I agree with the Respondent that item 4 is broader than items 2 and 3, and yet it will find much fewer documents. Had it done the searches and applied common logic or common sense, with respect, it would have found the answer. But then it would not have been able to protest. Further, it states that its comments in paragraph 34.2 apply here; likewise, my comments in response to paragraph 34.2 with respect to Bahonko also apply here. It is correct that all documents captured in 2 and 3 should be captured here as well, but that is if the search is done properly. Also, a reasonably skilled searcher could eliminate the overlap between this item and items 2 and 3, and so indicate to me. In other words, the duplicates can easily be eliminated in the electronic search. Of course, the hard copy duplicates can be even more easily eliminated. So, what is the issue? It is true that all staff and student electronic accounts need to be searched, but this would be easy because it just requires one check mark! As for hard copy documents, whatever is in the possession of Grovedale should be reasonably searched as it would for any other hard copy search under the FOI Act. All it is looking for is my name and its variants mentioned in these documents.

Once again, the Respondent disingenuously queries for item 4: "where does the respondent start? The respondent would be required to look in every record the school holds". Well, it could. But that would be stupid. With respect, of course. Surely, the Respondent should use its common sense. For starters, the time period is 1 November 2015 and after. Grovedale College was established several decades prior. Second, electronic records are easy as discussed above. Third, for hard copy, it should look only where my name might reasonably have been mentioned in the context of my daughter or my request to hire facilities or whatever other context Grovedale College is aware of. But wait: we are now talking about how to do the search, not how to identify the document. And this is outside the purview of s.17(2).

As the several decisions and binding precedents discussed above, "mere breadth is not a fatal objection to a request" (Penhalluriack) and "it is s.25A of the Act that provides relief for an agency where a request is so broad as to require an unreasonable diversion of resources" (Luck v Victoria Police FOI Division [2012] VCAT 1617). Even Pizer's states it more directly: "It is submitted that this section [s.17(2)] should be invoked only when the request is so ambiguous or uncertain that the agency does not know what documents are sought, and s.25A(1) should be relied upon when the request is so broadly expressed as to be voluminous. It must be remembered that applicants often do not know precisely what documents are in the agency's possession. It would not facilitate the right of access provided by the Act if requests were treated as not complying with s.17(2) simply because they were broadly expressed." See Pizer's Annotated VCAT Act, [at FOI.17.80]. How in the world did the Respondent miss reading this? The only answer is that it was being wilfully blind. In this matter, Judge Lazarus would have stated as he did in Penhalluriack, "[I]f the department knows very well what is being sought, and if it can find that material, or the better part of it, then it seems to accord with sense and the court should say that ... criticism of the request [is] no excuse for non-compliance". This non-compliance by the Respondent may be treated as "a decision refusing to grant access". It goes without saying that Penhalluriack is a County Court decision and is a precedent binding on the VCAT, and therefore on the Respondent. It did not follow it.

Once again, I challenge its submission that item 4 could even remotely be construed as a 'broad, fishing and perhaps perverse' request. It is merely a request for all documents in the possession of the Respondent where my name is mentioned, just like it was ordered in Bahonko.

1. In his 30 April 2018 submission, Dr Chopra submits:

This was "All documents to and from Grovedale College mentioning me or concerning me since November 2015". This would be identical to Item 2 above, except "all users" would be selected instead of [principal] in the 'accounts' and/or using the 'search method' button depending on how the administrator had set up Google Vault. To avoid duplication with Item 2 and Item 3, in the search terms, after all document(s) have been found, a sub-search could be done with the Boolean Operator "NOT" to eliminate the document(s) already found for the principal and vice principal. It is this simple. Again, like items 1-3 above, the Respondent is stating something which is misleading and/or false and violates section 78 of the VCAT Act.

1. I agree with the Department's submission that Item 4 does not provide such information concerning the document as is reasonably necessary to enable a responsible for officer to identify the document.
2. The concept of emails to and from "Grovedale College" is so uncertain as to not comply with s 17(2). As the Department submits, how is one to know what Dr Chopra means by the concept of Grovedale College? For example, on reading Item 4, I certainly did not understand Dr Chopra's position, as evident from his above submission, that all staff and student electronic accounts need to be searched.

"All documents between [the Principal of Grovedale] and the Department of Education and Training concerning my request to hire facilities at Grovedale College's since November 2015."

Item 5 requests all documents between a named individual and the Respondent 'concerning' the Applicant's request to hire facilities at Grovedale College over a 2 year period. It is unclear what documents the Respondent would need to search for here.

The hiring of facilities at a School is the responsibility of the School Council (see s 2.3.11 of the Education and Training Reform Act 2006 (ETRA)), with the principal being the executive officer of the School Council (sees 2.3.7(2) of the ETRA). So, it is likely that most, if not all, of the documentation concerning hiring of facilities would be School Council documents. However, School Councils are not subject to the FOI Act (see definition of 'prescribed authority' in s 5(1) of the FOI Act). That is, there is no right of access to School Council documents under the FOI Act.

It is possible that the Department (as opposed to the School Council) could hold some documents in relation to the hire of facilities (e.g. a media enquiry about a hiring) but it is unlikely to hold documents that contain a request to hire or approval of such a request. As this item does not specify what particular documents are being sought here, it does not contain information concerning the documents as is reasonably necessary to enable the Respondent to identify the documents.

1. I reject the Department submission. The terms of the search request seem clear. Whether or not documents are in the possession of the Department is another matter. If they are not in the possession of the Department, then the documents will not be within the scope of the FOI request.

"All documents to and from [the Assistant Principal] concerning my request to hire facilities at Grovedale College since November 2015."

Item 6 requests all documents 'to and from' a named individual (the Assistant Principal) 'concerning' the Applicant's request to hire facilities at Grovedale College over a 2 year period. As stated in para 34.3 above, it is unclear what is being sought here, given that the hiring of facilities at a School is the responsibility of the School Council, not the Respondent, with the Assistant Principal having no involvement.

This item does not specify what particular documents are being sought, and so does not contain information concerning the documents as is reasonably necessary to enable the Respondent to identify the documents.

1. I reject the Department's submission. The terms of the search request seem clear. Whether or not documents are in the possession of the Department is another matter. If they are not in the possession of the Department, then the documents will not be within the scope of the FOI request.

"All documents to and from [the Principal] and [Assistant Principal] concerning the hiring of facilities at of Grovedale College since November 2015."

Item 7 requests all documents 'to and from' two named individuals 'concerning the hiring of facilities at Grovedale College' over a 2 year period. This is broader than Items 5 and 6 in that it is not limited to the Applicant's request to hire facilities.

It is also unclear what is meant by documents 'to and from' these individuals; for example, does this mean only documents between these individuals? And, as stated in paras 34.4 and 34.5, documents concerning the hiring of facilities at a school are documents of the School Council, not the Respondent.

It is submitted that this is a 'broad, fishing and perhaps perverse' request that ought not to be supported by the Tribunal. This is not a request expressed in 'better than broad terms' or one that contains 'reasonably specific particulars' enabling identification of specific documents.

1. I reject the Department's submission. The terms of the search request seem clear. I have little doubt that Dr Chopra refers to, as I said concerning Items 2 and 3, correspondence to and from the principal (corresponding with anyone) and the assistant principal (corresponding with anyone). Whether or not documents are in the possession of the Department is another matter. If they are not in the possession of the Department, then the documents will not be within the scope of the FOI request.

"All documents regarding the School Council meetings of Grovedale College held since November 2015, including Minutes of all School Council Meetings held since November 2015."

Item 8 requests all documents 'regarding' the School Council meetings of Grovedale College' over a 2 year period. While Meeting Minutes are specifically mentioned, the Request is broader than this as it requests 'all documents'. To the extent that the documents are documents of the School Council, they are not subject to the FOI Act (see para 34.4 above). This then leaves the question: what other kinds of documents are being sought here? It is submitted that this item does not contain information concerning the documents as is reasonably necessary to enable the Respondent to identify the documents.

1. I reject the Department's submission. The terms of the search request seem clear. Whether or not documents are in the possession of the Department is another matter. If they are not in the possession of the Department, then the documents will not be within the scope of the FOI request.

9 - All documents pertaining to the hiring of facilities at Grovedale College since January 2014, and documents that show the names of organisations which have hired these facilities including tutoring and coaching colleges and language schools.

10 - All documents pertaining to the hiring of facilities at Belmont High School since January 2014, and documents that show the names of organisations which have hired these facilities including tutoring and coaching colleges and language schools.

11 - All documents pertaining to the hiring of facilities at McKinnon Secondary College since January 2014, and documents that show the names of organisations which have hired these facilities including tutoring and coaching colleges and language schools.

12 - All documents pertaining to the hiring of facilities at Mount Waverley Secondary College since January 2014, and documents that show the names of organisations which have hired these facilities including tutoring and coaching colleges and language schools.

13 - All documents pertaining to the hiring of facilities at Westhall College since January 2014, and documents that show the names of organisations which have hired these facilities including tutoring and coaching colleges and language schools.

14 - All documents pertaining to the hiring of facilities at Noble Park Secondary College since January 2014, and documents that show the names of organisations which have hired these facilities including tutoring and coaching colleges and language schools.

Items 9 to 14 inclusive request all documents pertaining to the hiring of facilities at 6 specified schools over a period of almost 4 years. These items are not limited to documents concerning the Applicant. As stated in paras 34.4-34.6 above, documents concerning the hiring of facilities at a school are documents of the School Council, not the Respondent. So, it is unclear what is actually being sought here. Again, this is not a request expressed in 'better than broad terms' or one that contains 'reasonably specific particulars' enabling identification of specific documents. Rather, it is submitted that this is a 'broad, fishing and perhaps perverse' request that ought not to be supported by the Tribunal.

1. I reject the Department's submission. The terms of the search request seem clear. If the schools did not have the documents, they would not be found.

1. Some readers of this decision may be surprised by the above decisions as to the 13 items being compliant with s 17(2), given their broad nature.
2. Fundamentally, as Dr Chopra submits, I agree with the observation in Victorian Administrative Law that s 17(2) should only be invoked where the request is so ambiguous or uncertain that the agency does not know what documents are sought and s 25A should be relied on when the request is so broadly expressed as to be voluminous.
3. In almost all cases, it will be possible to arrive at some type of reasonable interpretation of an FOI request.
4. However, here Dr Chopra's FOI request does not as a whole comply with s 17(2).
5. Dr Chopra submitted that the nature of his request compares favourably with the nature of the request by Victoria International Container Terminal Limited, which in International Container I found complied with s 17. I disagree. The request, which is set out in the International Container, was of a far more specified nature than Dr Chopra's request giving rise to this proceeding.
6. Consistent with my view of the law as set out above, with Item 4 not compliant with s 17(2), this proceeding is dismissed under s 75 of the VCAT Act.

1. In International Container I said, at [15] that VCAT had previously decided:
   • Review of a decision cannot proceed from a "null application" and that, where a request is later found to be deficient, it cannot be amended such as to cure the deficiency;
   • Where a request is defective on the grounds it does not adequately specify what is sought, the respondent agency has an "unanswerable defence" to the request once it becomes the subject of an application for review; and
   • Where a request is made up of a number of parts and it could be said that some of those parts comply with s 17(2) and some do not, the whole request necessarily fails because it fails to comply with s 17(2). Requests may not be split into parts for the purposes of the FOI Act.
2. As Dr Chopra said in his submissions, I did not cite the decisions I was referring to. Unfortunately I am now unable to locate the decisions from which I drew those terms.
3. In my view, the principles that a 'non-compliant request' cannot be made compliant and if one part fails to comply the whole request fails to comply are sound. This is consistent with my observation in International Container that one must judge where a request sits on the range. Its position result from the whole, not part of the request. VCAT has no power to amend the FOI request before it. It is also consistent with Ross J's approach in McIntosh (see above).
4. I now turn to Dr Chopra's various submissions that if I were to disagree with his submissions as to the law, the question of law should be referred to the Supreme Court of Victoria to be determined as a matter of law under s 96(2) of the VCAT Act. I decline to do so.
5. As Macnamara DP said in Urban Consolidation and Development Pty Ltd & Ors v Commissioner of State Revenue (Taxation) [2010] VCAT 2124 at [18], it is incumbent before exercising a power such as the one under s 96 for VCAT to consider all other options.
6. The more appropriate option, if Dr Chopra chooses to do so, is appeal to the Supreme Court of Victoria question of law under s 148 of the VCAT Act, on the basis of a decision on questions of law decided by this Tribunal in light of the material before the Tribunal.

[1] Dr Chopra made later applications to VCAT based on the same request to ensure sufficient time had in fact passed for it to be regarded as taken to be refused.

[2] At a 15 May 2018 directions hearing between the parties in two other proceedings under the FOI Act.

[3] Including a Grovedale College 'Application for Hire of Facilities in 2016'

[4] Under s 50 and s 53(1) of the FOI Act,

[5] See comment by Chernov JA at [29].

[6] See s 67 of the Administrative Appeals Tribunal Act 1984, which commenced operation in late 1984.