy and guidance material used by the agency in its operations. Section 30(2) states this exemption cannot be claimed over these documents.

Section 30(3) – Purely factual information

Section 30(3) provides this exemption does not apply to purely factual information.

Factual information is information without any opinion or inference – it is information that objectively the same for any individual. Common examples of factual information include:

statistics, data, times, or dates;
backgrounds, summaries or chronologies of events. For example, details of actions already taken in an investigation or enquiry, or development of a policy;
actual financial expenditure, as opposed to financial advice based on estimates and assumptions.²

Intertwined information is exempt – When deliberative information is intertwined with factual information and cannot be separated, that intertwined information is exempt.³

Nevertheless, an agency must critically examine the information to ensure that the intertwined information is truly inseparable. In many instances it will be practicable to sever the factual information from the deliberative information by redacting a document.

Section 30(4) – adjudicative functions

Section 30(4) provides this exemption does not apply to a record of a final decision, order, or ruling when exercising an adjudicative function. It also does not apply to any reasons which explain the decision, order, or ruling.

An ‘adjudicative function’ generally refers to a judge acting within a court or tribunal, or where a person decides disputes between parties. For example, court or tribunal decisions, as well as arbitration decisions.

Section 30(6) – documents that are more than 10 years old

Section 30(6) provides this exemption does not apply to a document when 10 years passed since the last day of the year when the document was created. For example:

if a document was created during 2009, this exemption cannot be claimed from 1 January 2020;
if a document was created before 2010, section 30(1) cannot be claimed from 1 January 2021;
if a document was created before 2011, section 30(1) cannot be claimed from 1 January 2022.

OFFICER OF AN AGENCY

Section 30(1) applies to opinion, advice, or recommendation prepared by an officer and consultation or deliberation between officers. Consequently, an agency must establish that the individuals involved are ‘officers’ for the purposes of the Act.

The term ‘officer’ is defined in section 5(1). It includes:

a member of the agency or council;
a member of staff of the agency or council; and
a person employed by or for the agency or council whether or not under the Public Administration Act 2004 (Vic).

An ‘officer’ also includes an independent consultant or contractor engaged to provide opinion, advice, or recommendation.⁴

In addition, ‘deliberations between officers’ includes deliberations between officers of different agencies, provided those discussions pertain to the deliberative processes of one of the agencies involved.⁵

MATTER IN THE NATURE OF OPINION, ADVICE, OR RECOMMENDATION

Given their plain English meaning, the dictionary definitions of opinion, advice and recommendation are:⁶

Opinion: a personal view, an estimation, judgement, or belief.
Advice: an opinion recommended, or offered, as worthy to be followed, or a formal or professional opinion given.
Recommendation: a representation in favour of a person or thing, or anything that serves to recommend or induce acceptance or favour.

Common examples of documents containing opinion, advice, or recommendation include:

emails or other correspondence between agency officers or a Minister deliberating issues or providing advice on a matter;
parts of reports that analyse evidence and provide subjective views and recommendations; or
recommendations in briefings to a Minister.

In most cases, documents with deliberative information are rarely be exempt in full because they usually include factual information like a background, description of events leading up to a decision or statistical information to support a course of action.

Factual records such as meeting minutes and agenda, terms of reference or instructions from one agency officer to another officer generally are not opinion, advice or recommendation.

MATTER IN THE NATURE OF CONSULTATION OR DELIBERATION

‘Consultation or deliberation’ is also given a plain English meaning. Their dictionary definitions are:⁷

Consultation: the action or process of formally consulting or discussing.
Deliberation: careful consideration before decision.

To be exempt, the consultation or deliberation must be between agency officers or Ministers. Consultation or deliberation between an officer or Minister and an external third party (not engaged by the agency) is not exempt under section 30(1).

DELIBERATIVE PROCESS

Where a document contains deliberative information, the agency must also determine that the deliberative information was created in a ‘deliberative process’ in relation to the functions of an agency, Minister, or the government.

‘Deliberative process’ is widely interpreted to include most processes undertaken by an agency or Minister in relation to their functions.⁸Nevertheless, when considering if deliberative information was generated as part of an agency’s deliberative process, an agency should be able to identify:

what the agency or Minister’s functions are (for example, as set out in legislation); and
that the information generated relates to those functions and contributes to how those functions are exercised.

THE PUBLIC INTEREST

For this exemption to apply, disclosure of deliberative information must be contrary to the public interest.

There are many factors identified in case law relevant to determining whether it would be contrary to the public interest to disclose a document or information.⁹The trend towards modern, transparent and accountable government, has resulted in Courts and Tribunals limiting these factors.

Consequently, an agency should in turn limit the use of dated case law, and be mindful of their obligation in section 3(1), to exercise their discretion as far as possible to release information. It is important for an agency to thoroughly consider the public interest considerations and explicitly state these public in consideration as required by section 30(5).

Factors relevant to the public interest

Public interest factors are not a fixed, determinative set of criteria. Rather, they are a list matters that may be relevant. Each request balances these factors based on the particular circumstances of the matter.

Public interest factors given weight in the context of a modern, transparent and accountable government include:

the sensitivity of the issues involved and the broader context of how the documents were created;
the stage of a decision or policy development at the time the communications were made;
whether disclosure of the documents would be likely to inhibit communications between agency officers that are essential for the agency to make an informed and well-considered decision or for those officers to properly participate in a process of the agency’s functions;
whether disclosure of the documents would give merely a part explanation, rather than a complete explanation, for the taking of a particular decision or the outcome of a process but only where the agency would not otherwise be able to explain upon disclosure of the documents;
the impact of disclosing documents in draft form, including disclosure not clearly or accurately representing a final decision by an agency or Minister;
the likelihood that disclosure would inhibit the independence of officers including to their ability to conduct proper research and make detailed submissions;
the public interest in the community being better informed about an agency’s deliberative, consultative and decision-making processes;
the public interest in government transparency and accountability by enabling scrutiny or criticism of decisions and the decision-making process; and
whether there is controversy or impropriety around the decision or the decision-making process.

FACTORS THAT ARE GIVEN TOO MUCH WEIGHT

Draft documents

While the draft nature of a document is a relevant consideration as well as whether a final version is available, a document will not be exempt under section 30(1) based only on it being in draft form, regardless of whether a final document exists.

Just because draft documents show an agency’s changing position does not mean they are exempt. Disclosure of drafts can show an agency diligently carried out its functions. Drafts are only exempt where an agency can demonstrate that disclosure would be contrary to the public interest.

Each document must be considered in light of the object of the Act and the public interest factors to determine whether disclosure would be contrary to the public interest in all of the circumstances.

An agency should engage with applicants at an early stage to confirm, whether the applicant seeks access to draft documents.

Inhibiting frankness and candour

‘Inhibiting frankness and candour’ can only be relied upon in very limited situations and must be supported by detailed evidence and reasoning. It takes more than a mere assertion that an agency officer would be inhibited from providing frank and candid advice to exempt a document. More recently, the Victorian Civil and Administrative Tribunal has interpreted ‘frankness and candour’ cautiously, stating:

It is the duty of officers in the public sector to give frank and fearless advice and generally one would ask why would they shrink from being seen by the release of documents under the Freedom of Information system as doing that very thing.¹⁰

Similarly, the former Victorian Administrative Appeals Tribunal noted:

[S]enior public servants … are a sufficiently robust group to understand the need for, and the method of relating clear and frank views to their peers and to Ministers. I am not persuaded by mere assertions to the contrary. Further no evidence was adduced before me that senior officers had actually been inhibited as a result of the Freedom of [Information] legislation and that frankness has been a casualty of the legislation.¹¹

Consistent with these statements, the object of the Act (to make the maximum amount of information available) and the breadth of the public interest test in section 30(1), an agency should adopt a cautious approach to the frankness and candour argument.

In particular, an agency should remain mindful of their officers’ professional obligations to provide robust and frank advice in accordance with the Code of Conduct for Public Sector Employees (Responsiveness, Integrity, Impartiality and Accountability). The Code also expressly requires agency officers to maintain accurate and reliable records, and to make such records available to appropriate scrutiny when required. These obligations ensure that public sector employees ‘implement government policy in an open and transparent manner’.¹²

Sensitivity of information

The sensitivity of information is generally diminished where that information is:

relatively dated, innocuous, or not of particular significance;
already publicly known;
only likely to result in mere embarrassment to an officer, agency or Minister; or
reflects a decision that has already been made or publicly announced.¹³

This is contrasted with information about a current significant issue or project still to be decided; where disclosure of information would undermine the decision-making process. When determining the sensitivity of information, an agency should carefully consider whether the information is, in fact sensitive, with reference to its current status and surrounding circumstances.

DISCRETION TO DISCLOSE EXEMPT DOCUMENTS

Nothing in the Act prevents an agency from providing access to information where an exemption applies. Section 16(2) acknowledges that decision makers can release exempt information as long as they are not legally prevented from doing so. Nevertheless, while section 20(2) notes that an agency is not required to provide access to an exempt document, the High Court of Australia¹⁴has interpreted this as not preventing an agency from providing access to an exempt document.

Disclaimer: The information on this page is general in nature and does not constitute legal advice.

Version: June 2020 – D20/82

Section 30(5) of the Act.
Doyle v Department of Human Services [2002] VCAT 1768 at [20].
Mees v University of Melbourne [2009] VCAT 782 at [29]-[30].
Mees v University of Melbourne (General) [2009] VCAT 782 at [31].
Brog v Department of Premier and Cabinet (1989) 3 VAR 201 at 207.
See the Macquarie Dictionary.
See the Macquarie Dictionary.
Re Waterford and Department of Treasury (No.2) (1981) 1 AAR 1.
For example, see Coulson v Department of Premier and Cabinet [2018] VCAT 229 at [25]; Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483; Secretary to Department of Justice v Osland (2007) 26 VAR 425 at [77].
Yarra City Council v Roads Corporation [2009] VCAT 2646 at [38].
Bracks v Department of State Development (unreported, AAT, 10 September 1996).
Code of Conduct for Victorian Public Sector Employees, section 8: “Demonstrating Accountability”.
Thomas v Department of Natural Resources and Environment [2002] VCAT 533 at [27].
Victorian Public Service Board v Wright (1986) 160 CLR 145 at [3].