From the Executive Director

The Victorian Civil and Administrative Tribunal (“VCAT”) made a decision on 30 May 2024 confirming and applying the legal principles about when multiple FOI requests can be aggregated and considered as a single request.

The Victorian FOI Act includes a provision which enables an agency to refuse access where processing a request would substantially and unreasonably divert resources.  This exists in s 25A(1) of the FOI Act (together with s 25A(6)).

Some experienced or knowledgeable FOI applicants try to avoid decisions by agencies to refuse access on that basis by splitting what is essentially a single request into multiple requests.  They then drip feeding those multiple requests to the agency over a short period of time. 

On other occasions FOI applicants may not intend to avoid such a refusal decision, but just happen to lodge a series of related requests which, if taken together, would warrant a refusal decision on the basis that processing would substantially and unreasonably divert the resources of the agency.  

In either scenario, to treat the requests separately would have the effect of defeating the purpose of s 25A(1) - to enable a refusal decision to occur - whether or not it was the applicant’s subjective intention to get around s 25A(1).

In the case of Davis v Department of Human Services [2024] VCAT 490, VCAT affirmed when an agency could properly aggregate multiple requests, and treat them effectively as a single request, for the purposes of refusing access under s 25A(1).  That aggregation can occur when:

• the requests are made by one person
• the requests are made in close proximity to each other
• and all requests relate to the same subject matter.

In that case, the applicant made all four requests. Three of them were made within ten days of each other, and the fourth request was made seven months later – they were still considered as being in close proximity to each other.  Finally, they all related to the same subject matter – he sought access to briefs provided by the Department to the Chief Health Officer, Deputy Chief Health Officer or Minister for Health for the purpose of making public health orders during the COVID-19 pandemic.  Even though the Tribunal found that the applicant did not have an intention to circumvent s 25A(1), to treat them separately would have had the effect of defeating the purpose of s 25A(1).  VCAT concluded that the requests were appropriately aggregated by the Department and considered as a single FOI request.

Also of interest was that this aggregation occurred after the four requests were the subject of individual VCAT proceedings.

If you would like to know more about how this might impact on your agency, please feel free to contact us.

Mick Batskos

Executive Director