Bahonko v City of Casey (General) [2010] VCAT 241

1. Ms Bahonko has had lengthy conflicts with the City of Casey (and presumably its predecessor) since she moved to her residence in Riley Place, Hampton Park in 1991. Council has brought legal proceedings against her seeking payments of arrears of rates. For her part she has sought a waiver of those arrears on the grounds of hardship and complains as to the manner in which Council dealt with her claim for waiver. On 25 September 2009, Ms Bahonko sent a request for access to documents under the Freedom of Information Act in the following terms:

Under the FOI Act 1982 I request release by Casey City council/City of Casey ALL & COMPLETE FILES kept Casey's Departments which relates to me that is Stanislawa Bahonko & any of my matters.

This must include copy of documents delivered to the County Court Registry upon Subpoena from Lander & Rogers Lawyers of 13 September 2006.

Considered that I made request back in 2008, I request an expeditious release of those documents.

I apply for a waiver of all fees if such are applicable & attach my DSP card.

1. The Freedom of Information Officer of the Council responded in the following terms:

Application under the Freedom of Information Act 1982

I refer to your request received by Council on 29 September 2009, in which you seek access to various documents under the Freedom of Information Act 1982.

The Council will be in a position to respond to your request shortly, and in any event within 45 days of the date your request was received.

In the meantime, if you have any queries please don't hesitate to contact me on 9705 5200 or by email on ckay@casey.vic.gov.au.

1. That letter refers to Ms Bahonko's request having been received on 29 September, this is presumably the hard copy mail follow-up. Ms Bahonko regards her request as having been made with effect from 25 September. Council then followed with a lengthy letter querying the terms of the request dated 20 October:

I refer to your letter received by the City of Casey ("Council") on 25 September 2009 in which you sought access under the Freedom of Information Act 1982 ("Act") to a copy of:

"All and complete files kept by Casey's Departments which relate to me that is Stanislawa Bahonko and any of my matters"

"This must include copy of documents delivered to the County Court Registry upon Subpoena from Lander & Rogers Lawyers of 13 September 2006."

The Act creates a right of access to documents of an agency including the Council. Section 13 of the Act states that the right of access is to be exercised "In accordance with the Act". Section 17 of the Act sets out the procedural requirements to be satisfied for a valid request for access to documents that exist.

One of those requirements is that the request must provide such information concerning the documents you seek as is reasonably necessary to enable the council to identify the documents. That is, the applicant must strive to define with as much precision as possible, the documents sought in terms that would enable an appropriate officer of the Council to constructively search of those documents. If a request is ambiguous, unclear or otherwise ill defined, it does not comply with the Act and need not be processed. It should not be for officers to be left guessing what documents you are actually seeking. In addition a request must be for specific documents or groups of documents and not for every document in a broad category.

In my view your request does not provide sufficient information for the Council to identify the documents you seek. The request as it is currently expressed is very broad.

Furthermore a request must provide sufficient information so that the documents sought can be identified not only by a reasonable description but also by a date or within a reasonable time period. There is no time period nominated in the request.

Accordingly, I invite you to submit an amended request to clarify the issues raised above and that it is in a form which complies with section 17 and provides the information necessary to enable the Council to identify he documents sought.

Until your request is made in a manner required by section 17 of the FOI Act it cannot be processed and the 45 day time period within which a decision must be made on your request has not commenced to run.

Should no suitably amended request be received within 28 days of the date you receive this letter, the Council will understand this to mean that you no longer wish to pursue this matter and will inform you accordingly.

In the meantime, if you have any queries please don't hesitate to contact me on 9705 5200 or by email on ckay@casey.vic.gov.au

1. Ms Bahonko regarded this letter as in effect stone walling. She replied in a further facsimile transmission of 23 October as follows:

I refer to your latter correspondence & failure to lawfully respond to my FOI request.

Delay is wilful & constitutes denial thus provides me with sufficient ground for legal action further that in your fist (sic) correspondence you made undertaking to provide me documents & only after corrupt intervention of other persons you sent me second letter with unreasonable demands.

Such unreasonable demands to wilfully caused OBSTRUCTION of the course of justice, outlaw, contempt for the Acts of Parliament & natural law & Human Rights Charter & unlawful denial is a matter of persons from the City of Casey.

Take notice that those are serious offences which in context are of a criminal nature.

I request ALL files since I moved to Casey that is from 1 January 1991 to time of the release.

It is unreasonable & obstructive conduct as I cannot identify documents created by officers of the City of Casey in relation to me AND I still have rights to know what they are.

Identified enough Subpoena issued by lawyers Lander & Rogers on 13 September 2006.

If you continue with DELAY & if I do not receive documents or appointment date within the next 7 days I will proceed with a legal action without further Notice to you.

1. This led to the Freedom of Information Officer responding in a letter of 29 October in the following terms:

I refer to your letter received 25 September 2009 and your subsequent letter dated 23 October 2009 in relation to your request for access to documents under the Freedom of Information Act 1982 ("FOI Act").

I note that in your request you have made reference to a "request back in 2008". The City of Casey ("Council") has no record of any previous request made by you for access to documents. The Council has already advised you that it has no record of a previous freedom of information request from you by letter dated 1 May 2009 (in response to your earlier statement that you had previously made a request).

On 20 October 2009 I wrote to you regarding the need for you to clarify your request as, at this stage, there is insufficient detail in your letter to enable the Council to respond to it. Therefore, at this stage your request is not a valid one.

In particular, it is not possible to identify "ALL & COMPLETE FILES" which "relate to you & any of your matters". as it is not clear what you mean by "relate to" and "your matters". The staff of the Council cannot try to guess which documents you seek to access.

For your information and assistance, records management systems record descriptive information about files created by the Council. It however, unless your name forms a part of the information entered in that descriptive information, it may not be possible to use your name as a means by which to identify a file/files you may seek to access.

When you clarify your request, could you please consider the following questions:

Do you seek access to a file/files relating to a particular property address? Do you seek access to a file/files that include/s your name in the description in the records management system?

In relation to "any of your matters", what matters do you refer to? What is the subject matter of the file/s?

In relation to the subpoena you have referred to, in which proceedings was the subpoena issued? Could you please supply a copy of the subpoena to assist the Council to respond to your request, as at this stage no detail has been provided about what documents were required to be produced to the court under the subpoena.

The Council would like to respond to your information needs and once the Council has received written confirmation of what you intend by your request, your request can be responded to in accordance with the FOI Act.

Until the Council has received a request made in accordance with s 17 of the Act the 45 day time period within which a decision must be made in respect of a valid request has not commenced to run.

Section 17(4) of the Act requires that the Council provides you a reasonable opportunity to consult with it to refine your request and make it compliant under section 17(2). Accordingly, consistent with that obligation and the obligation under section 17(3) to provide reasonable assistance, you may wish to contact me to discuss the request with a view to clarifying it. I may be contacted on 9705 5416.

Alternatively, you may wish to submit an amended request clarifying the issues raised above.

I look forward to your response so the Council can progress this matter in a timely manner. Should no clarification or no suitable clarification be received within 28 days of the date of receipt of this letter, Council will assume that you do not wish to proceed with this matter.

1. However, on 28 October Ms Bahonko filed an application for review in this Tribunal which commenced the following proceeding. She sought review of a decision described as 'refusal of FOI' nominating the date of the decision as '20 October 2009'. She attached the correspondence which I have set out with the exception of the letter of 29 October which had yet to be despatched. She characterised the Council's letter of 29 September (in the application incorrectly referred to as being dated 29 October) as 'granting FOI'. As to the second letter of 20 October she characterised this as having 'Unreasonable demands to amend by FOI. Thus refusal.'
2. The proceeding came before the Tribunal on 11 December 2009 on which day directions were given and a hearing was fixed for 19 February 2010 'on the question of the Tribunal's jurisdiction'.

1. When the matter came on on 19 February, Ms Bahonko opened by making extensive attacks on the Tribunal member who gave the directions in December accusing the member of being corrupt. She said that since the directions were given by a corrupt member they were legally ineffective. In accordance with the directions given, Mr Batskos of FOI Solutions on behalf of Council served a statement of facts and legal contentions by 8 January. Ms Bahonko had not in accordance with the directions filed and served a statement of her facts and legal contentions; she presented those orally during the hearing. She said however that the hearing should be treated as a directions hearing because the directions hearing in December was 'invalid' because of the corruption of the member. She complained that the date for today's hearing had been selected without reference to her. I did not understand Ms Bahonko to be saying that on 19 February she was unready to present her case. Her objection to the jurisdictional issues being dealt with at this hearing was based upon her view that the directions hearing in December was invalid. In fact she was in a position to provide lengthy submissions in response to the jurisdictional objections which were raised by Mr Batskos on behalf of Council.

1. Mr Batskos on behalf of Council contended that for a variety of reasons the Tribunal had no jurisdiction to entertain the proceeding. He submitted first that there had been no valid request for access to documents under the Freedom of Information Act hence there could be no reviewable refusal to grant access in the absence of a valid request. In any event he submitted that no actual or deemed refusal of access had occurred hence there was no refusal to review. Even if there had been such a refusal he submitted that there had been no internal review conducted, which was a condition precedent in the case of an actual refusal, to the Tribunal's review jurisdiction.
2. Mr Batskos took me first to Section 13 of the Freedom of Information Act noting that it bestowed a legally enforceable right to access to documents upon citizens 'in accordance with this Act'. He submitted therefore that the right of access depended upon there being an effective request for access which he said was defined in Section 5(1) of the Freedom of Information Act 1982 as being 'a request made in accordance with Section 17'. He submitted that Section 17(2) stated:

A request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document.

1. He also noted that a requirement for a valid request was the payment of any necessary fee. He referred to Section 17(2A) of the Act subject to the ability to obtain a waiver based on hardship in accordance with Section 2B of the Act. He said that no access fee had been paid and no decision had been made on the waiver application made by Ms Bahonko:

Thus there has been no valid request and decision in respect of which the Tribunal has power to review. There is no legislative authority for the Tribunal to review the failure by Council at that time to refuse to waive or reduce the fee.

1. He referred to Gordon v Mornington Peninsula Shire Council [2005] VCAT 1710 [13].
2. He said in any event a request such as the present, which he said was too broad was not a valid request. He referred to Borthwick v University of Melbourne (1985) 1 VAR 33, 35 per Judge Rowlands. He referred to a judgement of Ormiston JA to similar effect in Secretary Department of Treasury and Finance v Kelly [2001] VSCA 246; (2001) 18 VAR 427 [6]. He submitted a request_:_

Could be so vague or broad as to be unintelligible or incapable of being responded to or there could be insufficient information to enable an agency to identify what is sought. In those cases, the request would not be valid.

1. He referred to McIntosh v Victoria Police [2009] VCAT 1923 [40]. He referred to authority from the United States to the effect that freedom of information legislation does not oblige Government agencies to respond to 'fishing' requests. He referred to the Freedom of Information Handbook Second Edition paragraph 1.9.3.
2. He argued that in the circumstances Ms Bahonko's request failed to meet the criteria laid down and accordingly was invalid. This unhappy result ensued despite the attempts by Council in its letters of 20 and 29 October to seek to clarify the scope of the request he said.
3. As to the issue of deemed refusal, this required the lapse of 45 days from the making of a request. According to his calculation based on the view that the request was lodged on 29 September, only 33 days had elapsed, hence there was no deemed refusal and no ground on this basis for an exercise of a review jurisdiction by Council. Finally, he submitted that even if the letter of 20 October were treated as a refusal, there had been no internal review and therefore there was no jurisdiction.

1. Ms Bahonko noted that Council had been served with a subpoena for production of documents on or shortly after 13 September 2006 in the matter of Bahonko v Uniting Church of Australia CI-06-02573 in the County Court of Victoria seeking production to the Court of:

All documentation created in the period 1 January 2002 - to the date concerning Stanislawa Bahonko, of 1 Riley Place Hampton Park Vic 3976.

1. She said that documents were produced by Council in response to this subpoena even although she was not given the opportunity in the course of the hearing in the County Court to view those documents. How could it be she said that Council was able to respond to the subpoena but unable to respond to her request under the Freedom of Information Act?
2. She said she was only concerned with documents that actually named her. It was only documents in which she was named that could be regarded as vilifying her.
3. As previously noted she said that time limits should be calculated from 25 September when she said her initial request reached Council by facsimile transmission. She said in fact there had been an internal review of her request and that the initial letter of 29 September entailed the granting of it. She believed that corrupt officers of Council, one of whom was a team leader in the rate collection branch of Council had intervened to obstruct her request.
4. She said that serious damage had been done to her house by vandals throwing rocks and bricks. It was a mere matter of good luck that she herself had not been seriously injured. She believed the corrupt Council officers had incited the vandals. She said these sort of events generally occurred around the time when she was involved in litigation with Council.
5. She said that Council had subjected her over the years to mental torture. She referred to a rate valuation notice for her property for the year 2009 to 2010 levying a total rate of $84,596.78 on a property with a site value of $123,000. She said this rate notice was obviously incorrect yet it had not been rectified despite her drawing Council's attention to it.
6. She noted that a request in what she contended was in similar terms for access to documents held by the Department of Justice had been processed and responded to. Why she asked could Council not respond to a request made to it in the same terms. She referred generally to the Charter of Human Rights and Responsibilities. Her appeal to this enactment was at a fairly general level and did not descend to much detail. She complained for instance that Council's actions had imperilled her security of the person.
7. It was intolerable she said that Council's legal advisers should attack her request as invalid.

1. The general rule in freedom of information matters is that the burden of proof lies on the respondent agency. It may be open to doubt whether that rule applies directly in jurisdictional challenges such as this; however insofar as implied assertions were being made by Mr Batskos as to what was practicable for Council in accessing its own records, it was in my view incumbent upon Council as the party peculiarly well informed on that subject to call evidence to elucidate any matters which were unclear.
2. Section 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal to 'inform itself on any manner as it sees fit'. Care must be taken in exercising that power to go no further than a Court could do in similar circumstances Turner v Horsfall (2002) 11 VPR 340 per Ashley J (as he then was). I think I may inform myself that upon the commencement of the Freedom of Information Act 1982 documents in Government agencies were customarily held in what would now be described as 'hard copy' form. These records were sorted by being kept in numbered files which bore names related to individual persons or companies or particular subject matters.
3. It is also now notorious that records are extensively kept in computerised systems. These systems amongst other things allow for 'key word' searches which enable the full text of particular documents to be identified by reference to the occurrence of a particular word, for instance 'Bahonko'. What remains unclear and what I do not believe I can properly notice is exactly how the records of the Council of the City of Casey are kept. Mr Batskos contended that it was a mixture of computerised and old style 'hard copy' records but called no evidence. What is reasonably practicable in terms of responding to a request and what makes a request sufficiently particular to be acted upon must vary in light of the mode of record keeping adopted.
4. It seemed implicit in Mr Batskos' submissions that a search which sought a key word, for instance 'Bahonko' or perhaps a key address like 1 Riley Drive, Hampton Park could be processed by a freedom of information officer. In my view the request made by Ms Bahonko could and should have been treated as a request for access to all files relating to Ms Bahonko, a request which could have been processed by searching file titles whether as part of an old style hard copy system or a computerised system by reference to the key word 'Bahonko'. Mr Batskos appeared to concede as much but submitted that the reference to the documents which had been produced on subpoena in 2006 rendered the first part of the request which on its face was sufficiently certain, uncertain by reason of the additional word.
5. Mr Batskos relied upon a decision of Vice-President Judge Strong as he then was in Olexander v Department of Premier and Cabinet [2002] VCAT 497. In Olexander's case His Honour considered inter alia the question whether in applying Section 25A(5) of the Freedom of Information Act which excuses an agency from processing a request where:

It is apparent from the nature of the document as described in the request that all of the documents to which the request is expressed to relate are exempt documents ...

whether it was proper to 'split' the request or whether for these purposes it must be analysed as a whole. His Honour concluded that the latter was the appropriate approach. Mr Batskos said the same approach should be applied here.

1. Ms Bahonko first objected to my considering Olexander's case. She noted that the set of legal contentions filed by the respondent in accordance with the Tribunal's order did not mention Olexander's case, therefore it was unfair for Mr Batskos now to raise it. Given that Ms Bahonko regarded the Tribunal's directions as invalid as previously noted and she did not comply with them herself, this was perhaps a surprising submission. In the end however I am not persuaded that Mr Batskos' submission based on Olexander's case should be accepted. The proper analysis of Ms Bahonko's request dated 25 September 2009 is that it seeks access to:

All and complete files [of the Council] which relates to me that is Stanislawa Bahonko and any of my matters.

1. As previously observed it seems to be conceded that a search for all files relating to Ms Bahonko is a practicable investigation to undertake. The following paragraph which includes the words 'this must include copy of documents ...' is a piece of commentary rather than something which delineates the scope of the request. Mr Batskos conceded that as of now Council cannot say whether it is or is not possible, viewed as a separate exercise, to identify what documents were produced on subpoena in 2006. The request has not been processed at all. The request however is for 'all and complete files'. Once those are produced it will remain to be seen whether Ms Bahonko's assertion that these files 'must include' the subpoenaed documents turns out to be true or not or whether all these years afterwards it is possible to prove this one way or another.
2. In my view Ms Bahonko's request was valid. I note something which was commented upon by Council's Freedom of Information Officer that there is a reference not only to 'all and complete files' but also files which relate to 'any of my matters'. In context I believe that files which 'relate to [Ms Bahonko's matters]' are in substance the same as files which relate to Ms Bahonko and a file name search would appropriately respond to the request.
3. Mr Batskos' major submission therefore fails; but that is not the end of the matter. For there to be a proper basis to bring a Tribunal review application there must also be a decision to review, not merely a valid request. The decision may be an actual decision or a deemed decision.
4. Turning first to the question whether there has been a deemed decision, this is governed by Section 53 of the Freedom of Information Act. Section 53(1) provides:

(a) a request has been made to an agency or Minister;

(b) the time period provided in section 21 or section 43 as the case may be has elapsed; and

(c) notice of a decision on the request has not been received by the applicant -

the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 50, be deemed to have made, on the last day of the relevant time period, a decision refusing to grant access to the document.

1. The time period provided for dealing with access requests under Section 21 of the Act is 45 days. Whether one calculates the time period from 25 September 2009 when Ms Bahonko says her request should be regarded as having been made or 29 September as the respondent would have it, 45 days would not elapse between the making of the request and the filing of the review application. It was either 33 or 37 days. There was no deemed decision at the time that this application was filed.
2. Ms Bahonko submitted that there was a decision by way of refusal constituted by the letter of 20 October. The question of when a decision is made is dealt within Section 4 of the Victorian Civil and Administrative Tribunal Act 1998. That section provides as follows:
   1. When does a person make a decision?

(1) For the purposes of this Act or an enabling enactment, a person makes a decision if the person -

(a) makes, suspends, revokes or refuses to make a decision, order, determination or assessment (including a decision not to make a decision, order, determination or assessment);

(b) gives, suspends, revokes or refuses to give a certificate, direction, approval, consent or permission;

(c) issues, suspends, revokes or refuses to issue a licence, authority or other instrument;

(e) amends or varies any of the things referred to in paragraph (a), (b), (c) or (d);

(f) makes a declaration, demand, direction or requirement;

(2) For the purposes of this Act or an enabling enactment -

(a) a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;

(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decisionmaker;

(c) a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;

(d) a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision.

(3) If a person who made a decision by reason of holding or performing the duties of an office or appointment or a position in the public service ceases to hold or perform the duties of that office, appointment or position -

(a) the person for the time being holding or performing the duties of that office, appointment or position is deemed to be the decision-maker in respect of that decision; or

(b) if there is no such person, or if the office or position no longer exists, a person specified by the President is deemed to be the decision-maker in respect of that decision.

1. It will be seen for instance that the Victorian Civil and Administrative Tribunal Act deals as does Section 53 of the Freedom of Information Act with deemed decisions. A refusal to grant certain relief can under the various paragraphs of Section 4(1) constitute a decision. I will assume without deciding that in the circumstances the letter of 20 October could constitute a decision of refusal. Section 51 of the Freedom of Information Act provides for internal review of freedom of information officer determinations. Sub-section (2) provides that a person is not entitled to apply to the Tribunal for review of such a decision unless he or she has sought internal review and has been informed of the result for a period of 14 days has elapsed from the time or day on which the internal review was requested. Section 51A which is a proviso to this rule makes special provision for matters within the jurisdiction of the Health Services Commissioner which the present request is not.
2. It follows therefore that Ms Bahonko despite having made a valid request and despite my acceptance, at least for the purposes of the present argument that she had received an adverse decision on her request was not entitled to seek review by this Tribunal without first having sought internal review. The learned editor of Pizer's Victorian Administrative Law states at [FOI.51.120] (update: 113):

If a request for 'internal review' is not made, the VCAT will not have jurisdiction to review the decision in question: Re Borthwick v University of Melbourne (1985) 1 VAR 33 at 37; Hinchcliff v Victoria Police (unreported VCAT Member Mattei 29 October); Russell v Transport Accident Commission [2004] VCAT 469.

1. If the officers named by Ms Bahonko did in fact intervene in the process that would not amount to an internal review if for no other reason that she requested no such review.
2. In the circumstance it is unnecessary for me to consider Mr Batskos' submission based on the fee waiver issue.
3. For the reasons given the Tribunal lacks jurisdiction to entertain Ms Bahonko's review application and the appropriate order is that it be dismissed. Nevertheless Council should now process Ms Bahonko's request as interpreted in these reasons.