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Exemption Practice Note 17: Section 38 – A secrecy provision prohibits disclosure of the information

Section 38 of the Freedom of Information Act 1982 (Vic) (the Act) exempts documents where information in those documents is protected by a secrecy provision.

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 38 exempts a document where three conditions are satisfied:

  1. there a section of a Victorian Act (an enactment) that is in force; and
  2. the enactment applies specifically to information contained in the document; and
  3. the enactment prohibits specific persons from disclosing the specified information.

How to apply the exemption – a summary

  1. Identify the enactment that may apply to the information.
  2. Ensure the enactment is in force.
  3. Specifically identify the information to be exempted.
  4. Determine whether the enactment specifically applies to the information under consideration and be able to explain how or why the enactment specifically applies to the information. Check to see if the enactment has any exceptions that may apply.
  5. Consider whether the enactment prohibits persons referred to in the enactment from disclosing the specific kind of information under consideration.

What is an enactment?

An enactment is defined broadly in section 5 and means an Act or instrument made under an Act, including rules, regulations, local laws, or by-laws.

Section 38 only applies to secrecy provisions contained in Victorian enactments and does not apply to Commonwealth enactments. Nevertheless, if a Commonwealth Act prohibits the release of information, then information may not be able to be released under the Victorian FOI Act without breaching the Commonwealth enactment. A secrecy provision in a Commonwealth law generally overrides the right of access in the Act where the two are inconsistent.1

Is the enactment in force?

The identified enactment must be in force, that is, it must not have been repealed or otherwise lapsed. Where a secrecy provision was previously in force or in force at the time of the request, but prior to a decision being made, then it does not apply. A secrecy provision can only be relied upon where it is in force at the time the decision is made.2

Does the enactment refer specifically to the information in the document?

It can be difficult to determine if an enactment applies specifically to the information under consideration. Case commentary is particularly useful in highlighting some general principles of when an enactment does and does not apply specifically to information. A useful way of distinguishing when an enactment does or doesn’t apply is to consider whether the enactment is concerned with content versus context. An enactment that describes the actual content of a document (or the information) is more likely to be exempt under section 38, as opposed to an enactment that is concerned with the context of the documents creation or existence.

Indicators of when an enactment applies specifically

An enactment ‘applies specifically’ when:

  • the enactment is formulated with such precision it refers with particularity to the information;3
  • the enactment is concerned with the specific nature and quality of the relevant information contained in the document;4
  • it focuses on the information in the document;5 or
  • a nondisclosure or secrecy provision applies to a document’s contents.6

Indicators of when an enactment doesn’t apply specifically

An enactment does not ‘apply specifically’ when it:

  • has general application;7
  • makes a blanket reference to ‘information’;8
  • is formulated in such general terms it would encompass the particular information without expressly referring to it;9
  • is concerned with the context in which the document exists;10
  • focuses on the document or its status instead of the particular information in the document;11
  • identifies the ‘kind’ of information only by reference to the capacity of the person who is in possession of the information;12 or
  • prohibits disclosure only on the basis of who has possession of the information.13

Does the enactment prohibit persons referred to from disclosing the information?

A prohibition

A prohibition is usually framed to prevent a person for releasing or disclosing information. Many prohibitions are accompanied by a penalty provision – a fine or imprisonment for contravening the prohibition. Where a penalty provision does exist, it is a persuasive (but not determinative) indicator that the enactment falls within section 38.14

When considering the prohibition, an agency should look for exceptions to the prohibition. For example, if an enactment states that the information may be released with the written consent of the subject of the information, and the applicant is that subject, then the exception is made out the probation does not apply. Note that the FOI request itself is usually considered written consent.

Persons referred to in the enactment

This element is easily satisfied. This limb does not require the enactment to prohibit disclosure of the relevant information by:

  • the person in possession of the document;
  • the person to whom the document was provided; or
  • the person to whom the document was addressed.15

All that is required is for the enactment to prohibit a person or persons (either generally, specifically or otherwise defined) from disclosing the specific information under consideration.

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

Version: June 2020 – D20/2180

  1. XYZ v Victoria Police [2010] VCAT 255 at [49].
  2. Van Der Craats v City of Stonnington (Review and Regulation) [2015] VCAT 2039 (18 December 2015) at [27].
  3. News Corporation Ltd v National Competition & Securities Commission (1984) 52 ALR 277, 281.
  4. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483.
  5. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483; Dept of Premier and Cabinet v Birrell (No 2) [1990] VR 51.
  6. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 [21].
  7. News Corporation Ltd v National Competition & Securities Commission (1984) 52 ALR 277, 281.
  8. Tilley v VicRoads [2010] VCAT 483 [58].
  9. News Corporation Ltd v National Competition & Securities Commission (1984) 52 ALR 277, 281.
  10. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483.
  11. Hulls v Victorian Casino & Gaming Authority (1998) 12 VAR 483; Birrell v Department of Premier & Cabinet (No 3) (1987) 2 VAR 32.
  12. News Corporation Ltd v National Competition & Securities Commission (1984) 52 ALR 277 [70].
  13. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 [21].
  14. Telstra Corp v Vic Roads [2001] VCAT 1699 (20 August 2001) [17].
  15. Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 [21].
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