Section 31(1)(e) – Endanger the life or physical safety of a confidential source of information or person engaged in law enforcement

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

A document or information is exempt under section 31(1)(e) where:

disclosure of information would be reasonably likely to endanger the life or physical safety of a person; and
where that person:
1. is engaged in, or connected with law enforcement; or
2. has provided confidential information in relation to the enforcement or administration of the law.

APPLYING THE EXEMPTION – A SUMMARY

Specifically identify the information to which the exemption may apply.
Determine whether disclosure of the information would, or would be reasonably likely to endanger the life or physical safety of a person with reference to the factors that are outlined in this Practice Note.
Establish that the person whose life or physical safety is endangered is either:
1. engaged in, or in connection with, law enforcement; or
2. has provided confidential information in relation to the enforcement or administration of the 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 ENDANGER THE LIFE OR PHYSICAL SAFETY OF A PERSON

When deciding if disclosure of a document would be reasonably likely to endanger the lives or physical safety of relevant persons, an agency should consider:

there must be a real chance of the harm occurring, rather than a fanciful or remote chance;¹
the danger need only be reasonably likely, not a certainty;²
the danger to the relevant persons must arise from the disclosure of the specific document rather than from other circumstances;³
the danger could arise from the person making the request, but also from others if the information become generally known;⁴
physical safety not only includes actual safety but also the relevant person’s perception of whether they are safe;⁵
it is the impact on the relevant person that is relevant, not the motives of the applicant.⁶

‘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, endanger life or physical safety of a person.

In contrast, ‘would be reasonably likely’ does not require certainty. Nevertheless, to meet this threshold, the chance of endangerment must be real and not fanciful or remote.⁷

ENGAGED IN, OR IN CONNECTION WITH LAW ENFORCEMENT

Being engaged in, or connected, with law enforcement is generally be self-evident, often from the person’s employment. For example, a police officer, correctional officer, or sheriff’s officer.

CONFIDENTIAL INFORMATION IN RELATION TO THE ENFORCEMENT OR ADMINISTRATION OF THE LAW

Provided confidential information

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;⁸
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;⁹
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.¹⁰

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.¹¹

These terms are broad and have wide application.

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 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.

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 should if 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.

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 Australia¹² 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 – D20/5248

Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [842].
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [844].
Re Lawless and Secretary to Law Department (1985) 1 VAR 42 at [50–51].
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at [844].
O’Sullivan v Police (Vic) (2005) 22 VAR 426.
O’Sullivan v Police (Vic) (2005) 22 VAR 426.
Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 at [65], quoting Binnie.
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].