Section 31(1)(C) – Confidential source of information in relation to administration 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, 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 31(1)(c) if two conditions are satisfied:

disclosure of the information would, or would be reasonably likely to disclose, or enable a person to ascertain the identity of a confidential source of information; and
the confidential source has provided information in the context of the enforcement or administration of the law.

APPLYING THE EXEMPTION – A SUMMARY

Identify the specific information to which the exemption may apply.
Determine whether disclosure of the information would be reasonably likely to disclose, or enable a person to ascertain the identity of a source of information.
Establish that the source of information was in fact a confidential source of information.
Determine the information was provided in relation to the enforcement or administration of the law and identify the specific law.
Where relevant, consult with any other agency, authority, or Minister on whether the information should be disclosed (per section 31(5)).
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)).
Consider if it is necessary to neither confirm nor deny the existence of a requested document in accordance with section 27(2)(b).
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.

WOULD OR WOULD BE REASONABLY LIKELY TO IDENTIFY A SOURCE OF INFORMATION

‘Would’ is a high threshold requiring disclosure of the information to, in fact, identify the source (for example, the source’s name is stated).

In contrast, ‘would be reasonably likely’ does not require certainty. Nevertheless, to meet this threshold, the chance of an identification occurring must be real and not fanciful or remote.¹

Consequently, when reviewing the information, an agency should consider if the identity of the source of information is explicitly stated, or able to be inferred from the information – for example, through circumstantial information that enables identification.

CONFIDENTIAL SOURCE OF INFORMATION

Section 31(1)(c) protects the identity of confidential sources of information not merely reluctant sources of information. It also does not include sources of information whose identity is public or clearly evident. For example, the identity of reluctant witnesses pending a legal hearing are not protected.²

Rather, a confidential source is an informer providing information that the alleged perpetrator and public do not know about. There is a public interest is preserving the anonymity of informers, otherwise these ‘wells of information will dry up’ and law enforcement agencies will be hindered from preventing or detecting crime, or administering the law.³

Whether a person is a confidential source of information is a question of fact, determined having regard to the following factors:

confidentiality can be express or implied from the circumstances and can be inferred from the nature and contents of a document;⁴
merely marking a document ‘confidential’ is not sufficient evidence of an intention that the information was provided confidentially or would remain confidential;
a legislative basis for information being provided in a confidential manner supports the application of the exemption;
whether the information is reliable or unreliable, true or false, does not impact whether it was communicated in confidence;⁵
information that would not, by itself, identify the confidential source of information but that would tend to result in the identification of such a confidential source could be exempt.⁶

PROVIDED IN THE CONTEXT OF THE ENFORCEMENT OR ADMINISTRATION OF THE LAW

An agency must be able to identify and document how the specific information provided relates to the enforcement of the law or the administration of the law.

There is a distinction between the ‘enforcement of the law’ and the ‘proper administration of the law’:

Enforcement of the law deals with the process of enforcing of the law, for example, prosecuting cases, or pursuing of fines and court orders.
The proper administration of the law deals with how the law is administered, for example, regulatory, monitoring and compliance activities.⁷

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:

the document reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law;
the document reveals illegal methods or procedures were used to investigate, enforce or administer the law;
the document reveals processes an agency uses to agency investigate, enforce or administer the law;
the document reports on the success of programs or processes an agency uses to investigate, enforce or administer the law;
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
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.

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 cause harm or be prejudicial. Section 27(2)(b) permits an agency to make a decision and in terms that neither confirm nor deny the existence these types of documents.

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 Australia⁸ 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 – D20/5236

Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 at [65], quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836.
XYZ v Victoria Police (2010) 33 VAR 1.
Jarvie v Magistrates’ Court [1995] 1 VR 84 at [88].
Ryder v Booth [1985] VR 869 at [883]; XYZ v Victoria Police at [155] and [265].
Richardson v Commissioner for Corporate Affairs (1987) 2 VAR 51 at [52]–[53].
Orchard v Medical Practitioners Board of Victoria (unreported, VCAT, Megay SM, 17 February 2000).
Cichello v Department of Justice [2014] VCAT 340 at [23], referring to JCL v Victoria Police [2012] VCAT 1060 at [28]) and Croom v Accident Compensation Commission (1989) 3 VAR 441 affirmed on appeal [1991] 2 VR 322).
Victorian Public Service Board v Wright (1986) 160 CLR 145 at [3].