The request for access to documents for the period stated in the request is remitted to the respondent to be dealt with in accordance with the Freedom of Information Act 1982 as that Act existed before 1 December 2012 and as if the request was received by the respondent on the date of the Tribunal's decision.

1. On 18 April 2012, the Victorian Ombudsman tabled in the Victorian Parliament the report, "The death of Mr Carl Williams at HM Barwon Prison - investigation into Corrections Victoria" (the Ombudsman's Report). The Ombudsman said:

Mr Williams' death raises important questions as to how it is possible that a high profile prisoner in Victoria's highest security prison unit could be killed with an unsecured metal pipe from an exercise bike, and that prison staff did not find out about the incident for some 27 minutes. This raises important concerns about the monitoring systems in place at Barwon Prison. (page 6)

1. Recommendation 20 of the Ombudsman's Report was that the Department of Justice (DoJ), "Conduct a review of all CCTV systems in Victoria's correctional system to ensure that CCTV systems are functional and up to date in light of the issues identified in this report." DoJ accepted this recommendation.
2. Ms Hennessy, the applicant in this proceeding, is a Member of the Legislative Assembly of the Parliament of Victoria. She is the Shadow Minister for Corrections, Shadow Minister for Crime Prevention and Shadow Minister for the Anti-corruption Commission.
3. On 5 July 2012, Ms Hennessy requested from DoJ under the Freedom of Information Act 1982 (the Act) a copy of:

... all briefings and memos, prepared for any Department of Justice Ministers, DOJ Secretary, or members of the Justice Executive Committee, which relate to any review of CCTV systems in Victorian correctional facilities.

The documents I seek are those created or received by DOJ from 1 January 2011 to the date of this request.

1. On 14 November 2012, Ms Hennessy had not received a decision. On 16 November 2012, VCAT received her 'deemed refusal' application for review, under sections 53 and 50 of the Act.
2. On 19 November 2012, Ms Hennessy received DoJ's advice that it had located 159 pages consisting of a brief with two attachments. She believes it is likely that other relevant documents exist.
3. The issue before VCAT was whether DoJ's search for documents within the scope of the request was thorough and diligent and if VCAT found the search was not, whether VCAT should order DoJ to conduct a further search.
4. On 7 June 2013, the final hearing took place and I reserved my decision. I have ordered DoJ to conduct a further search.

1. The following is drawn from Ms Hennessy's amended witness statement (which included contentions), her oral evidence at the hearing during cross-examination and submissions on her behalf.
2. She draws the following chronology, primarily from the Ombudsman's Report and the few pages released to her. Some dates are approximate.

Carl Williams murdered at Barwon Prison, Acacia Unit by Mathew Johnson

In Discussion Paper, "Management of High Risk Offenders", Corrections Victoria describes concerns about systems at Acacia Unit

Contract tendered for undertaking a comprehensive assessment of electronic security systems of Barwon, Loddon, Melbourne Assessment Prison and Dame Phyllis Frost Centre. CTG Security Matrix (CTG) engaged.

Upgrade to Acacia Unit CCTV completed (Final costs approx $500,000).

Interim security review by CTG received for Barwon Prison

Interim security review by CTG received for Loddon Prison

Interim security reviews by CTG received for Melbourne Assessment Prison and Dame Phyllis Frost Centre

Final report covering Barwon, Loddon, Melbourne Assessment Prison and Dame Phyllis Frost Centre (claimed exempt document) is received

Umow Lai Consulting (ULC) engaged to update a costing it had provided during a 2006 review of electronic security systems.

1. Ms Hennessy submits it is likely that given the above events and activity, more than two documents exist.
2. She expected there would be additional relevant documents which:
   1. Briefed the Secretary or the DoJ Executive Committee of the Ombudsman's intention to conduct a review, the likely workload implications for DoJ and the relevance of existing DoJ reviews of CCTV systems at Barwon Prison to the Ombudsman's review;
   2. Constituted communications between the Ombudsman and DoJ as DoJ considered and accepted his draft recommendations leading to the April 2012 final report.

In particular, paragraph 347 of the Ombudsman's Report shows a response from DoJ to the Ombudsman and paragraph 53 shows a response from the Secretary, DoJ. Ms Hennessy described the responses as highly considered. She says their creation would have necessitated communications within various DoJ units, and authorisation from a senior DoJ officer prior to their transmission to the Ombudsman's office. She says is unlikely that this and other responses to the Ombudsman's recommendations could have been finalised without briefings being prepared for at least one of the 15 senior officers who comprise the DoJ Executive Committee, and potentially even the Minister for Corrections.

1. Were related to the increase in the cost of upgrading the CCTV system at the Acacia Unit, referred to in the Ombudsman's Report at page 76;

1. Constituted communications between DoJ and other areas of Government related to the implementation of the Ombudsman's Recommendation 20 including progress reports;
2. Constituted communications between DoJ and the private operators of prisons as to the implications of the Ombudsman's report;
3. Were related to CTG's interim and final reports; and
4. Were related to the ULC costings review.

1. Given no such documents were discovered, Ms Hennessy submits that the search undertaken was inadequate and that orders requiring a further search to be undertaken should be made.

1. DoJ called Ms Samantha Morgan, Strategic Advisor to the Commissioner, Corrections Victoria as its witness. She is responsible for providing strategic advice and support to the Commissioner across a broad range of topics within the portfolio. She was employed in Corrections Victoria since late 2009 and in her current position since August 2011.
2. In her witness statement and in cross examination, Ms Morgan detailed the search process as she understood it:
   1. DoJ's FOI Unit received the request.
   2. The FOI Unit identified three areas of DoJ which might hold relevant documents.

Any relevant documents prepared for any of the Ministers nominated by the applicant's request would have passed through the Secretary's Office.

Any relevant documents for members of the Justice Executive Committee would have been created within either Corrections Victoria or the Office of Correctional Services Review (OCSR).

Any other relevant documents would have been held by Corrections Victoria or OCSR.

OCSR is an independent review team within Corrections Victoria. It monitors and reports on the performance of all prisons, community correctional services locations and other correctional services;

1. By emails dated 25 September 2011, Ms Tierney asked the Office Manager of the Office of the Secretary, a Senior Project Officer at Corrections Victoria and a Senior Business Analyst in OCSR to search for the relevant documents. Responses were requested by 2 October 2011;

1. The Senior Project Officer, Corrections Victoria referred the request to an executive officer within Corrections Victoria who nominated Ms Morgan to conduct the search within Corrections;
2. The three areas conducted searches. On 2 October 2011, Ms Morgan replied to Ms Tierney. She had discovered the two claimed exempt documents and the Office of the Secretary discovered a copy of one of those documents. OCSR discovered no documents and has advised that it had not prepared any stand alone review of CCTV systems in prisons in the period stated in the request.

1. Before searching, Ms Morgan completed a "Business Unit Search" template which took her through standard search steps. Ms Hennessey's request was included on the template which then says who the searcher should contact, where documents have been located and asks the searcher to record contextual information.
2. Ms Morgan conducted an electronic search of the DoJ wide TRIM data base. She searched on the term "CCTV", given her familiarity with material which passed through the Office of the Commissioner of Corrections, including having been involved in work relevant to the Ombudsman's Report. She searched both titles and the contents of memoranda and briefs. Her search was not limited to documents under the control of Corrections Victoria, but was 'DoJ wide'. She did not find memoranda and briefs containing the word CCTV which she then disregarded as not relevant to the request. Ms Morgan spent "a couple of hours" searching TRIM and an addition couple of hours discussing the results with colleagues. Her search was "signed off" by Ms Leanne Barnes, Acting Deputy Commissioner, Operations.
3. Ms Morgan agreed she did not know of material which may have gone to the Office of the Secretary or members of the Justice Executive, unless it passed through Corrections. She was not aware how the Office of the Secretary or the OCSR conducted searches.
4. In cross examination, Ms Morgan:

1. Agreed that given page 15 of the Ombudsman's Report quotes a response from the then Secretary DoJ, it is reasonable to assume the Secretary would have received advice via either discussion or written briefings. Ms Morgan understood in this case the Secretary's Office closely managed the response and relied or oral discussion, not written briefings; 2. Answered that in the course of her search she did not search for memoranda or briefs related to: 1. The contract tendered for undertaking the assessment of electronic security systems; 2. The Security Reviews referred to in the above chronology; or 3. The ULC costing update.

1. Answered that in her view, the documents which Ms Hennessy suggested should have been located during the search, as identified in a letter from Ms Hennessey's lawyers to DoJ's lawyers dated 18 March 2013, were not within the scope of Ms Hennessy's FOI request. The suggested documents are largely set out in Ms Hennessy's submissions. Ms Morgan did not search for and did not not know whether such documents exist.

1. This decision is made under the Act as it was before amendments on 1 December 2012, which, among other things, created the Freedom of Information Commissioner.
2. The object of the Act is to give the community a right of access to documents in the possession of government limited only by 'exceptions' and 'exemptions' necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held (s 3(1)(b) of the Act). Section 13 of the Act provides a 'right of access to documents'. Section 50(2) of the Act enables an applicant to apply to VCAT for review of a decision.
3. I summarised the relevant law in Fong v Monash University (General) [2013] VCAT 88 (1 February 2013), which I repeat here.
4. Section 27(1)(e) of the 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 exist or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Ombudsman

1. This implies that the search must be "thorough and diligent".
2. In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264 (4 August 2010) I said in my view, VCAT must follow Victoria Police v Burton [1999] VSC 534 (16 December 1999), para 29. Hedigan J said it was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal. Section 51 of the VCAT Act sets out VCAT's functions on review, which includes reviewing a refusal.
3. In such applications, the applicant must do more than speculate that documents have not been provided to him or her.
4. President O'Connor of the New South Wales Administrative Decisions Tribunal has put it more fully in a decision about the comparative provision in that state in Cainfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 (27 June 2006) at para 69,

An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.

1. In Chu v Telstra Corporation [2005] FCA 1730; (2005) 147 FCR 505, Finn J considered the meaning of section 24A and emphasised the significance of the inclusion of the emphatic word "all" in "all reasonable steps". But the word "all" is qualified by the word "reasonable" so that the steps required to be taken do not have to go beyond a limit assigned by reason and do not have to be extravagant or excessive.
2. That decision refers to language of section 24 (later 24A(1)) of the Freedom of Information Act 1982 (Cwlth) that "all reasonable steps" be taken to find a document. However, the logic of not going beyond a limit assigned by reason and not being extravagant or excessive in my view equally applies when considering the scope of a thorough and diligent search in Victoria.
3. Turning to a decision I did not discuss in Fong, in Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1889 (30 September 2011), Hampel VP, heard evidence of the respondent repeatedly assuring the applicant that all relevant documents had been located only to then make further searches find more documents.
4. In Hampel VP's view, it was clear that there were still reasonable grounds for believing, by reference to the documents produced, that there were still others which existed, but which had not yet been produced. When she indicated her preliminary view that the searches had been inadequate and, if necessary, she would direct that further searches be undertaken, the respondent agreed to undertake further searches. A further 1,350 pages of documents were identified and released and exemption was claimed in respect of six documents.
5. I now turn to VCAT decisions made after Fong.
6. In Foster v Department of Health (Review and Regulation) [2013] VCAT 648 (3 May 2013), Lambrick DP said (summarising paras 42 to 50),

1. The appropriate test to apply in determining whether further documents exist was whether the Department had conducted a thorough and diligent search being the taking of all reasonable steps to identify all relevant documents in the possession of the agency. 2. What is required is a search which is sensible and appropriate to the circumstances, not an extravagant or excessive search.

1. Where a person submits that a thorough and diligent search has not been undertaken, VCAT must first be satisfied there is 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.

1. If VCAT is so satisfied, then it should examine whether the agency has taken all reasonable steps to find those documents. Each case will depend on its facts.
2. The above summary is reinforced by Lambrick DP going on to say in making findings (para 97):

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.

1. Recently Jenkins VP made an interim decision in Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (No 1) (Review and Regulation) [2013] VCAT 1234. While she made the decision under the Act as it now applies, it is instructive to note her reasons for calling on the Freedom of Information Commissioner to assist the VCAT in respect of a review as to whether a thorough and diligent search had been undertaken by the respondent department.
2. Tabcorp's FOI request related to proceedings it had issued in the Supreme Court of Victoria against the State of Victoria, claiming entitlement to compensation following the granting of Gaming Machine Entitlements in Victoria to new licensees when the 18 year poker machine licenses held by Tabcorp (and Tattersall's) expired on 15 August 2012. Jenkins VP said:

As indicated during the hearing, it is inexplicable why searches to date have not revealed any further documents within the records of the Department, ancillary to the proposed Government Agreement, Treasurer's letter or Tabcorp Prospectus. It is not apparent whether the failure to reveal any further documents relate to inherent limitations in structure and content of the RecFind Index. If that be the case, the physical searches of files to date will suffer the same limitation. There is also no evidence before the Tribunal as to how the Department's files are internally indexed; and whether a search within a specified time period of all of such files might readily and conveniently reveal folders relevant to the Request. In these circumstances, the Tribunal cannot yet be satisfied that all relevant documents have been located after a thorough and diligent search.

1. I interpret Ms Hennessy's request as being for all briefings and memoranda, prepared by or received by DoJ from 1 January 2011 to 5 July 2012 addressed to:

1. any one of the DoJ Ministers; or 2. the Secretary, DoJ; or

1. any one of the members of the Justice Executive Committee;

which relate to any review of CCTV systems in Victorian correctional facilities (not only to a review or reviews implementing the Ombudsman's Report).

For a brief or memorandum to, relate to" any review of CCTV systems in Victorian correctional facilities, the brief or memorandum must explicitly refer to any such review. It is difficult to see how it could do so and not contain the words, "CCTV", "CC TV" or "closed circuit television". A brief or memorandum need not wholly or predominantly concern such a review or reviews.

1. In my opinion that is a plain interpretation of the request.
2. I agree with DoJ that the scope of the request is the starting point and that scope is to be judged on an objective basis, but in its context.
3. Here, the context is:
   1. the Ombudsman's Recommendation 20 for a review of CCTV in prisons, after which the FOI request was drafted; and
   2. is illustrated by a report in The Age of 6 June 2013. It describes Ms Hennessy, "fighting the government at VCAT for documents that verify whether the Ombudsman's recommendations, made in the investigation of underworld figure Carls Williams' death, to boost CCT and security have been effectively implemented".
4. However, I rejected DoJ's submission that the context leads to the conclusion that Ms Hennessy was only requesting briefs and memoranda concerning reviews undertaken as a result of Recommendation 20. The request does not literally say so. It says, "any review". The context could well have led Ms Hennessy to ask for other briefs and memoranda concerning any review of CCTV.
5. I agree with Macnamara DP, as he then was, who said in Vaughan v Department of Sustainability and Environment (VCAT, Unreported, 10 March 2005) from para 22:

... I start with the proposition that Section 17(1) of the Freedom of Information Act requires that a request for access to documents must be 'in writing'. It is common in the law for there to be requirements that certain documents or certain matters be in writing. ... For a particular thing to be in writing everything that properly pertains to it must be within the four corners of the writing. Nevertheless, there is ample authority both in private and public law for the view that the object whatever it be, in writing, is to be read in its broader context or as some of the authorities put it within its factual matrix. ...

Finally, I should note that in a number of recent decisions in the private law of contract, the High Court of Australia has re-emphasised the need to concentrate on the words of written contractual instrument and not be too far distracted by resort to the so called factual matrix. I refer in particular to the Court decision in Equuscorp Ply Ltd v Glen gallan Investments Ply Ltd (2004) 79 ALIR 206 and Toll (FGCT) Ply Ltd v Alphafarm Ply Ltd (2004) 79 ALIR 129 135-6 [35]. Those observations I think are apposite here.

1. I also rejected DoJ's submission that the apparent delay of some months between Ms Hennessy being advised only two documents exist and raising the sufficiency of search issue and her experience as a lawyer and political adviser are significant. First, it is entirely conceivable that an FOI applicant may not think to question the sufficiency of search until quite some time has passed. Hypothetically, one's legal advisers looking at the matter afresh might make the suggestion. Second, evidence about a person's intentions in making a request is of little significance in interpreting the written request. Therefore, why would Ms Hennessy's intention here be relevant?
2. I rejected DoJ's submission that to fall within the scope of the request any brief or memoranda must as a whole or predominantly relate to CCTV systems across the whole of the corrections system. Ms Hennessy said "relate to". The Australian Oxford Dictionary (Second Edition) defines "relate" (followed by "to") to mean "have reference to".
3. I rejected Ms Hennessey's submission that an indirect connection between a brief or memorandum is sufficient to mean that it relates to CCTV. I do not accept memoranda or briefs fall within the scope of the request simply because, without specifically referring to closed circuit television systems, they relate to the:

1. Implementation of the Ombudsman's Report; 2. CTG security metrics review interim and final reports; or

1. The ULC costings review.
2. In reaching this view, I considered the Court of Appeal's decision in Office of the Premier v Herald and Weekly Times [2013] VSCA 79 (12 April 2013) which was interpreting the term, "relates to the affairs of an agency" as it appears in section 5(1) of the Act. Tate JA agreed (from para 72) that subject to any contrary intention derived from the Act's context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.
3. However, the Court was engaging in statutory interpretation, in the context of one of the objects of the Act being to extend as far as possible the right of access to information. That decision is of limited use in interpreting the words of an FOI request itself. A dictionary is a better guide.

Is there a reasonable basis for believing further documents exist?

1. I find there is a reasonable basis for Ms Hennessy's belief that further documents exist. She is not simply speculating. The documentary evidence as discussed above creates a reasonable expectation that the memoranda and/or briefs sought exist. This bears some similarity to Friends of Mallacoota, in terms of documentary evidence pointing to the existence of other documents. It is well beyond the speculative nature of the claims in Fong. I do not accept Ms Hennessy's use of phrases such as "I would have expected" and "likely" in giving evidence indicate mere speculation
2. For example, CCTV in prisons clearly became a major issue following the death of Carl Williams, and was apparently a significant issue beforehand. By way of example, approximate $500,000 was spent upgrading CCTV at the Acacia Unit.
3. There was clearly significant activity required at a senior level in working with the Ombudsman as he conducted his review and formulated recommendations.
4. DoJ agreed to the Ombudsman's recommendation to conduct a review of all CCTV systems in Victoria's correctional system to ensure that CCTV systems are functional and up to date in light of the issues identified in this report. Conducting that review was presumably a major exercise.
5. I emphasise I do not find such documents do exist. Using memoranda or briefs relating to the implementation of Recommendation 20 as an example, as DoJ submitted, only three months elapsed between the date of the Ombudsman's Report and the date of the FOI request. Therefore, any documents created after the date of the request are not within scope. It is quite conceivable that no documents were created in that three months and documents which were otherwise fall within the scope were created after that date.

Has there been a thorough and diligent search by DoJ for those documents?

1. I am not satisfied there has been a thorough and diligent search by DoJ for the documents within the scope of the request.
2. In my view a thorough and diligent search likely to locate briefs and memoranda which contain the term "CCTV" or synonymous terms in the context of any review of CCTV systems in Victorian correctional facilities within the timeframe would have been sufficient.
3. Ms Morgan's evidence, which I accept, is she searched the TRIM database for briefs and memoranda including the term "CCTV", in either the subject heading or content of the documents. She only found the two documents discussed above and one of the documents was also found via the Office of the Secretary.
4. Ms Morgan's evidence is that in her opinion, she conducted a thorough diligent search via TRIM using only the term "CCTV". It is implicit, that in her opinion, at Corrections Victoria, there was no other practical method of searching for the documents.
5. While meaning no criticism of Ms Morgan, who gave truthful and careful evidence, if I am correct in my understanding of her evidence that she only searched on the term "CCTV[1]" and not on synonymous terms, I do not accept that search was sufficient. For example, having found only two documents, in my view it would have been reasonable to search on the term "closed circuit television".
6. If I am mistaken in my understanding and she has searched on synonymous terms as they appear in the titles of and contents of briefs and memoranda stored on TRIM across all of DoJ, there is no need for the respondent to make those searches again.
7. Neither is there any need for multiple areas in DoJ to further search TRIM (assuming each of the three areas has access to the same database) for relevant documents. One search will do.
8. Second, while Ms Morgan's evidence is that she searched TRIM for all documents held by DoJ, I am unable to find on the evidence before me that thorough and diligent searches were conducted in the Office of the Secretary and OCSR. I do not regard the statements in emails from those areas to the FOI Unit as sufficient evidence. I do not say thorough and diligent searches were not done; I do not know. Ms Morgan's evidence was she had no direct knowledge of how searches in those areas were done. In particular, the evidence before me does not establish that in those two areas, there are no other avenues to search other than TRIM. For example, is there a separate storage facility for meeting papers of the Justice Executive? Are separate files held with respect to the Ombudsman's report?

1. The order at page 1 is to be interpreted in the context of these reasons. As both parties submitted would be appropriate if I ordered a further search, I intend that the processing of the FOI request continue to proceed under the Act, as it was before 1 December 2012.
2. I considered the option of inviting the respondent to put more evidence before VCAT, but rejected that option. VCAT's is obliged to, under section 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998, conduct and determine each proceeding with as much speed, as requirements of the VCAT Act (and here the FOI Act) and proper consideration of the matters before it permit.
3. It seems it would require more resources of the respondent, and certainly of the applicant, to hold a further hearing with respect to further evidence, than it would to conduct the further searches.

[1] I assume she searched on the term "CC TV, which includes a space between the second and third letters of the acronym.