Gilmore v Victoria Police FOI Division (Review and Regulation) [2018] VCAT 899

The Tribunal having found that the Freedom of Information Act 1982 (the FOI Act) does not apply to the documents in dispute and the Tribunal does not therefore have jurisdiction under the FOI Act in this proceeding,

1. The proceeding is dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 as the Tribunal does not have jurisdiction.

1. This case is about Senior Constable Ryan Gilmore's request under the Freedom of Information Act 1982 (the FOI Act) for access to a number of documents, which he made to the respondent, Victoria Police (FOI Division) (FOI Division) in August 2017.
2. As background to his request, Senior Constable Gilmore has been a sworn member of Victoria Police since July 2008. He has an excellent record, which he is proud of. His name appears on a board at his station recording recipients of the annual Pursuit of Excellence Award. His employee history records a number of compliments from members of the public for the assistance they received from him.
3. There is one blemish on his employee record, however, which concerns him and which he believes is unwarranted. In 2016, a complaint from a member of the public of alleged failure of duty- failure to investigate a reported offence- was found to be substantiated after Professional Standards Command (PSC) investigation c2-1/61/2015.
4. Although it might appear to be a lower level conduct matter,[1] Senior Constable Gilmore is concerned that his reputation may be damaged by an untrue allegation. In simple terms, he considers that it is unjust that he was found to have failed to have investigated a reported offence when it was not reported to him and he was not aware of the report.
5. Senior Constable Gilmore seeks the documents in PSC investigation file c2-1/61/2015, and part of a separate document which refers to the outcome of that investigation.[2]
6. I am not reviewing the investigation process or the outcome. The decision for me to make is whether the documents come within the FOI Act or are outside the scope of the FOI Act because of the operation of s 194 of the Independent Broad-based Anti-corruption Commission Act 2011 (the IBAC Act).
7. Section 194(1)(b) of the IBAC Act states that the FOI Act does not apply to any document in the possession of any person or body to the extent to which the document discloses information that relates to an investigation conducted under the IBAC Act.
8. The question arises here because the complainant made a complaint about two matters to IBAC in May 2015, one of which concerned Senior Gilmore Gilmore's conduct. The FOI Division submits that the investigation which followed was therefore conducted under the IBAC Act and not under the Victoria Police Act 2013 (the VicPol Act).
9. If this is correct, the FOI Act does not apply to the documents; Senior Constable Gilmore does not have a right of access to them under the FOI Act; and VCAT does not have jurisdiction to make a decision under the FOI Act about them.
10. Senior Constable Gilmore contends that the documents in the investigation file relating to his conduct do not relate to an investigation conducted under the IBAC Act because the IBAC did not refer any complaint made against him for investigation; Victoria Police made its own decision to conduct an investigation.
11. My decision turns on a reading of a letter dated 25 May 2015 from the IBAC to the Acting Chief Commissioner, and application of a number of provisions in the IBAC Act and the VicPol Act.
12. By its letter, the IBAC referred the complaint to the Chief Commissioner. The IBAC clearly requested the Commissioner to investigate allegations of discourteous conduct by a PSC officer (not Senior Constable Gilmore) towards the complainant on 7 May 2015.
13. IBAC's letter does not, however, expressly refer to allegations concerning Senior Constable Gilmore. It refers only to 'other allegations'; does not require any investigation to be conducted in respect of those allegations; does not require the Chief Commissioner to report on the results of any investigation and states, 'this letter marks the completion of IBAC's involvement.' The letter leaves it open for the PSC to take no action in respect of the 'other allegations'. Nevertheless the Chief Commissioner conducted an investigation.
14. For the detailed reasons that follow, I have decided that the documents Senior Constable Gilmore seeks come within s 194 of the IBAC Act and so the FOI Act does not apply to them.
15. My decision does not prevent Senior Constable Gilmore from using any other available processes to obtain copies of the documents and information. I note that he already has a full copy of one of the documents, which he received in the course of an employment-related application.

1. The question of whether the FOI Act applies to the documents in dispute is a threshold issue of jurisdiction. For that reason, the hearing was confined to submissions about that question.
2. I reserved my decision on the basis that if I found that VCAT did not have jurisdiction that would bring the proceeding to an end. If I found that the FOI Act did apply to the documents, a further hearing would be required to consider submissions on whether any of the exemptions in the FOI Act applied.
3. I record my appreciation of the thoughtful and helpful submissions made by Senior Constable Gilmore and by the FOI Division.

1. The FOI Division filed a witness statement of Inspector Craig Matters, who is a police member and Deputy Freedom of Information officer, Freedom of Information Division, Victoria Police, and filed written submissions.
2. Inspector Matters attached a number of documents to his statement including a redacted copy of IBAC's letter dated 25 May 2015 to the Acting Chief Commissioner, marked to the attention of a Superintendent at PSC (the referral letter).
3. Inspector Matters gave additional oral evidence and Senior Constable Gilmore cross-examined him.
4. Senior Constable Gilmore filed written submissions and attached a number of documents to his submissions including an undated letter he received in May 2016 from an Inspector at Springvale Police Station advising him of the investigation conclusion and outcome (the outcome letter).
5. Both parties made additional submissions at the hearing.
6. I have not seen the documents in dispute. They were not before me because until jurisdiction is established, they are not within the Tribunal's jurisdiction.
7. This might be problematic in some cases but here the decision turns on the terms of IBAC's referral letter, which Inspector Matters attached to his witness statement. I also had before me the investigation outcome letter from Victoria Police to Senior Constable Gilmore.
8. Inspector Matters made his witness statement after reviewing PSC investigation file c2-1/61/2015.
9. It is uncontentious that PSC investigation file c2-1/61/2015 concerned alleged failure of duty by Senior Constable Gilmore.
10. Inspector Matters stated, and I accept, that on 14 July 2015, the PSC referred the matter for investigation and recommendation. The complaint was investigated by a Senior Sergeant.
11. In the Inspector's opinion, each document and all information contained in the PSC file was before the investigator for the purpose of conducting the investigation, and for no other purpose. I accept his evidence to that effect.
12. In his statement Inspector Matters also gave his opinion that on 25 May 2015, IBAC referred the complaint relating to Senior Constable Gilmore, under s 73 of the IBAC Act, for investigation. That, however, is a question I must decide in this case.
13. Before recording further evidence Inspector Matters gave, I set out the referral letter, with my emphasis in bold.

Please find attached a copy of a complaint made by [...] received by IBAC on 7 May 2015.

After careful consideration of the information provided the complaint referred [sic] to your office pursuant to section 73 of the Independent Broad-based Anti-corruption Commission Act 2011 (the Act) to be investigated or otherwise dealt with as is considered appropriate.

The complainant will be notified of the referral and the confidentiality obligations under section 184 of the IBAC Act.

IBAC has a role in assessing whether matters it receives are or involve protected disclosures, a duly authorised IBAC delegate has determined that the information provided is not a 'protected disclosure' therefore the confidentiality provisions under Part 7 of the Protected Disclosure Act 2012 do not apply in relation to this disclosure.

Once you have finalised the investigation, I request that you provide IBAC with the complete investigation file (s) including any additional information pertaining to substantiate any action, or proposed action to be taken by Victoria police in relation to the allegation made by [...] about the discourteous conduct of an officer of the PSC on 7 May 2015.

In relation to the other allegations, this letter marks the completion of IBAC's involvement. However, please note that at some point IBAC may request further information about action taken as part of its oversight and capacity building functions.

Should you wish to discuss this matter further, please do not hesitate to contact me directly on [...]

1. Inspector Matters stated at the hearing that the fact that the PSC referred the investigation about Senior Constable Gilmore's conduct to a Senior Sergeant indicated it was a lower level matter.
2. Inspector Matters stated that the file indicated that the PSC reported back to IBAC in August 2016 and that IBAC indicated it was satisfied with the investigation. A later issue about a conflict of interest concern Senior Constable Gilmore had was considered by the PSC, and reviewed by the IBAC, which said it was satisfied with the matter.
3. Addressing a submission Senior Constable Gilmore had made, Inspector Matters said that all of the documents on the file were created after the complaint date except for an electronic patrol running sheet and roster which were printed off for the file.
4. In cross-examination on relevant matters, Inspector Matters:
   • Agreed that, in his experience, the most serious allegation would be mentioned in the letter from IBAC (referring to the fact that the referral letter mentions the discourteous conduct allegations but does not specifically refer to the allegation concerning Senior Constable Gilmore)
   • Was not sure that any complaint about Senior Constable Gilmore was made to the PSC - there was nothing in the file and no file created by the PSC prior to IBAC referring it back
   • Confirmed that there were no other complaints against Senior Constable Gilmore in Document 19 [which referred to the outcome of the investigation]
   • Expressed the opinion that the complaint was low-level and would not have a long term impact on Senior Constable Gilmore's reputation.

1. In order to decide whether the PSC investigation into Senior Constable Gilmore's alleged conduct was an investigation under the IBAC Act, it is necessary to chart a convoluted path back and forward between the VicPol Act and the IBAC Act.
2. I make relevant findings at each point.
3. The starting point is s 167 of the VicPol Act.

Complaints about the conduct of a police officer

1. Under s 167(1) of the VicPol Act, a complaint about the conduct of a police officer may be made to another police officer or to the IBAC.
2. Under s 167(6) a person may make a complaint to the IBAC even if they have already made the complaint to a police officer.
3. A member of the public may therefore make a complaint to either or both.
4. The investigation outcome letter tells Senior Constable Gilmore that a named member of the public made allegations to IBAC that he and a colleague had attended a shop in Chadstone in relation to a male acting suspiciously, but did not speak to the female who observed the matter and the matter was not recorded or investigated.
5. This is clearly a complaint about the conduct of a police officer within s 167 of the VicPol Act.
6. Section 167(1) of the VicPol Act has a relevant note to which I return later:

Complaints made to the IBAC are investigated under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.

1. I turn next to the IBAC's power to receive and refer complaints, in Part 3 of the IBAC Act.

1. Under s 52 of the IBAC Act, IBAC may receive complaints about the conduct of police personnel.[3]
2. A complaint that a police officer has failed to discharge a duty is a police personnel conduct complaint under the definition in s 5 of the IBAC Act. A complaint that a police officer has been discourteous would also appear to be a police personnel conduct complaint under the definition in s 5.
3. In this case IBAC appears to have received a complaint that related to two distinct matters
   • Alleged discourteous conduct by an officer of the PSC on 7 May 2015, which is expressly referred to in the IBAC referral letter; and
   • A complaint that Senior Constable Gilmore and a colleague failed to investigate a reported offence, which is not expressly referred to in the IBAC referral letter to the PSC, but is referred to in the investigation outcome letter from Victoria Police to Senior Constable Gilmore.
4. Under s 58 of the IBAC Act, IBAC must do one of three things when it receives any complaint. It must:
   • (a) Dismiss the complaint if there are grounds to do so; or
   • (b) Investigate the complaint; or
   • (c) Make a referral of the complaint.
5. Under s 67(1) of the IBAC Act, the IBAC has an absolute discretion to determine that a complaint does not warrant investigation.
6. Under s 68(a) of the IBAC Act a complaint other than a protected disclosure complaint is dismissed if the IBAC determines under s 67(1) that the complaint does not warrant investigation.
7. The IBAC did not dismiss the complaint or any part of it. It has not therefore determined under s 67(1) that the complaint did not warrant investigation.
8. Nor did it investigate the complaint or any part of it itself.
9. I conclude therefore that the IBAC has acted under s 58(c) of the IBAC Act and made a referral of the whole of the complaint it received.

1. I am satisfied that the IBAC referred the complaint to the Chief Commissioner under s 73 of the IBAC Act, as the FOI Division submits, for the following reasons.
2. Section 73 is:

73 Referral of complaint or notification for investigation by another person or body

(1) The IBAC must refer to a person or body specified in subsection (2) a complaint or notification to the IBAC if, at any time, the IBAC considers that -

(a) the subject matter of the complaint or notification is relevant to the performance of the duties and functions or the exercise of powers of that person or body; and

(b) it would be more appropriate for the complaint or notification to be investigated by that person or body rather than by the IBAC.

1. The Chief Commissioner of Police is a specified body under s 73(2).
2. Section 73 is the only section in the IBAC Act that provides for the IBAC to refer a complaint to the Chief Commissioner of Police.[4]
3. If the IBAC refers a complaint to the Chief Commissioner, it is therefore necessarily a referral under s 73. Further, the referral letter expressly states that the complaint is referred to the Acting Chief Commissioner's office under s 73 of the IBAC Act.
4. I agree with the submission of the FOI Division that the IBAC referred the complaint to the Chief Commissioner under s 73 of the IBAC Act, including each of the components of the complaint.
5. Senior Constable Gilmore submits however that the IBAC did not expressly refer the part of the complaint that related to him for investigation, and therefore any investigation is not an investigation under the IBAC Act. I consider that submission now.
6. One the face of the section, referral under s 73 to the Chief Commissioner occurs when the IBAC considers it would be more appropriate for the Chief Commissioner to investigate a complaint.
7. Section 73(5) of the IBAC Act sets out what the Chief Commissioner must do if the IBAC refers a complaint to the Chief Commissioner under s 73:

(5) If, in accordance with this section, the IBAC refers a complaint or notification to the Chief Commissioner of Police, the Chief Commissioner must -

(a) in the case of a complaint or notification that is not a protected disclosure complaint - investigate the complaint or notification under Division 2 of Part 9 of the Victoria Police Act 2013.

1. I agree with the submission by the FOI Division that on the face of it, s 73(5)(a) of the IBAC Act requires the Chief Commissioner to investigate a complaint if the complaint is referred by IBAC under s 73.
2. Section 78, however, suggests otherwise, as does the referral letter itself.
3. Section 78 of the IBAC Act is:

78 Provision to the IBAC of information about referred complaint or notification

(1) This section applies to a referral under section 73 other than -

(a) a referral to the Chief Commissioner of Police in relation to conduct of a person who is not a member of Victoria Police personnel; or

(2) If the IBAC has made a referral to which this section applies, the IBAC, at any time, may require the person or body to which the referral is made to provide to the IBAC, within a reasonable time specified by the IBAC, information regarding -

(b) any action taken in respect of the referred matter.[italics added for emphasis]

(3) A person or body to which a requirement is made under this section must provide the required information to the IBAC within the time specified by the IBAC under subsection (2).

1. The use of the word 'any' rather than 'the' in s 78(2)(a) suggests that investigation may not necessarily be required.
2. That interpretation is also consistent with the first paragraph of the referral letter stating that the complaint is referred under s 73 of the IBAC Act 'to be investigated or otherwise dealt with as is considered appropriate.'
3. Senior Constable Gilmore submitted that there is a distinction between referral for investigation and referral for whatever the Chief Commissioner considers appropriate.
4. I agree that distinction is open, in relation to the allegations against him, on a close reading of the referral letter.
5. The fifth paragraph states:

Once you have completed your investigation, I request that you provide IBAC with the complete investigation file(s).... in relation to the allegation made by [...] about the discourteous conduct of an officer of the PSC on 7 May 2015.

1. In contrast, no such request is made in relation to 'the other allegations', and the letter states:

...this letter marks the completion of IBAC's involvement. However, please note that at some point IBAC may request further information about action taken as part of its oversight and capacity building functions.'

1. On the face of the referral letter it is up to the Chief Commissioner whether the 'other allegations' are investigated or not. It is clear that the IBAC may request information about any action taken, consistent with s 78(2)(b) of the IBAC Act, but the IBAC is not requiring that an investigation take place.
2. It appears therefore that although the IBAC referred the complaint as a whole to the Chief Commissioner, the IBAC did not necessarily refer the part of the complaint to do with Senior Constable Gilmore's conduct for investigation.
3. In other words, the IBAC required the Chief Commissioner to carry out an investigation in the case of the discourteous conduct allegations but in the case of the 'other allegations' left it to the Chief Commissioner to deal with them as considered appropriate.
4. In my view the IBAC did not refer the complaint about Senior Constable Gilmore's conduct to the Chief Commissioner for investigation.
5. Contrary to Senior Constable Gilmore's submission, however, this does not answer the question of whether the investigation which occurred was under the IBAC Act or not.
6. The answer to that is in the VicPol Act which I turn back to now.

1. Part 9, Division 2 of the VicPol Act is headed 'Complaints and Investigations'.[5]
2. Three sections in Division 2 refer to the IBAC:
   • S 167 'Making of complaints'
   • S 169 'Complaints made to a police officer or protective services officer' [concerning complaints of misconduct, which is defined in s 166]
   • S 170 'Investigations by the Chief Commissioner'
3. Section 170 requires the Chief Commissioner to provide reports to IBAC of investigations by the Chief Commissioner:

(1) The Chief Commissioner must as often as requested by the IBAC report in writing to the IBAC on the progress of an investigation.

(2) The Chief Commissioner may attempt to resolve a complaint by conciliation and must -

(a) before commencing to conciliate, notify the IBAC of the proposed attempt; and

(3) After completing an investigation the Chief Commissioner must in writing report to the IBAC on the results of the investigation and the action (if any) taken or proposed to be taken.

1. Contrary to the submission by the FOI Division, a plain reading of s 170 does not, in my view, lead to the conclusion that an investigation conducted by the Chief Commissioner has 'an indisputable relationship' with Part 3 of the IBAC Act
2. Section 170 is not, on its face, limited to investigations of complaints referred to the Chief Commissioner by IBAC. It is equally applicable to investigations of complaints not made to IBAC and investigations under s 169 of allegations of misconduct. In other words, if under Part 9, Division 2 of the Vic Pol Act, the Chief Commissioner investigates any complaint about the conduct of a police officer, the Chief Commissioner must as often as required by IBAC report to the IBAC on its progress.
3. To that extent I respectfully disagree with the view expressed by the Tribunal in Luck v Independent Broad-based Anti-corruption Commission [2013] VCAT 180 at [60], that a plain reading of the equivalent section in the predecessor to the VicPol Act, s 86O of the Police Regulation Act, 'shows an indisputable relationship with Part 3 of the IBAC Act'.
4. I also agree with Senior Constable Gilmore's submissions that the request in Luck was very different to the request in this case and that s 73 of the IBAC is not identical to s 40 of the Police Integrity Act 2008 under which the Director of the OPI was required to refer 'a complaint warranting investigation to the Chief Commissioner.'[6]
5. I respectfully agree, however, with the conclusion that where a complaint is referred by IBAC to the Chief Commissioner and it is then investigated by the Chief Commissioner, the investigation is an investigation under Part 3 of the IBAC Act.
6. I reach this conclusion on the basis of the crucial note to s 167 of the VicPol Act, in combination with the linked provisions of the IBAC Act and the VicPol Act described above.
7. Section 167 is:

(1) A complaint about the conduct of a police officer or protective services officer may be made -

(a) to another police officer or protective service officer; or

Complaints made to the IBAC are investigated under Part 3 of the Independent Broad-based Anti-corruption Commission Act 2011.

1. The note to s 167(1) of the VicPol Act supports a conclusion that if a complaint is made to IBAC, any investigation of the complaint is treated as conducted under Part 3 of the IBAC Act.
2. In other words, if a complaint is made to IBAC and is then investigated, whether by IBAC or by the Chief Commissioner following a referral, the complaint is investigated under Part 3 of the IBAC Act, even if the IBAC did not expressly require the Chief Commissioner to investigate the complaint.
3. In this case, a member of the public made a complaint to IBAC about two matters. IBAC referred the complaint to the Chief Commissioner under s 73 of the IBAC Act.
4. In the case of one matter, IBAC clearly requested the Chief Commissioner to investigate, in the case of the other matter, concerning Senior Constable Gilmore, the IBAC left it to the Chief Commissioner to take any action considered appropriate. That action was investigation.
5. The investigation of that part of the complaint which related to Senior Constable Gilmore was in my view an investigation under the IBAC Act.
6. I turn back now to s 194 of the IBAC Act.

Do the documents in dispute come within s 194 of the IBAC Act? - Yes

1. Section 194(1)(a) relied on by the FOI Division is:

194 Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of any person or body to the extent to which the document discloses information that relates to -

(a) a recommendation made by the IBAC under this Act; or

(c) a report, including a draft report, on an investigation conducted under this Act.

1. As observed by the Tribunal in Luck at [70]:

The term 'relates to' indicates '...any type of connection or relation between the two subject matters to which the words refer...'. The Court of Appeal has recently accepted the formulation of McHugh J from O'Grady v Northern Queensland Co Ltd:[7]

The prepositional phrase 'in relation to' is indefinite. But, subject to any contrary intention derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.

1. The formulation quoted has consistently been applied in decisions under the FOI Act following the Court of Appeal decision in Office of the Premier v Herald and Weekly Times [2013] VSCA 79.
2. I disagree with the FOI Division's general submission that s 194 of the IBAC Act should be given a broad interpretation, particularly as it is taking away rights under the FOI Act, but I am satisfied the words themselves are sufficiently broad to apply where there is direct or an indirect relationship between information in a document and an investigation conducted under the IBAC Act. It is an inherently broad section.
3. I disagree with Senior Constable Gilmore's submission that documents which pre-date the complaint to IBAC on 7 May 2015 cannot relate to the complaint. In any event, I accept Inspector Matters' evidence that apart from electronic patrol and roster information, all of the documents on the file were created after the complaint date.
4. In my view, giving the words 'relate to' the meaning determined by the High Court and the Court of Appeal, the documents in the PSC investigation file c2-1/61/2015 disclose information relating to that investigation. Similarly the other document in dispute which refers to the investigation.
5. Because I have concluded that the PSC investigation was conducted under the IBAC Act, I must find therefore find that the documents in dispute are within s 194 of the IBAC Act and the FOI Act does not apply to them.
6. I recognise that this may seem a curious result in the case of an investigation of low-level allegations that the IBAC did not apparently consider warranted investigation, and that did not involve any allegation of corrupt conduct. Rights under the FOI Act are important rights for citizens, including members of Victoria Police. Nevertheless, s 194 of the IBAC Act is cast in broad terms, the note to s 167 of the VicPol Act is clear, and it does appear that the Parliament intended this result.

1. The complaint made to IBAC on 7 May 2015 was in part a complaint about alleged conduct of Senior Constable Gilmore.
2. By its letter dated 25 May 2015, the IBAC referred the complaint to the Chief Commissioner under s 73 of the IBAC Act.
3. Although not directed to do so by IBAC, the Chief Commissioner conducted an investigation of that part of the complaint that concerned alleged conduct by Senior Constable Gilmore.
4. By the operation of relevant provisions of the IBAC Act and the VicPol Act, the investigation was an investigation under the IBAC Act.
5. The documents in dispute are within s 194(1)(b) of the IBAC Act as they disclose information relating to an investigation conducted under the IBAC Act.
6. The FOI Act does not apply to the documents in dispute and the Tribunal does not have jurisdiction under the FOI Act in this proceeding.
7. In circumstances where the Tribunal does not have jurisdiction in this matter I must dismiss the application for review.

[1] An opinion given by the respondent's witness.

[2] By discussion and agreement over the course of these proceedings, Senior Constable Gilmore has received a number of the documents he sought under a fresh decision made by the FOI Division on 11 January 2018.

[3] IBAC has separate powers to receive complaints about alleged corrupt conduct under s 51, not in issue here.

[4] Three other sections provide for referral. Under s 74, the IBAC may refer to a prosecutorial body any matter the IBAC considers is relevant to the duties, functions or powers of that prosecutorial body. Under s 74A, if the IBAC considers it appropriate, the IBAC may refer to the Judicial Commission any matter it considers relevant to the exercise of the Judicial Commission's functions. Under s 75, after receiving a report of the Chief Commissioner of Police, the IBAC may refer to a prosecutorial body for advice any matter it considers is relevant to the duties, functions or powers of that prosecutorial body

[5] Section 73 (5) of the IBAC Act, discussed above, specifies that the Chief Commissioner is to investigate a referred complaint under Part 9, Division 2 of the VicPol Act.

[6] Section 40(2) of the Police Integrity Act, referred to in Luck at [57].

[7] O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1996) 169 CLR 356 cited with approval in Office of the Premier v Herald and Weekly Times [2013] VSCA 79, [71] per Tate JA with whom Whelan JA and Kaye AJA agreed.