Chopra v Department of Education and Training (Review and Regulation) [2019] VCAT 1941

The decision of the respondent, and of the Office of the Victorian Information Commissioner, that the extracts from the five documents in dispute are exempt under s 33 of the Freedom of Information Act 1982, is affirmed.

1. This is a review of a decision by the respondent Department of Education and Training (Department) in response to a request under the Freedom of Information Act 1982 (FOI Act) by Dr Manu Chopra, a former maths and science teacher at McKinnon Secondary College. Dr Chopra has made a number of FOI requests to the Department. [1] This was a request for a copy of his Personnel File at the College.
2. By the time this matter came on for hearing, the dispute had resolved down to a single issue only: whether the names, or other identifying text, of low-level or clerical staff in a few places in five administrative documents relating to Dr Chopra's employment as a teacher, are to be released. The only exemption to be considered in this case is s 33 of the FOI Act - concerning the personal privacy of those employees.
3. However, a number of other issues were raised during the hearing by Dr Chopra, arising out of the long history of disputation between him and the Department since he left the College in January 2015.
4. For the reasons set out below, I find that disputed material is exempt under s 33. I have also made findings, to the extent necessary, in relation to the other issues raised by Dr Chopra.

1. Dr Chopra was employed at the College between January 2012 and January 2015. In 2014, he made allegations of bullying and harassment against staff at the College. He felt his employer did not adequately address those allegations. He took leave from July 2014, and left the school at the beginning of 2015. There were also allegations made against Dr Chopra, which were under investigation at the time he resigned. He is aggrieved that the Department has placed a limitation on employing him again in the future.[2]
2. On 5 April 2018, Dr Chopra made the request for his Personnel File which is the subject of this case. The Department identified 108 pages comprising his Personnel File at the College.
3. Dr Chopra believes the Department has breached its duty under the FOI Act in that it has not identified all the documents which truly comprise his Personnel File. He believes there are 'hundreds and thousands' of pages which were on his Personnel File' (paragraph [24] of his Contentions).
4. This matter was the subject of a Preliminary Hearing which considered Dr Chopra's contention that the Tribunal had the power to order further searches for documents answering his FOI request, or the production of documents allegedly deliberately withheld.
5. The result of the Preliminary Hearing was that I found the Tribunal did not have the power to order further searches for documents.[3]
6. As I understand it, the Department's position is that there are other documents, but they are not on Dr Chopra's Personnel File held at the College. They are held on other files, which I understand are the subject of other FOI requests. Pursuant to these, many documents have been released, but many have also been withheld. They are the subject of various Tribunal/ Supreme Court proceedings which are still on foot.
7. On 1 May 2018, in response to this request, the Department released 74 pages to Dr Chopra (outside the FOI Act, pursuant to s 16). It then identified 34 pages in relation to which it claimed exemptions, variously under ss 30(1), 33(1) and/or 35(1)(b) of the FOI Act.
8. By the time of the substantive hearing, this had been whittled down to five documents (numbered 2, 3, 10, 11 and 12) comprising 10 pages in total. There are 14 references comprising the names of individuals, and one reference stating the position of an individual. The references comprise salutations and sign-off clauses in correspondence and administrative documents, and parts of email addresses identifying individuals.
9. The five documents are mostly what appear to be standard administrative forms and correspondence concerning the processes associated with commencement and termination of employment as a teacher, including payroll and leave arrangements. Additionally, Document 12 is a letter 'To Whom It May Concern' dated 28 October 2011, stating that Dr Chopra would be employed at the College on 1 February 2012 at a certain salary. Document 3 is a letter from an administrative staff member at the practice of Dr Y Hollander, a psychiatrist, concerning arrangements for Dr Chopra to attend an appointment. It does not appear to contain any sensitive material. In any event it has been released in full, save for three references to the name of the staff member at Dr Hollander's rooms.
10. It is apparent from the documents that the persons named or identified all occupy, or occupied, non-senior, non-executive positions. The evidence in relation to documents 2, 10, 11 and 12 was that the persons referred to were employed by the Department in administrative roles below Victoria Public Service Grade 6 (VPS-6) classification.
11. One document which is no longer a disputed document, but which was the subject of much discussion during the hearing was Document 4. This is a 9 page letter dated 19 August 2014 from the principal of the College, Ms Pitsa Binnion, to Dr Hollander. It included details of a number of incidents which had occurred involving Dr Chopra during 2014. It sought an opinion from Dr Hollander as to Dr Chopra's fitness to teach. The contents of Document 4 are highly sensitive.
12. The Department had claimed exemptions under ss 30(1), 33(1) and 35(1)(b) covering all of Document 4 except content equivalent to about one page of text.
13. Document 4 is not one of the disputed documents because it was released to Dr Chopra two days prior to the final hearing in this case.
14. Dr Chopra suggested this, together with other matters, gave rise to grounds for suspicion that there had been a breach or misconduct in the administration of the FOI Act, such that I should make a report to the principal officer of the Department under s 61 of the FOI Act. This is dealt with below.
15. On 4 October 2018 the Office of the Victorian Information Commissioner (OVIC) conducted a review of the Department's decision. In relation to the five documents now in dispute, OVIC determined:

... I am satisfied that it is unreasonable to release the personal affairs information of individuals who were peripheral to the matter involving the Applicant. Those individuals would be likely to object to release and I do not consider there to be a public interest in the release of this information.

1. Section 3 of the FOI Act states that its object is to extend as far as possible the right of the community to access to information in the possession of agencies. It does this by creating a general right of access to such documents, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business interests of persons in respect of whom information is collected and held by agencies.
2. Further, under s 3(2), the provisions of the FOI Act are to be interpreted so as to further the object set out in s 3(1), and any discretions under the FOI 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.
3. Under s 55, the Department has the onus of proving the exemptions claimed.

1. Mr Gaven Sturma is the Acting FOI Manager of the Department. He was the only witness called by the Department. Dr Chopra gave sworn evidence in support of his own case.
2. As noted, by the time this hearing commenced, in terms of the request for documents, all that needed to be dealt with was the question as to whether a single exemption applied, relating to a few words only in five administrative documents.
3. Yet the case ran for two days, finishing at 5:30 pm on the second day. This was largely because of the way Dr Chopra conducted the case - see below. However, Dr Chopra did file long and detailed submissions prior to the hearing, which he elaborated on in the hearing. Substantial components of his submissions were irrelevant, and related to his grievances with the Department more broadly, as well as matters ranging beyond that. Substantial other components related to the collateral issues Dr Chopra raised, such as his application under s 61 of the FOI Act - see below.
4. But his contentions also included legal submissions concerning the relevant issue, namely, the application of s 33. In my analysis in this decision, I have sought to identify the most salient components of those relevant submissions. Nevertheless, I have given consideration to all the submissions and evidence Dr Chopra provided relevant to s 33, as well as the Department's submissions and evidence.

Section 33 - documents affecting personal privacy

(1) 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).

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

information relating to the personal affairs of any person includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined;

1. There is no doubt that the first limb of s 33(1) is satisfied: the information withheld from documents 2, 3, 10, 11 and 12 is information relating to personal affairs. It comprises the name of a person in 14 instances, and in the remaining instance, it comprises a person's position description, which would identify that person. As noted, the persons involved were all lower level administrative staff.
2. The question here is whether the release of this information to Dr Chopra would be unreasonable. Applicable authorities[4] indicate the various considerations that are to be weighed up in determining this. In this regard, the main relevant considerations here are the extent to which there is a discernible benefit to Dr Chopra from the release of the information, the level of seniority of the persons whose personal information is sought, and the potential for harassment or vilification as a result of the release of the disputed material. Other relevant factors are how sensitive information is, the extent to which it is available to the public, and whether any public interest would be served by the release of the information.

Would there be any discernible benefit from the release of the information?

1. One factor which is properly considered is whether Dr Chopra would derive any discernible benefit from the release of the names and other identifying material in the five documents.[5]
2. The Department argued that there is no such benefit 'save possibly to contact, pursue or harass the persons involved as part of his crusade against the Department and its staff.'
3. In terms of the benefits Dr Chopra hopes to achieve from the release of the information, he said he sought documents which would shed light on the reasons why a limitation had been placed on his employment by the Department. He said he wants to clear his name.
4. It is clear release of the names in the five disputed documents would not advance that purpose. As stated, the documents concerned mundane administrative matters. Dr Chopra has them already. The only parts he does not have are small components comprising the names, and in one case, position description, of their authors or recipients. That information will be of no benefit to him in pursuing the question of employment limitation placed on him.
5. When these propositions were put to Dr Chopra during the hearing, his response was to the effect that it is of assistance to him to know who did what. Besides, he said, he does not have the onus of proof. The Department does. That is true. In relation to this particular sub-issue, however, that onus has been discharged. I find that there would be no discernible benefit to Dr Chopra from the release of the information sought.

1. In support of the applicability of s 33, the Department relied on the fact that the persons whose names or identifying information would be revealed, occupied relatively junior employee positions.[6]
2. Dr Chopra argued that this did not tend to make disclosure of this information unreasonable under s 33.
3. He referred to the following statement by Justice Eames in the University of Melbourne v Robinson[7]:

The reference to the "personal affairs of any person" suggest to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or other public activity with which the person occupies his or her time.

I note, however, that decision was concerned with the distinction between individuals and corporations in this context, and that the above passage was not directly addressing the issue which had arisen for consideration in that case. Nevertheless, the point made by Dr Chopra is a valid one.

1. He also referred to the following statement of Deputy President Lambrick in AOZ v JLV:[8]

Whilst the Department redacted the names and telephone numbers of staff below VPS-6 level, it is not appropriate for the Tribunal to simply determine, without any analysis, that the mention of any/all names below VPS-6 level... engage the exemption.

1. Dr Chopra also submitted the Tribunal should follow the Guidelines issued by the Commonwealth Information Commissioner which state, at 6.153:

Where public servants' personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties.

While noting these are Commonwealth Guidelines, not Victorian, again, in general terms, I would not take issue with that sentiment.

1. Dr Chopra quoted the decision of Deputy President Macnamara in Baird v VicRoads[9]:

... it is notorious that it is the most junior officers in an agency who are given the task of doing counter duty and answering telephones. Whether or not these officers are given large administrative discretions in fact they can have a significant effect on the lives of ordinary citizens who may be vitally affected by the actions and policies of an agency in their ordinary lives or their occupations.

1. Dr Chopra said 'it's these underlings who have destroyed my life'. Looking at the five documents in dispute, however, that is clearly hyperbole. The documents are all of the most mundane administrative nature, as described above.
2. Although the FOI Act was amended after Baird, to introduce s 33(2A) and 33(9), following the 'Frankston Hospital Case',[10] the above observations in Baird are still relevant to the general application of s 33. I can accept that in many instances it would not be unreasonable for an applicant to be provided with documents including names and other identifying information concerning government officials.
3. But the level of seniority of named employees is a factor to be taken into account in considering whether release of personal information is reasonable or not. All other matters being equal (and bearing in mind that the starting point is a presumption in favour of disclosure) it will be more likely that it would be unreasonable to disclose personal information concerning more junior or subordinate employees, than higher level employees. In my view, this obviously follows from the fact that such employees have less authority. Their role often involves implementing decisions made by more senior officers, rather than making decisions themselves.
4. Accordingly, here, the fact that the persons named or identified occupy such administrative roles, although not determinative on its own, weighs in favour of disclosure of their names and identifying information being regarded as unreasonable.

1. Whether there is a possibility or likelihood that once personal information is obtained, it will be used to harass or vilify individuals, is a relevant factor in applying s 33.[11]
2. The Department's position is that Dr Chopra's behaviour is such as to indicate that this is a real possibility. It relies on evidence from three sources:

(2) the statements made by Justice Quigley about Dr Chopra's behaviour, in her decision on a reconstitution application brought by Dr Chopra in the matter of Chopra v Department of Education Training [2019] VCAT 174, and

(3) Dr Chopra's behaviour during the course of this hearing.

1. The effect of Mr Sturma's evidence was that he has found Dr Chopra to be the most difficult of the more than 2,000 applicants he has had to deal with in the five years he has served as an FOI officer. He said Dr Chopra had caused him undue stress and anxiety, which had flowed over into his personal life. He said he felt it was unfair for him to be subject to the level of vitriol and aggression he had received from Dr Chopra. He said Dr Chopra had 'regularly' accused him of things which had nothing to do with FOI.
2. He also said he was aware that others in the Department had expressed concern about the release of their personal information to Dr Chopra, and that they feel distressed by Dr Chopra's behaviour towards them.
3. It emerged from exchanges while Mr Sturma was giving evidence, that he had given evidence to the Tribunal and been cross-examined by Dr Chopra in the case the subject of the decision on the reconstitution application dealt with by Justice Quigley referred to below, and he had found it a very unpleasant experience.
4. I note that pressed for particulars of things Dr Chopra had said or done to him, or other staff members, Mr Sturma was to some degree non-specific in his responses. He did not point to any particular statements made in writing by Dr Chopra, or produce any notes made of things Dr Chopra had said orally. Dr Chopra put to him that there had only been two telephone conversations between them, and Mr Sturma did not contradict that.
5. Mr Sturma did, however, say one of those phone calls had been 65 minutes long, together with Ms Feeney, formerly the Department's FOI Manager. He said he had been accused of corruption, of 'working on behalf of his paymaster', and working for 'ulterior motives'. He said Dr Chopra had accused him of only having caucasian friends and displaying cultural insensitivity.
6. Despite the lack of specificity in some of Mr Sturma's evidence, I am quite satisfied that Dr Chopra is regarded by Departmental staff as being an extremely difficult person to deal with. It is apparent from Mr Sturma's evidence that his name invokes a sense of dread amongst Department staff. I accept his evidence that staff are anxious not to become a 'target' of Dr Chopra.
7. In the decision on the reconstitution application in a different FOI proceeding referred to above, Justice Quigley said in relation to Dr Chopra:
   1. Overall, my observations are that throughout the almost 1 hour and 56 minutes of the hearing conducted by the presiding member on 26 November 2018, which led to the reconstitution application, the Applicant displayed unacceptable behaviour towards the Tribunal. He constantly raised his voice, sometimes to a yelling pitch, talked over the presiding member, refused to accept rulings and directions made by the Tribunal and consistently sought to revisit rulings and directions several times after the presiding member had made clear that a ruling or direction had been made and asked the Applicant to move on.
   2. At one point during the proceeding, the presiding member stood the matter down because the Applicant's behaviour had become aggressive. The audiotape and transcripts make clear that the Applicant was yelling, gesticulating and pointing despite being asked not to do so on a number of occasions by the Tribunal.
   3. In my view, the behaviour of the Applicant was harassing and intimidating ... In my view, the Applicant's behaviour was anarchical and fell well below the standard which I expect to be conducted by any person, self-represented or otherwise, in the Tribunal.
8. That description of Dr Chopra's behaviour could be applied equally to the hearing before me. Once again, his behaviour was anarchical. And it fell well below the standard which would be expected from any person, self-represented or otherwise, in the Tribunal. Dr Chopra did at one point apologise for raising his voice, but then his offensive behaviour resumed again.
9. Dr Chopra sought to assure the Tribunal that he would not go back and harass or vilify staff, if their names were released to him. However, it is hard to accept such an assurance, in the light of all the evidence, and given that it was made in amongst vitriolic submissions that agency officers acted unethically and engaged in blatant lying.
10. In my view, the evidence clearly points to the possibility that Dr Chopra could use the information sought to harass or vilify the employees involved. The correspondence, the evidence given by Mr Sturma, the submissions and evidence from Dr Chopra, and his conduct during the hearing, all included frequent disparaging comments and allegations of impropriety, unethical conduct and 'blatant lying'. These do have a certain sinister edge to them. His behaviour is certainly capable of causing stress, anxiety and fear in employees.[12]

1. The respondent's submissions referred to the fact that s 33(2A) was inserted into s 33 by 1999 amendments made in response to the 'Frankston Hospital Case'. In that case, the Tribunal determined that a hospital roster showing the names of nursing staff on duty on a particular night did not contain personal information of those nurses. So the Tribunal determined the rosters should be released to the requestor, Mr Coulston. He was a convicted triple murderer, who said he wanted the rosters to assist him in finding witnesses who could provide him with alibi evidence to enable him to have his convictions set aside.
2. Section 33(2A) now requires that agencies and the Tribunal, when deciding whether disclosure of the document would involve unreasonable disclosure of personal affairs information, consider whether it would, or would be reasonably likely to, endanger the life or physical safety of any person. At the same time, s 33(9) was also inserted, making it clear that personal affairs information includes any information which identifies any person or discloses their address or location.
3. The respondent's submissions referred to this legislative change. The suggestion is that as a result, the Tribunal should take an approach which is more protective of employees of agencies, especially, in this case, junior employees. There has also been discussion in the community recently about the extent to which, in this day and age, given the capacity of social media and of the power of data analysis tools available, a more protective approach should be taken.
4. In my view, these are matters that could properly be taken into account if the evidence shows a significant potential for adverse effect on employees. But that is not saying anything more than that the Tribunal must weigh up the particular circumstances of each case, in evaluating reasonableness under s 33 (1).
5. In terms of the literal words of s 33(2A) itself, I can deal with that briefly. Dr Chopra submitted in effect that he is not a violent man. He contrasted his behaviour with that of people of convict stock who become involved in 'bar fights' and 'king hits'.
6. Confining my consideration at this point to the question as to whether the evidence shows that disclosure would, or would be reasonably likely to, endanger the life or actual physical safety of any of the persons named or identified, or of anybody else, I think the answer is no. I do not think this is a case in which those words of s 33(2A) apply in a literal sense.

1. The most relevant considerations all point towards it being unreasonable to release the names and identifying material the subject of this application. Release of that material would be of no discernible benefit to Dr Chopra, the persons involved are all relatively junior, and most importantly, there is the potential for harassment or vilification of those persons. The material received by the Tribunal under s 53A reinforces this conclusion.
2. In terms of the other applicable considerations, the material is clearly sensitive in the sense described above, it is not available to the public, and no public interest would be served by the release of this information.
3. I find that disclosure of the names and position description would involve the unreasonable disclosure of information relating to personal affairs. That material is exempt under s 33.

1. Dr Chopra indicated at the outset of the hearing, that an outcome he sought from this proceeding was for the Tribunal to refer one or more of the officers involved in the processing of this FOI request to the principal officer of the Department for consideration of disciplinary action, under s 61 of the FOI Act.
2. This was on the basis that there is evidence that they had 'been guilty of a breach of duty or of misconduct in the administration of this Act'.
3. Section 61 states:
   1. Disciplinary action

(1) Where the Tribunal, at the completion of proceedings under this Act, is of opinion that there is evidence that a person, being an officer of an agency, has been guilty of a breach of duty or of misconduct in the administration of this Act and that the evidence is, in all the circumstances, of sufficient force to justify it in doing so, the Tribunal shall bring the evidence to the notice of -

(a) if the person is the principal officer of a department or prescribed authority - the responsible Minister of that department or prescribed authority; or

(aa) if a person is the principal officer of a council - to the council;

(b) if the person is an officer of an agency but not the principal officer of that agency - the principal officer of that agency.

(2) In the circumstances set out in subsection (1), the Tribunal must also bring the evidence to the notice of the Information Commissioner.

1. Both parties referred to the following extract from Nekvapil**'s** Administrative Law loose leaf service:

In Birnbauer v Department of Industry, Technology & Resources (Nos 1, 2 and 3) (1986) 1 VAR 279 the Department argued that if evidence was given during an application for review under s 50(2) of the FOI Act then the AAT could consider disciplinary action under s 61 based on that evidence but the AAT lacked jurisdiction to receive any evidence not strictly relevant to the s 50 application. The AAT rejected this argument and in doing so made the following observations (at 284-285):

This section seems to us to indicate to the Tribunal that the legislative will is that the Tribunal be alert to matters related to the "administration of this Act" insofar as such matters come to its notice in the course of proceedings before it.

It appears to us to be an unduly narrow interpretation of that duty if an unusual circumstance arises in running, as it did in this case when additional material which ought to have previously been disclosed was discovered, for us to be forbidden to receive explanatory or surrounding evidence related to the event or surrounding events and concerning "the administration of this Act".

Care requires to be taken in the exercise of the discretion we find we have, to receive such material under this provision. We should only pursue such matter within reasonable limits. We are conscious that this section should not be allowed to become a vehicle for frivolous applications and we do not think a wide ranging inquiry is contemplated by the legislature.

The phrase "there is evidence" suggests evidence reasonably brought to the notice of the Tribunal.

The section does not refer merely to evidence led in the course of an application under s 50. However, we incline to the view that we would be more reluctant to receive additional or supplementary evidence if our interest was not excited by evidence coming before us within such an application.

Further the phrase "in the administration of this Act" is a broad one suggesting we ought to be concerned with the general surrounds of the application rather than [restricting] us to matters solely concerned with the question whether or not the alleged ... documents are exempt.

Section 61 also speaks of evidence that is "in all the circumstances, of sufficient force to justify" the Tribunal in bringing the evidence to the notice of the superior authority. This is also indicative of a legislative intent that we not unduly restrict ourselves to material presented purely in respect of the s 50 application but accept related evidence concerning the "administration of this Act".

"In all the circumstances" is a broad phrase suggesting to us that we may receive related material.

[I]t would be unjust and unlikely to be the Parliament's intention that if we did, in running, receive evidence which suggested the disciplinary action of a report that rebutting evidence of officers at risk not be received even if it were beyond the s 50 application.

Once this discretion to receive rebutting material is accepted the narrow requirement that only s 50 material is receivable is breached.

In Roberts v Southern Rural Water (unreported, VCAT, Preuss SM, 20 April 2000) the VCAT observed that it was "obvious from the tenor of s 61 and the place it finds itself in the Act" that the Tribunal will draw to the attention of the appropriate person "only those matters which have emerged in the substantive hearing of the application for review". The VCAT also observed that it could not have been Parliament's intention for the Tribunal to consider matters that were peripheral to the administration of the Act and not directly related to the issues for determination in the proceeding, and that s 61 does not impose an obligation on the Tribunal to conduct a "board of inquiry" into the agency's freedom of information activities.

1. Section 61 is not a commonly invoked provision. I indicated to Dr Chopra that I would be concerned if it was the main focus of an applicant in conducting an FOI review at the Tribunal.
2. Nevertheless, as noted, Dr Chopra raised his concern that what appeared to be by far the most contentious document was released two days before the hearing.
3. While his concerns about the Department's conduct are numerous, and go much further than matters relating to the handling of this FOI application, I was prepared to allow evidence to be given about the circumstances in which Document 4 came to be released. I did this in order to be in a position to consider Dr Chopra's submission that s 61 has application. And also, to give the Department's Acting FOI Manager, Mr Sturma, in particular, the opportunity to respond to allegations made against him.
4. In brief, Mr Sturma's evidence in relation to the release of Document 4 was to the effect that when he received Dr Chopra's Contentions in this case on 9 September 2019, he became aware for the first time that Dr Chopra was saying he had been given Document 4 by the Department back in 2014. He indicated he had received it in its entirety from an in-house lawyer, Ms Sophie Ismail, in August 2014, but could not locate it as at the time of writing his Contentions on 5 September 2019 (at paragraphs [22] - [24] of those Contentions). At paragraph [150], Dr Chopra said:

In any event, all of this brouhaha can be drawn to a close quite quickly. The Department has already provided me with Document #4 in 2014. It just needs to do that again. This 'version' of it. This will save the Tribunal's time and resources and my time and resources.

1. So, Mr Sturma said, the Department initiated further searches. It spent 3 - 4 days on those searches, he said. Ultimately, as I understand his evidence, it did find an email to Dr Chopra from an in-house lawyer, Ms Ismail, which included a version of Document 4. But it did not include the attachments listed on the last page. Staff eventually found a person who had received a copy of the email from Ms Ismail to Dr Chopra which did have the attachments.
2. Mr Sturma referred this to the Department's legal section. Ultimately, it was determined that the differences between Document 4 and the version now discovered as having been given to Dr Chopra in 2014 were sufficiently minor, such that it was not worth 'having the fight' with Dr Chopra to retain Document 4. So Document 4 was released to him (being the version of the letter of 19 August 2014 which is on Dr Chopra's Personnel File at the College). But (in contrast to the version given to Dr Chopra in 2014) Document 4 does not have the attachments referred to on the final page.
3. Mr Sturma expressed some exasperation that Dr Chopra had not told the Department's FOI unit for one and a half years after making the request in April 2018, that he had in fact received a copy of a similar document to Document 4 back in 2014.
4. Dr Chopra has said he too had been unable to find the document which he had received 2014 (at paragraphs [20]-[24] of his Contentions). But by the time of the hearing, he had found it. He produced it to the Tribunal and the Department's representatives for the first time, by displaying it on a projector screen in the hearing room.
5. No actual copy of this document was produced to the Tribunal and the Department until a week and a half after the hearing (pursuant to an order made at the conclusion of the hearing). The version which was ultimately produced by Dr Chopra contained the attachments to the letter to Dr Hollander. These were a copy of Dr Chopra's leave record for 2014, copies of medical certificates, his Duty Statement as a teacher and copies of emails referred to in the letter to Dr Hollander.
6. Having heard the evidence of Mr Sturma and Dr Chopra concerning the steps taken in the processing of this FOI request, I am left well short of being satisfied there is evidence suggesting Mr Sturma has breached his duty, or might have engaged in misconduct, in relation to his handling of this request.
7. Even less so am I satisfied there is the basis on which I could form that view about anybody else in the Department.
8. Nor is there any basis on which I can conclude that the copy of the document which was in fact released to Dr Chopra two days prior to the hearing, purporting to be Document 4, is not in fact Document 4, as I understand Dr Chopra to allege. That is, I have no basis for concluding that the attachments included in the version sent to Dr Chopra in 2014 do in fact form part of Document 4 on Dr Chopra's Personnel File at the College. Mr Sturma said that as an FOI officer, it is necessary for him to accept what he is told by the school as to what is on a particular file which the College holds.
9. I am conscious that in considering these matters, I am straying towards, or into, the topic of sufficiency of the Department's search. That is of course what I found in the Preliminary Decision was something the Tribunal does not have power to investigate.
10. In any event, in accordance with the decisions in Birnbauer and Roberts referred to above, I take the view that s 61 does not enable the Tribunal to conduct a broad enquiry in relation to concerns an applicant might have about adequacy of search. I accept that if during the course of conducting the hearing on the question of whether the claimed exemptions apply to the disputed documents, information comes to light which forms a proper basis for concern that there may have been a breach of duty or misconduct, then I have power to receive further evidence on that.
11. I note for example, that in Birnbauer, somewhat embarrassingly for the respondent, additional documents covered by the FOI request were still coming to light during the course of the hearing.[13] But, for the reasons stated, that is not the case here.
12. In this case, the suspicions Dr Chopra holds, and the evidence given about the processing of the request, and the process by which Document 4 was released, do not form any such proper basis for invoking s 61.

1. A related issue is Dr Chopra's desire for witness summonses to be issued by the Tribunal, so it could receive evidence about matters he wished to have put before the Tribunal. In particular, in his Contentions, Dr Chopra indicated he wish to have Ms Ismail summonsed to give evidence.
2. One reason he gave was to have her give evidence about the provision to him by Ms Ismail of a version of Document 4 in August 2014. This has been dealt with above. The fact that Ms Ismail sent a document similar to Document 4 to Dr Chopra in August 2014 is not relevant to the question I have to consider in this case, namely whether documents 2, 3, 10, 11 and 12 are exempt under s 33.
3. Additionally, Dr Chopra indicated that he wants to ask Ms Ismail questions about what documents were and were not on his Personal File at the College. Again, this relates to the question of the adequacy of the search done by the Department for documents on this particular file, the subject of this proceeding. Once again, for the reasons stated in the Preliminary Decision of 28 June 2019, that is not something the Tribunal has power to do.

1. At paragraph [27] of his Contentions, Dr Chopra stated:

The fact that my personal File containing thousands of pages, to be processed in a single request was written by Stephanie Windram. Hence, she must also be called as a witness.

1. For the same reasons, that evidence is not relevant to the issues falling to be dealt with in this case. Hence no summons could properly be issued to a witness for that purpose.

[1] In a preliminary ruling in this case, I said I had been told Dr Chopra had lodged 17 FOI requests. I record that Dr Chopra objected to this statement, in effect, on the basis that it gave an inflated impression of the number of FOI requests he had lodged, because, he said, a number of these had to be resubmitted because of issues which have arisen during processing. He said that in substance, he only made three or four FOI applications.

[2] These statements are largely derived from the decision in Chopra v Department of Education and Training [2019] VSC 488, per Richards J, at [2].

[3] Chopra v Department of Education and Training [2019] VCAT 986.

[4] For example, Re Page and Metropolitan Transit Authority [1998] 2 VAR 243; and Victoria Police v Marke [2008] VSCA 218.

[5] PJE v Department of Education Training [2016] VCAT 751.

[6] Country Fire Authority v McGregor [2017] VCAT 582; Country Fire Authority v Hicks [2017] VCAT 1880; Proctor v Mornington Peninsula Shire [2018] VCAT 638.

[7] [1993] VicRp 67; [1993] 2 VR 177 at 187.

[8] [2019] VCAT 31 at [178].

[9] [2000] VCAT 207 at [31].

[10] Coulston v Mornington Peninsula District Hospital, unreported, VCAT, 23 November 1998, per Senior Member Megay.

[11] Prichard v Victoria Police [2008] VCAT 913; Mcnamara v Department of Human Services ]2010] VCAT 1237.

[12] I note that a decision on another FOI application by Dr Chopra (relating to legal expenses) was handed down a few days before this decision: Chopra v Department of Education and Training [2019] VCAT 1860. However, although it traverses some of the same ground as this decision (in relation to s 33) these reasons were prepared without reference to that decision.

[13] Further, this was not the first time the respondent had failed to disclose all applicable documents (see page 292). In any event, the outcome in Birnbauer was that no referral was made under s 61.