Applicant v Respondent

Supreme Court of Victoria|2010-08-11|Before: BELL J

PRACTICE AND PROCEDURE - vexatious litigant - prisoner - freedom of information request - documents on prison intelligence information system about prisoner personally and his imprisonment - categorical refusal of request - proposed application for review to Victorian Civil and Administrative Tribunal - whether would be abuse of process - whether foredoomed to fail - Supreme Court Act 1986, s 21(4) - Corrections Act 1986, s 30.

Ms J Kummrow, Victorian Government Solicitors Office

1 In 1987, Julian Knight - then aged 19 years - was sentenced to life imprisonment for murdering seven people and other crimes of extreme violence.[1] The court set a minimum non-parole period of 27 years. He becomes eligible for parole in 2014.

2 To assist in preparing an application for parole, Mr Knight made a freedom of information request for access to documents kept on the prison intelligence information system concerning him personally and his imprisonment. He said he did not want information identifying confidential sources and would accept documents with exempt matter deleted. The request was categorically refused by the Department of Justice (representing Corrections Victoria) on the basis that the documents described were of their nature exempt.

3 Mr Knight wants to apply to the Victorian Civil and Administrative Tribunal for merits review of that refusal. As a vexatious litigant,[2] he cannot commence such a proceeding without the leave of the court. Mr Knight now seeks that leave.

DISCRETION TO GRANT LEAVE TO COMMENCE PROCEEDING

4 Under s 21(4) of the Supreme Court Act 1986, the court can grant leave to commence legal proceedings to a vexatious litigant, but it 'must not be given' unless the court is satisfied the proposed proceeding 'will not be an abuse of process.'

5 When determining whether a proposed proceeding would be an abuse of process, the applicant's prospects of success may be a relevant consideration, but only in a strictly limited respect. The question is not whether the applicant has 'reasonable prospects of success', but whether the application is 'foredoomed to fail', [3] which is a less strict test. The onus is on the applicant to establish that this test is met.[4] Once the court is satisfied the proposed application is not foredoomed to fail, reasonable prospects of success is not a consideration at a later stage. [5]

6 Applying s 21(4) to the present case, the issue before me is whether Mr Knight's proposed application to the tribunal would be foredoomed to fail.

7 I will begin with the freedom of information request.

8 This is Mr Knight's request in the material parts:

I am writing to you in order to lodge a formal freedom of information request pursuant to the Freedom of Information Act 1982 (Vic).

I hereby request full access to the following corrections Victoria documents concerning my personal affairs:

All PROTEL/Intel reports on record, including those contained on electronic databases, concerning myself dating back to my reception into the prison system on 11 August 1987.

I am aware that Corrections Victoria operates a Proactive Intelligence (PROTEL) Prisoner Intelligence System, and that a number of PROTEL records exist on the Prisoner Information Management System. My request should be taken as to include any of the following PIMS records that contain information relating to my personal affairs:

PTL-R-001 : Information Report

PTL-R-002 : Surveillance Report

PTL-R-003 : Operation Summary Report

PTL-R-004 : Report on Prisoners With Flags Set

PTL-R-000 : PROTEL Profile Report

PTL-R-110 : Number of Reports Entered by Person

9 In the request, Mr Knight gave these reasons for wanting access to the information:

Given that PROTEL/Intel reports are used in my management and with respect to my classification and placement (and will have a bearing on whether or not I am granted parole), I submit that it is necessary for me to have access to these documents in order to effectively make submissions to Corrections Victoria and to the Adult Parole Board.

Given that PROTEL/Intel reports often contain allegations of misconduct, I submit that it is necessary for me to have access to these documents in order to and to defend myself against allegations of misconduct that may have a bearing on whether or not I am granted parole.

10 Mr Knight acknowledged the documents might come within exceptions in the Freedom of Information Act. He said he would be prepared to accept access to edited copies with exempt matter deleted.

11 Section 25A(5) of the Freedom of Information Act allows a request for access to information to be categorically refused if it relates to documents which, as described, are exempt in nature and access could not be given to copies in edited form, if the applicant would accept copies in that form. The department's freedom of information officer decided this provision applied to Mr Knight's request.

12 That decision was confirmed on internal review. The review officer decided that, on the face of Mr Knight's request, any documents captured by its terms 'would be exempt documents under ss 31(1)(a), 31(1)(c), 31(1)(e), 33(1), 35 and 38 of the Act'. He also determined there was no obligation to provide access to edited copies under s 25, by which he meant it was apparent from the nature of the documents this could not be done. It is of this decision that Mr Knight wants merits review in the tribunal.

13 That takes me to the Freedom of Information Act and the function of the tribunal in reviewing access refusal decisions.

FREEDOM OF INFORMATION AND THE ROLE OF THE TRIBUNAL

14 It has been emphasised by the courts time and again that freedom of information legislation serves fundamentally important purposes in democracy. It is enough here to refer to the declared objective of the Freedom of Information Act:

(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by -

(a) making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies 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 by agencies.

15 This objective is implemented in s 13, which creates 'a legally enforceable right to obtain access' to documents. The right does not encompass access to documents which are 'exempt' under the exemptions specified in Part IV.[6]

It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

17 Section 3(2) states an important principle governing both the interpretation of the legislation and the exercise of the discretions which it confers. Similarly, s 16(1) positively requires Ministers and agencies to administer the Act with a view to maximising public access to information.

18 These provisions are not surplusage or merely aspirational. In Victorian Public Service Board (Vic) v Wright,[7] speaking of the influence of the provisions on the scope of the then review jurisdiction of the County Court, the High Court said:[8]

In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information. It is, in our view, evident that such a purpose would not be promoted by adopting a narrow construction of the appellate functions of the County Court under the act or by imposing any limitation upon the effect of its decisions beyond any limits plainly imposed by the Act itself.

19 If an agency wishes to refuse a request on the basis that the documents sought are exempt, it must normally locate, identify and examine the documents coming within the request, and give reasons why the exemptions apply, document by document or class by class.[9] In cases to which s 25A(5) applies, the agency may refuse the request without following this procedure.

21 It is well established that, when exercising its review jurisdiction under s 40(b) the Victorian Civil and Administrative Tribunal Act 1998, the tribunal stands in the shoes of the original decision-maker. In legal character, its jurisdiction is substitutionary not appellate, and administrative not judicial. Its function is to make the correct or preferable decision on the merits. In doing so, the tribunal is not bound by the original decision and (where relevant) it may receive additional evidence. It has full jurisdiction to make all necessary findings of fact and to determine all relevant questions of law.

22 This applies to applications to review decisions made under the Freedom of Information Act. According to these principles, if I grant leave to Mr Knight, the tribunal will be required to determine on the merits whether or not to exercise the power of categorical refusal in s 25A(5).

23 In review applications arising under the Freedom of Information Act, one important distinction between agency officers and the tribunal must be noted. The tribunal has an additional power under s 50(4) (the public interest override) to order the release of documents which have been found to contain exempt information or matter. Subject to certain exclusions,[10] the override is available where 'the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act'. Agency officers making decisions at first instance or on internal review do not possess this power.

24 In XZY v Victoria Police,[11] I analysed the history and operation of the public interest override in the context of the relationship between the Freedom of Information Act and the right to freedom of expression in s 15(2) of the Charter of Human Rights and Responsibilities Act 2006.

25 In Victorian Casino and Gaming Authority v Hulls,[12] the Court of Appeal considered whether the public interest override was applicable when the tribunal was reviewing a decision to refuse a request under s 25A(5). Following Public Service Board (Vic) v Wright,[13] Phillips JA (Brooking and Batt JJA concurring) held that it was.[14] Their Honours held[15] the override was 'an important part of the scheme' of the Victorian legislation.

26 The significance of the override was recently highlighted in the High Court by French CJ, Gummow and Bell JJ. In Osland v Secretary, Department of Justice,[16] their Honours rejected a submission that it was only available in 'exceptional' circumstances. They held this did not 'sit easily with the proper approach to the construction of the FOI Act'.[17] Following Public Service Board (Vic) v Wright[18] on the principle in s 3(2), they held that approach was 'to "further, rather than hinder, free access to information" under it.'[19]

27 The general application of the override was considered by the Court of Appeal in Secretary, Department of Premier and Cabinet v Hulls[20], Secretary, Department of Justice v Osland[21] and Secretary, Department of Justice v Osland (No 2).[22] The discussion in these cases now needs to be considered with the subsequent decision of the High Court on appeal in Osland v Secretary, Department of Justice.[23] In particular, besides the aforementioned, French CJ, Gummow and Bell JJ said:[24]

it must be accepted that the word 'requires' which appears in s 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the subsection does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, 'predicated on fact-value complexes, not on mere facts'[25] to be applied by the decision-maker.

28 When reviewing refusals under s 25A(5), on several occasions the tribunal has considered whether to apply the public interest override, but of course not where the applicable exemption has excluded its operation.[26] I will consider the issue whether Mr Knight's application for review is foredoomed to fail on this basis.

29 When determining applications to review a refusal under s 25A(5), the tribunal is 'at large'.[27] It may therefore exercise its general procedural powers in relation to the review application, including its powers to direct that the documents be identified and produced for the tribunal's inspection. I also take this into account when determining whether Mr Knight's application is foredoomed to fail.

30 It is now time to examine the terms of s 25A(5) of the Freedom of Information Act.

CATEGORICAL REFUSAL OF REQUESTS TO ACCESS DOCUMENTS

(5) An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if -

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and

(b) either -

(i) it is apparent from the nature of the documents as so described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document; or

(ii) it is apparent, from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document.

32 Section 25A(1) confers a power, separate to that in s 25A(5),[28] to refuse to grant access to documents where processing the request would 'substantially and unreasonably' divert resources of the agency or interfere with the performance of a Minister's functions. It was s 25A(5), not s 25A(1), which was invoked in the present case.

33 The provisions of s 25A were not included in the Freedom of Information Act 1982 as originally enacted. They were introduced by the Freedom of Information Act (Amendment) Act 1993, which was modelled on s 24(1)-(7) of the Freedom of Information Act 1982 (Cth) (as amended by the Freedom of Information Act (Amendment) Act 1991 (Cth)).

34 The purpose of s 25A(1) was discussed in the parliamentary materials and may be ascertained from the terms of the provisions themselves (see further Chernov JA in Secretary, Department of Justice v Kelly[29]). The purpose of s 25A(5) of the Victorian legislation was not discussed in those materials. But the operation of the parent provision in s 24(2) of the federal Freedom of Information Act was referred to by the responsible Minister in the debates in the Commonwealth Parliament when it was originally enacted. To illustrate how this particular power of refusal might apply, he gave the example of 'a request for access to all cabinet decisions on a particular subject'. This would plainly be excluded because, 'all the documents covered by [the] request are exempt documents and none of them would contain matter which is not exempt'. In that circumstance, 'the work involved in processing the request [would] simply be wasted'.[30]

35 Although s 24(2) of the federal Act was strengthened by the 1991 amendments, these comments still remain apt to describe the application of the power against its natural target. In the example given, the request was for access to documents which, by their description, were exempt in nature.

36 It can be seen from the terms of s 25A(5)(a) and (b) that the discretion categorically to refuse access only arises where, as an objective fact, it is apparent from the nature of the documents as described in the request that all of them are exempt and no obligation would arise under s 25 to provide access to edited copies of any of them.[31] This requirement does not apply where the person seeking the documents does not wish to have access to edited copies.

37 Three elements of this carefully circumscribed power confine it to a clear category of cases of a limited kind. First, the power is only available where the exempt nature of the documents is objectively apparent from the face of the request. Second, it must be so apparent that all of the documents in the request are exempt. Third, from the face of the request or the applicant's declared wishes, there must equally be no scope for the operation of the obligation in s 25 to provide edited copies of any of the documents. Cases falling into this category may be categorically refused, at the agency's discretion.

Nature of the documents as apparent from the description in the request

38 Section 25A(5) requires the relevant matters to be objectively apparent from the face of the request. When applying this power, the agency (or tribunal) cannot go behind the description in the request. The power confers a discretion to refuse to grant access to the documents without identifying 'any or all' of them or specifying the applicable exemptions. Going behind the request is not consistent with that truncated consideration. Under s 25A(5)(b)(ii), it is permissible to make enquiries to ascertain whether the applicant does not wish to obtain edited copies of the documents under s 25. This only serves to emphasise that it is not otherwise permissible to go behind the request.

39 Section 25A(5)(a) refers to 'the nature of the document'.[32] The Oxford English Dictionary defines 'nature' relevantly to mean the 'inherent or essential quality or constitution of a thing ... a thing of a particular quality or character'. In s 25A(5)(a), 'the nature of the documents' means 'nature' in terms of the inherent or essential quality and character of the documents as described. The issue is whether the nature of the documents, as so described, comes within an exemption specified in Part IV. If the documents have the inherent or essential quality or character of being exempt from disclosure under that Part, access to the documents may be refused under s 25A(5), as long as this is apparent from the description in the request alone, and no obligation to provide an edited copy arises or none is wanted.

40 The requirement of s 25A(5)(a) is that it be objectively apparent from the nature of the documents as described in the request, that 'all of the documents... are exempt documents'. Similarly, the opening words of s 25A(5) refer to the agency not having to identify 'any or all' of the documents. Under s 25A(5)(b)(i), there must be no scope for granting access to an edited copy of 'any of those documents'. Consequently, each and every document described in the request must apparently be of an exempt nature.

41 Access to documents under s 17(1) can be sought, and commonly is sought, in a single request describing multiple documents by reference to classes, as Mr Knight has done in the present case. Where that is done, the request can only be refused under s 25A(5) where, from the nature of the classes of documents so described, it is apparent that all of the documents within the scope of all of the classes are exempt or could not be provided in edited form, if the applicant wants such access.

42 The provisions of s 25A(5) of the Victorian legislation have been so interpreted, in my respectful view correctly, by the Victorian tribunal. The equivalent provisions of the Commonwealth and Western Australian legislation have been interpreted in the same way.

43 The applicant in Olexander v Department of Premier and Cabinet[33] sought access to 'all' polling research coming within certain classes. The agency granted access to some documents but, under s 25A(5), categorically refused access (among other things) to a certain report. It was not identified.

44 Judge Strong, a vice-president of the Victorian tribunal, held that 'request' in s 25A(5) meant the request which the applicant had made, whether that was for one or multiple documents or classes of documents.[34] His Honour rejected the agency's reliance on s 25A(5) because all of the documents described were not exempt in nature. In Eaton v CORE - The Public Correctional Enterprise,[35] Judge Strong followed his earlier decision and stated what I respectfully agree is the correct position under the Victorian legislation:[36]

It will be seen that what must be considered at this stage is ... whether s 25A(5) can be applied to all the documents which are the subject of the request. Unless it is apparent from the nature of the request that all the documents are exempt documents, s 25A(5) has no application ...

This approach has been followed by the tribunal in subsequent cases.[37]

45 In Olexander v Department of Premier and Cabinet,[38] Judge Strong distinguished the earlier decision of MacNamara DP in Re Wilson v Department of Premier and Cabinet.[39] There, with the consent of the parties, a request in two parts was treated as giving rise to two requests. Section 25A(5) was applied accordingly. This appears to have been based on the acceptance of the parties, as a fact, that the request was really two requests.

46 A similar approach was adopted by the federal tribunal in Re Papps v Australian Postal Corporation.[40] It applied Olexander when interpreting s 24(5)(a) of the Freedom of Information Act 1982 (Cth). Dwyer SM held it was not permissible to dismiss a request in relation to one class of documents where the request extended to other classes. But, she found as a fact that the applicant's letter of request contained four separately specified requests.[41] Therefore the question was whether all of the documents in each of these four requests came within s 24(5)(a).[42] Dwyer SM held the request at issue before her was not confined to documents which were descriptively exempt by their nature and could include documents which were not exempt.[43] She therefore rejected the reliance by the corporation on s 24(5).[44]

47 Re Delagarde Legal Services Pty Ltd v Commonwealth Scientific and Industrial Research Organisation[45] is an example of an agency's reliance on s 24(5) of the federal legislation being upheld. Following Re Papps v Australian Postal Commission,[46] Ettinger SM (in the federal tribunal) held:[47]

The terms of s 24(5) of the Act make it clear that the refusal to grant access to documents in accordance with a request is justified, not where the exempt character of the documents to which the request is expressed to relate is established by examination of documents, but where the exempt character is apparent from the nature of the documents as described in the request. I am mindful that if the exempt character of even one document to which the request is expressed to relate is in question, then there can be no application of s 24(5) of the Act ...

The senior member went on to determine that, 'from the face of the request', all of the documents came within an applicable exemption.[48] He upheld the organisation's reliance on s 24(5).[49]

48 Section 23(2) of the Freedom of Information Act 1992 (WA) is to like effect of the Victorian and federal provisions. As to the requirement that all of the documents be descriptively exempt by their nature, it is administered in the same way. Thus, in Re Betfair Pty Ltd v Department of the Attorney General[50] the Acting Information Privacy Commissioner held that 'it must be apparent from the nature of the documents as described in the access application that they are all exempt documents'.[51] In that case, the acting commissioner applied s 23(2) because 'any' documents of the nature described would be exempt.[52]

49 In the present case, there is no consent to severance of Mr Knight's request. Further, as I have set out, he lodged 'a' request for '[a]ll PROTEL/Intel reports' concerning himself. He asked that his 'request' (singular) be taken to include certain classes of information. It will be a matter for the tribunal to determine, but it is clearly open to him to say that s 25A(5) of the Victorian legislation should be applied on the basis that he made a single request.

Giving access to documents with exempt matter deleted

50 Under s 25A(5)(b), it must be objectively apparent from the nature of the documents, as described in the request, that 'no' obligation would arise under s 25 to provide edited copies of 'any' of the documents (sub-par (i)), or that edited copies are not wanted by the applicant (sub-par (ii)). It follows that if the obligation arises in respect of even one of the documents - that is, 'any of them' - the power of categorical refusal in s 25A(5) is not available.

51 Section 25 creates that obligation where three conditions are all met. One, a decision is made not to grant access to a document because it is exempt (par (a)). Two, it is 'practicable' to grant access to a copy of the document with exempt matter deleted so as to make it not exempt (par (b)). Three, it appears from the request or subsequent inquiries that the applicant would want such access (par (c)). In those circumstances, 'the agency or Minister shall grant access to such a copy of the document' (s 25).

52 Section 25A(5)(b)(i) refers to s 25 in terms of an 'obligation' to provide access to edited copies of documents. The description is apt. Section 25 operates in an obligatory fashion because, where it is practicable to do so, access to copies 'shall'[53] be given.

53 The obligation in s 25 to give access to edited copies where practicable is an important feature of the freedom of information scheme. It is one means of fulfilling the statutory objective of extending community access to government-held information 'as far as possible' (s 3(1) and (2)). Sections 3(2) and 16(1) require this obligation to be performed with that objective in mind.

54 Interpreting and applying s 25 consistently with its purpose and the provisions of s 3(2) and 16(1), no narrow or arbitrary view of what is 'practicable' can be taken. Where it is reasonably practicable, in all the circumstances, for the agency to give access to a non-exempt copy of a document by deleting the exempt matter, it is obliged to do so. That will mean creating a redacted copy of the document, which will not be exempt under the Act.

55 The schematic operation of s 25 is clear from its connection with s 25A(5). It is also clear from its connection with s 30(3). By that provision, a document is not an exempt internal working document 'by reason only of purely factual matter contained in the documents.' Applying s 30(3) might involve deleting exempt matter under s25, leaving the purely factual matter in the document to be released. As I held in McIntosh v Department of Premier and Cabinet,[54] 'a practical approach is adopted for dealing with this issue'. I based that statement on the jurisprudence of the Victorian and federal tribunals, my account of which I would here repeat:[55]

This is Davies J in the federal tribunal in Re Howard and Treasurer of Commonwealth of Australia:[56] "Parts of documents which reflect purely factual material may be disclosed if severance can be achieved without compromising the privacy of the remainder of the documents"[57] Judge Wood in this tribunal said something similar in Re Kosky and Department of Human Services:[58] "If the document does contain both factual material and [deliberative] material ... the two may be so intertwined that it is difficult to separate them to produce an expurgated document of any meaning." In deciding whether it is possible to separate the factual material from the deliberative content of a document, so as to give access to the former without revealing the latter, the document has to be considered in its entire circumstances.[59]

56 In the combined result, if it is reasonably practicable under s 25 to give access to a redacted copy of the document with exempt deliberative matter deleted, this must be done. That copy document is then not an internal working document under s 30(1), even though giving access to it would involve disclosure of 'purely factual material' contained in the primary document. The obligation in s 25 operates in a similar way in regards to documents coming within other exemptions.

57 Section 25A(5) expressly preserves the operation of s 25 by making it the third element of the categorical refusal test. It must be objectively apparent from the face of the request that the documents as described are in nature such that no scope would exist for giving access to edited copies of any of the documents under s 25. That means it must be so apparent from the nature of the documents so described that it would not be reasonably practicable to do so.

58 On the basis of the above analysis, I would summarise as follows the tribunal's task when conducting merits review of a categorical refusal under s 25A(5) of the Freedom of Information Act:

the purpose of the legislation is to enhance the operation of Victorian democracy by extending access to government-held information as far as possible (s 3(1)), which it does by creating a legally enforceable right to access non-exempt documents (s 13)
under ss 3(2) and 16(1), the legislation must generally be interpreted and administered so far as possible to maximise public access to government-held information
there are safeguards against the misuse of the legislation, including discretionary refusal of requests in certain circumstances (s 25A)
the circumstance in s 25A(5) is that it is objectively apparent from the nature of the documents as described in the request that all of the documents are exempt and it would not be reasonably practicable to provide access in edited form with exempt matter deleted to any of them as required by s 25, or that is not wanted by the applicant
where it applies, this power releases the agency from the usual obligation to locate, identify and determine the exempt status of each document, and either to give access to it (in edited form, if this obligation arises) or give reasons why it is exempt (s 27)
in the clear and limited category to which it is meant to apply, this power permits the request to be categorically refused consistently with the purposes of the legislation in s 3(1) and the requirements of ss 3(2) and 16(1)
giving access to an edited copy of documents under s 25 is an important means by which access to information can be maximised; the power of categorical refusal is not available unless it is clear from the nature of the documents as revealed by the description in the request that this cannot be done in respect of any of them
in reviewing categorical refusals under s 25A(5), the function of the tribunal is to make the correct or preferable decision on the merits; the tribunal is at large and the full range of its powers are available, including the power to direct that the documents be identified and made available for inspection
in reviewing such decisions, the tribunal has the additional power in s 50(4) to order release of the documents where this is required by the public interest (the public interest override), unless the exemptions claimed come within the exclusions in that provision

59 I come now to the main issue in the case - whether Mr Knight's proposed application to the tribunal for review of the refusal of his application is foredoomed to fail:

WOULD PROPOSED REVIEW APPLICATION BE FOREDOOMED TO FAIL?

60 In thoughtful oral submissions at the hearing, supplemented by helpful and fair written submission afterwards, counsel for the department submitted Mr Knight's proposed application was foredoomed to fail. She submitted the documents described in the request were, of their nature, exempt. In that regard, she pointed to a number of exemptions which had, in her submission, obvious application.

61 The department relied on the decision of the tribunal in Elsing v Department of Justice.[60] In that case, Galvin DP determined an application for review of a decision by the department to refuse access to documents in reliance on the law enforcement exemptions in s 31(1)(a) and (d). Like the present case, the documents sought were prison intelligence system records, but described simply as 'PROTEL documents'. After receiving evidence about the documents and the consequences of releasing them, as well as privately inspecting the documents, the deputy president held them to be exempt.

62 That decision certainly illustrates how the exemptions in s 35(1)(a) and (d) are applied to prison intelligence system records. Clearly, there are obstacles in the way of someone, like Mr Knight, who seeks access to documents of this kind. But it is too much to say that the obstacles are insurmountable. I say this for a number of reasons. 'PROTEL documents' is a much wider class than 'PROTEL/Intel records' concerning Mr Knight personally and his imprisonment. The decision of Galvin DP represents the tribunal's review on the merits of the department's substantive refusal to grant access under s 27(2)(b), not its review on the merits of the department's categorical refusal under s 25A(5). The decision was based on the evidence which the tribunal received and its inspection of the documents, not on the nature of the documents as revealed from the description in the applicant's request. The reasons for decision do not reveal that the applicant placed any reliance on the public interest override in s 50(4), or that any consideration was given to that matter.

63 The department also relied on the decision of Steele SM in Knight v CORE - The Public Correctional Enterprise.[61] Here the tribunal upheld the department's categorical refusal (under s 25A(5)) of a request by Mr Knight. He had sought '[f]ull access to the daily staff rosters for HM Prison Barwon since the 1st May 2001'.

64 The senior member decided that this information, by its nature from the description in the request, related to the personal affairs of the staff concerned, and would be unreasonable to disclose. It was therefore exempt under s 33(1).[62] She held the rosters were also exempt under s 38 by reason of the specific secrecy provision in ss 30(1)(f) and (2) of the Corrections Act 1986,[63] an issue to which I will return. The documents could not be provided in edited form under s 25.[64] And the public interest override was not available (since s 50(4) does not apply where s 33 does).[65]

65 That decision also illustrates the obstacles which Mr Knight will encounter in prosecuting the proposed application. But again, it is too much to say the decision shows the obstacles are insurmountable, for the terms of his request in the present case are very different and, in any event, the tribunal does not operate according to a system of strict precedent.

66 Counsel for the department pointed to a number of exemptions which, in its submission, would have obvious and definite application to the documents sought by Mr Knight. The exemptions relied on were ss 30(1), 31(1)(a), 31(1)(c), 31(1)(e), 33(1), 35(1)(a) and (b) and 38.[66]

67 I recently examined the principles governing s 30(1) in McIntosh v Department of Premier and Cabinet[67] and that and these other exemptions in XYZ v Victoria Police.[68] It is not necessary to do that again in detail here. In regard to the public interest, I would add what I have said above in reference to the decision of the High Court in Osland v Secretary, Department of Premier and Cabinet.[69] I will confine myself to identifying the essential elements of the exemptions relied on by the department and how they may apply to the documents described in Mr Knight's request.

68 Section 30(1) is the internal working document exemption. It applies where two conditions are both met. One, disclosure of the document would involve disclosure of deliberative matter of the kind specified in s 30(1)(a). Two, disclosure would be contrary to the public interest, as mentioned in s 30(1)(b).

69 Section 30(1) is capable of applying to documents containing information about the administration and management of prisons, including information about individual prisoners and their personal affairs, which they may seek themselves[70] or which others may seek.[71]

70 Section 31(1)(a),(c) and (e) specifies a number of law enforcement exemptions.

71 Under s 31(1)(a), a document is exempt if its disclosure 'would, or be reasonably likely to -

prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance; ...'

Under s 31(1)(c), a document is an exempt document if its disclosure 'would, or be reasonably likely to -

disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law; ...'

Under s 31(1)(e), a document is an exempt document if its disclosure 'would, or would be reasonably likely to -

endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law.'

72 It will be seen there is no additional public interest element in the law enforcement exemptions in s 31(1). These exemptions apply, without more, to documents coming within their specified scope. In nature, the exemptions embody various aspects of the public interest. Where they apply, the operation of the public interest override in s 50(4) is not excluded. Mr Knight would therefore be free to rely on the override in this respect.

73 It is clear from the terms of s 31(1) that its provisions, and especially s 31(1)(a), are capable of applying to documents concerning the administration and management of prisons generally and concerning individual prisoners specifically. The tribunal has so decided on a number of occasions,[72] including one where it upheld a decision to refuse to given access to a prisoner to information about himself.[73] The tribunal has also applied s 31(1)(a) to uphold a decision to refuse to give access to information relating to the considerations of the Parole Board.[74]

74 Section 33(1) specifies the personal privacy exemption. Under this provision, a document is an exempt document

if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

75 It will be seen that, for s 33(1) to apply, the information that would be disclosed must relate to the personal affairs of any person and the disclosure must be unreasonable. The public interest override in s 50(4) is excluded where these exemptions apply. This exemption does not apply to personal information about the applicant (s 33(2)).

76 Section 35(1) specifies an exemption in relation to documents containing material obtained in confidence. It applies where disclosure 'would divulge any information or matter communicated in confidence' and:

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

77 It will be seen that, for s 35(1) to apply, the information or matter must have been communicated in confidence and would be exempt if internally generated and disclosure would be against the public interest in the single respect specified. Application of this exemption does not exclude the operation of the public interest override.

78 Section 35(1) is capable of applying to documents concerning the administration and management of prisons, including documents containing information about individual prisoners.[75]

79 Section 38 specifies the secrecy exemption. It provides:

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exemptions or qualifications.

80 The application of this exemption does not exclude the public interest override[76].

81 In view of the significance of this exemption in the present case, I will say more about it.

82 I considered the operation of s 38 in XYZ v Victoria Police.[77] So did Beach J in Secretary, Department of Justice v Western Suburbs Legal Service Inc,[78] there in reference to s 30(2) of the Corrections Act. As his Honour held, s 38 applies to confer exempt status on a document where all of three conditions are satisfied:[79]

(a) first, there is in force an enactment;

(b) secondly, the enactment applies specifically to information of a kind contained in the document; and

(c) thirdly, the enactment prohibits persons referred to in the enactment from disclosing information of that kind (either absolutely or subject to exceptions or qualifications).

83 Beach J also held, and I respectfully agree, that s 38 applies to confer exempt status on documents coming within the description in s 38, whoever is in possession of the documents.[80]

84 The department submits that s 30(2) (with s 30(1)) of the Corrections Act constitutes a secrecy enactment for the purposes of s 38 of the Freedom of Information Act.

85 The secrecy provision in s 30(2) of the Corrections Act was originally enacted in general terms.[81] In that form, it was held not to be specific enough to satisfy the requirements of s 38 of the Freedom of Information Act.[82] It was amended in 1991.[83]

86 This is s 30(2) of the Corrections Act in it current form:

A person who holds or has held a position must not, except to the extent necessary to perform official duties powers or functions of that position, record, disclose, communicate or make use of confidential information.

87 'Confidential information' is now defined in s 30(1) to specify information in a number of categories relating to the operation of prisons. Here is the current definition, which is exhaustive, in full:

(a) information relating to the classification of a prisoner given to the Secretary or to the classification committee established under the Corrections Regulations 1988; or

(b) information given to the Adult Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board for a decision of the Board; or

(c) information given to an official visitor as an official visitor; or

(d) information relating to the personal affairs of a prisoner; or

(e) information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency; or

(f) information concerning the management of, or the operation of security measures in, or in relation to, a prison; or

(g) information concerning the investigation of a breach or possible breach of the law by -

(i) a prisoner; or

(ii) an officer within the meaning of Part 5; or

(iii) a person authorised under section 9A to exercise a function or power; or

(h) information contained in a report given to a court that is not disclosed in a decision of the court or in any reasons given by the court for a decision of the court; or

(i) information of a business, commercial or financial nature relating to -

(i) the provision of services referred to in section 8B(1) or 9(1); or

(ii) an agreement entered into under section 8B(1) or 9(1) or a sub-contract agreement under that agreement.

88 'Position' is defined in s 30(1) to mean any of the positions specified in the definition. It includes prison officers and other people who work in the administration and management of prisons.

89 In the tribunal's jurisprudence, s 30(2) (with s 30(1)) of the Corrections Act (as amended in 1991) is a secrecy enactment within s 38 of the Freedom of Information Act.[84] I respectfully agree. The specific terms of the definition of 'confidential information' in s 30(1)(a)-(i) of the Corrections Act, in the form introduced in the 1991 amendments, answer the description of 'an enactment applying specifically to information of a kind contained in the document' as specified in s 38 of the Freedom of Information Act. I will consider whether Mr Knight's proposed application to the tribunal is foredoomed to fail on that basis.

91 As we saw, s 25A(5)(a) requires objective consideration of 'the documents described in the request'. From that description, it is necessary to ascertain the 'nature of the documents'. After that, it is necessary to determine whether it is apparent from the nature of the documents, as so ascertained, that they are all 'exempt documents'. I will consider these issues in that order. My purpose in doing so is to determine whether Mr Knight's proposed application is foredoomed to fail, not to determine whether the application should succeed, for that is a matter for the tribunal.

92 The department did not expressly characterise the nature of the documents sought by Mr Knight, from their description in the request or otherwise. The freedom of information and review officers identified the applicable exemptions which appeared to be appplicable and seemed to reason backwards to conclude that the exemptions applied to documents of the nature of those sought. This is a mistaken approach which effectively inverts the analysis. It impliedly allows the nature of the documents to be inferred from the exemptions which might apply to them, which widens the potential operation of the categorical refusal provision beyond its intended limits. Section 25A(1)(a) requires the agency officer to reason forward after ascertaining the nature of the documents from the description in the request.

93 From the description in the letter of request, the documents sought are prison intelligence records concerning Mr Knight during the period of his imprisonment. The documents are described as existing in various forms on the 'Proactive Intelligence (PROTEL) Prison Intelligence System' and the 'Prison Information Management System' of Corrections Victoria. The request is expressed to 'include' several specified PIMS records relating to Mr Knight's personal affairs. Remembering this will ultimately be a matter for the tribunal, I would describe the essential quality and character, and therefore the nature, of these documents as being documents concerning Mr Knight personally and his imprisonment.

94 From the description in the request, I could not characterise the essential quality of the documents as being documents concerning the administration, management or security of the prison as such, for this would shift the focus away from the description in the request, which is on Mr Knight personally and his imprisonment. While the documents described would certainly encompass some documents concerning matters such as the administration, management and security of the prison, that is not their nature.

95 Having so characterised the nature of the documents from the description in the request, I must determine whether documents concerning Mr Knight personally and his imprisonment 'are exempt', in the sense of whether his case before the tribunal in this regard is foredoomed to fail. That takes me to the exemptions relied on by the departments. Again, I will go through each of these in turn, beginning with s 30(1), the internal working document exemption.

96 Section 30(1) could apply to some of the documents requested by Mr Knight. Even though they are described to concern him personally and his imprisonment, I think it is likely some of them will contain deliberative information or matter which it would be contrary to the public interest to release.

97 Debono v Department of Justice[85] illustrates how a document relating to an individual prisoner can be an exempt internal working document. In that case the applicant was the prisoner himself. Another example is Simons v Department of Justice.[86] There the information sought related to a decision of the Parole Board to place a paroled prisoner in residence in the community. In that case the applicant was a concerned member of the community.

98 However, I do not accept that all of the documents described in Mr Knight's request would necessarily come into the category of being exempt under s 30(1). The request objectively describes documents concerning him and his imprisonment. I think the tribunal could decide that documents of that nature are not categorically internal working documents and could encompass documents that are not exempt on that basis.

99 Section 31(1)(a), (c) and (e) contain law enforcement exemptions. These can have application to documents concerning prisoners and their imprisonment. This is illustrated by various decisions of the tribunal, as I have referred to. But the issue is not whether these exemptions can have application. What must be determined is whether all of the documents requested are exempt in nature as described.

100 Section 31(1)(a), (c) and (e) define three classes of documents by reference to the consequences of their disclosure. The consequence in s 31(1)(a) is the specified prejudice arising from the disclosure. The consequence in s 31(1)(c) is the specified disclosure of identity arising from the disclosure. The consequence in s 31(1)(e) is the specified endangering arising from the disclosure.

101 The issue under s 25A(5) is whether all of the documents concerning Mr Knight personally and his imprisonment would, if disclosed, be reasonably likely to have such prejudicial, disclosing or endangering consequences. But that seems to me to depend primarily on the contents of the documents. Mr Knight wants to argue before the tribunal that not all of the documents in the prison intelligence information system which he seeks, if disclosed, would cause the consequences specified in s 30(1)(a), (c) and (e). That proposition seems to me to be well open. In these provisions, appropriately strong protection is given to information which is kept in that system, but not to all such information as an exempt class in itself.

102 Thus, for the department to establish the application of the law enforcement exemptions, it has to establish, as a fact, that the release of the information would be reasonably likely to cause the specified consequences. Here this would have to be established in reference to information about Mr Knight personally and his imprisonment, for that is the nature of the documents described in his request. I think it is open to Mr Knight to argue that at least the release of some information and documents of this nature would not be reasonably likely to cause these consequences. His claim that all of the documents are not descriptively exempt in nature under s 31(1)(a), (c) or (e) is thus not foredoomed to fail.

103 Section 33(1) is the personal privacy exemption. As we have seen, this applies when disclosing the documents would involve the 'unreasonable disclosure of the personal affairs of a person'.[87]

104 The documents described in Mr Knight's request concern him and his imprisonment, not the personal affairs of other people. It is possible, even likely, that some of the documents coming within the scope of his request will capture personal information about other people. Again, that is not the nature of what his request describes. Under s 25A(5), the nature of the documents is to be ascertained objectively from the description in the request; it is not to be inferred from the exemptions which might apply to them. While it will be for the tribunal to determine, I think it is open for Mr Knight to argue that not all of the documents he seeks are exempt, and not all of the information in the documents he seeks is exempt under s 33(1) by reason of their nature as described. His claim is not foredoomed to fail in this respect. It is not necessary for me to consider the 'unreasonableness' aspect of the exemption.

105 The exemption in s 35(1) relates to divulging material obtained in confidence. It relevantly applies where the information in the documents answers that description and would be exempt if internally generated (par (a)) or its disclosure would be reasonably likely to have the specified impairing effect (par(b)).

106 I think the scope of Mr Knight's request probably would capture some 'information or matter obtained in confidence'. I can see how a case for protecting the confidentiality of such material might be made under s 35(1). But this does not change the nature of the documents as described, which are capable of not being exempt under s 35(1). The tribunal could well decide that not all of the documents described in his request of their nature fall into this category. His proposed application is not foredoomed to fail by reason of the provisions of s 35(1).

107 The final exemption to be considered is s 38, the secrecy exemption. This calls for a consideration of the potential application of s 30(1)(a), (c) and (e) of the Corrections Act.

108 Sections 30(1) and (2) of the Corrections Act and s 38 of the Freedom of Information Act circumscribe, but do not exclude, access to government-held documents about the prison system. The provisions circumscribe, but do not exclude, prisoner access to information about themselves and their imprisonment kept on the prison intelligence information system. Many of the documents, and much of the information, which might be sought by prisoners about themselves and their imprisonment, and which is kept on that system, may come within the scope of these provisions, but not necessarily all documents and information of such nature. Whether the provisions operate to prevent a prisoner from obtaining access to documents of the nature objectively described in Mr Knight's request must be approached on a case by case basis.

109 So, in my view, it is open to Mr Knight to argue that not everything which he seeks is exempt in nature under these provisions. That is because the documents described in his request, in nature, comprise documents concerning him and his imprisonment, not documents coming within the exemption constituted by these provisions. His proposed application is not foredoomed to fail by reason of s 38.

110 In this connection, I have considered the proper interpretation of s 30(1)(d) of the Corrections Act. This protects 'information relating to the personal affairs of a prisoner'. If this provision were to apply to prisoners seeking access to information about them - in this case, Mr Knight - it would mean that prisoners could never use the Freedom of Information Act to obtain access to information about their own personal affairs. On this view, s 30(1)(d) and (2) of the Corrections Act, combined with s 38 of the Freedom of Information Act, would always render such information exempt. That might mean that Mr Knight's request was liable to categorically refusal under s 25A(5) on that ground alone.

111 However, I do not think s 30(1)(d) of the Corrections Act was intended to operate in such a manner. Like s 33(1) of the Freedom of Information Act (see s 33(2)), s 30(1)(d) of the Corrections Act was intended to prevent information about the personal affairs of prisoners being accessed by other people. This interpretation is supported by three considerations.

112 First, a general purpose of the Corrections Act is 'to provide for the establishment management and security of prisons and the welfare of prisoners'.[88] It would not serve this object totally to exclude prisoners from being able to obtain access to information (under the Freedom of Information Act) about themselves and their imprisonment. Secondly, the general purpose of s 30(1) is to protect the operation of the prison system. That purpose would not be served by such an exclusion. Thirdly, the specific definition of 'information relating to the personal affairs of a prisoner' in s 30(1) is predicated on the assumption that par (d) is directed at preventing other people from obtaining information about the personal affairs of prisoners .[89]

113 That leads me to one final general observation. The unavoidable consequence of the department's submissions, although not one which I think was actually intended, is that any and all requests by a prisoner for access to information kept on the prison intelligence information system about themselves and their imprisonment would be liable to categorical refusal under s 25A(5). Whether a prisoner would be able to obtain such information under the Freedom of Information Act would depend entirely on the discretionary judgment of prison management.

114 That was the position which the general public was in prior to the passing of the Act - obtaining access to government-held information depended entirely on the discretionary judgment of government officials. With the enactment of the Freedom of Information Act, that position was changed. A legally enforceable right to access government-held information was introduced, subject to the specified exemptions. Accepting the department's submissions would mean that, for prisoners, this right would have no real content in respect of information about themselves and their imprisonment on the prison intelligence information system.

115 While requests by a prisoner for such information about themselves can be refused because the documents contain information or matter which is exempt,[90] I cannot see how all such requests could be refused with that justification without actually considering the request in the way that is usually required. I would reject this approach to interpreting and applying s 25A(5). It is not required by the terms of the provision and would not further the objects of the legislation as required by s 3(2) and 16(1).

116 As we have seen, the obligation in s 25 to give access to redacted copies of documents arises where it is reasonably practicable to do so.

117 For s 25A(5)(b)(i) to be satisfied, it must be objectively apparent from the nature of the documents described in the request that this obligation cannot arise in respect of 'any' of the documents.

118 This requirement does not apply where the applicant does not want access to documents in redacted form (sub-par (ii)). Here, Mr Knight has expressly said he does.

119 In nature, the documents described in the Mr Knight's request concern him and his imprisonment. I think it is open to Mr Knight to argue before the tribunal that it is reasonably practicable for the department to give access to at least some of these documents in edited form (with exempt matter deleted) as required by s 25. It is thus open to him to argue that s 25A(5)(1)(i) is not satisfied. His proposed application is not foredoomed to fail in this regard.

120 It is not necessary for me to consider the potential application of the public interest override.

121 In conclusion, I think the tribunal could decide that not all of the documents described in Mr Knight's request are exempt in nature and that there would be an obligation to grant access to edited copies of at least some of them. Therefore Mr Knight's proposed application to the tribunal is not foredoomed to fail and would not be an abuse of process.

122 I will grant Mr Knight leave to apply to the tribunal for review of the decision of the department dated 19 March 2010 under s 25A(5) of the Freedom of Information Act categorically to refuse Mr Knight's access to the documents described in his request dated 24 September 2009.

123 When an agency receives a freedom of information request, it is normally obliged to locate, identify and determine the exempt status of the documents sought, document by document or class by class. The Freedom of Information Act requires the agency to give access to non-exempt documents, to give reasons for not giving access to exempt documents and, where reasonably practicable, to give access to edited copies with exempt matter deleted, unless the applicant does not want edited copies.

124 Under the legislation, these obligations do not apply to a clear and limited category of request - those where it is objectively apparent from the face of the request that the documents, as described, are exempt in nature and it would not be reasonably practicable for access to be given to edited copies of documents of that nature, unless the applicant does not want edited copies. Where all of the documents fall into this category, the agency can categorically refuse the request without doing more. Under the legislation, this power is not available if any of the documents are not exempt in nature as described in the request or it is reasonably practicable to give a willing applicant access to copies of any of them in edited form. To ascertain the nature of the documents requested, the agency is confined to the description in the request. It cannot go behind that description.

125 Julian Knight is serving a life sentence in prison for crimes of extreme violence, including the murder of seven people. He is eligible for consideration of parole in 2014. To assist in preparing an application for parole, he made a request of Corrections Victoria for access to various documents kept on the prison intelligence information system. He said he did not want access to confidential information or information about other people. He said he would accept edited copies of documents with exempt matter deleted. The Department of Justice (representing Corrections Victoria) categorically refused to grant access to the documents on the basis that they were exempt in nature and access could not be given to edited copies.

126 Mr Knight wishes to apply to the Victorian Civil and Administrative Tribunal for review of the department's decision. As he is a declared vexatious litigant, he cannot do so without leave of the court. He has applied for that leave, which he can be granted if the proposed application would not be an abuse of process. Under the Supreme Court Act, the proposed application will not be an abuse of process if it would not be foredoomed to fail.

127 After considering Mr Knight's request and the exemptions relied on by the department, I have concluded that his proposed application would not be foredoomed to fail.

128 Although it will ultimately be a matter for the tribunal to decide, I think the nature of the documents described in Mr Knight's request can fairly be characterised as documents concerning him personally and his imprisonment. Such documents are not of their nature all exempt. It may be reasonably practicable to grant access to edited copies of at least some documents of such a nature. What documents are exempt will depend on the application of the relevant exemptions, which must be considered on a document by document (or class by class) basis. Whether it is reasonably practicable to give access to copies of the documents with exempt matter deleted will depend on the form and content of the document, and the applicable exemptions, which will also have to be considered on a document by document (or class by class) basis.

129 I have no doubt that many of the documents sought by Mr Knight will, on consideration, be found to be exempt. The internal working document, law enforcement, personal privacy, confidential information and secrecy enactment exemptions (among others) have application to prison documents of the nature sought. But it is too much to say that all of the documents described in the request are exempt in nature and that it is not reasonably practicable to give Mr Knight access to edited copies of any of them. It is open to Mr Knight to argue before the tribunal that his application should not be categorically refused, but properly considered in the usual way.

130 For these reasons, I have decided to grant Mr Knight leave to apply to the tribunal for review of the decision of the department categorically to refuse his application to access the documents sought. There will be orders accordingly.

[2] Attorney-General v Knight [2004] VSC 407.

[3] Phillip Morris Ltd v Attorney-General [2006] VSCA 21; (2006) 14 VR 538, 556 per Maxwell P, Ormiston and Eames JJA concurring.

[5] Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, [7] per Bell J.

[6] See the definition of 'exempt document' in s 5(1).

[8] Ibid 153 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ.

[10] Under s 50(4), the public interest override does not apply where the documents are exempt under ss 28, 29A, 31(3) or 33.

[11] [2010] VCAT 255, [309]-[574].

[14] [1998] 4 VR 716, 725 referring to the submission at 724; cited with approval in Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246; (2001) 4 VR 595, 615 per Chernov JA (Ormiston and Callaway JJA agreeing).

[20] [1999] VSCA 117; [1999] 3 VR 331, [23] and [28] per Phillips JA (Tadgell and Batt JJA agreeing).

[25] Julius Stone_, Legal System and Lawyers' Reasoning_s (1964), p 264.

[26] See eg Knight v CORE - The Public Correctional Enterprise [2002] VCAT 1769, [33] (override not applied because exemption claimed was under s 33(1) (Steele SM); Firmstone v State Revenue Officer [2003] VCAT 953, [9] - [10] (override not applied because exemption claimed was under s 38) (Coghlan DP); The Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924, [99] (override considered but not applied to exemption claimed under s 35(1)(b) and not considered because exemption claimed under s 28) (Preuss SM).

[27] Victorian Casino & Gaming Authority v Hulls [1998] 4 VR 718, 725 per Phillips JA (Brooking and Batt JJA concurring).

[28] Victorian Casino & Gaming Authority v Hulls [1998] 4 VR 718, 726 per Phillips JA (Brooking and Batt JJA concurring).

[30] Australia, Parliamentary Debates, House of Representatives, 23 February 1982, 475 (Ian Viner),

[32] 'Nature of the document' is not defined in the Freedom of Information Act.

[37] See eg Knight v CORE - The Public Correctional Enterprise [2002] VCAT 1769, [4] (Steele SM); Firmstone v State Revenue Office [2003] VCAT 953, [9] (Coghlan DP) and Mickelburough v Victoria Police (19 February 2009, O'Halloran M, unreported) [29].

[38] [2002] VCAT 497, [11]-[13].

[52] Ibid [50]. See also Re Nield & Nield v Police Force of Western Australia [2002] WAICmr 31; and Re Norbury v Police Force of Western Australia [2002] WAICmr 34.

[53] Section 45(2) of the Interpretation of Legislation Act 1984 requires the word 'shall' to be construed 'as meaning that the power ... must be exercised'.

At a glance

Court

Decision date

Before

Source

Judgment (230 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (6)