1. Ms Foster, the applicant in this matter is opposed to a needle syringe programme located at the Knox Community Health Service. She opposes it for a number of reasons but primarily because of its proximity to local schools.
2. In November 2011, Ms Foster created a web-based survey about the needle syringe programme to gather feedback from parents. In due course Ms Foster became concerned that some survey responses may have come from the staff at Knox Community Health Service (rather than parents), with the aim of creating a false impression about the level of community support for the needle syringe programme.
3. Accordingly on 19 February 2012 Ms Foster made a written complaint to the Department of Health (the Department). She requested an investigation be conducted into the Knox Community Health Service.
4. The next day, Ms Foster spoke on the telephone with Ms Cathy Keenan, who was the Manager of Mental Health Partnerships and Planning. Ms Keenan advised Ms Foster that the complaint would not be investigated by the Department and that it should be taken up with the Knox Community Health Service instead.
5. On 20 February 2012, Ms Foster wrote to the Department seeking written confirmation of the fact that her complaint would not be formally investigated
6. On 21 February 2012, Ms Foster again wrote to Ms Keenan requesting to know why her complaint was not being investigated.
7. Later on the same day Ms Foster made a written complaint about Ms Keenan's refusal to investigate her complaint.

1. Ms Foster made a request for information under the Freedom of Information Act 1982 (Vic) ("the FOI Act") dated 22 March 2012 which sought:

"documentation generated as a result of an investigation undertaken by the health department following my complaint submitted on 20-21 February 2012..."

1. On 21 May 2012 Ms Foster received correspondence informing her that the decision would be delayed. She made an application to this tribunal for review of that decision. Subsequently on 22 May 2013 Ms Foster was advised in writing by the Department that:

"...an investigation was not conducted. Therefore the department does not hold any documents which meet the criteria of your request".

1. Following an internal review where the decision was upheld, by letter dated 24 May 2012, Ms Foster made a further Freedom of Information request in the following terms:

"I would like a copy of all the documentation generated as a result of my complaint e-mails, dated as follows

I want to know what examination took place regarding my complaints and I want a copy of all information reviewed as specified in the e-mail from Dr Karleen Edwards dated March 8, 2012 (copy attached)".

1. The further FOI request forms the basis of the current application. [1]
2. On 3 July 2012 Ms Foster was advised that documents had been located in relation to the second request.
3. On 12 July 2012 Ms Foster was notified that the decision in respect of her request would be delayed.
4. On 30 July 2012, Ms Foster was granted partial access to documents with personal affairs information (which she does not challenge) withheld.
5. The documents consisted of a 16 page email trail. The email trail includes communications between Ms Beagley, Ms Keenan and Mark Stracey, Director Health and Aged Care, Eastern Metropolitan Region. There is discussion about the appropriate correspondence that should be sent to Ms Foster with respect to her complaints and there are references made to the Department's view that it did not have the authority to undertake investigations into the Knox Community Health Service.
6. Included in the documentation was one blank page (Att. 30).
7. On 6 August 2012, Ms Foster applied for an Internal Review of the decision primarily because she believed there were more documents in existence.
8. During the Internal Review process additional documents were in fact located which had not been released to Ms Foster previously. On 24 August 2012, 3 September 2012 and 6 September 2012 Ms Foster received additional emails, an internal memorandum and a page from a data base.
9. The Department accordingly notified Ms Foster of its decision with respect to the Internal Review which was to vary the original decision by providing the additional documents (with some unchallenged material removed).
10. By e-mail dated 24 August 2012 Ms Foster advised the Department that she was unsatisfied with the results of the Internal Review and that she believed there should be still more documents.
11. Further communication ensued between the parties.
12. In due course, a further search for documents revealed an additional 4 pages of documents. On 6 September 2012 an amended decision of Internal Review granted partial access to those documents.
13. There was also one blank page (attachment 45).
14. Unsurprisingly in the circumstances Ms Foster remained less than confident that she had been provided with all of the documents.
15. On 6 September 2012 Ms Foster lodged a complaint with the Ombudsman about the adequacy of the searches conducted by the Department
16. The Ombudsman responded on 17 October 2012. Essentially the Ombudsman was satisfied that thorough searches were undertaken for the documents. The Ombudsman was satisfied that no formal investigation was conducted in relation to Ms Foster's complaints, and that Ms Foster was seeking access to documents which do not exist.
17. Ms Foster advised the Ombudsman that she was not satisfied with the response. The Ombudsman made further enquiries. In an email dated 22 November 2012 the Acting Manager, Investigations for the Ombudsman wrote to Ms Foster essentially confirming the previous position. Following further discussions between Ms Foster and the Ombudsman, this position was again maintained by the Ombudsman in correspondence to Ms Foster dated 19 December 2012.
18. On 31 October 2012 Ms Foster sought a review before this tribunal of the amended Internal Review decision of the Department dated 6 September 2012.
19. At a directions hearing on 10 December 2012 this application was set down for hearing for the sole purpose of determining whether there are in fact any further documents held by the Department in relation to Ms Foster's freedom of information request. There was some uncertainty around whether the tribunal has the jurisdiction to entertain such an enquiry[2], nevertheless the Department did not seek to challenge the jurisdiction of the tribunal to do so and the matter proceeded before me on 21 February 2013.

1. Ms Foster made statements dated 19 December 2012 and gave evidence before me. She believes that there are more documents and that the Department has deliberately attempted to avoid her FOI request. She further believes that her complaints were investigated despite assertions to the contrary and that material exists on databases kept by the Department pertaining to those complaints.
2. The substance of Ms Foster's beliefs formed the subject matter of the discussion before me and will be addressed in due course.
3. Ms Foster also called as a witness Ms Jarna Cherry. Ms Cherry gave evidence about a separate complaint she had lodged with the Department. Her evidence did not assist with any of the issues that required determination in this case.
4. I received a witness statement dated 6 February 2013 from Leanne Beagley on behalf of the Department who is the Director, Operations, Mental Health, Drugs and Regions Division of the Department of Health. Ms Beagley also gave evidence before me.
5. Ms Beagley's role includes Executive oversight of the Needle and Syringe Program and the process for application and approval of individual sites seeking to introduce a Needle and Syringe Program service.
6. Ms Beagley gave background evidence as to how Needle Syringe Programs ("NSPs") are established and funded. Essentially she stated that they are established through Community Health Services. When a request is made to the Department for a NSP to be formally registered, the Department makes a recommendation to the Minister for Mental Health. Upon approval from the Minister, a recommendation is made through an Order in Council gazetting a health service as a NSP.
7. Ms Beagley emphasised that complaints about NSPs are not routinely investigated by the Department. Usually complaints would be made to the service provider itself. She stated in this context that the Department does not have any investigative function to investigate the primary complaint and that it was for this reason Ms Foster was referred back to the Knox Community Health Service. Ms Beagley gave evidence that there had not been an investigation by the Department into the complaints made by Ms Foster against the Knox Community Health Service.
8. Ms Beagley gave evidence that the FOI request was received on 4 June 2012 within the Corporate Integrity Information and Resolutions Unit which is the authorised unit for making decisions on behalf of the Department with respect to FOI requests. A decision was made that the complaint emails the subject of the request, relating as they did to the NSP, were likely to be located within the Operations Branch in the Mental Health Drugs and Regions Division or the Eastern Metropolitan region. Emails were accordingly sent to the relevant liaison officers and the initial documents were produced.
9. Ms Beagley gave evidence that when the matter proceeded to Internal Review, the Internal Review officer then considered that there may have been additional areas within the Department or Corporate Integrity Information and Resolutions Unit which might possess relevant documents. The databases which were ultimately examined and yielded further positive results were contained within the CIIRU - the Corporate Integrity Information and Management System; the Emin database kept by the Cabinet Parliament and Executive Services Unit and the Office of the Director, Health and Aged Care, Eastern Metropolitan Region.
10. Ms Beagley gave evidence that administrative oversight was the reason all of the documents were not produced at first instance, but there had now been an exhaustive search and that there are no more documents.

1. Ms Foster submits that her complaints were serious and that it defies belief that there was not an investigation into them. She submits there are a range of documents in existence which detail the follow-up in relation to her complaints.
2. The Department submits that Ms Foster's assertions that there are more documents are little more than speculation and that her (albeit genuinely held) belief that the Department "must have" investigated her complaints and thereby generated documents is an insufficient basis for me to conclude that further documents exist.

1. Section 27(1)(e) of the FOI Act provides among other things that where in relation to a request for access to a document of an agency a decision is made that no such document exists, the Minister must give the applicant a notice in writing of the decision and the notice shall:

"...where the decision...is to the effect that the document does not exists or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Ombudsman"

1. The parties agreed that the appropriate test for me to apply in determining whether further documents exist was whether the Department had conducted a thorough and diligent search. There is no magic to the expression. A thorough and diligent search involves the taking by an agency of all reasonable steps to identify all relevant documents in the possession of the agency.
2. Every case will turn on its own facts as to whether a Department has conducted a thorough and diligent or sufficient search. What is required is a search which is sensible and appropriate to the circumstances. It does not mean an extravagant or excessive search.
3. It was submitted by the Department that Ms Foster bears a practical onus of showing that there are reasonable grounds to believe that the requested documents exist and that it is only if this question is answered in the affirmative, that the tribunal should examine whether the agency has taken all reasonable steps to find those documents.
4. I was referred to various decisions of the Queensland Information Commissioner and the New South Wales Administrative Decisions Tribunal in support of this proposition.
5. The Department contended that the starting point was that I could simply presume in favour of the Department (and its officers) that it has satisfied its legislative obligations. This submission was based on the fact that there are potential offences under s. 61 of the Act if an officer is found guilty of a breach of duty or misconduct in the administration of the FOI Act and that public agencies in general are held to high standards and presumed to always deal according to principles of equity and good conscience with members of the public.
6. I was referred to the decision of Her Honour Justice Hampel in Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889 where she criticised the respondent agency's search for documents as being "woefully inadequate" in circumstances wherein the applicant had established a "clear and reasonable basis for believing other documents existed which fell within the terms of the search" by having demonstrated "to the respondent in precise detail that its searches were inadequate".
7. I agree that there must be some reasonable basis for believing that documents exist in the face of a denial by an agency. That basis should not be fishing or speculative in nature. I am not however satisfied that the threshold is as high as that submitted by the Department. Each case will depend on its facts.
8. Eventually a point may be reached where an agency can expect an applicant to give justification for any further searches being conducted however I was unable to reach that conclusion before hearing all of the evidence in this case, especially given the repeated inability of the Department to produce all documents relevant to the search.
9. In any event in the circumstances of this case, where documents continued to emerge after Ms Foster expressed her concerns, I was satisfied that a reasonable basis existed for Ms Foster to have concerns that there had not been a thorough and diligent search. Accordingly I examined the evidence in relation to this.
10. I turn then to an analysis of the contentions of Ms Foster.

1. Ms Foster contends that it can be inferred by the Department's conduct in the way it processed her FOI request that the Department was being deliberately obstructionist.
2. Ms Foster states that there have been a number of inconsistencies and anomalies in her case. She emphasises that a large number of documents (33 pages) were not released until the third search for documents had taken place and states she has been given a range of different reasons why documents could not be located. Ms Foster also points to the fact that the Department did not fully comply with timelines in Directions orders made by the Tribunal and did not provide documents to her in accordance with the timelines set out in the FOI legislation. She believes that the failure by the Department to return some of her calls during the FOI process led to an inference that her requests are not being dealt with candidly.
3. Ms Foster considers a "tight target" approach was adopted by the Department rather than a broad search being conducted at first instance. She contends that further searches should be conducted to ascertain whether the program area was giving contradictory information deliberately or accidentally.
4. It was submitted by the Department that I should accept the evidence of Ms Beagley that there are no further documents in existence.

1. In her evidence Ms Beagley gave a detailed account of the searches conducted by the Department. She conceded that there had been errors made through administrative oversights. I accept that this was the case. I accepted the evidence of Ms Beagley that better processes have been put in place to ensure that a thorough and diligent search for documents now takes place at first instance in order to avoid a repetition of this type of scenario
2. The explanation for the trickling of documents was essentially that over time, with further thought being given to the FOI request, came the realisation that documents may exist within different areas of the Department which had not been previously searched for documents.
3. There is no basis upon which I could conclude that there was a deliberate attempt by the Department to fail to disclose relevant documents.
4. I accept that there were oversights by the Department in processing Ms Foster's FOI request. I accept however the frank evidence of Ms Beagley that this is a matter for education and training of staff and that it does not amount to anything more than that.
5. I do not accept that the less than optimal process in processing Ms Foster's request provides a reasonable basis for presuming that documents exist.

Was there an investigation into Ms Foster's complaints?

1. Much of Ms Foster's argument hinges on her belief that there must have been an investigation by the Department into her complaints. The Ombudsman concluded that any investigation undertaken by the Department was of a preliminary nature in order to ascertain whether an investigation could take place. The Ombudsman was satisfied that the Department did not conduct investigations as requested by Ms Foster.
2. Ms Foster submitted that some of the communications received by her demonstrate that an investigation was taking place. For example she received a letter on 21 February 2012 from Mr Chris Potter who is the CEO of Knox Community Health Service in which he stated:

"I have been led to understand, through discussions with the Eastern Region Department of Health that you and another party are persisting with this accusation".

1. Ms Foster states that when she contacted Ms Keenan she was told:

"I can assure you, you now have everyone's attention and your complaint will be fully investigated. The whole department is talking about it".

1. Similarly on 8 March 2012 Ms Foster received a letter from Dr Karleen Edwards. Dr Edwards says:

"The matters you have raised in relation to the conduct of Knox Community Health Service and Whitehorse Community health Service have been considered. The Department considers that it is appropriate for these issues to be addressed directly to the organisations and you are encouraged to contact them directly

I have examined your complaint regarding the behaviour of Ms Keenan and reviewed a range of information. I am satisfied that Ms Keenan's conduct was appropriate and consistent with the Departments' Code of Conduct and Complaints management processes".

1. On 14 March 2012 Ms Foster states she was told by "Dan" in the Department that he could not answer her questions because of the "big investigation" that was taking place.
2. Ms Foster opines that this type of communication clearly, when coupled with the serious nature of her complaints, leads to the conclusion that an investigation was taking place and the discussions would have been documented.
3. Ms Foster does not believe for example that the material upon which Dr Keenan wrote her response was oral and that there are further documents which should have been supplied.

1. Words used either orally or in written communication with Ms Foster such as "investigation" may well have led Ms Foster to believe that there was a thorough investigation taking place into her complaints.
2. However I accept the evidence of Ms Beagley that there was not. Ms Foster was told right from the commencement of the process that her complaints would not be investigated. After making extensive enquiries the Ombudsman was satisfied that this was the case and no evidence was put before me other than innuendo to suggest to the contrary.
3. I accept that the information given to her was in this respect considered by the Department to be appropriate and that therefore any investigation into the complaint against Ms Keenan could readily have occurred without volumes of documentation having been generated.

1. Ms Foster was dissatisfied with the investigation undertaken by the Ombudsman.
2. Ms Foster emphasises that material relating to her complaints have a reference number attached to them being indicative of a file having been compiled.
3. Ms Foster contends that files ADD/12/6545 and ADD/12/7332 and GC12/0097 have been altered and that further inspections should occur to ascertain whether documents have been removed, deleted or not yet released. She was particularly concerned that the Ombudsman's physical file search did not extend to files ADD/12/6545 and ADD/12/7332. On 16 December 2012 Ms Foster contacted the Ombudsman to clarify the extent of the file search. She stated that she was told the file search did not include an inspection of files/documents with the numbers ADD/12/6545 and ADD/12/7332.
4. Ms Beagley gave evidence in which she stated that the "ADD" references were document reference numbers to enable the tracking of documents but were not file reference numbers. She gave evidence that the document dates only reflected the period of time within which the complaint was open and unresolved and not daily notations.

1. Whilst it was not an unreasonable assumption for Ms Foster to make that there was a file in existence, I accept the evidence of Ms Beagley that the dates refer to the duration of the complaint and that there has been no further action other than that revealed by the documents provided to Ms Foster.
2. I accept that these are not file numbers but refer to individual documents from the TRIM records database.

1. Ms Foster is convinced that files exist relating to her complaints and that her complaints were recorded in a complaints handling data base. Ms Foster believes that because the data base is in electronic form there would be a log or register that shows the details of each time the file was accessed.
2. Ms Foster produced pages from a brochure apparently available on the internet entitled " Assessing Complaints - experiences in complaints management in the Vic Department of Human Services" She relies on this document to show that there is an extensive departmental data base. She believes that further information exists within the database about her complaints.
3. Ms Beagley gave evidence that the brochure was a training document which does not reflect an existing database and that such a database simply does not at this point in time, exist.
4. The Ombudsman also concluded that any complaints database which did exist did no more than register complaints made by Ms Foster which were then referred to the relevant program area which was the Mental Health Drugs and Regions Program Area.

1. I accepted Ms Beagley's evidence that there is no complaints database of the type described in the "Assessing Complaints" documentation. There is no evidence to the contrary.

1. Ms Foster considers the Department has been selective in choosing which documents to be released. She draws my attention to attachments 30 and 45 which were blank documents.

1. Having viewed documents 30 and 45 I accept that these documents are irrelevant to the FOI request. I accept that document 30 relates to a different individual and was not generated in response to Ms Foster's complaint and that document 45 is irrelevant as it predates the subject complaint emails.
2. The Ombudsman also concluded that legal advice obtained from the Department was outside the scope of the request. This was not an issue that was canvassed before me in any great detail.

1. Ms Foster said that she was told by Ms Keenan that the IT Department had endeavoured over several hours to ascertain whether it was in fact possible to access the online survey without using the survey link. Ms Foster says further documents must exist if this amount of time was spent.
2. Ms Foster also believes that the Minister was briefed in relation to her complaints. Ms Foster believes there would be documentation provided to the Minister's office. Once again Ms Foster contends that words such as "I have spoken with" (see att 44) mean that there has been written communications between the parties identified.
3. Ms Beagley gave evidence that no such document exists.

1. In relation to documentation to the Media Unit, IT Unit and Ministers office the Ombudsman expressed satisfaction that the communications were either oral (without notes being taken) or by email and that the emails were provided to Ms Foster.
2. Ms Foster bases her belief on brief lines within emails which are not indicative of documentary briefings.
3. It is possible that such communications were oral. It does not mean that documents were necessarily updated.

1. Ms Foster submitted that advice given to her by the Department that she could refer the matter to the Ombudsman or VCAT could be construed as the Department not being thorough and diligent. She contended that if the Department was genuine, it could have obtained further information from her.

1. Advising Ms Foster of her legal rights under the Act could not be construed in the way in which she requests.
2. Finally Ms Foster relied on the fact that having sought statements from Paul Maher, Cathy Keenan and Karleen Edwards and having been declined that I should draw the inference that further documents exist. I was not able to make that connection.

1. This hearing is not an enquiry into the complaints themselves or whether they should have been investigated.
2. It is not for me to make comment on the adequacy or otherwise of the Department's mechanisms for dealing with complaints. That is not the purpose of this hearing.
3. The decision I need to make in this case is whether documents exist or there is a reasonable basis to believe further documents exist relating to the subject matter of the request and if so whether there has been a thorough and diligent search by the agency for those documents.
4. I am satisfied that the Department has now conducted an exhaustive search for documents that could be expected to exist at the appropriate locations. The earlier searches which failed to locate all relevant documents had not done so, but with the further searches this was achieved.
5. I am satisfied the Department has done all that could reasonably be required of it to find the documents in question.
6. The subject matter of the documents sought was fairly limited as was the nature and scope of the request. It was in these circumstances reasonable for the Department to narrow the scope of its search in the way described by Ms Beagley. I am satisfied that the Department subsequently deployed appropriate resources to undertake the search and that the methodology engaged by the Department was appropriate and thorough. It is unfortunate that this led to a situation wherein all documents were not released. I accept that there have now been multiple checks to ensure that all documents have in fact been delivered to Ms Foster and that the thought and search processes have now been exhausted.
7. I consider that the Department has shown a willingness to undertake further searches and that the finding of further documents by the Department attests to the fact that it was prepared to continue the search when prompted by Ms Foster despite its then belief that the searches had been exhausted.
8. I can find no reason why the Department would conspire to refuse to disclose further documentation if it in fact existed. Whilst the subject matter of the complaints is important to Ms Foster, it is in all other respects of a relatively routine nature.
9. I am satisfied that given the events leading to the requests are relatively recent that there are unlikely to be archives yet to be discovered in relation to the documents and that there is no basis to conclude that documents relevant to the search exist in any other filing system or format.
10. I do not consider that Ms Foster can supply any further information to the Department to enable a further search to be conducted. I accept that the documents simply do not exist because the complaints were not investigated any more thoroughly than the documents which have already been released to Ms Foster reveal.
11. I am mindful of the fact that the Ombudsman exercised its powers to attend the Department's offices to inspect relevant files and conduct interviews with departmental officers and concluded (twice) that the Department had conducted a thorough and diligent search for documents and that no other documents relevant to Ms Foster's request exist. The statement of the Ombudsman that further documents do not exist is a strong assertion. I accept it is a correct one. There has been nothing placed before me to suggest that that finding was wrong.
12. There is no evidence before me upon which I could conclude that additional documents exist.
13. I am satisfied that there has now been a thorough and diligent search for the documents requested by Ms Foster. I would have no ability to direct the Department further as to where it should search. Whilst I understand Ms Foster's concerns that documents were missed at first instance which probably should not have been missed there is no basis to accept that there are further documents.
14. The decision of the Department will be affirmed.

1. [1]1 The first request proceeded before the tribunal on August 6 2012 at which time the decision of the respondent was upheld.

[2] Although see Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443