Victorian Civil and Administrative Tribunal|2023-02-06

For the reasons I have given I am satisfied that the requirements under section 25A of the FOI Act have been satisfied. The decision under review, made by Victoria Police on 19 April 2022, is therefore affirmed.
I make clear that in making my decision I have not had regard to the matters in section 25A(3) and (4).
I am mindful that Mr Draper raised specific concerns in the case about a police officer (someone who was not involved in the VCAT proceeding) who, he alleged, improperly accessed information about him on the LEAP database. I have noted that the section 25A(6) notice provided information to Mr Draper about how he was able to make a complaint about that if he wished to.

[1] Italics added. The significance of that statement is discussed below.

[4] Mr Draper cited McIntosh v Victoria Police [2009] VCAT 1868 for the proposition that the FOI Act should interpreted consistently with the Charter of Human Rights and Responsibilities Act 2008: at [5].

[5] Victoria, Parliamentary Debates, Legislative Assembly, 7 May 1993 at page 1738.

[6] Paragraph numbers omitted. The emphasis appears in the original.

[7] The figure in the May 2022 witness statement (WS) was 8.

[8] The WS included this footnote: '263 x 25 minutes = 6,575 minutes; divided by 60 minutes

[9] Information for 2021-22 (to 31 December) given orally at the hearing.

[10] WS: Since 1 July 2021, there have been 3,501 FOI requests made to Victoria Police as at

20/05/2022, projections indicate we will exceed 4,000 requests for 2021-22.

[11] Inspector Matters gave oral evidence that more recently a substantial number of police were required to respond to the recent Victorian floods.

[15] Inspector matters said that the S/Sgt was leaving the position at the end of the week of the hearing.

[16] The figure in WS (2.5) was corrected to 2.1 and said to be current.

[17] WS: 2.5 (being 1 x VPS3 and 1.5 x VPS2s).

[18] WS: In April 2022, 41% of requests finalised, were on time.

[19] WS: As at 20 May 2022, Victoria Police FOI has 3,120 Active Requests, of these

2,413 are Overdue Request[s]. In April 2022 on average requests were finalised 25 weeks after the

[21] WS: 59. The current number, 72, is out of 3,986 requests.

[23] In Davis v Department of Health [2022] VCAT 718 at [82] VCAT noted that the FOI Act does not require an agency to undertake sampling for the purpose of section 25A. VCAT observed that 'in some cases even sampling or an attempt to obtain a general overview of the scope of the FOI request may be unreasonable. Sampling may present difficulties, such as whether in a particular case it provides a useful guide to making an estimate'. (Footnote omitted).

[25] In this context Mr Draper referred to section 26 of the FOI Act.

[26] Section 6(2) of the Privacy and Data Protection Act 2014 relevantly provides that 'nothing in this

Act affects the operation of the Freedom of Information Act 1982 or any right, privilege, obligation

or liability conferred or imposed under that Act or any exemption arising under that Act.'

[28] See also section 51A of the VCAT Act.

[31] McIntosh v Victoria Police [2008] VCAT 916 at [7].

[32] McIntosh v Victoria Police [2010] VCAT 1790 at [47].

[34] Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 at [6].

[35] Mr Batskos cited Chief Commissioner of Police v McIntosh [2010] VSC 439 at [23]- [24].

[36] Mr Batskos cited Davis v Suburban Rail Loop Authority [2021] VCAT 627 [173]-[184] where VCAT expressed similar views about an agency's evidence another case under section 25A.

[37] McIntosh v Victoria Police [2008] VCAT 916 at [21].

[39] See, for instance, See, for instance, Cainfrano v Director General, Premier's Department [2006]

[42] Mr Draper referred among other things to the September 2021 OVIC report Impediments to Timely FOI and Information Release

[43] I have noted that the section 25A(6) notice included advice for Mr Draper about a possible

complaint to Professional Standards Command if he was concerned about relevant conduct on the

part of a Victoria police employee. Mr Draper referred in his submissions to an OVIC decision in which the Commissioner was said to have expressed the view that there is a public interest in ensuring that agency officers access information held on the LEAP database lawfully. The comments were made in the context of section 33 of the FOI Act. Whatever more may be said about that, I do not consider that the OVIC decision assists me in considering the questions that arise under section 25A.

Information Act 1982

Civil and Administrative Tribunal Act 1998

Data Protection Act 2014

Human Rights and Responsibilities Act 2008

Draper v Victoria Police (Review and Regulation) [2023] VCAT 114 (6 February 2023)

In McIntosh v Victoria Police [2008] VCAT 916 (McIntosh 2008) Judge Harbison VP noted that the word 'substantially' (and the word 'unreasonably') have not been precisely defined in section 25A. Her Honour said that she took these words 'not to require overwhelming proof of difficulty, and to allow some latitude to the [agency], given that the difficulty of the process can only be estimated, not proven'.[30]
I have regard to the steps and decisions involved in processing a request that are referred to in section 25A(2), noting that the list is not exhaustive.[31] I accept the submission by Mr Batskos to the effect that section 25A would be properly relied on if a decision could not be made and given to Mr Draper within 30 days (the timeframe in the FOI Act, subject to the suspension of time during any consultation with him) without substantially and unreasonably diverting the agency's resources. The relevant resources are the resources that Victoria Police had at the time the request was lodged or had at the time of the hearing as opposed, for instance, to the resources that the agency might be able to obtain or even the resources there would be when vacant established positions were filled. The relevant resources are the resources reasonably required to deal with an FOI application consistent with attending to the agency's other priorities.[32]
Judge Harbison further observed in McIntosh 2008 that section 25A was introduced to strike a balance between the object of the FOI Act and the need to ensure that the requests under the Act do not cause substantial and unreasonable disruption to the day-to-day workings of the government through its agencies. Her Honour said, therefore, that 'in asserting section 25A, an agency cannot be obliged to specify exactly how much time and energy would be spent by the agency in processing the request. Estimates only are acceptable, as to ensure precision would mean the agency would have to do the very work that section 25A is designed to prevent.[33] That said, section 25A is to be applied only to a clear case of substantial and unreasonable diversion from the agency's other operations.[34]
These 'other operations' include all the other things that Victoria Police does. They include dealing with and processing other FOI requests.[35]
I consider that Inspector Matters was properly qualified to give evidence, given his personal experience and his knowledge of the corporate experience of the FOI Division. I consider further that he carefully and thoroughly considered the issues and the requirements of the FOI Act.[36] Mr Draper challenged Inspector Matters' evidence on a number of bases, but the challenges were not sustainable, in my view.
On the basis of Inspector Matters' evidence, I am satisfied that the work involved in processing Mr Draper's request at this time (recalling what the evidence indicates the processing would involve) would substantially divert the resources of Victoria Police from its other operations, including dealing with and processing other FOI requests.

I referred above to Judge Harbison's comments on the meaning of 'unreasonably'.[37] I note now that in Srb and Src and Department of Health, Housing, Local Government and Community Services [1994] AATA 79, the Commonwealth Administrative Appeals Tribunal made the observation that a tribunal's task is to weigh up the considerations for and against the situation and to form a balanced judgment of reasonableness, based on objective evidence.[38]
Mr Batskos put forward a number of considerations relevant to the question of reasonableness. One of the most important in this case is whether (and to what extent) processing Mr Draper's request would divert Victoria Police staff from existing tasks and cause other work to fall behind.
Mr Batskos submitted that it would also be relevant to take into account whether Mr Draper constructively participated in the consultation process when he was given the opportunity.[39] He submitted that Mr Draper did not do that. In A v Department of Human Services (1988) 13 VAR 235, Senior Member Megay made these observations about the conduct of the applicant in that case:

Draper v Victoria Police

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Judgment (37 paragraphs)

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Draper v Victoria Police (Review and Regulation) [2023] VCAT 114 (6 February 2023)