Section 35(1)(a) – Exempt information communicated in confidence
Section 35(1) of the Freedom of Information Act 1982 (Vic) (the Act) contains two streams of exemptions: that relate to information communicated in confidence to an agency – sections 35(1)(a) and 35(1)(b). There is one other Exemption Practice Note that discuss the other stream in section 35.
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.
A document may be considered exempt under section 35(1)(a) if two conditions are satisfied:
- disclosure would divulge information or matter:
- communicated in confidence;
- by or on behalf of a person or a government to an agency or a Minister; and
- the information would be exempt matter if it were generated by an agency or a Minister.
HOW TO APPLY THE EXEMPTION – A SUMMARY
- Specifically identify any information or matter that appears to have been communicated in confidence.
- Confirm that the information was communicated in confidence noting from whom, when and how the information was communicated and why the agency considers it was communicated in confidence.
- Confirm the information is not a trade secret, or information about the business, commercial or financial matters of an undertaking. Under section 35(2), section 35(1)(a) does not apply to this type information.
- Unless an exception in section 35(1B) applies, consult with the relevant third party or parties who communicated the information to determine:
- if the information was communicated in confidence, and if so, any supporting evidence; and
- whether the document should be disclosed to the applicant, including any reasons; and
- whether the third party consents to disclosure of the document, or disclosure subject to deletions.
- Consider whether an extension of time under section 21(2) is permitted due to the need for consultation under section 35(1A).
- Consider whether the information or matter would be exempt under another provision in Part IV of the Act if that information had been generated by an agency or a Minister:
- identify the relevant exemption in Part IV of the Act (typically section 30(1)); and
- ensure each element of that exemption is met.
- If a decision is made to release the information, notify any third party that did not consent to the disclosure of the decision and their right to appeal to Victorian Civil and Administrative Tribunal (VCAT) within 60 days.
- Wait until the conclusion of any appeal or VCAT proceedings before providing the documents to the applicant.
WHEN SECTION 35(1)(B) DOES NOT APPLY
Under section 35(2), this exemption does not apply to trade secrets or other matters of a business, commercial or financial nature where that information was acquired from a business, commercial or financial undertaking. This type of information should be considered under the exemption in section 34.
INFORMATION COMMUNICATED TO THE AGENCY FROM AN EXTERNAL SOURCE
Generally, section 35(1) only applies to information communicated from an external source. It usually does not apply to information generated by the agency or its own officers.
Documents created by an agency or its own officers should be considered under section 30(1) – the internal working documents exemption. Applying section 35(1) to internal documents appears strained and inconsistent with Parliament’s intention.1
THIRD PARTY CONSULTATION
Where an agency identifies information that appears to have been communicated in confidence, subject to certain exceptions (discussed later), the third party that communicated the information must be consulted to seek their views on the circumstances surrounding the communication before making a decision.
The requirement to consult and related considerations
Under section 35(1A), when deciding whether section 35(1)(a) applies, an agency must:
- notify the following that a request has been received:
- the person or government that communicated the information or matter; or
- the person or government on whose behalf the information or matter was communicated; and
- seek their view as to whether the information was communicated in confidence; and
- seek their view as to whether the information should be disclosed to the applicant. If the person consents to disclosure, they should also be told that after doing so, they are not entitled to apply to VCAT for a review of a decision to grant access to the document.
The opinion of the third party is not determinative and is only a factor to be weighed by an agency when deciding whether to disclose the information. A person may strongly object to release, but if an agency is not satisfied that all elements of the exemption are made out, the document must be released.
When consulting, the 30-day timeframe to decide a request may be extended by up to 15 days under section 21(2)(a). See Procedural Practice Note 8 – Timeframes and extensions of time for further guidance.
When consulting, 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.
Consultation with a child
A ‘child’ is defined as a person under the age of 18 years.2 Section 33A states that where the third party to be consulted is a child, an agency may notify either or both of the child and their parent/guardian.
When considering who to notify, an agency should consider the exceptions in section 35(1B) about risks to life and safety, the risk of undue distress, unreasonable in the circumstances, and practicability.
Further, section 33A(2) states that if an agency is an information sharing entity,3 the parent or guardian of the child must not be notified if:
- the child is a primary person;4 and
- the parent or guardian is a person of concern5 or is alleged to pose a risk of family violence to that child.
When consultation is not required
There are important circumstances when notification is not required. These are set out in section 35(1B):
- where the notification would be reasonably likely to:
- endanger the life or physical safety of that person;
- cause that person undue distress;
- is otherwise unreasonable in the circumstances; or
- where the person to be notified is a ‘primary person’,6 and the notification would be reasonably likely to increase the risk to that person’s safety from family violence; or
- where it is not practicable to do so.
Considerations as to what is ‘practicable’, and further information about third party consultation are discussed in Procedural Practice Note 12 – Practicability and third party consultation and notification.
INFORMATION COMMUNICATED IN CONFIDENCE
Whether information was communicated in confidence is a question of fact, determined from the perspective of the communicator.7 Consequently, an agency should consider direct or circumstantial evidence about the confidentiality the person expected when they communicated to the agency, taking into account:
- confidentiality can be express or implied from the circumstances;8
- a formal agreement between the parties is not necessary to support the claim of confidentiality, nor will a formal agreement automatically mean information is confidential;
- merely marking a document ‘confidential’ is not sufficient evidence of an intention that the information remain confidential;
- a legislated process to provide confidential information supports applying the exemption;
- information disclosed to the public generally (for example, by the media) can remove confidentiality;
- the reliability of information does not affect whether it was communicated in confidence; and
- appropriate disclosure within the agency (for example, to parties involved in an investigation, or to those in management) does not undermine the confidentiality of the information.
INFORMATION WOULD BE EXEMPT MATTER IF GENERATED BY AN AGENCY
In addition to being communicated in confidence, the information must also be exempt under Part IV, if the information had been generated by an agency. For example, where the information would be exempt as an under section 30(1) if it was created by the agency, rather than communicated to the agency from an external person.
Continuing with this example, under section 30(1), a document is exempt from disclosure if:
- it discloses matter in the nature of opinion, advice, or recommendation prepared by an officer, or discloses consultation or deliberation between officers of the agency, Ministers, or an officer and a Minister; and
- it would be contrary to the public interest.
For section 35(1)(a) to apply in conjunction with section 30(1) an agency would need to establish the following elements:
- the information was communicated in confidence; and
- the information is in the nature of opinion, advice, recommendation, deliberation, or consultation; and
- it would be contrary to the public interest to disclose the information.
NOTIFYING A THIRD PARTY OF A DECISION
When a decision is made to release a document or information, section 35(1C) requires the agency to notify the person who communicated the information or matter, of the:
- decision to grant access to the document; and
- their right to apply to VCAT for a review of the decision.
However, section 35(1D) states that where a person has consented to disclosure of a document, or a document with deletions, the agency is not required to provide the above notification.
Where a third party objected to the disclosure and they are notified, disclosure of the documents to the applicant must be delayed for 60 days to give effect to a third party’s right under section 50(3AB) to apply to VCAT for review of the decision. If a third party who objected to disclosure exercises their right to seek review by VCAT, an agency must not disclose the documents until the VCAT proceedings are finalised and directions made.
Version: June 2020 – D20/288
- Sportsbet v Department of Justice  VCAT 8 at .
- See section 5 of the Act.
- Defined in section 144D Family Violence Protection Act 2008 (Vic).
- Section 144E Family Violence Protection Act 2008 (Vic).
- Defined in section 144B Family Violence Protection Act 2008 (Vic).
- Section 33(9) provides that a ‘primary person’ has the meaning given in section 144E of the Family Violence Protection Act 2008 (Vic).
- Woodford v Ombudsman  VCAT 721 at ; XYZ v Victoria Police  VCAT 255 at  and Barling v Medical Board of Victoria (1992) 5 VAR 542.
- Ryder v Booth  VR 869 at 883; XYZ v Victoria Police at .