Section 35(1)(B) – Disclosure of information communicated in confidence would impair an agency’s ability to obtain information in future

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.

THE EXEMPTION

A document may be considered exempt under section 35(1)(b) if two conditions are satisfied:

disclosure would divulge information or matter:
1. communicated in confidence;
2. by or on behalf of a person or a government to an agency or a Minister; and
disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

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.
Consider the factors outlined in this Practice Note to determine if disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.
Unless an exception in section 35(1B) applies, consult with the relevant third party or parties who communicated the information to determine:
1. if the information was communicated in confidence, and if so, any supporting evidence; and
2. whether the document should be disclosed to the applicant, including any reasons; and
3. 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).
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

In very limited circumstances, section 35(1) may apply to particularly sensitive and confidential information communicated to an agency by its own officers. For example, in the context of internal complaints and investigations, or where misconduct or corruption is reported.²

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.³ 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,⁴ the parent or guardian of the child must not be notified if:

the child is a primary person;⁵ and
the parent or guardian is a person of concern⁶ 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’,⁷ 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.⁸ 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;⁹
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.

THE MEANING OF ‘REASONABLY LIKELY’

For information communicated in confidence to be exempt under section 35(1)(b), its disclosure must be reasonably likely to impair the agency’s ability to obtain similar information in the future. ‘Reasonably likely’ is not defined in the Act. However, case law suggests that the threshold is:

an actual likelihood that similar information would not be forthcoming;¹⁰
a possibility that is real rather than fanciful or remote;¹¹
more probable than not;¹²
more likely than not.¹³

IMPAIR THE ABILITY TO OBTAIN SIMILAR INFORMATION IN FUTURE

Impair is also not defined in the Act. However, case law suggests:

the degree of impairment must go beyond a trifling or minimal impairment;¹⁴
the agency must be impaired from receiving information rather than a reluctance on the part of a supplier to provide information;¹⁵
it is not enough that individuals would be somewhat less candid than they otherwise might be;¹⁶
there must be an actual impairment to the ability of the agency to obtain like information in the future.¹⁷

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.

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

Version: June 2020 – D20/93

Sportsbet v Department of Justice [2010] VCAT 8 at [73].
See Sportsbet v Department of Justice [2010] VCAT 8 at [71]-[78]; XYZ v Victoria Police [2010] VCAT 255 at [287]-[288]; and Birnbauer v Inner and Eastern Health Care Network (1999) 16 VAR 9 at [17].
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 [2001] VCAT 721 at [95]; XYZ v Victoria Police [2010] VCAT 255 at [265] and Barling v Medical Board of Victoria (1992) 5 VAR 542.
Ryder v Booth [1985] VR 869 at 883; XYZ v Victoria Police at [265].
Mees v University of Melbourne [2009] VCAT 782 at [58].
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836.
Ryder v Booth [1985] VR 869 at [880].
RJE v Secretary to the Department of Justice [2008] VSCA 265 at [53].
Ryder v Booth [1985] VR 869 at [880].
Kosky v Department of Human Services (1998) 13 VAR 420 at [22].
Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363 at [68].
Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363 at [68].