Recent Cases: Victoria
EBT v Monash University (Review and Regulation) [2020] VCAT 440
EBT (“applicant”) was a former employee of Monash University (“University”). The applicant made a request under the Freedom of Information Act 1982 (Vic) ("FOI Act") seeking documents regarding himself. Fifty documents were identified of which some where released in full, some released in part and some were exempt in full.
The majority of the documents were emails stored either on email cloud based servers, on the physical disc of the staff member’s computer or on shared drives maintained by the University at 2 data centres. The University calculated the access charges under Item 7 of the Schedule of the Freedom of Information (Access Charges) Regulations 2014 which allows for the reasonable cost incurred in providing the written document. In this case that was for 6 staff to search for documents in the electronic storage locations and to forward the identified emails in electronic format (printed to PDF) to the FOI Officer. The FOI Officer then printed the electronically stored documents and provided them to the applicant.
Although the applicant paid the $658.87 of access charges to the University, he sought a review relating to those charges.
Access Charges: Section 19
The Tribunal accepted that information stored electronically, whether on one computer disc or multiple computer discs, and whether in one location or multiple different locations (including overseas), was not stored discretely.
However, it concluded that the information which comprises these electronically stored emails and other “documents” were available in discrete form in documents of an agency. While something like an email may be stored as a collection of digits (1s and 0s) in a disc or discs, it remains available in discrete form once retrieved.
The Tribunal concluded that the correct charge for search time is under Item 1 in the Schedule to the Regulations - 1.5 fee units per hour or part of an hour.
It was VCAT's view that Item 7 of the Schedule is only applicable where:
- information exists and is stored electronically, but is disparate not just in the manner in which it is stored, but also in the manner in which it can be retrieved, such that the information is required to be collated or compiled into a single record, or
- the document is no longer “available” because the agency no longer has the technology to retrieve it.
HELD:
The University was ordered to refund the access charges.
Tucker v Commissioner of State Revenue (Review and Regulation) (No 2) [2020] VCAT 273
The Victorian Civil and Administrative Tribunal (“Tribunal”) made orders and gave reasons in this proceeding on 19 December 2019, but some mattes remained for determination, including whether the Tribunal should exercise its disciplinary power under s 61 of the FOI Act.
Section 61 of the FOI Act empowers the Tribunal upon conclusion of the proceedings to refer a matter for disciplinary action where evidence exists.
Both the State Revenue Office (“SRO”) and Mr Tucker (“Applicant”) filed submissions on the matters.
Disciplinary action pursuant to s 61 of the FOI Act
The Tribunal was not satisfied that the SRO has been guilty of a breach of duty or of misconduct in the administration of the FOI Act.
The Tribunal found that the evidence before it and the actions of the SRO did not provide a compelling basis to warrant any action on the Tribunal’s own motion. It is unclear what conduct was involved, but it appears it was in connection with the SRO robustly opposing the proceeding and in circumstances where the proposed witness of the Applicant, having sought her own legal advice, requested the Applicant not rely upon the statement that she had made.
HELD:
The Tribunal refused to exercise its power under s 61 of the FOI Act.