1

Your speakers:

Katie Miller Senior Solicitor

Daniel PerkinsSenior Solicitor

Freedom of Information

The Forgotten Sections

2

FOI: The Forgotten Sections

• Section 25A(5): Obviously exempt‘Mum, Dad, do I have to?’

• Section 50(4): The public interest overrideTwo sides to every story

3

Section 25A(5): Obviously exempt

An agency may refuse to release documents:without having identified them; and

without specifying, in respect of each of them, the exemption that is claimed

If it is apparent from their nature that all of them are exempt; and

4

Section 25A(5): Obviously exempt

either —(i) it is apparent from the nature of the documents that no obligation would arise to release an edited copy; or (ii) it is apparent, from the request or as a result of consultation with the applicant, that they do not wish to have access to an edited copy.

5

6

Knight v Corrections Victoria[2010] VSC 338

• Invoked section 25A(5)• Obviously exempt by reason of:

– Section 31 — law enforcement documents– Section 33 — personal affairs– Section 35 — obtained in confidence– Section 38 — statutory secrecy

• Impractical to give edited copies

7

Objects of the FOI Act

• To extend as far as possible the right of the community to access information

• Creates a general right of access to information

• Limited only by exceptions and exemptions necessary for the protection of essential public interests and private and business affairs

8

Interpretation of the FOI Act

• The Act shall be interpreted, as far as possible, to further these objects

• Any discretions shall be exercised to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information

9

Section 25A(5): Obviously exempt

• Powers available to VCAT– Section 50(4) public interest override applies– General procedural powers

• Section 25A(5) is a discretionary power

10

Section 25A(5): Obviously exempt

• Objectively apparent from the face of the request

• Nature of the documents

• Each of them would be exempt, either in whole or in part

• No obligation would arise to provide an edited copy

11

Objectively apparent

• Bound by the terms of the request• May not go behind the request• No need to inspect the documents• No need to engage in complex

interpretation• No need to consult

12

Nature of the documents

• Inherent or essential quality and character

• High level of abstraction

• May not reason backwards from the exemptions

13

Each document must be exempt

• May be possible to split into multiple requests

• Must be either:– Exempt in entirety– No obligation to provide an edited copy

14

Consequences of invokingsection 25A(5)

• Agency does not have to:– Identify individual documents– Identify specific exemptions– Provide detailed reasons

• Applicant may still seek internal and VCAT review

15

Section 25A(5): Conclusions

• Should only be applied in limited circumstances

• However, should be applied where appropriate to conserve scarce resources

• Err on the side of processing the request in the ordinary way

16

Section 50(4)

• The public interest override

• Osland v Secretary to the Department of Justice

17

18

Osland v Secretary to the Department of Justice

“This week I received a memorandum of joint advice from a panel of senior counsel in relation to the petition. The joint advice recommends on every ground that the petition should be denied. After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.”

19

Section 32(1):Legal professional privilege

A document is exempt if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

20

Section 50(4):The public interest override

The Tribunal shall have power to grant access to an exempt document where the Tribunal is of the opinion that the public interest requires it.

21

Section 50(4):The public interest override

• The evidence before VCAT must be capable of supporting an opinion that the public interest requires release of the documents

• VCAT actually forms the opinion that that is what the public interest requires

22

Section 50(4):The public interest override

• ‘Significant and exceptional’ power• ‘A most extraordinary provision’• But this does not mean that it is only to be

exercised in exceptional circumstances• Must identify a high-threshold public

interest

23

Section 50(4):The public interest override

• Difficult to give it a fixed and precise content — it will necessarily depend on the circumstances of the case

• Whether access was required would depend on the specific public interest identified

24

Section 50(4):Conclusion

• The bar may have been lowered slightly

• Emphasis on presenting the ‘full picture’

25

Your speakers:

Katie Miller Senior Solicitor

Daniel PerkinsSenior Solicitor

Freedom of Information

The Forgotten Sections