Fact Sheet 17 - Confidentiality requirements in relation to Protected Disclosure Matters

Certain information about protected disclosure matters must be kept confidential.  This fact sheet summarises the key provisions restricting disclosure of information by:
  • a person making a disclosure
  • witnesses to a disclosure
  • subjects of a disclosure
  • individuals who receive information about a disclosure.
A breach of the restrictions on disclosure of information can amount to a criminal offence.
 
This fact sheet relates to the functions of the Victorian Ombudsman. It is not exhaustive and is to be used as a guide only. This fact sheet does not address  restrictions:
  • that apply when you have been issued a confidentiality notice
  • relating to the functions of other entities, such as the Independent Broad-based Anti-corruption Commission (IBAC).
This is a complex area of the law. If you are in doubt about any of its provisions, you should seek advice from the Ombudsman’s office before disclosing any information. Alternatively, you may seek your own legal advice.

What confidentiality obligations apply if you are the person who made the disclosure?

Where you have made a disclosure you must not disclose the following:
1.     advice that a disclosure has been notified to IBAC for assessment under the Protected Disclosure Act 2012
2.    advice from IBAC or the Victorian Inspectorate that a disclosure has been determined to be a protected disclosure complaint 
3.    information from IBAC that it has referred the complaint to the Ombudsman
4.    information regarding the Ombudsman’s intention to conduct an investigation of a protected disclosure complaint
5.    where the Ombudsman has conducted an investigation into a protected disclosure complaint, and provides the following information to you:
a.   the result of the investigation or other action
b.   any recommendation(s) made and any comments on the recommendation(s)
c.   any other information provided to you by the Ombudsman.
 
However, the legislation allows you to disclose this information (outlined from 1 to 5 on the previous page) for specified purposes, including:
  • for obtaining legal advice in relation to an investigation under the Ombudsman Act 1973 or advice on your rights, liabilities, obligations and privileges under the Ombudsman Act or the Protected Disclosure Act and/or
  • disclosure to your spouse or domestic partner and/or
  • disclosure to your employer or manager.
Where as a result of an exception you are permitted to disclose such information to another person, that person is then also restricted from disclosing that information. 

What confidentiality obligations apply if you are a witness to or subject of an investigation?

There are various provisions that prevent the disclosure of certain information in relation to protected disclosure matters where you are a witness to or the subject of an investigation. In particular you are restricted from disclosing:
  • the content of an assessable disclosure and information about the content of an assessable disclosure
  • information likely to lead to the identification of a person who has made an assessable disclosure.
The restrictions also apply to other persons to whom this information has been disclosed.
 
There are exceptions to these restrictions, which include making a disclosure:
  • for the purpose of obtaining legal advice or representation in relation to your rights, liabilities, obligations and privileges under the Ombudsman Act or the Protected Disclosure Act
  • where you are directed or authorised to do so by the Ombudsman
  • where the content of the assessable disclosure, or information likely to lead to the identification of a person who has made an assessable disclosure, has been made public by the Ombudsman.
You are also restricted from disclosing the advice or information outlined from 1 to 5 on page one of this fact sheet. The same exceptions also apply. Again, the disclosure restrictions will apply to any person to whom you disclose the information in accordance with the exceptions. There are also further restrictions where you have been issued a confidentiality notice by the Ombudsman. 
 
Can I tell my spouse or my employer?
If you are a discloser, witness to or subject of an investigation and you have been informed of the Ombudsman’s intention to conduct an investigation of a protected disclosure complaint, you can disclose this information to your spouse or manager. In disclosing this information to your spouse or manager, you should also inform them that the restrictions on disclosure of that information now apply to them.
However, if you are a witness or subject, you are not permitted to disclose to your spouse or manager the content of the disclosure or information likely to lead to the identification of a person who has made an assessable disclosure. You can only disclose this information in very limited circumstances, such as to obtain legal advice or representation in relation to your rights and obligations under the Ombudsman Act. Moreover, you may be in breach of the restrictions if you disclose any of this information to a third party, such as the media.

What confidentiality obligations apply in relation to draft reports?

A person who receives a draft report, part of a draft report, or information contained in a draft report must not disclose that information.
 
There are some exceptions to this restriction on disclosure outlined in section 25B of the Ombudsman Act. Where as a result of an exception you disclose such information to another person, you must advise that person that the restrictions on disclosure of the information now apply to any subsequent disclosure by that person. 

Confidentiality requirements are outlined in Protected Disclosure Act 2012, the Independent Broad-based Anti-corruption Act 2011 and the Ombudsman Act 1973. Further information relating to the restrictions on the disclosure of information relating to the identity of a person who has made an assessable disclosure may be found in the IBAC Guidelines for protected disclosure welfare management and Guidelines for making and handling protected disclosures (www.ibac.vic.gov.au).
                    

 
Please note: This document is intended as a guide only. For this reason the information contained herein should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases. To the maximum extent permitted by the law, The Victorian Ombudsman is not liable to you for any loss or damage suffered as a result of reliance on this document. For the most up-to-date versions of cited Acts, please refer to www.legislation.vic.gov.au.
 
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Contact Details

Victorian Ombudsman
Level 2
570 Bourke Street
Melbourne VIC 3000
Phone                     03 9613 6222
Toll free                  1800 806 314
Fax                         03 9602 4761
TTY                        133 677 or
                               1800 555 677
Interpreter service  131 450