Legal Insights

Recent developments in the information space for local government

By Melanie OlynykMaryam Popal

• 24 November 2020 • 6 min read

Here is a look at some recent developments in the information space for Victorian local government

  • New OVIC Practice Note on Section 125 of the Local Government Act 2020 (Confidential Information)
  • New Regulations affecting councils
  • IBAC Report on unauthorised access and disclosure of information by local government
  • Implications arising from OVIC’s Annual Report

New OVIC Practice Note on Section 125 of the Local Government Act 2020 (Confidential Information)

Section 125 of the Local Government Act 2020 (LGA 2020) commenced on 24 October 2020.

It provides that it is an offence for a Councillor (past or present), member of a delegated committee or a member of council staff to intentionally or recklessly disclose information that the person knows, or should reasonably know, is confidential information. This is unless the council has determined that the information should be publicly available (under s 125(2)) or the circumstances set out under s 125(3) apply.

Section 125 of the LGA 2020 replaces the former confidentiality obligation under s 77 of the Local Government Act 1989 (LGA 1989). It also led to the repeal of the former exemption in the Freedom of Information Act 1982 (FOI Act) for closed council meeting documents.

Confidential information is broadly defined under s 3 of the LGA 2020. It contains 12 categories of confidential information, some of which overlap with exemptions set out under the FOI Act.

The Office of the Victorian Information Commissioner (OVIC) has recently released a Practice Note stating that s 125 of the LGA 2020 is a secrecy provision for the purpose of s 38 of the FOI Act. This means that documents that contain ‘confidential information’ for the purposes of s 125 of the LGA 2020 are exempt from release under the FOI Act.

In Practice Note 21, OVIC describes what to do where there is an overlap between the secrecy provision and an FOI Act exemption. You can access Practice Note 21 here.

New Regulations affecting councils

Also, on 24 October 2020, a number of new Regulations were made that affect local government.

The Local Government (Revocation Regulations) 2020 revoked:

  • The Local Government (Planning and Reporting) Regulations 2014;
  • The Local Government (Planning and Reporting) Amendment Regulations 2015;
  • The Local Government (Planning and Reporting) Amendment Regulations 2017;
  • The Local Government (Planning and Reporting) Amendment Regulations 2019;
  • Regulations 6, 7, 8, 9, 12 and 17 of the Local Government (General) Regulations 2015; and
  • Schedule 1 to the Local Government (General) Regulations 2015.

The revocation of r 12 of the Local Government (General) Regulations 2015 means there is no longer a set list of documents to be made available for public inspection. Instead, separate provisions in the LGA 2020, LGA 1989 and the Regulations provide for information and documents to be made publicly available by councils.

The Local Government (Governance and Integrity) Regulations 2020 prescribe a range of matters related to governance and integrity of councils and Councillors for the purposes of the LGA 2020. With respect to information made publicly available, r 10(1) sets out the information related to personal interests returns which must be made publicly available.

Pursuant to s 135(2)(b) of the LGA 2020, a council’s CEO must make a summary of personal interests available for public inspection at the council’s office and on its website. Regulation 10(1) requires certain information to be included in the summary of personal interests, including:

  • the name of the specified person;
  • all positions held by the specified person as a Councillor, member of a delegated committee or member of Council staff;
  • the date the specified person lodged the preceding personal interests return; and
  • a summary of the information disclosed in the specified person’s preceding personal interests return, which contains sufficient information to identity the type and nature of the interests disclosed in the return.

The Local Government (Planning and Reporting) Regulations 2020 also prescribe certain information to be included in Financial Plans (r 6), a council’s budget and revised budget (rr 7 and 8) and a council’s annual report (rr 9, 10, 11, 12 and 14).

IBAC Report on unauthorised access and disclosure of information by local government

The Independent broad-based anti-corruption Commission (IBAC) released its final research report on unauthorised access and disclosure of information held by local government.

The report considers corruption risks related to information misuse by the local government sector, including councils, its employees, contractors and Councillors. It also explores the drivers of these risks, as well as potential prevention, reporting and detection measures, including the recommendation that councils implement the Victorian Protective Data Security Framework and accompanying standards, developed by the Information Commissioner under Part 4 of the Privacy and Data Protection Act 2014.

You can access a copy of the report here.

Implications arising from OVIC’s Annual Report

OVIC recently released its Annual Report for 2019/2020. Here’s a snapshot of the key statistics and takeaways for councils:

Privacy
  • Privacy complaints increased 24% (to 106)
    • 75% were resolved and 25% were referred to VCAT (30 in total)
  • 96 data breach notifications were received (in part due to the Information Security Incident Notification Scheme introduced in October 2019)
FOI
  • 34,895 FOI decisions were made in Victoria (across all agencies)
    • Top 5 exemptions claimed were s 33 (personal affairs), s 38 (secrecy), s 31 (law enforcement), s 30 (internal working documents) and s 35 (information communicated in confidence)
  • OVIC FOI reviews increased (from 607 to 646)
    • Across 119 agencies
    • 530 applicants were members of the public
  • OVIC FOI complaints increased
    • 88% were from members of the public

It appears privacy complaints are on the rise, with most being made by members of the public, and more agencies are notifying OVIC of privacy breaches as well. As for FOI, reviews and complaints also increased, again with most being made by members of the public.

You can access a copy of the report here.

Want to know more about these recent developments for local government?

Please get in touch with us

By Melanie OlynykMaryam Popal

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