• DIRECTOR’S POLICY •
FOI GENERAL LAW AND PROCEDURES
10 September 2015
INTRODUCTION
1.
The Office of Public Prosecutions (OPP) receives numerous Freedom of
Information (FOI) requests from private solicitors, government and quasi
government organisations, the media and the general public seeking access
to various documents including completed prosecution files and
information available on such files.
2.
This Policy deals with how FOI requests are to be processed and the
relevant considerations in determining whether documents should be
provided to the Applicant. This Policy should be read in conjunction with
the DPP Policy on File Requests [Policy 20], and the DPP Policy on Media
[Policy 12].
3.
Where a FOI request specifically involves a request for the reason why a
decision was made (such as the reason for the entry of a nolle
prosequi/discontinuance, the reason not to appeal against a sentence etc) it
is imperative that such a request be determined in accordance with the
DPP Policy on giving reasons for DPP decisions [Policy 20].
LEGISLATION
4.
The Freedom of Information Act 1982 (the FOI Act) in conjunction with
Freedom of Information Regulations 2009 and the Freedom of Information
(Access Charges) Regulations 2014 provide a statutory scheme that
facilitates public access to information held by the Government of Victoria
and its agencies.
5.
Section 3 of the FOI Act provides that the object of the Act is to extend as
far as possible the right of the community to access information in the
possession of the Government of Victoria and other bodies constituted
under the law of Victoria for certain public purposes.
POLICY AND ADVICE REGISTRY
6.
Until further notice, all FOI requests which involve the retrieval of
records, the checking or copying of materials, or the supervision of
applicants who attend at the OPP are to be referred to Directorate F [PAD]
where the details will be entered into the PAD Registry and a PAD File
will be created.
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7.
Upon receipt of a FOI request, the PAD solicitor with carriage of the FOI
file should send a letter of acknowledgement to the Applicant. The PAD
solicitor should, where applicable, also comply with the notification
obligations contained in the Attorney-General Guidelines on the
Responsibilities and Obligations of Principal Officers and Agencies,
December 2009
8.
Upon completion of the FOI request, the FOI Officer should send a letter
to the Applicant stating the decision, any finding of facts and the reasons
relied upon in support of that decision.
9.
The FOI Officer is a delegate authorised to make decisions on behalf of
the OPP. The principal FOI Officer is the SPP and the authorised delegate
FOI Officer is the Manager of Directorate F.
FEES AND CHARGES
10.
An application fee of $27.90 is payable before an FOI request can be
considered; see section 17 of the FOI Act. The fee may be waived or
reduced where it would cause financial hardship to the applicant. This fee
is current as at 1 July 2016, and is reviewed annually.
11.
The Freedom of Information (Access Charges) Regulations 2014 specify
that certain fees are payable in relation to:
(i) search time in relation to retrieving files from offsite depositories such
as the Public Records Office.
(ii) photocopying documents and the reasonable cost for reproducing
tapes, videos and photographs.
(iii) supervision fees. In instances when the material is voluminous it may
be appropriate for the applicant to view the material under supervision
within the OPP and after a decision to disclose documents has been
made. Selected material may then be photocopied for the applicant.
A GENERAL RIGHT OF ACCESS
12.
The FOI Act provides a legal right of access to documents in possession of
government agencies, subject to a number of exemptions.
13.
This right of access is open to “every person” and does not require a
personal interest in the documents requested.
14.
The definition of “documents” is broad and extends to photographs, tape,
film negatives or anything whatsoever on which is marked words, figures
or symbols (s.5).
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15.
For the purposes of the FOI Act, the OPP is an “agency”. Agency is
defined in s.5 as a “department, council or prescribed authority”.
‘Department’ is defined in s.5 as “a department within the meaning of the
Public Administration Act 2004 or an office specified in section 16(1) of
that Act”. Section 16(1)(j) of the Public Administration Act 2004 lists the
OPP as such an office. The person holding the statutory office of the
Director of Public Prosecutions would ordinarily be a ‘prescribed
authority’ within the meaning of the FOI Act. However, pursuant to s. 5(3)
of that Act, Regulation 6(a) of the Freedom of Information Regulations
2009 provides that the “Director of Public Prosecutions” is an exempt
office.
VALID FREEDOM OF INFORMATION REQUESTS
16.
A Freedom of Information request must:
a. be made in writing (s.17(1));
b. specify that it is being made under the FOI Act.
c. provide sufficient information as is reasonably necessary to
allow identification of the document (s.17(2));
d. be accompanied with a cheque for the application fee payable to
the ‘Office of Public Prosecutions – 565 Lonsdale Street
Melbourne 3000’ (s.17(2A));
17.
If a request does not comply with the above requirements it is the duty of
the PAD solicitor with carriage of the FOI file to write or consult with the
individual concerned and assist them to make a valid request (s.17(3) and
(4)).
18.
The application fee may be waived if the applicant can provide evidence
that the fee would cause financial hardship to the applicant (s.17(2B)). An
applicant should be informed of this fact if the required fee has not been
provided.
PROCEDURES FOLLOWING RECEIPT OF A FOI REQUEST
19.
Where a valid FOI request and the requisite application fee have been
received (or the fee has been waived), there is a duty on the FOI Officer to
provide access to the relevant documents (s.20) in accordance with the FOI
Act. However, before disclosing the documents the Officer should
consider whether:
a. the document came into existence prior to 5 July 1978;
b. the document is otherwise available to the public;
c. the application should be transferred to a different agency;
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d. complying with the application would substantially and
unreasonably divert the resources of the office;
e. some or all of the documents are wholly or partially exempt.
20.
The FOI Officer must inform the applicant of the outcome of the request
within 45 days of receipt of a valid request (s.21). A failure to do so is
deemed to be a decision refusing to grant access to the document (s.53).
DOCUMENTS CREATED BEFORE 5 JULY 1978
21.
The FOI Act only applies to documents created after 5 July 1978 (s.67(2)).
The FOI Officer need not disclose documents created before this date,
unless it relates to the personal affairs of the applicant (s.67(1)).
DOCUMENTS PUBLICLY AVAILABLE
22.
The Freedom of Information Officer should refuse a request if the
documents are otherwise available to the public or the document can be
purchased (s.14).
TRANSFER OF FOI REQUESTS
23.
Where a request is made and the OPP is not in the possession of the
document, or the subject matter of the document is more closely connected
with the functions of another agency the request may be transferred to
another agency (s.18(2)).
24.
When transferring a request the FOI Officer should promptly write to the
applicant and the relevant agency explaining why the matter has been
transferred.
SUBSTANTIAL AND UNREASONABLE DIVERSION OF RESOURCES
25.
The FOI Officer should refuse a request if complying with the terms of the
request would substantially and unreasonably divert the resources of the
Office from its other operations (s.25A(1)).
26.
In making this determination the FOI Officer is required to assess the
resources required to comply with the request and the impact processing
the request would have on the Office’s resources at that point in time
(s.25A(2)).
27.
If a request is denied based on this exemption the FOI Officer must write
to the applicant giving notice of an intention to refuse the request and
identifying an officer with whom the applicant may be given a reasonable
opportunity to consult with, so as to enable the applicant to make a valid
request (s.25(6)(a)), and provide the applicant as far as is reasonably
practicable with any information to assist the applicant to make a valid
request. (s.25(6)(c))
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28.
If a Freedom of Information request is refused under s.25A the applicant
should be informed of his or her entitlement to apply to the Freedom of
Information Commissioner for review of the decision.
EXEMPT DOCUMENTS
29.
The FOI Act provides for a number of exemptions which a government
agency may rely upon to deny access to specific documents.
30.
In determining whether a document falls within the following categories
the FOI Officer should liaise with relevant parties associated with the
document (e.g. Victoria Police, the informant, the OPP solicitor handling
the file).
Cabinet documents.
31.
The FOI Officer should refuse a request if the document requested is a
cabinet document (s.28).
Prejudice State/State or State/Commonwealth relations.
32.
The FOI Officer should refuse a request if disclosure of a document would
prejudice State/State or State/Commonwealth relations (s.29(a)).
Communicated in confidence by another state or country.
33.
The FOI Officer should refuse a request if a document reveals information
communicated in confidence by another State or country (s.29(b)).
Internal working document.
34.
The FOI Officer should refuse a request if a document is an internal
working document recording a consultation or deliberation that has taken
place between officers in the course of a deliberative or consultative
process and disclosure of that document would be contrary to the public
interest (s.30).
Created by Bureau of Criminal Intelligence.
35.
The FOI Officer should refuse a request if a document was created by the
Bureau of Criminal Intelligence or by the Intelligence and Covert Support
Department of Victoria Police (s.31(3)).
Legal Professional Privilege.
36.
The FOI Officer should refuse a request if a document is subject to legal
professional privilege or client legal privilege (s.32(1)).
37.
Legal professional privilege is the common law right to maintain
confidences and to protect from disclosure oral or written communications
that have passed between a person and his or her legal advisers for the
dominant purpose of either obtaining legal advice or assistance from a
FOI POLICY – GENERAL LAW AND PROCEDURES
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legal practitioner or for use in actual, pending or reasonably anticipated
legal proceedings. Client legal privilege is that as outlined in the Evidence
Act 2008 (ss. 118 & 119).
38.
In this context file notes and correspondence containing legal advice; legal
opinions of barristers and solicitors; and in-house memoranda containing
legal advice would all be subject to legal professional privilege.
39.
Legal professional privilege would not apply to presentments, court
transcripts, search warrants, charge sheets, and summaries actually served
in court. However, the privilege may still apply in relation to drafts of
these documents which materially differ from the final document.
40.
Legal professional privilege is the privilege of the client not the legal
adviser. Hence in most cases the privilege belongs to the DPP.
41.
Legal professional privilege is the privilege of the client and may be
waived expressly or by implication by the DPP.
42.
If the client waives his legal professional privilege then the person seeking
access is entitled to the document, provided no other ground of exemption
applies.
43.
Any FOI request that raises legal professional privilege should be referred
to the Manager of Directorate F.
Documents subject to a Suppression Order
44.
The FOI Officer should refuse a request if disclosure of a document would
contain any material or information which is subject to a current
Suppression or Prohibition Order made by a Court until and unless the
Order in question is lifted or the specific permission of the Court is
obtained for a limited release of the information in question, on specified
conditions. The same restrictions apply to evidence given in camera
whether or not a formal suppression or prohibition order was made by the
Court (s. 38).
Unreasonable disclosure of personal affairs.
45.
The FOI Officer should refuse a request if it would involve the
unreasonable disclosure of information relating to the personal affairs of
any person (s.33(1)).
46.
In making this determination the FOI Officer must take into account, in
addition to any other matters, whether disclosure would be reasonably
likely to endanger the life or physical safety of that person (s. 33(2A)).
Information relating to the personal affairs of a person includes:
•
information that identifies any person or discloses their address
or location, directly or indirectly (s. 33(9))
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•
matters relating or purporting to relate to the health, private
behaviour, home life or personal or family relationships of
individuals
•
the criminal history of a person
•
names and locations of various prisoners at particular times
•
memos, reports and file notes recording observations about
prisoners, records of their movements and activities, opinions
about them and results of medical examinations
•
reports to constables for the purposes of internal investigations
•
an interview with a child following sexual abuse
•
documents relating to alleged sexual abuse
•
files of Crimes Compensation Tribunal
•
names, initials, address and telephone numbers of DPP staff,
court staff, police officers and witness involved with a particular
trial
•
opinions and observations that a person makes about a
colleague’s conduct
•
names of persons who supplied information to the Ethical
Standards Department investigators of Victoria Police
•
documents detailing complaints made against staff and recruits at
the Police Academy (even in a redacted form excluding names
and other identifying material)
•
photographs and hand drawn plans of a house where the
applicant had been convicted of murdering three persons,
including photographs depicting clothing and personal
possessions of the victims and other items owned by the victims
•
images of a victim and her daughter (seized by police from the
applicant’s computer hard drive and other devices and subject to
a disposal order made by the County Court under the
Confiscation Act 1997)
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47.
If a document contains “health information” (as defined in the Health
Records Act 2001) concerning the person making the request and the OPP
believes on reasonable grounds that the provision of the health information
would pose a serious threat to the life or health of the person, the
document should not be released (s.33(4)). Where this section is relevant,
the OPP ought to consider appointing a medical practitioner to be the
principal officer for the purposes of properly assessing the information and
its potential effect on the applicant.
Documents relating to trade secrets.
48.
The FOI Officer should refuse a request if, following notification to the
relevant undertaking, it determines that disclosure of a document would
disclose a trade secret or other matters of a business, commercial or
financial nature which would expose that undertaking to unreasonable
disadvantage (s.34).
Documents containing material obtained in confidence.
49.
The FOI Officer should refuse a request if a document would disclose
information communicated in confidence and the material would be
exempt if generated by the agency or disclosure would be contrary to the
public interest as it would impair the ability of the agency to obtain similar
information in the future (s.35).
50.
Documents that have been held to fall in this category include:
Anonymous information given to police and documents containing
information provided in confidence to the Prisons Investigation Unit.
Documents to which secrecy provisions apply.
51.
The FOI Officer should not disclose a document if there is an enactment
that specifically prohibits disclosure of such a document (s.38). Relevant
enactments include:
52.
Section 4 of the Judicial Proceedings Reports Act 1958 prohibits the
publication of any information which would tend to identify or lead to the
identification of a complainant in a sexual offence prosecution. The
restriction applies both during and after any such prosecution, regardless
of the result of the prosecution. Such information cannot be published to
any person except with the permission of the complainant (where the
complainant is of sufficient age and capacity to give consent), or with the
express permission of the relevant Court.
53.
Section 534 of the Children, Youth and Families Act 2005 prohibits the
publication of the identity of a child, party, or witness associated with a
hearing in the Children’s Court of Victoria.
54.
Section 104ZZA of the Corrections Act 1986 prohibits the disclosure of
confidential information about a prisoner.
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EXEMPT LAW ENFORCEMENT DOCUMENTS
Documents which may prejudice an investigation.
55.
The FOI Officer should refuse a request if disclosure of a document
would, or be reasonably likely to, prejudice the investigation of a breach or
possible breach of the law, or prejudice the enforcement or proper
administration of the law in a particular instance (s.31(1)(a)). This
applies to both civil and criminal matters.
•
a complainant’s statement to police, in circumstances where an
investigation ensued which is classified as pending. Disclosure
of the document has the capacity to prejudice the investigation
into what appears to be the commission of a serious offence.
•
a transcript of the disciplinary hearing which identified several
persons by name and by occupation may well, if disclosed,
prejudice investigations (which remain open) concerning any
person(s) who might be guilty of a breach of the law.
•
images of a victim and her daughter (seized by police from the
applicant’s computer hard drive and other devices and subject to
a disposal order made by the County Court under the
Confiscation Act 1997) if disclosed, would prejudice the
enforcement or proper administration of the law.
Documents which may prejudice the fair trial of a person.
56.
The FOI Officer should refuse a request if disclosure of a document
would, or would be reasonably likely to prejudice a fair trial of a person
(s.31(1)(b)). For instance, if charges have been laid but the trial is still
pending. Likewise, if an appeal against conviction has been lodged it is the
Director’s policy that the material should not be made available until the
matter has been finalised.
Documents reveal a confidential source.
57.
The FOI Officer should refuse a request if disclosure of a document
would, or would be reasonably likely to reveal the identity of a
confidential source of information in relation to the administration and
enforcement of the law (s.31(1)(c)). This extends to information which
although by itself does not identify an informer, would tend to result in the
identification of a confidential source.
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Documents which prejudice investigating breaches of law.
58.
The FOI Officer should refuse a request if disclosure of a document
would, or would be reasonably likely to disclose methods or procedures
for preventing, detecting, investigating or dealing with matters arising out
of breaches of the law and such disclosure would, or would be reasonably
likely to prejudice the effectiveness of those methods or procedures
(s.31(1)(d)). This does not include methods or procedures that are
widespread.
Information which endangers safety of law enforcement.
59.
The FOI Officer should refuse a request if disclosure of a document
would, or would be reasonably likely to endanger the lives or physical
safety of persons engaged in or in connection with law enforcement, or
persons who would have provided confidential information in relation to
law enforcement (s.31(1)(e)).
LAW ENFORCEMENT DOCUMENTS THAT ARE NOT EXEMPT
60.
The FOI Act specifies a number of situations where the above law
enforcement exemption will not apply to a document provided that it is in
the public interest that access to the document should be granted, namely
where the document:
•
reveals that a law enforcement investigation has exceed the
limits of the law (s.31(2)(a));
•
reveals the use of illegal methods or procedures for preventing,
detecting, investigating, or dealing with matters arising out of
breaches or evasions of the law (s.31(2)(b));
•
contains a general outline of the structure of an agency for
investigating breaches of, or enforcing or administering, the law
(s.31(2)(c));
•
is a report on the degree of success achieved in any programme
adopted by an agency for investigating breaches of, or enforcing
or administering the law (s.31(2)(d));
•
is a report prepared in the course of routine law enforcement
inspections or investigations by an agency which has the
function of enforcing and regulating compliance with a particular
law other than the criminal law (s.31(2)(e));
•
is a report of a law enforcement investigation, where the
substance of the report has been disclosed to the person who or
the body which was the subject of the investigation (s.31(2)(f)).
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ACCESS TO EXEMPT DOCUMENTS
61.
In certain circumstances it may be appropriate to provide access to an
exempt document. In making this determination consideration should be
given to an applicant’s reasons for seeking access to the document and
whether it is in the public interest to release that document and whether
disclosure would involve the unreasonable disclosure of the personal
affairs of a person. Further, where a decision is made not to grant access to
an exempt document, however, it is practicable to grant access to a copy of
the document with such deletions as to make the copy not an exempt
document (and it appears from the request, or the applicant subsequently
indicates, that they wish to have access to such a copy) then access shall be
granted to such a copy (s 25).
PROCEDURE WHEN FOI REQUEST IS DENIED
62.
If the authorised FOI Officer determines that access to a document should
be denied, the FOI Officer should write to the applicant stating why the
request has been denied. The FOI Officer should alert the applicant to
s.49A of the Freedom of Information Act 1982, which provides that an
applicant may apply to the Freedom of Information Commissioner for a
review of the decision. A decision by the principal FOI Officer is not
reviewable by the Freedom of Information Commissioner (s. 49A(3)).
FREEDOM OF INFORMATION COMMISSIONER
63.
From 1 December 2012, the Freedom of Information Commissioner came
into effect in the Victorian FOI regime. The FOI Commissioner is an
independent officer who reports directly to parliament through a joint
parliamentary committee, the Accountability and Oversight Committee.
The FOI Commissioner is tasked with promoting the operation of the Act
by reviewing FOI decisions, handling FOI complaints, monitoring
compliance with the Act and providing advice, education and guidance to
the public and agencies in relation to the FOI Commissioner’s functions
and any professional standards set by the Minister. Importantly, the FOI
Commissioner replaces the now defunct ‘internal review’ practice.
64.
If a first instance decision of the OPP is made by an authorised delegate of
the Principal Officer, then the applicant can apply to the FOI
Commissioner to have that decision reviewed. If, however, the first
instance decision of the OPP is made by the principal officer (i.e. the
Solicitor for Public Prosecutions), then an applicant can only seek a review
of that decision at the Victorian Civil and Administrative Tribunal
(VCAT).
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65.
An applicant may, within 28 days of receiving the authorised FOI
Officer’s notice of determination, apply to the FOI Commissioner for a
review of the determination to deny access (s.49B). If the determination
was made by the principal officer (i.e. the SPP), an applicant may apply
within 60 days of receiving notice of that determination to VCAT for a
review of the decision to deny access (s.52(1). An agency may also appeal
a FOI Commissioner determination to VCAT within 60 days ((ss.50(3D)
& 52(9)).
66.
Where an applicant seeks review of a first instance decision to VCAT or
further seeks review of a FOI Commissioner’s decision to VCAT, the
matter should be referred to the Manager of Directorate F for guidance and
advice.
DISPOSAL OF FOI REQUEST FILES
67.
Pursuant to Para 9.7.3 of the General Retention and Disposal Authority for
Records of Common Administrative Functions (version 2009) issued by
the Public Records Office Victoria, the OPP is required to keep routine
FOI files for 2 years following the completion of administrative work,
before files can be disposed of. Different rules apply to FOI requests that
set a precedent (9.7.1) and those that require a detailed response from the
agency (9.7.2).
REVIEW OF POLICY
This policy will be kept under review and may be re-issued in an amended form at a
later date.
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