Recent Cases: Victoria

Draper v Victoria Police (Review and Regulation) [2023] VCAT 114

Mr Draper (“applicant”) made an FOI request to Victoria Police (“respondent”) seeking access to information about him held on their computerized Law Enforcement Assistance Program (“LEAP”) database. 

The respondent did not make its decision within the statutory timeframe.  The applicant applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review of the decision taken to have been made refusing access arising from the delay. 

After the proceeding commenced, the respondent notified the applicant under s 25A(6) of the FOI Act of its intention to refuse access on the basis of processing would substantially and unreasonably divert resources (s 25A(1)).  It invited him to consult or make his request in a form that would remove the ground for refusal.

At a subsequent directions hearing at the Tribunal, where the respondent’s intention to refuse under s 25A(1) was raised.  The Tribunal noted that the applicant did not wish to consult on the terms of the request.  The respondent subsequently made the decision to refuse access under s 25A(1).

At the final hearing the Tribunal considered whether the statutory pre-condition in s 25A(6) of the FOI Act had been met, and whether the correct or preferable decision was to refuse the request under s 25A(1).

Decision taken to have been made: s 50(1)(ea)

The Tribunal rejected the applicant's contention that an actual decision had been made by the respondent.  It highlighted that when the proceeding was commenced, there was no actual decision to refuse the request.  Instead, for the purposes of the applicant’s application for review, the respondent was taken to have made a decision refusing to grant access under s 53, which gave rise to a review right under s 50(1)(ea).  

Subsequently, there was an actual decision only when the respondent made one refusing access under s 25A(1) of the FOI Act.

Notice under s 25A(6)

The Tribunal was satisfied that the respondent complied with the requirements under s 25A(6).  The respondent had, in writing, advised the applicant of its intention to refuse access, the notice included relevant contact details, was signed by an officer and identified an officer for the applicant to consult with if he wished to revise the request.  The notice described the negative impact that processing the request would have on the respondent’s ability to progress its current workloads and objectives, it contained suggestions on how to redefine and limit the request and that if he did so, he would not be prevented from making a further request in the future.  The applicant was provided a reasonable opportunity to consult.

Requests may be refused in certain cases: s 25A(1)

The Tribunal considered detailed evidence on the impact that processing the request would have on the respondent’s FOI Unit and more broadly. 

Substantially divert resources

The Tribunal accepted that s 25A(1) would be properly relied on if a decision could not be made and given to the applicant within 30 days without substantially and unreasonably diverting the agency’s resources. The resources are those resources that the agency had at the time the request was lodged or had at the time of the hearing.  This is opposed to the resources that the agency might be able to obtain or that there would be when vacant positions were filled.  Other operations include all the other things that an agency does, including dealing with and processing other FOI requests.

Unreasonable diversion

The Tribunal rejected the applicant’s view that the respondent intentionally lacked resources to process his request.  There was sufficient evidence, including substantial detail of how the respondent had been securing necessary resources for FOI and despite this, there would be an unreasonable diversion.  In light of this, the Tribunal was satisfied that processing the applicant’s request would not be a reasonably manageable one. 

Disciplinary action not warranted: s 61

The applicant wanted the Tribunal to conduct an inquiry and take action for alleged breaches or possible misconduct by the respondent.  The Tribunal noted that s 61 of the FOI Act does not give the Tribunal jurisdiction to conduct an inquiry of the kind sought.  Instead, this power is merely incidental to the power to review decisions made by agencies under the FOI Act.  Further, the Tribunal held there was no reasonable basis for such a claim. 

The Tribunal also pointed out that it did not agree with the applicant’s claim that the respondent failed to comply with Professional Standards.

HELD

The Tribunal was satisfied that the requirements of s 25A(6) of the FOI Act were met and the s 25A(1) decision under review was affirmed. 

Akers v Victoria Police (Review and Regulation) [2023] VCAT 326

A report was written after Mr Akers (“applicant”) made a complaint to the Independent Broad-based Anti-corruption Commission (“IBAC”) regarding how he was treated by police officers.  IBAC referred the complaint to Victoria Police (“respondent”) whose Professional Standards Command investigated and wrote a report into the matter.  The applicant received a copy of the report through an earlier FOI decision. 

Under s 39 of the FOI Act, the applicant subsequently wrote to the respondent seeking to add his comments to the report.  He wanted to amend or correct those parts that he considered were inaccurate, incomplete, out of date or misleading.  The respondent refused the applicant’s request.

The applicant sought review by the Information Commissioner (“Commissioner”), and later sought review by the Victorian Civil and Administrative Tribunal (“Tribunal”), after the Commissioner did not make a decision within the timeframe specified in the FOI Act.   In reviewing the decision refusing to amend or correct the report, the Tribunal considered whether the report should be amended to ensure it was not inaccurate, incomplete, misleading or to correct clerical errors. 

Amendment of records: s 39

The Tribunal confirmed the purpose of s 39 is to allow amendment to documents concerning personal information.  It ensures that personal information concerning an applicant, which is read by third parties, does not unfairly harm or misrepresent personal facts about the applicant.  However, the Tribunal expressly stated that the purpose of s 39 was not to allow an individual to shape or colour information held by an agency in line with that person’s preferences.  Differences of opinion are not a basis to alter information under s 39. 

The Tribunal concluded that it was not its role to re-investigate events set out in the report, nor to re-consider the method of investigation and manner of report writing.  This ensured that the Tribunal focused solely on the application of s 39.  It did not consider many of the applicant’s sought amendments, as they would have resulted in the Tribunal re-investigating elements of the report. 

The Tribunal was satisfied that it was not appropriate for post-date amendments of the report to occur under s 39.  While additional information had come to light after the writing of the report in December of 2016, the benefit of hindsight and other developments should not be considered.  In particular the applicant asserted that medical records and medical evidence, alongside his comments on such matters, should be added to the report.  The Tribunal did not accept these amendments.   The Tribunal confirmed that while difference of opinion may exist between the respondent and the applicant, that was not grounds for the Tribunal to permit amendments to the document. 

HELD

The Tribunal found that one correction should be made to the report, correcting a street address, as it was satisfied that it was an administrative error.  The Tribunal dismissed the remainder of the application.