Recent Cases: Victoria
Battin v Victoria Police [2026] VCAT 586 (29 July 2026)
Facts
The Honourable Mr Brad Battin MP (“applicant”) applied to Victoria Police (“respondent”) for access to copies of reports and documents related to the proposed nine-hour shift model proposed by the Police Association of Victoria during enterprise bargaining agreement negotiations. As the respondent did not make a decision within 30 days, the applicant applied to Victorian Administrative Review Tribunal (“Tribunal”) for review for a decision taken to have been made under s 50(1)(ea).
The respondent subsequently identified 17 relevant documents, deciding to release 5 in part and deny access in full to the remaining 12 documents. This became the decision under review at the Tribunal with 8 documents remaining in dispute at the time of the Tribunal hearing.
Held
The Tribunal affirmed the respondent’s decision, except for the material on pages 29 and 53 of Document 1 which were not exempt.
Reasoning
Internal working documents: s 30(1)
The Tribunal accepted the exemptions made to a Table of Proposals within one document on the basis that the proposals had been recalled and never finalised, they were deliberative in nature and release was accepted as contrary to the public interest, as disclosure would have created undue concern. The Tribunal noted that the document was already largely released, and careful judgement had been practiced in finding that the material was exempt. Further, there was no evidence to displace the respondent’s finding that the material was exempt.
However, the Tribunal was not satisfied that specific position types described elsewhere in the document were exempt under s 30(1). Whilst the material was deliberative in nature, the Tribunal found that disclosure was not contrary to the public interest, as the information regarding reassessing a division of labour was neither surprising nor sufficiently alarming to cause confusion and misinformed debate. Similarly, the redacted names of police stations for inclusion in a Victoria Police Manual were not exempt. Although it was not known to the Tribunal whether the names were published or not, the Tribunal clarified that if it was published in the same manner as the position types, then the information was known. If it was not published, or the manner was different, it was clear from the document that the material was a proposal and disclosure of such material was not contrary to the public interest.
Cabinet document exemption: ss 28(1)(b) and 28(1)(ba)
One document claimed exempt was an unsigned draft and the Tribunal confirmed that this did not prevent it from being exempt under s 28(1)(ba).
Two documents were held to be exempt under s 28(1)(b), as they comprised speaking notes that the Tribunal was content would have reflected the substance of earlier cabinet submissions.
Material obtained in confidence exemption: s 35(1)(b)
The Tribunal was satisfied that material was communicated in confidence by internal stakeholders and members regarding the proposed nine-hour shift model to the Project Team and that the feedback obtained for the gender impact assessment for the Project Team was exempt under s 35(1)(b). In accepting the respondent’s evidence, the Tribunal considered that the contributors understood that feedback obtained during the process of industrial relations negotiations usually remained confidential. Importantly, the Tribunal accepted that the Project Team was operating semi-independently to Victoria Police, meaning that it fell within a limited exception where s 35(1)(b) was applicable to information provided within a government agency. Finally, disclosure was contrary to the public interest because it was reasonably likely to impair the obtaining of such feedback during future industrial relations negotiations.
Draper v Victoria Police [2026] VCAT 600 (30 July 2026)
Facts
On 13 October 2021, Mr. Shannon Draper (“applicant”) applied to Victoria Police (“respondent”) for access to information related to his profile on the LEAP database (“first access request”). The respondent refused this request under s 25A(1), claiming that processing the request would substantially and unreasonably divert the respondent’s resources from its other operations. This decision was affirmed by the Victorian Administrative Review Tribunal (“Tribunal”) on review.[1]
The applicant then made a second application to the respondent for some, but not all, of the information requested in the first access request (“second access request”). The respondent refused the second access request, finding that parts of the second access request were the same as those previously refused by the Tribunal, and there were no reasonable grounds for the applicant to make a new request for the same documents. On review, the Office of the Victorian Information Commissioner (“Commissioner”) held that the respondent was not required to process the second access request, as the conditions for refusing the request were met. The applicant applied to the Tribunal for review of the Commissioner’s decision.
Held
The Tribunal refused the applicant’s review application under s 50(6) of the FOI Act, affirming the Commissioner’s decision to refuse the second access request.
Reasoning
The Tribunal’s power to refuse a review of previously reviewed documents or information: s 50(6)
The Tribunal considered whether it had previously reviewed the respondent’s decision to refuse access to the same document or same information. It looked at the timeframe and information sought, and the processing work likely to be required.
Although the requests covered different periods of time, and the second access request omitted a category of information included in the first access request, the Tribunal was satisfied that both request sought access to substantively the same document or same information. Notably, both requests sought the LEAP audit document or information, which was the category that resulted in the substantial processing work. Further, the Tribunal did not accept that the second access request reduced the scope of information sought by a significant amount, such that it was not a request for the same information.
The Tribunal then considered whether it should refuse to review the decision of the Commissioner and the respondent to refuse the second access request.
The Tribunal refused to review the decision of the Commissioner and the respondent to refuse the second access request, as the second access request was taken to be an attempt to have the Tribunal review the decision of the first access request. The Tribunal viewed this as evident from the applicant’s justification of the second access request, that a different Tribunal member may have decided differently, as well as the timing of the second access request being made on the same day of the hearing of the first access request. The Tribunal highlighted that this was the type of issue s 50(6) aims to prevent.
Repeated request: s 24A
The Tribunal viewed it as not strictly necessary to consider the arguments focussed on s 24A, however, as the issue had been argued at some length, provided brief reasoning for why the Tribunal should affirm the Commissioner’s decision.
The Tribunal found that the same person had made the second access request and had previously requested the same information through the first request. The Tribunal also noted that the first access request had been refused by the respondent in April 2022, this decision had been affirmed by the Tribunal in February 2023.
The Tribunal found that there were not reasonable grounds for making the request again. The applicant’s reasons for making the second access request included that he was surprised by the Tribunal’s ruling, therefore he made a second access request to ‘get back in the FOI queue’ so he could consult again with the respondent. The Tribunal reasoned that this was not a sufficient reason for making the request, further, the applicant had made this second request before the Tribunal had made a final decision in relation to the first access request. The Tribunal further noted that another Tribunal Member may find the second access request in a different way to the first access request was not a reasonable ground, the proper course to seek a review is to appeal the decision under Part 5 of the VCAT Act.
The Tribunal finally noted that since the Commissioner had made a decision in regard to the second access request, the applicant had made the third and fourth access requests, which substantially overlapped with the second access request. At the time of this hearing, the respondent was processing the third access request and a Tribunal review decision in relation to the fourth request was underway but not yet decided on. The additional requests reduced the utility of any further consideration by the respondent of the second access request.
[1] Draper v Victoria Police [2023] VCAT 114 (6 February 2023) FOI Solutions acted for Victoria Police in this matter