Recent Cases: Victoria

Davis v Major Transport Infrastructure Authority [2020] VCAT 965

The Honourable David Davis MP (“applicant”), the shadow Minister for Roads, sought access to the Business Case for the ‘Streamlining Hoddle Street’ project.  The applicant made an FOI request to the Department of Transport for documents relating to the analysis, assessment and modelling around the impact of the P-turn situation and surrounding traffic on Swan Street.  The request was transferred to Major Road Projects Victoria, a division of the Major Transport Infrastructure Authority (“Authority”), an administrative office of the Department of Transport. 

The Authority refused access to the Business Case under s 28(1)(b) of the FOI Act. 

As the Authority’s decision on the document was outside the statutory decision period, the applicant sought review of the deemed refusal by the Victorian Civil and Administrative Tribunal (“Tribunal”).

Cabinet documents exemption: s 28(1)(b)

The document analysed the merits of different options for a project, and recommended costs and benefits.  It had been marked ‘Cabinet in Confidence’ all the way through its drafting and the Authority gave evidence that at all times the purpose of the document was to provide Cabinet with the necessary information to consider whether to grant funding on approval of the subject project.  Cabinet allocated funding for the delivery of the project outlined in the document.

The Tribunal found that to the extent that the ‘but for’ test can be applied to the Business Case; it has been satisfied.  The Business Case was created for the substantial and dominant purpose, if not the sole purpose, of submission to Cabinet

HELD:

The Tribunal found that the document was exempt under s 28(1)(b) and affirmed the authority’s deemed decision to refuse access. 

Chopra v Department of Education and Training [2020] VCAT 932

Mr Chopra (“applicant”) applied to the Department of Education and Training (“Department”) for access to certain documents under the FOI Act.  The Department invited the applicant to consult in writing and by phone.  Following a series of emails and telephone discussions, the applicant sent an email stating his reasons for believing his request to be clear and that the consultation was at an end and the request valid.  The Department refused to process the request on the basis it had not received a valid request.  

Upon not receiving a decision from the Department, the applicant applied to the Tribunal under s 50(1)(ea) for review of the Department’s deemed decision to refuse request under s 53 of the FOI Act.  The Department applied to the Tribunal for a preliminary hearing on the basis that item four of the request does not comply with s 17(2) of the FOI Act, as it did not provide such information concerning the document as is reasonably necessary.

Requests involving the use of computers: s 17(2)

Section 17(2) is not intended to give any applicant the right to ask for everything that can possibly be found and then to tell an agency whether it is enough.  The fact that documents can be found by undertaking a search using broad parameters, does not satisfy the requirement that a request must provide such information concerning the document as is reasonably necessary to enable a responsible officer to identify the document.

HELD: 

The request did not comply with s 17(2) and so the proceeding was dismissed.