1. The respondent's decision under s 25A(1) of the Freedom of Information Act 1982 to refuse to process the request of the applicant is affirmed.

1. AB seeks review of the Department of Early Education and Childhood Development's decision of 19 December 2011 to refuse to process his request under section 25A(1) of the Freedom of Information Act 1982 (the FOI Act), on the grounds that processing the request would substantially and unreasonably divert the Department's resources from its other operations.

1. This is AB's second application to VCAT under the FOI Act by against the respondent. SM Davis describes the factual background in AB v Department of Education and Early Childhood Development (General) [2011] VCAT 1263 (12 July 2011).
2. In summary, in early 2008 AB and his wife enrolled their daughter in the preparatory class of a primary school. AB was very involved as a school volunteer. In April 2008, approximately 30 allegations were made that he had sexually interfered with female students. Victoria Police and the Department of Human Services (DHS) investigated the allegations. DHS had restrictions placed on AB in relation to his newborn child. Eventually, DHS formed the view that AB was not a risk to children and Victoria Police decided not to prosecute the matter.
3. The Office of the Deputy Secretary of Government School Education (OGSE) restricted AB's role as a volunteer at the school. This caused ongoing dispute and investigations.
4. In 2010, AB made his first request to the Department under the FOI Act. In AB v Department of Education and Early Childhood Development, SM Davis said AB sought:

1. Documents requested from the school (61 categories); 2. Documents requested from a regional office (25 categories); and

1. Documents requested from OGSE (17 categories).
2. The Department released the documents either completely or partially. On review at VCAT, SM Davis agreed with the Department and affirmed its decision.
3. In 2011, AB made his second FOI request to the Department. The request was comprised of 18 typed pages, which classified documents into 184 categories grouped according to where AB believes they may be located. AB made it clear the documents sought by the second request relate to the same incidents, as were the subject of the 2010 request.
4. The Department described the request as "extremely large" and consulted AB on a variety of issues. It advised it was likely to refuse the request under section 25A(1) of the FOI Act. Further consultation ensued.
5. In November 2011, the Department advised AB that it had decided to refuse his application under section 25A(1). It noted that on comparing the second FOI request and the modified second request, the modified request simply combined some of the more obviously related items and did not assist in clarifying it or significantly reducing its scope. On internal review, the reviewer confirmed the Department's original decision.
6. AB applied to VCAT. I heard the application over 19 and 21 June 2012. AB represented himself, assisted by his wife. The Department was legally represented.

1. The object of the FOI Act is to give the community a right of access to documents in the possession of government limited only by 'exceptions' and 'exemptions' necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held (s 3(1)(b)). Section 13 provides a 'right of access to documents'.
2. Section 25A(1) of the Act relevantly says[1],

(1) The agency dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency is satisfied that the work involved in processing the request -

(a) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations; or ...

(2) Subject to subsection (3) but without limiting the matters to which the agency ... may have regard in deciding whether to refuse under subsection (1) to grant access to the documents to which the request relates, the agency ... is to have regard to the resources that would have to be used -

(a) in identifying, locating or collating the documents within the filing system of the agency; or

(b) in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used -

(ii) in consulting with any person or body in relation to the request; or

(c) in making a copy, or an edited copy, of the documents; or

(d) in notifying any interim or final decision on the request.

(3) The agency is not to have regard to any maximum amount, specified in regulations, payable as a charge for processing a request of that kind.

(4) In deciding whether to refuse, under subsection (1), to grant access to documents, an agency must not have regard to -

(a) any reasons that the person who requests access gives for requesting access; or

(b) the agency's belief as to what are his or her reasons for requesting access. ...

(6) An agency must not refuse to grant access to a document under subsection (1) unless the agency has -

(ii) identifying an officer of the agency with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and

(b) given the applicant a reasonable opportunity so to consult; and

(c) as far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such a form.

(7) For the purposes of section 21, the period commencing on the day an applicant is given a notice under subsection (6)(a) and ending on the day the applicant confirms or alters the request following the consultation referred to in subsection (6) is to be disregarded in the computation of the 45 day period referred to in section 21. ...

1. Mr J. Morrow, Manager, Freedom of Information and Privacy for the Department gave the following evidence about the FOI Unit in dealing with the 2010 request:

1. Mr Morrow has held his current position since 1998 and was responsible for dealing with the 2010 request; 2. The Unit processes all FOI requests made to Department and provides advice to it. It also provides advice and manages complaints under the Information Privacy Act 2000 and the Health Records Act 2001 and is the liaison point for enquiries from the Ombudsman. The Unit has six staff with two full-time and one part-time officer available to process FOI requests. FOI requests take about 60% of its resources. This is the first time in five years Mr Morrow has decided not to process a request under section 25A(1);

1. In order to process the first request, which ultimately took three months and involved some 6000 pages, he estimates it took at least 170 hours to process. As well as the substantial time required of the FOI officers within working hours, 20 to 30 of those hours were worked outside normal business hours. They did this to maintain their "unblemished record" of meeting the 45-day statutory time limit for processing FOI requests;

1. The request detailed 103 categories of highly detailed documents. The Unit asked three locations for information about potentially relevant documents. Once that information was collated, Mr Morrow decided the request should be processed. He was reluctant to refuse a request where he believed the Department had the capacity to respond; 2. In terms of some aspects of the work required Mr Morrow said in his witness statement,

Over the time spent processing the 2010 request I found that I had significantly under-estimated the amount of work and time that would be needed from my own Unit, the OGSE and particularly the Regional Office and school staff, in order to process [AB's] 2010 request. As processing progressed and the volume of potentially relevant documents increased it became clear that considerable cross checking of these documents was required, there was almost daily contact with the school and the Regional Office questioning relevant persons about documents and searches conducted, and the like. Preparing documentation in relation to the access decision and queries raised by [AB] throughout the FOI process also took up a lot of time. During processing, [AB] repeatedly raised FOI procedural issues which, in turn, had to be addressed and responded to whilst processing the request.

I also received many time-consuming telephone calls and e-mails from staff and other parents at the school who the Unit consulted. They told me they were concerned about the nature and content of documents sought by [AB], because as a matter of course he pursues and questions the motive and performance of those people he believes have acted inappropriately.

1. At the hearing, Mr Morrow said that in retrospect, he should not have agreed to process the 2010 request and should have refused to process it under section 25A(1).

1. AB's 'modified' request does not seek a significantly smaller number of documents than his original second request did; 2. One of the Unit's FOI officers has spent 70 to 90 hours dealing with the request. In terms of the time required to search for the documents requested, while difficult to estimate, Mr Morrow notes that the searching after the 2010 request took the unit at least 20 hours. The school principal would probably have to do the searches at the school with substantial copying to follow. Also, processing the request would involve searches at the Department's head office and a regional office by senior staff;

1. Following the initial search the analysis by an FOI officer at the Unit as to whether the documents in fact relate to the request would require significant searching, assessing and cross checking;

1. Mr Morrow found it very difficult to estimate the time that would be required to assessing whether each document is fully, partially or not exempt or not relevant to the request; 2. Based on experience, substantial time would be taken corresponding with AB as his request was processed; 3. Considerable third-party consultation would be required as the information would concern the personal affairs of other persons; 4. In terms of staffing, resources of the Unit remains unchanged; and 5. In terms of other demands on the Unit's resources in 2010/11, the Unit process 200 requests. As of late April 2012, it had received 150 requests in 2011/12. Therefore, it was on track to experience about the same demand as 2010/11. In a report by the Auditor General concerning FOI across the Victorian Government, in the context of a critical report, the Unit received few criticisms. The Report noted its excellent performance in meeting the 45-day time limit with requests processed on the whole within 30 to 40 days.
2. In cross-examination by AB, Mr Morrow:

1. Said he is unable to call on other departmental officers to assist the Unit with processing FOI requests, beyond for the purpose of internal review; 2. Agreed that understanding the background of AB's second request through the experience of dealing with the first request assists to some extent;

1. In terms of meeting the 45 day timeline says that it is his policy that the Unit not seek extra time from applicants;

1. Said that Department's EDUTRACK document management system is of limited assistance in identifying the location of documents which may be the subject of an FOI request and in any case is not in place in schools; 2. Confirmed his opinion that requiring the principal to process the request may impact on her health and well-being; 3. After extensive exchanges, maintained his view that he had consistently asked AB to reduce the scope of his request but in effect AB had not done so, with the result that the request was about the same scope as the original second request; 4. Did not dispute that guidelines issued by the Public Records Office say schools should have a system which allows them to easily locate documents and in this case, the school would have been aware of documents relating to the circumstances surrounding the allegations against AB; 5. Described AB's two requests as quite unusual, saying most requests from parents relate to a particular discrete matter. However, in the last decade the Unit had received a number of requests relating to allegations of sexual assault. The requests are handled very carefully and are complex in their own right. Some are more sensitive than complex; 6. In comparison with the subject matter of other requests in terms of sensitivity, each request is handled on its own merits. For example, a request about funding for a disabled child may involve great sensitivity; 7. On whether discovering how the Department had handled allegations against him would be in the public interest, Mr Morrow noted the matter had been thoroughly investigated and therefore it was difficult to see how providing further documents would be in the public interest; 8. Agreed AB had never given him personal cause for alarm, describing their disagreements as "gentlemanly"; and

1. Was unable to point to evidence of any deterioration in scholastic performance at the primary school as a result of the 2010 request being processed.

1. In the course of submissions, AB gave some evidence about his family's past and current circumstances. When the allegations were made, the family's oldest daughter was in prep and is now in Year 4. Their younger son will go to the same school. They remain involved as parents actively volunteering, within restrictions the Department continues to place on AB as to his involvement at the school. While from his perspective their family is fairly well regarded by the parent community, there are those who agree with the parents who made the allegations. Those who made the allegations (or perhaps those mainly involved) left the school.
2. In terms of his motivation in making the request, I quote from AB's written submission,

... I wanted to shed light on what had transpired, to understand the decisions of the department in continuing to hold bans upon me despite being cleared both by the DHS and the police and the department is well aware of this, to access records held by the department on me and have false errors, false information and the like rectified, to hold people accountable for their actions, and to do what ever we could to ensure that what has occurred to us could not occur to anyone else in the future. I would contest at preventing these aims from being able to be fulfilled, and allowing this entire saga to continue would be a breach of natural justice. Whilst I admit the allegations of sexual assault may never be stopped, shedding light on the wrongs of the department here would enable us to request appropriate changes to policies and guidelines, or retraining of staff to help them follow existing policies and guidelines that could minimise not only the possibilities of these types of allegations being made, but to allow open and transparent practices to minimise the damage done to people involved in these cases and put an end to the matters as quickly and as helpfully as possible.

1. I affirm the Respondent's decision. In my opinion, processing AB's request would substantially and unreasonably divert the resources of the Department from its other operations.
2. The starting point is the purpose of section 25A(1).
3. In 1999, Lyons SM said in Mildenall v Department of Education (unreported, VCAT, 19 April 1999) at paragraph 30,

Section 25A seeks to balance competing interests. There is a public interest in agency not being diverted from its core work through needing to process a very broad-ranging request for documents. On the other hand, the agency can only refuse to process such a request if it sought to consult with the applicant so as to confine the request to manageable dimensions, and has failed in this endeavour [see 25A(6)]. Section 25A put pressure on agencies to identify voluminous requests quickly and to take steps to narrow such requests so that the requests can then be processed. Only if these steps fail can an agency rely on section 25A as the basis for refusing to grant access to the documents requested.

1. In 2001, the Court of Appeal (Chernov JA, with whom Calloway JA agreed, paragraph 48) in Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 said,

... it is plain enough that s.25A was introduced to overcome the mischief that occurs when an agency's resources are substantially and unreasonably diverted from its core operations by voluminous requests for access to documents. The emphasis of the amendment was on the prevention of improper diversion of the agency's resources from their other operations. The provision was introduced to strike a balance between the object of the Act to which reference has already been made and the need to ensure that the requests under the Act did not cause substantial and unreasonable disruption to the day to day workings of the government through its agencies.

1. The Department went through the mandatory consultation process set out in section 25A(6), before it reached its decision.

1. Once an agency refuses to process a request under section 25A(1), in a proceeding at VCAT it bears the onus of establishing that its estimate of the resources required to process the request was "reasonable".
2. In McIntosh v Victoria Police (General) [2008] VCAT 916 (16 May 2008), VCAT said,

... in asserting section 25A, an agency cannot be obliged to specify exactly how much time and energy would be spent by the agency in processing the request. Estimates only are acceptable, as to ensure precision would mean the agency would have to do the very work that section 25A is designed to prevent.

1. Bearing the factors to be taken into account in estimating resources (section 25A(2)), I accept Mr Morrow's estimate as to the resources required to process the request both within the FOI unit, other parts of the Department including the primary schooling question. In terms of the resources required I find;

1. Dealing with the request to date has taken the unit between 70 and 90 hours. I regard this as an indicator of the complexity of the request and therefore the time required for its future processing; 2. In effect, the scope of the request remains as it originally was, as is well illustrated by the pages of a detailed spreadsheet Mr Morrow provided. The request is extraordinarily complex which make considering it in any environment demanding and time-consuming;

1. The scope of the request is similar to the scope of the 2010 request. Therefore, it is more likely than not that as with the 2010 request it may take the Unit approximately 170 hours to process it, perhaps significantly more given that Mr Morrow underestimated the time required (as he in hindsight concedes) to processing the 2010 request. I do not criticise of Mr Morrow. Such estimates are difficult;

1. In the course of processing, very substantial time will be taken in dealing with AB's continuous correspondence about the procedure, as was the case with the 2010 request. In saying this, I do not criticise AB and accept he would act courteously and politely. He is passionate about, as he sees it, clearing his name with respect to the past allegations; 2. In the course of processing it, parents and past parents at the school will be contacted concerning the potential release of personal information (as defined under the FOI Act) concerning them. This will impact both on the Unit as the parents contact it to discuss the matter (again) and the school as the parents contact it to have the same conversations; 3. Substantial time of the principal will be required to deal with the request, who will be diverted from other activities. This will have some immediate impact on school operations. While AB submits that public records policy requires that the documents in question should be well filed and not difficult to locate, simply understanding the request will take significant time let alone trawling through documents to see if they are in the opinion of the principal relevant. I accept Mr Morrow's evidence that it is unlikely the principal could effectively delegate the task; 4. Processing the request will also require almost daily contact between the Unit and the school as the complexities are analysed and discussed; 5. Significant resources will also be required at the regional office both to understand the request and search the documents; and 6. For all those dealing with the request, an added complication will be understanding the relationship between current the request and the 2010 request and to understand what documents were previously provided.
2. I do not take into account:

1. AB's reasons for making his request, as I have briefly summarised above, nor any belief of the Department. Section 25A(4) requires that I do not; 2. That the Unit's staff may spend time outside normal working hours. It is not unusual for dedicated public servants to do so in many roles;

1. Any potential impact on the principal's "health and well-being", as I do not regard Mr Morrow's opinion on this as sufficient evidence on which to base such a finding;

1. The Department's submission that I should take into account that principals as a class are under pressure because of their workloads and make no finding of this; and 2. Mr Morrow's assertion that processing the request would affect the scholastic outcomes of children at the school. However, I take that to be a passing reference in his witness statement.

1. In considering the available resources of the Department as at the VCAT hearing, I considered Re SRB and Department of Health, Housing, Local Government and Community Services [1994] AATA 79; (1994) 19 AAR 178 at 187. The Commonwealth Administrative Appeals Tribunal was dealing with s 24(1)(a) of the Commonwealth FOI Act, which is substantially in the same terms as 24(1)(a) of the Victorian FOI Act. It said:

The resources of the agency referred to in s 24(1)(a) must be the resources which the respondent had at the time the request was lodged or had as at the date of the hearing. It cannot mean resources which the respondent might be able to obtain or even resources constituted by the filing of establishment positions. It also cannot mean the whole of the resources of a large Department of State. To find this would make the section meaningless. We consider it means the resources reasonably required to deal with an FOI application consistent with attendance to other priorities.

1. I find:
   1. The resources available to process the request are as Mr Morrow describes them, being the staff within the Unit, the limited resources of the school and some further resources in other parts of the Department. Given the Unit's admirable record with respect to processing FOI requests within 45 days, which it achieved while processing the 2010 request, I find the Department provides adequate resourcing to deal with its usual FOI requests; and
   2. EDUTRACK will not greatly assist the Department's in this particular task.
2. This is not a case where an agency is seeking an excuse for not processing a large request based solely on the absence of sufficient staff members, rather than on a balanced consideration of the reasonableness of the application VCAT. I agree with SM Megay's observations in Re A v Department of Human Services 13 VAR 235 at 245 that such conduct would not be acceptable in terms of the rights to access to documents under the FOI Act.

1. I accept the Department's resources would be substantially diverted by the processing of the request. If I was only considering the Unit's resources, I would not have done so. Mr Morrow gave evidence that while the 2010 request strained the Unit it continued to deliver a high level of service to those seeking documents. The "caseload" at the current time appears similar to that of the earlier time. However, I also take into account the resources required in other parts of the Department as discussed above. I accept the diversion of resources of the school would be substantial into context of any public school's limited resources. To that I add the somewhat ill-defined resources in other parts of the Department. Once again, I observe the extraordinary complexity of the request supports my view.

1. On the issue of what is unreasonable I am again guided by Re SRB, where the Tribunal said,

In administrative review it is not necessary to show ... that the extent of the unreasonableness is overwhelming. It is for this tribunal to weigh up the considerations for and against the situation and to form a balanced judgement of reasonableness, based on objective evidence.

1. I considered a range of previous decisions on the issue.
2. In Cainfrano v Director General, Premier's Department [2006] NSWADT 137 (9 May 2006), the NSW Administrative Decisions Tribunal provided examples of reported cases where decisions based on section 25A or its equivalent in other jurisdictions have been affirmed (paragraph 51),
   • a request 'breathtaking in its scope', estimates in the case put in different forms - in terms of lineal metres of filed and archived documents affected by the request (465.18 lineal metres mentioned as to one part of the request), document estimates varied between a million and twenty million (Wright v SECV [1998] VCAT 162).
   • 16,000 boxes, years of officer time for a team of people (Coulston v Office of Public Prosecutions [2001] VCAT 10).
   • 'tens of thousands of documents' (Allanson and Queensland Tourist & Travel Corporation [1997] QICmr 20; (1997) 4 QAR 219).
   • 600 policy files (as distinct from documents or pages) relating to Health Department role in the approval of use of pituitary growth hormone (Re SRB and SRC and Department of Health, Housing, Local Government and Community Services [1994] AATA 79; (1994) 33 ALD 171 - 'probably the widest ranging series of FOI requests that has ever come before this Tribunal', at [40] ).
   • 22,000 documents, 18 months of officer time (Meretfield v Department of Human Services [1998] VCAT 299).
   • 22,000 documents, 24 months of officer time (Re A and Dept of Human Services 13 VAR 235).
   • 67,000 pages, 15-30 weeks of officer time (Re Chapman and Victoria Parks, VCAT, unreported, Ball SM, 6 December 1999).
3. To that list I add:
   • Califranto itself, where the Tribunal accepted that on a best estimate the number of documents affected was 11,400 and the required officer time 229 hours. It thought there was a real possibility the estimate may be exceeded. The Tribunal noted the amount of work to be at the "lower end" of what may justify a decision, the subject matter (the 2002 sale of the Sydney Markets to Sydney Markets Limited) as one of public importance and the request while broad was not a "fishing expedition";
   • Re Shewcroft and Australian Broadcasting Department [1985] AATA 42 where the AAT regarded 60 days to process a request as unreasonable diversion; and
   • Langer and Telstra Corporation [2002] AATA 341; (2002) 68 ALD 762, where the AAT considered the resources required to search for decade old emails at computers at over 400 locations would be unreasonable diversion.
4. Cases where it was decided the request should be processed include:
   • Asher v Department of Innovation, Industry and Regional Development (General) [2005] VCAT 1734 (24 June 2005), VCAT did not accept the Department's estimate that the process would require 5½ weeks full time work and 5½ weeks part-time to complete. VCAT said the task was "nowhere near as complicated" as was claimed;
   • Kelly v DT&F [2001] VCAT 419 (31 March 2001), where VCAT rejected the Department's estimate that processing would take over a decade, as it formed the opinion based on only a sample of 10 of an estimated 2,600 files; and
   • McIntosh v Victoria Police (General) [2008] VCAT 916 (16 May 2008) where VCAT preferred the applicant's estimate that processing time would be approximately 55 hours.
5. As AB submitted, most of the above decisions where the request was refused, concern estimated work far beyond what is estimated here. A number relate to estimates of years of work. On any view those types of estimates are at the extreme high end of what may considered would cause unreasonable diversion. However, those estimates do not rule out agencies succeeding where the estimates are at the lower end of the spectrum.
6. Similar to President O'Connor in Califranto, I view amount of work required to process AB's request to be at the "lower end" but within the spectrum of what may be considered would create an unreasonable diversion. I am not saying cases requiring less work would fall below the lower end of the spectrum. Each request must be considered in its context.
7. In weighing up the considerations for and against the situation and to form a balanced judgement of reasonableness, I adopt an approach similar to that employed by President O'Connor in listing factors and forming a judgement.
8. I have adapted the factors he used (which in part referenced the Victorian Administrative Appeals Tribunal in Re Borthwick v University of Melbourne (1985) 1 VAR 33). I considered:
   1. Whether the terms of the request offers a sufficiently precise description to permit the Department, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort.

In my view, while the request is composed of many individual specifications it is in effect while challenging in terms of detail, a global request which would be difficult to process.

1. The public interest in disclosure of documents relating to the subject matter of the request.

There is a public interest in any person accused of a serious crime being able to access information relevant to those accusations and to administrative actions taken with respect to the person. However, that public interest was, in my view, satisfied by the Department processing the 2010 request. AB's evidence in this proceeding that life at the school has moved on and in large part his family are well regarded, although he is still subject to some restrictions at the school, indicates the limited public interest in taking access under the FOI Act further. While I do not repeat them here, I note SM Davis' conclusions in AB v Department of Education and Early Childhood Development (General) [2011] VCAT 1263 that release of documents in dispute before VCAT following the 2010 request would not further the public interest (paragraph 115 ff).

1. Whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications.

As I describe above, in my view the request is not reasonably manageable, primarily in terms of the resource requirements in parts of the Department other than at the Unit.

1. The Department's estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost;

As stated above, I accept the Department's estimates.

1. The reasonableness or otherwise of the Department's initial assessment and whether AB has taken a co-operative approach in redrawing the boundaries of the application.

I view the Department's initial assessment is both reasonable or perhaps an underestimate. I do not regard AB is having taken a co-operative approach in redrawing boundaries.

1. The 45-day statutory time limit for making a decision in this application.

The requirement to make decisions within 45 days is clearly relevant. The Unit is to be commended for its efforts to meet the time limit. Meeting the time limit would add to the pressure on all parts of the Department that were involved. However, I add a caveat being that in reality there are many cases across government where 45-day time limit is not met. In my view placing too much weight on this issue is contrary to the overriding right of access to documents, even if the decision is made after 45 days.

1. The degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made.

In my view that processing time may well exceed the estimate.

1. I am satisfied in the context of this case that the diversion of resources to process AB's request would have been 'substantial' and 'unreasonable'. While this case is not at the upper end of the spectrum of examples of voluminous requests found in some of the case, in my view it falls within the spectrum of "unreasonableness".