By letter dated 8 February 2013, (received by me on 12 February 2013), the respondent sought written reasons for the decision pursuant to section 117(2) of the VCAT Act.
I now provide those reasons.
[2]
On 11 May 2012 the Victoria Police Freedom of Information Division ("Victoria Police") received a request for documents from Mr Hodder.
Mr Hodder lodged an application with the tribunal seeking a review of the decision of Victoria Police. His application was succinct stating "they will not give me my foi" and the date of decision was given as "18/6/12".
A number of letters in relation to the request were written by Victoria Police to Mr Hodder dated 16 May 2012, 21 May 2012, 15 June 2012, 17 July 2012 and 9 August 2012.
Interspersed with those letters were telephone calls made by Mr Hodder to Victoria Police dated 21 May 2012, 7 June 2012, 15 June 2012, 18 June 2012, 6 August 2012 and 9 August 2012.
[3]
There was some discussion during the hearing about the communications and telephone contact between the parties. Some is documented and speaks for itself. The telephone communications between the parties were however more vague. Victoria Police relied on file notes and Mr Hodder relied on what he acknowledged to be a fairly unreliable memory of the events. An analysis of the letters and telephone communications is important to identify when (and whether) any decision was made by the Victoria Police and the nature of the review request made by Mr Hodder.
I found the following communications took place between the parties.
I was satisfied that on 16 May 2012 the correspondence from Victoria Police to Mr Hodder was to seek clarification of his FOI request. It is in a standard format and explains the breadth of an agencies responsibilities under the Freedom of Information Act1982 (the FOI Act").
I was satisfied that when Mr Hodder called Victoria Police on 21 May 2012 that Mr Hodder complained about the way he had been treated by Bairnsdale Police and to that extent narrowed his request to the Bairnsdale Police. He expressed the view that Victoria Police would have everything available to process his request.
I was satisfied that on 21 May 2012 Victoria Police wrote to Mr Hodder confirming the content of the telephone conversation and advising him of his right to subpoena information for court proceedings, advising him of his ability to apply for a LEAP report and referring him to the Ethical Standards Department in relation to some of the concerns expressed by him. He was also again required to clarify his request.
I was satisfied that on 7 June 2012 Mr Hodder called Victoria Police and that there was a discussion about the Victoria Police LEAP records.
I was satisfied that on 15 June 2012 Victoria Police wrote to Mr Hodder advising him of anticipated delays with processing requests and his right to appeal to VCAT under section 53 of the VCAT Act if a decision was not made within 45 days of his application. The letter also explained the reason for delay and provided advice to Mr. Hodder in relation to his criminal history.
I was satisfied that on 18 June 2012 Mr Hodder called Victoria Police to confirm that he was not seeking his criminal history and re-emphasising the breadth of his request. Nothing in the communication between the parties at this time would have led to the conclusion that any decision had or had not been made.
I was satisfied that on 17 July 2012 Victoria Police wrote to Mr Hodder once again advising him that his request was still being considered but also advising him of his right under section 53 of the Act to apply to the tribunal on the grounds that a decision had not been made within the 45 day timeframe.
I was satisfied that on 6 and 9 August 2012 Mr Hodder called Victoria Police to query the current status of his request.
I was satisfied that on 9 August 2012, a decision was made. 14 pages were found to fall within the terms of the request. 4 pages were released in full and 10 pages released with various redactions. In this correspondence Victoria Police advised Mr. Hodder of his Review Rights and quoted section 51(1) of the Act and gave the name, address and reference number to enable Mr Hodder to lodge a review application.
At no time did Mr Hodder apply to the tribunal on the grounds that a decision had not been made.
Mr Hodder did not request an internal review of the decision. There was no further communication between the parties until Mr Hodder made his application for review to the tribunal on 16 October 2012.
[4]
Victoria Police submitted that Mr Hodder was not entitled to make his application to the Tribunal.
Victoria Police submitted that where a decision had been made, (such that the applicant was not relying on section 53 of the Act allowing for reviews where decisions had been delayed) before making any application to the Tribunal, Mr Hodder had to make an application for Internal Review which he had not done.
Accordingly Victoria Police asked me to dismiss the application under section 75 of the Victorian Civil and Administrative tribunal Act 1998 on the grounds that the application was misconceived as I have no jurisdiction to entertain the application.
Mr Hodder made no real submissions to the contrary. He emphasised that all he wanted was the information sought by him and that he had no understanding of process niceties. He expressed great frustration at the way in which he had been treated by the criminal justice system in recent years and emphasised that he has limited education and understanding of letters sent to him and explanations given to him about technicalities.
[5]
I only have the power to review a decision made under the Freedom of Information Act1982 (as it was prior to 1 December 2012) if the Act itself empowers me to do so[1].
Put simply and relevantly, section 51(2) of the FOI Act (as it was prior to 1 December 2012) provided that a person is not entitled to apply to the tribunal for review of a decision unless the person has made an application for internal review.
I was satisfied that Mr Hodder did not at any time apply to the tribunal on the grounds that a decision had not been made.
His application made in October 2012 could only have been construed as being made in relation to the decision which had been made by Victoria Police on 9 August 2012
I was satisfied that Mr Hodder has at no time made an application for internal review either orally or in writing and that in those circumstances I have no jurisdiction to review the decision made on 9 August 2012 by Victoria Police.
In light of this finding I accepted the submission of Victoria Police that I should dismiss the application and I made an order dismissing the application.
Parties
Applicant/Plaintiff:
Hodder
Respondent/Defendant:
Victoria Police
Cases Cited (1)
Hodder v Victoria Police (Review and Regulation) [2013] VCAT 180 (20 February 2013)