Understanding Transparency and Confidentiality in the Local Government Act 2020

The Local Government Act 2020 emphasizes transparency through principles like making Council information publicly available and maintaining a public transparency policy. Section 125 protects confidentiality by prohibiting the disclosure of certain information unless it should be publicly available. Tools and examples are provided for processing Freedom of Information requests effectively.

• Transparency
• Local Government Act
• FOI Act
• Confidentiality
• Data Protection

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1. The Freedom of Information Act and the Local Government Act 2020 2 September 2021

2. 2 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 Freedom of Information | Privacy | Data Protection

3. 3 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. Freedom of Information | Privacy | Data Protection

4. 4 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. Freedom of Information | Privacy | Data Protection

5. OVIC 5 November 2020 5 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). Freedom of Information | Privacy | Data Protection

6. 6 Section 3 defines: Confidential information Type Description (a) Council business information Information that would prejudice the Council's position in commercial negotiations if prematurely released. (b) Security information Information that is likely to endanger the security of Council property or the safety of any person if released. (c) Land use planning information Information that is likely to encourage speculation in land values if prematurely released. (d) Law enforcement information Information which would be reasonably likely to prejudice the investigation into an alleged breach of the law or the fair trial or hearing of any person if released. (e) Legal privileged information Information to which legal professional privilege or client legal privilege applies. (f) Personal information Information which would result in the unreasonable disclosure of information about any person or their personal affairs if released. (g) Private commercial information Information provided by a business, commercial or financial undertaking that relates to trade secrets or that would unreasonably expose the business, commercial or financial undertaking to disadvantage if released. (h) Confidential meeting information Records of a Council and delegated committee meetings that are closed to the public to consider confidential information (i) Internal arbitration information Confidential information relating internal arbitration about an alleged breach of the councillor code of conduct. (j) Councillor Conduct Panel confidential information (k) Prescribed information Inactive no information currently prescribed Confidential information relating to a Councillor Conduct Panel matter (l) Confidential information under the 1989 Act Information that was confidential information for the purposes of section 77 of the Local Government Act 1989 Freedom of Information | Privacy | Data Protection

7. 7 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. Freedom of Information | Privacy | Data Protection

8. 8 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. Exemptions Secrecy provision Exemptions Secrecy provision Same - The secrecy provision captures all documents captured by the FOI exemption(s). Secrecy provision Secrecy provisions Exemptions Exemptions None - The secrecy subsection has no directly comparable FOI exemption. Freedom of Information | Privacy | Data Protection

9. 9 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). Freedom of Information | Privacy | Data Protection

10. 10 Summary sheet SUBSECTION OF CONFIDENTIAL INFORMATION" (a) Council business information (b) Security information (c) Land use planning information (d) Law enforcement information (e) Legal privileged information (f) Personal information (g) Private commercial information (h) Confidential meeting information (i) Internal arbitration information (j) Councillor Conduct Panel confidential information (k) Prescribed information (inactive) (l) Confidential information under the 1989 Act TYPE Similar Same Similar Similar Same Same Similar None None None FOI ACT ss34(4)(a) & 36(2)(b) s31(1)(e) ss30 & 36(2)(a) ss31(1)(a) & 31(1)(b) s32 s33 s34(1) None None Freedom of Information | Privacy | Data Protection

11. 11 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. Freedom of Information | Privacy | Data Protection

12. 12 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). Freedom of Information | Privacy | Data Protection

13. 13 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. Freedom of Information | Privacy | Data Protection

14. 14 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. Freedom of Information | Privacy | Data Protection

15. 15 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 . Freedom of Information | Privacy | Data Protection

16. 16 Key takeaways 1. Section 125 commenced on 24 October 2020. It applies to all Council information from that date regardless of when the information is created. 2. 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. 3. Use same , similar or none to decide when and how to apply section 125 of the LG Act and FOI exemptions. 4. To promote transparency, consider using section 125(2). 5. 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/ Freedom of Information | Privacy | Data Protection

17. 17 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. Freedom of Information | Privacy | Data Protection

18. 18 Scenario 1 Key q uestions 1) Are any FOI exemptions relevant? 2) Are any subsections of the definition of confidential information relevant? Freedom of Information | Privacy | Data Protection

19. 19 Section 3 defines: Confidential information Type Description (a) Council business information Information that would prejudice the Council's position in commercial negotiations if prematurely released. (b) Security information Information that is likely to endanger the security of Council property or the safety of any person if released. (c) Land use planning information Information that is likely to encourage speculation in land values if prematurely released. (d) Law enforcement information Information which would be reasonably likely to prejudice the investigation into an alleged breach of the law or the fair trial or hearing of any person if released. (e) Legal privileged information Information to which legal professional privilege or client legal privilege applies. (f) Personal information Information which would result in the unreasonable disclosure of information about any person or their personal affairs if released. (g) Private commercial information Information provided by a business, commercial or financial undertaking that relates to trade secrets or that would unreasonably expose the business, commercial or financial undertaking to disadvantage if released. (h) Confidential meeting information Records of a Council and delegated committee meetings that are closed to the public to consider confidential information (i) Internal arbitration information Confidential information relating internal arbitration about an alleged breach of the councillor code of conduct. (j) Councillor Conduct Panel confidential information (k) Prescribed information Inactive no information currently prescribed Confidential information relating to a Councillor Conduct Panel matter (l) Confidential information under the 1989 Act Information that was confidential information for the purposes of section 77 of the Local Government Act 1989 Freedom of Information | Privacy | Data Protection

20. 20 Scenario 1 Key q uestions 1) Are any FOI exemptions relevant? Section 33 Personal Information and Section 32 Legal Privilege 2) Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information. 3) If both are relevant, how does the same, similar or none test work? Freedom of Information | Privacy | Data Protection

21. 21 Summary sheet SUBSECTION OF CONFIDENTIAL INFORMATION" (a) Council business information (b) Security information (c) Land use planning information (d) Law enforcement information (e) Legal privileged information (f) Personal information (g) Private commercial information (h) Confidential meeting information (i) Internal arbitration information (j) Councillor Conduct Panel confidential information (k) Prescribed information (inactive) (l) Confidential information under the 1989 Act TYPE Similar Same Similar Similar Same Same Similar None None None FOI ACT ss34(4)(a) & 36(2)(b) s31(1)(e) ss30 & 36(2)(a) ss31(1)(a) & 31(1)(b) s32 s33 s34(1) None None Freedom of Information | Privacy | Data Protection

22. 22 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). Freedom of Information | Privacy | Data Protection

23. 23 Scenario 1 Key q uestions 1) Are any FOI exemptions relevant? Section 33 Personal Information and Section 32 Legal Privilege 2) Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information. 3) 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. 4) Is there any jurisprudence in the FOI exemption that can help interpret section 125? Freedom of Information | Privacy | Data Protection

24. 24 Freedom of Information | Privacy | Data Protection

25. 25 Scenario 1 Is there any jurisprudence in the FOI exemption that can help interpret section 125 Freedom of Information | Privacy | Data Protection

26. 26 Scenario 1 Key q uestions 1) Are any FOI exemptions relevant? Section 33 Personal Information and Section 32 Legal Privilege 2) Are any subsections of the definition of confidential information relevant? Subparagraph (e) Legal Privileged Information and subparagraph (f) personal information. 3) 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. 4) 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. 5) Should I consult with the affected third parties about personal information? Yes. While not required, informal consultation will help you make your decision. 6) 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. 7) Is there anything else I need to think about? a) Has privilege been waived? b) Is there any information where other parts of section 33 could exempt information. Freedom of Information | Privacy | Data Protection

27. 27 Freedom of Information | Privacy | Data Protection

28. 28 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. Freedom of Information | Privacy | Data Protection

29. 29 Scenario 2 Key q uestions 1) Are any FOI exemptions relevant? 2) Are any subsections of the definition of confidential information relevant? 3) If both are relevant, how does the same, similar or none test work? 4) Is there any jurisprudence in the FOI exemption that can help interpret section 125? 5) Should I consult with the affected third parties? 6) Do the affected third parties have a right of appeal to VCAT? 7) Is there anything else I need to think about? Freedom of Information | Privacy | Data Protection

30. 30 Scenario 2 Key q uestions 1) Are any FOI exemptions relevant? 2) Are any subsections of the definition of confidential information relevant? 3) If both are relevant, how does the same, similar or none test work? Documents FOI act LG Act definition Type Council policies - Conflict of interest - Tender Criteria weight - Financial formula 34(4) 36(2) (a) Council business information - Information that would prejudice the Council's position in commercial negotiations if prematurely released. Similar Tatooine s tender submission 34(1)(b) (g) Private Commercial information - Information provided by a business, commercial or financial undertaking that relates to trade secrets or that would unreasonably expose the business, commercial or financial undertaking to disadvantage if released. Similar Closed Council meeting minutes - 30/9/20 - 30/10/20 38A (repealed) (h) Confidential meeting information - Records of a Council and delegated committee meetings that are closed to the public to consider confidential information (l) Confidential information under the 1989 Act - Information that was confidential information for the purposes of section 77 of the Local Government Act 1989 None Freedom of Information | Privacy | Data Protection

31. 31 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. Documents FOI act LG Act definition Council policies - Conflict of interest - Tender Criteria weight - Financial formula 34(4)(a)(ii)A document is an exempt document if it contains in the case of an agency engaged in trade or commerce information of a business, commercial or financial nature that would if disclosed under this Act be likely to expose the agency unreasonably to disadvantage. (a) Council business information being information that would prejudice the Council's position in commercial negotiations if prematurely released. 36(2)(b) A document is an exempt document if its disclosure under this Act would be contrary to the public interest by reason that it would disclose instructions issued to, or provided for the use of guidance of, officers of a council on the the criteria to be applied in negotiation, including financial, commercial negotiation, in the execution of contracts, relating to the financial property or personnel management and assessment interests of the council. Freedom of Information | Privacy | Data Protection

32. 32 Scenario 2 Council policy documents SUBSECTION OF CONFIDENTIAL INFORMATION" (a) Council business information (b) Security information (c) Land use planning information (d) Law enforcement information (e) Legal privileged information (f) Personal information (g) Private commercial information (h) Confidential meeting information (i) Internal arbitration information (j) Councillor Conduct Panel confidential information (k) Prescribed information (inactive) (l) Confidential information under the 1989 Act TYPE Similar Same Similar Similar Same Same Similar None None None FOI ACT ss34(4)(a) & 36(2)(b) s31(1)(e) ss30 & 36(2)(a) ss31(1)(a) & 31(1)(b) s32 s33 s34(1) None None Freedom of Information | Privacy | Data Protection

33. 33 Scenario 2 Council policy documents Similar exercise Policy FOI Act s34(4) FOI Act s36(2) Confidential Info (a) Conflict of interest No Unlikely to be in trade and commerce but would not expose to disadvantage No Unlikely to be contrary to public interest. No These policies should be public for transparency and thus should not prejudice commercial negotiations. Tender Criteria weight Unlikely Would usually be provided as part of the tender absent special circumstances. No Unlikely to be contrary to public interest to release general policy. Financial formula Unlikely Works probably not in trade and commerce although disclosure may expose unreasonably to disadvantage. Likely Depending on the purpose and the coverage of the document it would meet this test. No It appears commercial negotiations are concluded Freedom of Information | Privacy | Data Protection

34. 34 Scenario 2 Key q uestions for council policy documents 1) Are any FOI exemptions relevant? Sections 34(4) and 36(2) 2) Are any subsections of the definition of confidential information relevant? Subparagraph (a) 3) If both are relevant, how does the same, similar or none test work? Similar test consider both the FOI exemptions and the relevant subparagraph. 4) 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. 5) Should I consult with the affected third parties? Not applicable All Council documents. 6) Do the affected third parties have a right of appeal to VCAT? Not applicable All Council documents. 7) 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. Freedom of Information | Privacy | Data Protection

35. 35 Scenario 2 Key q uestions for Tatooine tender submission 1) Are any FOI exemptions relevant? 2) Are any subsections of the definition of confidential information relevant? 3) If both are relevant, how does the same, similar or none test work? 4) Is there any jurisprudence in the FOI exemption that can help interpret section 125? 5) Should I consult with the affected third parties? 6) Do the affected third parties have a right of appeal to VCAT? 7) Is there anything else I need to think about? Freedom of Information | Privacy | Data Protection

36. 36 Scenario 2 Key questions for Tatooine s tender submission 1) Are any FOI exemptions relevant? 2) Are any subsections of the definition of confidential information relevant Document FOI act LG Act definition Tatooine s tender submission 34(1)(b) A document is an exempt document if disclosure under this Act would disclose information acquired by an agency from a business, commercial or financial undertaking and the disclosure of the information would be likely to expose the agency unreasonably to disadvantage. (g) private commercial information, being information provided by a business, commercial or financial undertaking that if released, would unreasonably expose the business, commercial or financial undertaking to disadvantage; Freedom of Information | Privacy | Data Protection

37. 37 Scenario 2 Key q uestions for Tatooine tender submission 1) Are any FOI exemptions relevant? Section 34(1)(b) 2) Are any subsections of the definition of confidential information relevant? Subparagraph (g) 3) If both are relevant, how does the same, similar or none test work? Similar SUBSECTION OF CONFIDENTIAL INFORMATION" (a) Council business information (b) Security information (c) Land use planning information (d) Law enforcement information (e) Legal privileged information (f) Personal information (g) Private commercial information (h) Confidential meeting information (i) Internal arbitration information (j) Councillor Conduct Panel confidential information (k) Prescribed information (inactive) (l) Confidential information under the 1989 Act TYPE Similar Same Similar Similar Same Same Similar None None None None None FOI ACT ss34(4)(a) & 36(2)(b) s31(1)(e) ss30 & 36(2)(a) ss31(1)(a) & 31(1)(b) s32 s33 s34(1) Freedom of Information | Privacy | Data Protection

38. 38 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. Document FOI act LG Act definition Tatooine s tender submission 34(1)(b) A document is an exempt document if disclosure under this Act would disclose information acquired by an agency from a business, commercial or financial undertaking and the disclosure of the information would be likely to expose the agency unreasonably to disadvantage. (g) private commercial information, being information provided by a business, commercial or financial undertaking that if released, would unreasonably expose the business, commercial or financial undertaking to disadvantage; 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. Freedom of Information | Privacy | Data Protection

39. 39 Scenario 2 Key q uestions for Tatooine tender submission 1) Are any FOI exemptions relevant? Section 34(1)(b) 2) Are any subsections of the definition of confidential information relevant? Subparagraph (g) 3) If both are relevant, how does the same, similar or none test work? Similar 4) 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. 5) Should I consult with the affected third parties? Yes. While not required, informal consultation will help you make your decision. 6) 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. 7) Is there anything else I need to think about? None comes to mind. Freedom of Information | Privacy | Data Protection

40. 40 Scenario 2 Key questions for closed Council meeting minutes 1) Are any FOI exemptions relevant? 2) Are any subsections of the definition of confidential information relevant Document FOI act LG Act definition Closed Council meeting minutes - 30/9/20 - 30/10/20 38A (h) Confidential meeting information, being confidential meeting information, being the records of meetings closed to the public under section 66(2)(a) (l) Information that was confidential information for the purposes of section 77 of the Local Government Act 1989 Freedom of Information | Privacy | Data Protection

41. 41 Scenario 2 Key questions for closed Council meeting minutes 1) Are any FOI exemptions relevant? No, section 38A was repealed. 2) Are any subsections of the definition of confidential information relevant? Subparagraphs (h) and (l) 3) If both are relevant, how does the same, similar or none test work? None SUBSECTION OF CONFIDENTIAL INFORMATION" (a) Council business information (b) Security information (c) Land use planning information (d) Law enforcement information (e) Legal privileged information (f) Personal information (g) Private commercial information (h) Confidential meeting information (i) Internal arbitration information (j) Councillor Conduct Panel confidential information (k) Prescribed information (inactive) (l) Confidential information under the 1989 Act TYPE Similar Same Similar Similar Same Same Similar None None None None None FOI ACT ss34(4)(a) & 36(2)(b) s31(1)(e) ss30 & 36(2)(a) ss31(1)(a) & 31(1)(b) s32 s33 s34(1) Freedom of Information | Privacy | Data Protection

42. 42 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. Freedom of Information | Privacy | Data Protection

43. 43 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. Freedom of Information | Privacy | Data Protection

44. 44 Scenario 2 Key questions for closed Council meeting minutes 1) Are any FOI exemptions relevant? No, section 38A was repealed. 2) Are any subsections of the definition of confidential information relevant? Subparagraphs (h) and (l) 3) If both are relevant, how does the same, similar or none test work? None. 4) Is there any jurisprudence in the FOI exemption that can help interpret section 125? No. 5) Should I consult with the affected third parties? Not applicable. 6) Do the affected third parties have a right of appeal to VCAT? Not applicable. 7) Is there anything else I need to think about? Consider whether to apply both (h) and (l) to the second meeting. Freedom of Information | Privacy | Data Protection

45. Thank you!