Victorian Supreme Court on secrecy provision and FOI.

Justice Beach of the Victorian Supreme Court in Secretary to the Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 had to consider the relationship between the Freedom of Information Act and secrecy obligations imposed by the Corrections Act in an appeal against a VCAT decision that a 2004 report by the Corrections Inspectorate entitled “Review of the Administration of Separation Orders – High Security and Maintenance Units" was not an exempt document.

The Victorian FOI Act (Section 38) provides:

"A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

Unlike better practice as illustrated in the Commonwealth Act and the Queensland draft Right to Information Bill, there is no list included in the Victorian FOI Act of those acts that contain secrecy provisions which in effect take precedence over it.

Justice Beach rejected a submission that Section 38 should be interpreted narrowly:

"20 There can be no issue that the Court should strive to interpret the FOI Act “in a manner harmonious with its objectives, doing so to the fullest extent that the text allows”. Similarly, “[a]n approach hostile to disclosure of information in documentary form” must be eschewed. However, the approached (sic) required to be taken in interpreting s 38 of the FOI Act does not permit the Court to disregard or take liberties with the text of the Act. To the contrary, whilst the Court should strive to interpret the FOI Act in a manner harmonious with its objectives, it should do so only to the fullest extent that the text actually allows.

21 In this case the text of s 38 is plain. In order for a document to be exempt, the relevant enactment must prohibit “persons referred to in the enactment” from disclosing the relevant information. Section 38 does not provide that the enactment must prohibit the person in possession of the document or the person to whom the document was provided or the person to whom the document was addressed from disclosing the relevant information: it only provides that the enactment must prohibit persons referred to in the enactment from such disclosures."

The issue in this case was whether Section 30 of the Corrections Act-which prohibits disclosure of certain types of information held by specified persons- satisfied the criteria, and whether the Secretary was a person who held a position referred to in the provision.Most of the positions specified are those of people working in the prison system. Although it had not been argued in the Tribunal, Justice Beach found that as Section 17 of the Corrections Act gave the Secretary "all or any of the powers or functions of a Governor of a prison or a prison officer or escort officer under this Act,” the Tribunal had erred in law in finding that the Secretary was not a person prohibited by the Act from disclosing information of the kind contained in the report.The matter was referred back to the Tribunal for reconsideration in accordance with reasons in the judgment.

While the need for security in the prison system is unquestioned, Victoria and the other states should follow the Commonwealth lead (now with the Australian Law Reform Commission) and that of Queensland to re-examine the secrecy provisions in other acts to ensure consistency with open government principles, and to list the legislation that withstands re-examination in the FOI Act itself.The 2007 Independent Audit of Free Speech Report ( page 86) identified 45 Victorian acts containing secrecy provisions.