2 September 2021 The Freedom of Information Act
Description: 2 September 2021 The Freedom of Information Act and the Local Government Act 2020 What Ill be covering The Local Government Act 2020 transparency and secrecy How section 125 of the LG Act interacts with the FOI Act Section 38 of the FOI
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slide1. 2 September 2021 The Freedom of Information Act and the Local Government Act 2020<br>
slide2. What I’ll be covering The Local Government Act 2020 – transparency and secrecy
How section 125 of the LG Act interacts with the FOI Act
Section 38 of the FOI Act
Overlap of the secrecy provision and FOI Act exemptions
How to practically process FOI requests
Tools to increase transparency
Using section 125(2) where possible
Consult with affected third parties
Using FOI jurisprudence
Some practical examples<br>
slide3. Transparency in the Local Government Act 2020 Transparency is one of the five principles used to develop the LG Act 2020, as reflected in:
Section 9 - Councils must give effect to overarching governance principles including that “transparency of Council decisions, actions and information is to be ensured” and take into account the “public transparency principle” in section 58 of the LG Act.
Section 58 - sets out the public transparency principles including requiring Council information to be publicly available unless it is confidential, or unless making information public would be contrary to the public interest.
Section 57 - Councils must adopt and maintain a public transparency policy by 1 September 2020.<br>
slide4. Transparency in guidance Key DEWLP published Local Government Act 2020 – Principles of Public Transparency. This guidance states:
the LG Act 2020 “assumes, instead, that all matters must be public, except in very specific and limited circumstances.”
Councils must have regard to the principle underpinning the Freedom of Information Act 1982 (FOI Act) – “to provide a right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interest.”<br>
slide5. Section 125 of the Local Government Act 2020 The LG Act protects confidentiality through a secrecy provision – section 125:
125 Confidential information
(1) Unless subsection (2) or (3) applies, a person who is, or has been, a Councillor, a member of a delegated committee or a member of Council staff, must not intentionally or recklessly disclose information that the person knows, or should reasonably know, is confidential information.
Penalty: 120 penalty units.
(2) Subsection (1) does not apply if the information that is disclosed is information that the Council has determined should be publicly available.
(3) … [Range of circumstances where disclosure is allowed.]
This section commenced on 24 October 2020
Confidential information is defined in section 3 of the LG Act. There are 12 types of information in subsections (a) to (l). OVIC 5 November 2020<br>
slide6. Section 3 defines: “Confidential information”<br>
slide7. Section 125 of the LG Act and section 38 FOI Act Under the FOI Act, a council must generally disclose a document upon request unless it is exempt. Section 38 of the FOI Act exempts a document if:
there is a secrecy provision in force in another Act,
that applies specifically to information of a kind in the document, and
prohibits persons from disclosing that information.
OVIC considers that each of these pre-conditions would be met after section 125 commences:
section 125 of the LG Act came into force on 24 October 2020,
each subsection in the definition if confidential information applies section 125 to that information with sufficient specificity, and
section 125 prohibits Councillors and Council staff from disclosing confidential information.<br>
slide8. Overlap between the FOI Act and section 125 Some of the twelve types of “confidential information” in subsections (a) to (l) overlap with existing exemptions in the FOI Act. The overlap was intended to partly align the secrecy provision with the FOI Act. There are three types of overlap:
Similar - The secrecy provision and FOI exemption(s) are similarly worded, but actually capture different documents.
Same - The secrecy provision captures all documents captured by the FOI exemption(s).
None - The secrecy subsection has no directly comparable FOI exemption. Secrecy provision Exemptions<br>
slide9. Dealing with overlap – the secrecy provision takes precedence Where the same document is captured by both the secrecy provision and an FOI Act exemption, the secrecy provision should be primarily claimed. Consequently, FOI requests for the three types of overlap should be processed differently.
Similar – Separately apply the secrecy provision and any other exemption(s). Potentially remove the exemption(s) where both the secrecy provision and exemption apply to the same document.
Same – Apply and claim the secrecy provision (using section 38) rather than the exemption(s).
None – Apply the secrecy provision (using section 38).<br>
slide10. Summary sheet<br>
slide11. Consider and use section 125(2) of the LG Act Section 125(2) allows Council to determine that types of information should be publicly available.<br>
slide12. Section 125 of the Local Government Act 2020 The LG Act protects confidentiality through a secrecy provision – section 125:
125 Confidential information
(1) Unless subsection (2) or (3) applies, a person who is, or has been, a Councillor, a member of a delegated committee or a member of Council staff, must not intentionally or recklessly disclose information that the person knows, or should reasonably know, is confidential information.
Penalty: 120 penalty units.
(2) Subsection (1) does not apply if the information that is disclosed is information that the Council has determined should be publicly available.
(3) … [Range of circumstances where disclosure is allowed.]
This section commences on 24 October 2020
Confidential information is defined in section 3 of the LG Act. There are 12 types of information in subsections (a) to (l).<br>
slide13. Consider and use section 125(2) of the LG Act Section 125(2) allows Council to determine that types of information should be publicly available.
The power to make documents publicly available can be delegated by Council to the CEO or other appropriate Council staff.
OVIC encourages Councils to consider information regularly sought to determine if they should be publicly available to limit the secrecy provision and promote transparency.<br>
slide14. Consult where you can and its appropriate Sections 31, 33 and 34(1) of the FOI require consultation.
The LG Act 2020 does not require consultation, but OVIC encourages Councils to consult with affected third parties, because:
A business will have better insight into whether release of its information would “unreasonably expose it to disadvantage”.
An individual can give explain whether release of their personal affairs information is “unreasonable” or not.
A prosecuting agency would know whether disclosure of information could prejudice its prosecution.
The third party’s opinion is important to help Councils decide a matter, but is not determinative.<br>
slide15. Use FOI jurisprudence Given that the secrecy provision was drafted to align with the FOI Act, OVIC encourages Councils to use FOI jurisprudence for the same tests or phrases in the secrecy provision.
Tests – such “likely”, “reasonably likely to prejudice”, “would prejudice”, “unreasonable” in the context of personal information or “unreasonably expose to disadvantage” in the context of commercial information.
Phrases – such as “law enforcement”, “personal affairs” or “trade secrets”.<br>
slide16. Key takeaways Section 125 commenced on 24 October 2020. It applies to all Council information from that date regardless of when the information is created.
Section 125 of the LG Act is a secrecy provision under the FOI Act. If section 125 applies it should be used together with section 38 of the FOI Act as the primary exemption.
Use “same”, “similar” or “none” to decide when and how to apply section 125 of the LG Act and FOI exemptions.
To promote transparency, consider using section 125(2).
Where third party documents are involved, consult where you can.
If in doubt, check out the practice note:
https://ovic.vic.gov.au/resource/procedural-practice-note-21-foi-and-section-125-of-the-local-government-act-2020-2/<br>
slide17. Scenario 1 – Bob’s cul-de-sac Bob loves his cul-de-sac where all houses are built in federation style – it reminds him of his childhood. He is distressed to hear that his neighbor, Wendy, plans to erect a sleek, modern carport in front of her property. Bob complains to the Council.
The Council visits the site with a building surveyor to investigate, but later decides to approve the works to Wendy’s house. Upset by the decision, Bob makes an FOI request to the council for:
‘All documents, including notes of phone calls, emails and any document relating to the decision-making to approve renovations at 64 Pilchard Street, Bobsville.’
The Council identifies the following documents falling within the request:
Emails between Wendy, her builders and the Council about the construction (which include the names and contact details of contractors working at Wendy’s house).
File notes of telephone conversations between Wendy, her builders and the Council.
A legal advice from a barrister about the decision.<br>
slide18. Scenario 1 – Key q uestions Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant?<br>
slide19. Section 3 defines: “Confidential information”<br>
slide20. Scenario 1 – Key q uestions Are any FOI exemptions relevant? – Section 33 Personal Information and Section 32 Legal Privilege
Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information.
If both are relevant, how does the same, similar or none test work?<br>
slide21. Summary sheet<br>
slide22. Dealing with overlap – the secrecy provision takes precedence Where the same document is captured by both the secrecy provision and an FOI Act exemption, the secrecy provision should be primarily claimed. Consequently, FOI requests for the three types of overlap should be processed differently.
Similar – Separately apply the secrecy provision and any other exemption(s). Potentially remove the exemption(s) where both the secrecy provision and exemption apply to the same document.
Same – Apply and claim the secrecy provision (using section 38) rather than the exemption(s).
None – Apply the secrecy provision (using section 38).<br>
slide23. Scenario 1 – Key q uestions Are any FOI exemptions relevant? – Section 33 Personal Information and Section 32 Legal Privilege
Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information.
If both are relevant, how does the same, similar or none test work? – Both “Same” therefore claim the secrecy provision (using section 38) not the two exemptions.
Is there any jurisprudence in the FOI exemption that can help interpret section 125?<br>
slide25. Scenario 1 – Is there any jurisprudence in the FOI exemption that can help interpret section 125<br>
slide26. Scenario 1 – Key q uestions Are any FOI exemptions relevant? – Section 33 Personal Information and Section 32 Legal Privilege
Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information.
If both are relevant, how does the same, similar or none test work? – Both “Same” therefore claim the secrecy provision (using section 38) not the two exemptions.
Is there any jurisprudence in the FOI exemption that can help interpret section 125? Yes, there’s helpful guidance about unreasonable release of personal information and legal privilege, including definitions that can help.
Should I consult with the affected third parties about personal information? Yes. While not required, informal consultation will help you make your decision.
Do the affected third parties have a right of appeal to VCAT? No. The right of appeal is linked to formal consulting and applying section 33, not informal consultation. This may change.
Is there anything else I need to think about?
Has privilege been waived?
Is there any information where other parts of section 33 could exempt information.<br>
slide28. Scenario 2 – Commercial information and Council minutes Luke operates ‘Tatooine Earth Removers Pty Ltd’ which tenders for work on a major infrastructure development for the Alderaan Shire Council (ASC).
Luke does not hear back from the ASC but finds a rival earth-moving business ‘Hoth Earthmoving’ run by his estranged sister Leia working on the site. Leia is married to the Mayor, who presided over two closed Council meetings that appointed Leia’s business.
Luke makes an FOI request for:
All documents relating to Council Procurement procedure.
Tatooine’s tender submission.
Council minutes for Council meetings that considered the accepted the Hoth bid.
In identifying relevant documents, the Council FOI Officer Ben Kenobi notes:
ASC procurement documents include policies about conflict of interest in tenders, weight to put on tender criteria in all council tenders and a confidential financial formula devised for the ASC by KPMG to assess contractor financial viability.
Closed council meetings minutes on 30/9/20 and 30/10/20 discuss the tender.
The ASC CEO designated the tender materials that Council considered on 30/9/20 confidential in writing under section 77(2)(b) of the LG Act 1989.<br>
slide29. Scenario 2 – Key q uestions Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant?
If both are relevant, how does the same, similar or none test work?
Is there any jurisprudence in the FOI exemption that can help interpret section 125?
Should I consult with the affected third parties?
Do the affected third parties have a right of appeal to VCAT?
Is there anything else I need to think about?<br>
slide30. Scenario 2 – Key q uestions Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant?
If both are relevant, how does the same, similar or none test work?<br>
slide31. Scenario 2 – Council policy documents Similar – Separately apply the secrecy provision and the FOI exemption. Potentially remove the exemption where both the secrecy provision and exemption apply to the same document.<br>
slide32. Scenario 2 – Council policy documents<br>
slide33. Scenario 2 – Council policy documents – Similar exercise<br>
slide34. Scenario 2 – Key q uestions for council policy documents Are any FOI exemptions relevant? – Sections 34(4) and 36(2)
Are any subsections of the definition of confidential information relevant? Subparagraph (a)
If both are relevant, how does the same, similar or none test work? – Similar test – consider both the FOI exemptions and the relevant subparagraph.
Is there any jurisprudence in the FOI exemption that can help interpret section 125? – Not applicable because we are relying on the FOI Act not the LG Act 2020.
Should I consult with the affected third parties? – Not applicable – All Council documents.
Do the affected third parties have a right of appeal to VCAT? Not applicable – All Council documents.
Is there anything else I need to think about? None comes to mind.
Applying the “similar” test and reviewing three documents against the relevant exemptions, it looks like the exemption Council could apply is section 36(2) of the FOI Act to the financial formula document and the other documents are not exempt.<br>
slide35. Scenario 2 – Key q uestions for Tatooine tender submission Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant?
If both are relevant, how does the same, similar or none test work?
Is there any jurisprudence in the FOI exemption that can help interpret section 125?
Should I consult with the affected third parties?
Do the affected third parties have a right of appeal to VCAT?
Is there anything else I need to think about?<br>
slide36. Scenario 2 – Key questions for Tatooine’s tender submission Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant<br>
slide37. Scenario 2 – Key q uestions for Tatooine tender submission Are any FOI exemptions relevant? – Section 34(1)(b)
Are any subsections of the definition of confidential information relevant? Subparagraph (g)
If both are relevant, how does the same, similar or none test work? – Similar<br>
slide38. Scenario 2 – Key questions for Tatooine’s tender submission Similar – Separately apply the secrecy provision and the FOI exemption. Potentially remove the exemption where both the secrecy provision and exemption apply to the same document. While similarly worded, the LG Act has a higher threshold, requiring unreasonable disadvantage “would” be caused rather than “would be likely” under section 34(1)(b). Apply the LG Act if it meets the higher standard or FOI Act if not. Most business would object to disclosure. However, Council should carefully consider if unreasonably disadvantage would actually occur. When a private business tenders for government work, they expose themselves to the public interest that government expenditure should be transparent, particularly total contract costs and broad methodology.<br>
slide39. Scenario 2 – Key q uestions for Tatooine tender submission Are any FOI exemptions relevant? – Section 34(1)(b)
Are any subsections of the definition of confidential information relevant? Subparagraph (g)
If both are relevant, how does the same, similar or none test work? – Similar
Is there any jurisprudence in the FOI exemption that can help interpret section 125? Yes, they are very similarly worded so section 34(1)(b) jurisprudence helps.
Should I consult with the affected third parties? Yes. While not required, informal consultation will help you make your decision.
Do the affected third parties have a right of appeal to VCAT? No. The right of appeal is linked to formal consulting and applying section 34, not informal consultation. This may change.
Is there anything else I need to think about? None comes to mind.<br>
slide40. Scenario 2 – Key questions for closed Council meeting minutes Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant<br>
slide41. Scenario 2 – Key questions for closed Council meeting minutes Are any FOI exemptions relevant? – No, section 38A was repealed.
Are any subsections of the definition of confidential information relevant? Subparagraphs (h) and (l)
If both are relevant, how does the same, similar or none test work? – None<br>
slide42. Scenario 2 – Key questions for closed Council meeting minutes There were two closed council meetings on 30/9/20 and 30/10/20. For the 30/10/20 closed council meeting minutes:
Section 66 of the LG Act 2020 lists topics that can be considered in closed meetings.
Subsection (h) of the definition of “confidential information” in the LG Act 2020 includes closed council meeting minutes.
This makes those meeting minutes confidential information protected by section 125 of the LG Act 2020, which is exempt using section 38 of the FOI Act.<br>
slide43. Scenario 2 – Key questions for closed Council meeting minutes For the 30/9/20 closed council meeting minutes –
Section 89 of the LG Act 1989 lists topics that can be considered in closed meetings.
Section 77 of the LG Act 1989 was the operating secrecy provision that makes the closed meeting minutes confidential.
Section 77 of the LG Act 1989 was repealed, but any information confidential under section 77 of the LG Act 1989 remains “confidential information” under the LG Act 2020 because of subparagraph (l) in the definition of “confidential information” in the LG Act 2020.
This makes those meeting minutes confidential information protected by section 125 of the LG Act 2020, which is exempt using section 38 of the FOI Act.
Because the ASC CEO designated the tender materials that Council considered on 30/9/20 confidential in writing under section 77(2)(b) of the LG Act 1989, the meeting minutes is more directly confidential information protected by section 125 of the LG Act 2020.<br>
slide44. Scenario 2 – Key questions for closed Council meeting minutes Are any FOI exemptions relevant? –No, section 38A was repealed.
Are any subsections of the definition of confidential information relevant? Subparagraphs (h) and (l)
If both are relevant, how does the same, similar or none test work? – None.
Is there any jurisprudence in the FOI exemption that can help interpret section 125? – No.
Should I consult with the affected third parties? – Not applicable.
Do the affected third parties have a right of appeal to VCAT? Not applicable.
Is there anything else I need to think about? Consider whether to apply both (h) and (l) to the second meeting.<br>
slide45. Thank you!<br>
slide2. What I’ll be covering The Local Government Act 2020 – transparency and secrecy
How section 125 of the LG Act interacts with the FOI Act
Section 38 of the FOI Act
Overlap of the secrecy provision and FOI Act exemptions
How to practically process FOI requests
Tools to increase transparency
Using section 125(2) where possible
Consult with affected third parties
Using FOI jurisprudence
Some practical examples<br>
slide3. Transparency in the Local Government Act 2020 Transparency is one of the five principles used to develop the LG Act 2020, as reflected in:
Section 9 - Councils must give effect to overarching governance principles including that “transparency of Council decisions, actions and information is to be ensured” and take into account the “public transparency principle” in section 58 of the LG Act.
Section 58 - sets out the public transparency principles including requiring Council information to be publicly available unless it is confidential, or unless making information public would be contrary to the public interest.
Section 57 - Councils must adopt and maintain a public transparency policy by 1 September 2020.<br>
slide4. Transparency in guidance Key DEWLP published Local Government Act 2020 – Principles of Public Transparency. This guidance states:
the LG Act 2020 “assumes, instead, that all matters must be public, except in very specific and limited circumstances.”
Councils must have regard to the principle underpinning the Freedom of Information Act 1982 (FOI Act) – “to provide a right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interest.”<br>
slide5. Section 125 of the Local Government Act 2020 The LG Act protects confidentiality through a secrecy provision – section 125:
125 Confidential information
(1) Unless subsection (2) or (3) applies, a person who is, or has been, a Councillor, a member of a delegated committee or a member of Council staff, must not intentionally or recklessly disclose information that the person knows, or should reasonably know, is confidential information.
Penalty: 120 penalty units.
(2) Subsection (1) does not apply if the information that is disclosed is information that the Council has determined should be publicly available.
(3) … [Range of circumstances where disclosure is allowed.]
This section commenced on 24 October 2020
Confidential information is defined in section 3 of the LG Act. There are 12 types of information in subsections (a) to (l). OVIC 5 November 2020<br>
slide6. Section 3 defines: “Confidential information”<br>
slide7. Section 125 of the LG Act and section 38 FOI Act Under the FOI Act, a council must generally disclose a document upon request unless it is exempt. Section 38 of the FOI Act exempts a document if:
there is a secrecy provision in force in another Act,
that applies specifically to information of a kind in the document, and
prohibits persons from disclosing that information.
OVIC considers that each of these pre-conditions would be met after section 125 commences:
section 125 of the LG Act came into force on 24 October 2020,
each subsection in the definition if confidential information applies section 125 to that information with sufficient specificity, and
section 125 prohibits Councillors and Council staff from disclosing confidential information.<br>
slide8. Overlap between the FOI Act and section 125 Some of the twelve types of “confidential information” in subsections (a) to (l) overlap with existing exemptions in the FOI Act. The overlap was intended to partly align the secrecy provision with the FOI Act. There are three types of overlap:
Similar - The secrecy provision and FOI exemption(s) are similarly worded, but actually capture different documents.
Same - The secrecy provision captures all documents captured by the FOI exemption(s).
None - The secrecy subsection has no directly comparable FOI exemption. Secrecy provision Exemptions<br>
slide9. Dealing with overlap – the secrecy provision takes precedence Where the same document is captured by both the secrecy provision and an FOI Act exemption, the secrecy provision should be primarily claimed. Consequently, FOI requests for the three types of overlap should be processed differently.
Similar – Separately apply the secrecy provision and any other exemption(s). Potentially remove the exemption(s) where both the secrecy provision and exemption apply to the same document.
Same – Apply and claim the secrecy provision (using section 38) rather than the exemption(s).
None – Apply the secrecy provision (using section 38).<br>
slide10. Summary sheet<br>
slide11. Consider and use section 125(2) of the LG Act Section 125(2) allows Council to determine that types of information should be publicly available.<br>
slide12. Section 125 of the Local Government Act 2020 The LG Act protects confidentiality through a secrecy provision – section 125:
125 Confidential information
(1) Unless subsection (2) or (3) applies, a person who is, or has been, a Councillor, a member of a delegated committee or a member of Council staff, must not intentionally or recklessly disclose information that the person knows, or should reasonably know, is confidential information.
Penalty: 120 penalty units.
(2) Subsection (1) does not apply if the information that is disclosed is information that the Council has determined should be publicly available.
(3) … [Range of circumstances where disclosure is allowed.]
This section commences on 24 October 2020
Confidential information is defined in section 3 of the LG Act. There are 12 types of information in subsections (a) to (l).<br>
slide13. Consider and use section 125(2) of the LG Act Section 125(2) allows Council to determine that types of information should be publicly available.
The power to make documents publicly available can be delegated by Council to the CEO or other appropriate Council staff.
OVIC encourages Councils to consider information regularly sought to determine if they should be publicly available to limit the secrecy provision and promote transparency.<br>
slide14. Consult where you can and its appropriate Sections 31, 33 and 34(1) of the FOI require consultation.
The LG Act 2020 does not require consultation, but OVIC encourages Councils to consult with affected third parties, because:
A business will have better insight into whether release of its information would “unreasonably expose it to disadvantage”.
An individual can give explain whether release of their personal affairs information is “unreasonable” or not.
A prosecuting agency would know whether disclosure of information could prejudice its prosecution.
The third party’s opinion is important to help Councils decide a matter, but is not determinative.<br>
slide15. Use FOI jurisprudence Given that the secrecy provision was drafted to align with the FOI Act, OVIC encourages Councils to use FOI jurisprudence for the same tests or phrases in the secrecy provision.
Tests – such “likely”, “reasonably likely to prejudice”, “would prejudice”, “unreasonable” in the context of personal information or “unreasonably expose to disadvantage” in the context of commercial information.
Phrases – such as “law enforcement”, “personal affairs” or “trade secrets”.<br>
slide16. Key takeaways Section 125 commenced on 24 October 2020. It applies to all Council information from that date regardless of when the information is created.
Section 125 of the LG Act is a secrecy provision under the FOI Act. If section 125 applies it should be used together with section 38 of the FOI Act as the primary exemption.
Use “same”, “similar” or “none” to decide when and how to apply section 125 of the LG Act and FOI exemptions.
To promote transparency, consider using section 125(2).
Where third party documents are involved, consult where you can.
If in doubt, check out the practice note:
https://ovic.vic.gov.au/resource/procedural-practice-note-21-foi-and-section-125-of-the-local-government-act-2020-2/<br>
slide17. Scenario 1 – Bob’s cul-de-sac Bob loves his cul-de-sac where all houses are built in federation style – it reminds him of his childhood. He is distressed to hear that his neighbor, Wendy, plans to erect a sleek, modern carport in front of her property. Bob complains to the Council.
The Council visits the site with a building surveyor to investigate, but later decides to approve the works to Wendy’s house. Upset by the decision, Bob makes an FOI request to the council for:
‘All documents, including notes of phone calls, emails and any document relating to the decision-making to approve renovations at 64 Pilchard Street, Bobsville.’
The Council identifies the following documents falling within the request:
Emails between Wendy, her builders and the Council about the construction (which include the names and contact details of contractors working at Wendy’s house).
File notes of telephone conversations between Wendy, her builders and the Council.
A legal advice from a barrister about the decision.<br>
slide18. Scenario 1 – Key q uestions Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant?<br>
slide19. Section 3 defines: “Confidential information”<br>
slide20. Scenario 1 – Key q uestions Are any FOI exemptions relevant? – Section 33 Personal Information and Section 32 Legal Privilege
Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information.
If both are relevant, how does the same, similar or none test work?<br>
slide21. Summary sheet<br>
slide22. Dealing with overlap – the secrecy provision takes precedence Where the same document is captured by both the secrecy provision and an FOI Act exemption, the secrecy provision should be primarily claimed. Consequently, FOI requests for the three types of overlap should be processed differently.
Similar – Separately apply the secrecy provision and any other exemption(s). Potentially remove the exemption(s) where both the secrecy provision and exemption apply to the same document.
Same – Apply and claim the secrecy provision (using section 38) rather than the exemption(s).
None – Apply the secrecy provision (using section 38).<br>
slide23. Scenario 1 – Key q uestions Are any FOI exemptions relevant? – Section 33 Personal Information and Section 32 Legal Privilege
Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information.
If both are relevant, how does the same, similar or none test work? – Both “Same” therefore claim the secrecy provision (using section 38) not the two exemptions.
Is there any jurisprudence in the FOI exemption that can help interpret section 125?<br>
slide25. Scenario 1 – Is there any jurisprudence in the FOI exemption that can help interpret section 125<br>
slide26. Scenario 1 – Key q uestions Are any FOI exemptions relevant? – Section 33 Personal Information and Section 32 Legal Privilege
Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information.
If both are relevant, how does the same, similar or none test work? – Both “Same” therefore claim the secrecy provision (using section 38) not the two exemptions.
Is there any jurisprudence in the FOI exemption that can help interpret section 125? Yes, there’s helpful guidance about unreasonable release of personal information and legal privilege, including definitions that can help.
Should I consult with the affected third parties about personal information? Yes. While not required, informal consultation will help you make your decision.
Do the affected third parties have a right of appeal to VCAT? No. The right of appeal is linked to formal consulting and applying section 33, not informal consultation. This may change.
Is there anything else I need to think about?
Has privilege been waived?
Is there any information where other parts of section 33 could exempt information.<br>
slide28. Scenario 2 – Commercial information and Council minutes Luke operates ‘Tatooine Earth Removers Pty Ltd’ which tenders for work on a major infrastructure development for the Alderaan Shire Council (ASC).
Luke does not hear back from the ASC but finds a rival earth-moving business ‘Hoth Earthmoving’ run by his estranged sister Leia working on the site. Leia is married to the Mayor, who presided over two closed Council meetings that appointed Leia’s business.
Luke makes an FOI request for:
All documents relating to Council Procurement procedure.
Tatooine’s tender submission.
Council minutes for Council meetings that considered the accepted the Hoth bid.
In identifying relevant documents, the Council FOI Officer Ben Kenobi notes:
ASC procurement documents include policies about conflict of interest in tenders, weight to put on tender criteria in all council tenders and a confidential financial formula devised for the ASC by KPMG to assess contractor financial viability.
Closed council meetings minutes on 30/9/20 and 30/10/20 discuss the tender.
The ASC CEO designated the tender materials that Council considered on 30/9/20 confidential in writing under section 77(2)(b) of the LG Act 1989.<br>
slide29. Scenario 2 – Key q uestions Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant?
If both are relevant, how does the same, similar or none test work?
Is there any jurisprudence in the FOI exemption that can help interpret section 125?
Should I consult with the affected third parties?
Do the affected third parties have a right of appeal to VCAT?
Is there anything else I need to think about?<br>
slide30. Scenario 2 – Key q uestions Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant?
If both are relevant, how does the same, similar or none test work?<br>
slide31. Scenario 2 – Council policy documents Similar – Separately apply the secrecy provision and the FOI exemption. Potentially remove the exemption where both the secrecy provision and exemption apply to the same document.<br>
slide32. Scenario 2 – Council policy documents<br>
slide33. Scenario 2 – Council policy documents – Similar exercise<br>
slide34. Scenario 2 – Key q uestions for council policy documents Are any FOI exemptions relevant? – Sections 34(4) and 36(2)
Are any subsections of the definition of confidential information relevant? Subparagraph (a)
If both are relevant, how does the same, similar or none test work? – Similar test – consider both the FOI exemptions and the relevant subparagraph.
Is there any jurisprudence in the FOI exemption that can help interpret section 125? – Not applicable because we are relying on the FOI Act not the LG Act 2020.
Should I consult with the affected third parties? – Not applicable – All Council documents.
Do the affected third parties have a right of appeal to VCAT? Not applicable – All Council documents.
Is there anything else I need to think about? None comes to mind.
Applying the “similar” test and reviewing three documents against the relevant exemptions, it looks like the exemption Council could apply is section 36(2) of the FOI Act to the financial formula document and the other documents are not exempt.<br>
slide35. Scenario 2 – Key q uestions for Tatooine tender submission Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant?
If both are relevant, how does the same, similar or none test work?
Is there any jurisprudence in the FOI exemption that can help interpret section 125?
Should I consult with the affected third parties?
Do the affected third parties have a right of appeal to VCAT?
Is there anything else I need to think about?<br>
slide36. Scenario 2 – Key questions for Tatooine’s tender submission Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant<br>
slide37. Scenario 2 – Key q uestions for Tatooine tender submission Are any FOI exemptions relevant? – Section 34(1)(b)
Are any subsections of the definition of confidential information relevant? Subparagraph (g)
If both are relevant, how does the same, similar or none test work? – Similar<br>
slide38. Scenario 2 – Key questions for Tatooine’s tender submission Similar – Separately apply the secrecy provision and the FOI exemption. Potentially remove the exemption where both the secrecy provision and exemption apply to the same document. While similarly worded, the LG Act has a higher threshold, requiring unreasonable disadvantage “would” be caused rather than “would be likely” under section 34(1)(b). Apply the LG Act if it meets the higher standard or FOI Act if not. Most business would object to disclosure. However, Council should carefully consider if unreasonably disadvantage would actually occur. When a private business tenders for government work, they expose themselves to the public interest that government expenditure should be transparent, particularly total contract costs and broad methodology.<br>
slide39. Scenario 2 – Key q uestions for Tatooine tender submission Are any FOI exemptions relevant? – Section 34(1)(b)
Are any subsections of the definition of confidential information relevant? Subparagraph (g)
If both are relevant, how does the same, similar or none test work? – Similar
Is there any jurisprudence in the FOI exemption that can help interpret section 125? Yes, they are very similarly worded so section 34(1)(b) jurisprudence helps.
Should I consult with the affected third parties? Yes. While not required, informal consultation will help you make your decision.
Do the affected third parties have a right of appeal to VCAT? No. The right of appeal is linked to formal consulting and applying section 34, not informal consultation. This may change.
Is there anything else I need to think about? None comes to mind.<br>
slide40. Scenario 2 – Key questions for closed Council meeting minutes Are any FOI exemptions relevant?
Are any subsections of the definition of confidential information relevant<br>
slide41. Scenario 2 – Key questions for closed Council meeting minutes Are any FOI exemptions relevant? – No, section 38A was repealed.
Are any subsections of the definition of confidential information relevant? Subparagraphs (h) and (l)
If both are relevant, how does the same, similar or none test work? – None<br>
slide42. Scenario 2 – Key questions for closed Council meeting minutes There were two closed council meetings on 30/9/20 and 30/10/20. For the 30/10/20 closed council meeting minutes:
Section 66 of the LG Act 2020 lists topics that can be considered in closed meetings.
Subsection (h) of the definition of “confidential information” in the LG Act 2020 includes closed council meeting minutes.
This makes those meeting minutes confidential information protected by section 125 of the LG Act 2020, which is exempt using section 38 of the FOI Act.<br>
slide43. Scenario 2 – Key questions for closed Council meeting minutes For the 30/9/20 closed council meeting minutes –
Section 89 of the LG Act 1989 lists topics that can be considered in closed meetings.
Section 77 of the LG Act 1989 was the operating secrecy provision that makes the closed meeting minutes confidential.
Section 77 of the LG Act 1989 was repealed, but any information confidential under section 77 of the LG Act 1989 remains “confidential information” under the LG Act 2020 because of subparagraph (l) in the definition of “confidential information” in the LG Act 2020.
This makes those meeting minutes confidential information protected by section 125 of the LG Act 2020, which is exempt using section 38 of the FOI Act.
Because the ASC CEO designated the tender materials that Council considered on 30/9/20 confidential in writing under section 77(2)(b) of the LG Act 1989, the meeting minutes is more directly confidential information protected by section 125 of the LG Act 2020.<br>
slide44. Scenario 2 – Key questions for closed Council meeting minutes Are any FOI exemptions relevant? –No, section 38A was repealed.
Are any subsections of the definition of confidential information relevant? Subparagraphs (h) and (l)
If both are relevant, how does the same, similar or none test work? – None.
Is there any jurisprudence in the FOI exemption that can help interpret section 125? – No.
Should I consult with the affected third parties? – Not applicable.
Do the affected third parties have a right of appeal to VCAT? Not applicable.
Is there anything else I need to think about? Consider whether to apply both (h) and (l) to the second meeting.<br>
slide45. Thank you!<br>