Section 31(1)(A) – Prejudice the investigation of a breach of the law

Section 31 of the Freedom of Information Act 1982 (Vic) (the Act) contains six streams of exemption that relate to law enforcement. There are five other Exemption Practice Notes that discuss the other streams in section 31.

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

Section 31(1)(a) exempts documents where disclosure would be reasonably likely to prejudice:

• investigations of a breach of the law; or
• enforcement or proper administration of the law.

This Practice Note considers investigations. Exemption Practice Note 4 considers the enforcement or proper administration of the law.

Investigations

In relation to investigations, a document is exempt under section 31(1)(a) if three conditions are satisfied:

1. the information relates to an investigation of a breach or possible breach of the law in a particular instance; and
2. the information was prepared either in the course of, or for the purposes of, that investigation; and
3. release of the information would or would be reasonably likely to prejudice that investigation.

APPLYING THE EXEMPTION – A SUMMARY

1. Identify the specific legislation or regulation that may be breached.
2. Establish there is a specific investigation about a breach or possible breach of that law.
3. Identify and document how the information relates to that breach or possible breach of law.
4. Ensure the information was prepared in the course of, or for the purposes of, that investigation.
5. Determine whether disclosure of the information would, or would be reasonably likely to, prejudice the investigation by establishing and documenting:
   1. what the prejudice is – how would disclosure harm the investigation specifically; and
   2. why the prejudice would, or is reasonably likely to, occur.
6. In doing the above, consult with any relevant officer or individual involved in conducting the investigation.
7. Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed (per section 31(5)).
8. Consider whether any exceptions set out in section 31(2) apply to the information, and if so, consult on the whether the document should be disclosed in the public interest (per section 31(6)).
9. Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
10. 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.

INVESTIGATING A POSSIBLE BREACH OF THE LAW IN A PARTICULAR INSTANCE

The investigation must be an actual, usually active, investigation about a breach of a specific law.

The information must relate to that specific investigation¹ and must have been prepared in the course of, or for the purposes of, the specific investigation identified.²

Nevertheless, an actual breach of the law does not need to be established, it is enough to suspect a breach resulting in an investigation.

WOULD OR WOULD BE REASONABLY LIKELY TO PREJUDICE

Prejudice

An agency must articulate how disclosure of the information causes ‘prejudice’ – which means to hinder, impair or undermine. This includes both actual prejudice as well as impending prejudice.³

An agency should also identify the specific harm that would flow from the disclosure of the information.

For example, if an alleged offender obtained access to their ongoing investigation file, the investigation would be prejudiced because disclosed information could be used to interfere with evidence or witnesses.

Would or would be reasonably likely

‘Would’ is a high threshold and means that a result or effect will almost certainly come about. That is, disclosure of the information would, in fact, cause some identifiable prejudice.

In contrast, ‘would be reasonably likely’ is a slightly lower threshold that does not require absolute certainty. ‘Likely’ should be given its plain English meaning – seeming like truth, fact, or certainty, or reasonably to be believed or expected.⁴

This threshold requires the chance of prejudice occurring to be real, not fanciful or remote.⁵

An agency should carefully consider whether disclosure ‘would’ or ‘would be reasonably likely’ to cause prejudice, as opposed to it being a mere possibility.

WHEN SECTION 31(1) DOES NOT APPLY – PUBLIC INTEREST EXCEPTIONS IN SECTION 31(2)

Section 31(2) outlines six circumstances where the section 31(1) exemption does not apply when there is a public interest to grant access to the document.

In other words, there are two parts to section 31(2) – one of the circumstances below must be established, and it must be in the public interest to grant access to the document.

The six circumstances in section 31(2) are:

1. the document reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law;
2. the document reveals illegal methods or procedures were used to investigate, enforce or administer the law;
3. the document reveals processes an agency uses to investigate, enforce or administer the law;
4. the document reports on the success of programs or processes an agency uses to investigate, enforce or administer the law;
5. the document reports on routine law enforcement inspections or investigations by an agency that enforces or regulates a particular law other than the criminal law; or
6. the document reports on a law enforcement investigation, where the substance of the report has been disclosed to the person who, or the body which, was the subject of the investigation.

Where one of these circumstances exists, then an agency must consider whether it is in the public interest that access to the document should be granted.

CONSULTING RELEVANT THIRD PARTIES

Section 31 requires an agency to consult with a relevant third party:

• to understand whether the exemption applies; and
• to decide whether it would be in the public interest to disclose a document captured by section 31(2).

Professional Standard 7.3 requires a record of the consultation to be kept. This includes who was consulted, whether they consented or objected, and any reasons provided.

Note that there may be no other relevant third party to consult. Consultation usually arises when the information relates to another agency, or where another agency is involved in the matter.

Deciding whether a document is exempt

Section 31(5) provides that in deciding if a document is exempt, an agency must, if practicable, notify any relevant Minister or Commonwealth/State/Territory agency that a request was received and seek their views about whether the document should be disclosed.

For example, where a local council receives a request for documents about an investigation into illegal dumping, and that local council provided documents to the Environment Protection Authority for further investigation, the local council should consult with the Environment Protection Authority.

The relevant third party does not have any review rights if they object to disclosure or disagree with a decision to release information. While there is no legal requirement to notify a consulted party of the final decision, it may still be appropriate to advise them of the final decision.

Deciding whether it is in the public interest to grant access to a document

Where one of the six circumstances in section 31(2) arises, an agency must, if practicable, notify any relevant Minister, or Commonwealth/State/Territory agency that a request was received and seek their views about whether there is a public interest in disclosing the document.

NEITHER CONFIRMING NOR DENYING THE EXISTENCE OF A DOCUMENT

In some cases, merely acknowledging that a document does, or does not exist, can harm or prejudice an investigation. Section 27(2)(b) permits an agency to make a decision and in terms that neither confirms nor denies the existence of the requested document.

For example, an agency might receive a request for documents about an ongoing, covert investigation. Any documents that acknowledged that covert investigation would compromise that investigation by alerting the subject to the investigation.

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 Australia⁶ has 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 – D20/2154

1. O’Sullivan v Police Force (Vic) (1986) 1 VAR 171 at [175–176]; Lapidos v Office of Corrections (No 4) (1990) 4 VAR 283.
2. Shulver v Victoria Police Force (1995) 9 VAR 71.
3. Bergman v Department of Justice [2012] VCAT 363 at [66], referring to Sobh v Police Force of Victoria [1994] 1 VR 41 (Nathan J) at [55]. 
4. See Macquarie Dictionary.
5. Bergman v Department of Justice [2012] VCAT 363 at [65], quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836.
6. Victorian Public Service Board v Wright (1986) 160 CLR 145 at [3].