Kelly v DT&F [2001] VCAT 419

3. Liberty to either party to apply generally on 7 days written notice to the Tribunal and to the other party.

___________________ ____________________

For the Applicant: Mr J Middleton QC with Mr P Booth instructed by

For the Respondent: Mr R Tracey QC with Mr D Beach and Mr S O'Bryan

1. On 25 September 1998, an explosion and fire occurred at the Esso/BHP oil and gas processing facility at Longford in Victoria with consequential interruption to the supply of natural gas to consumers. Subsequently proceedings arising out of the incident were commenced in the Federal Court of Australia.

2. In December 1999, over a period of approximately two weeks, the applicant made 321 requests pursuant to the Freedom of Information Act 1982 (the Act) to the respondent and certain other agencies. A perusal of the requests discloses that whilst they fall into the following general categories :

(ix) recipients of assistance from the Gas Emergency Trust Account.

nevertheless, each is a distinct and separate request.

The agencies, other than the respondent, transferred documents perceived to answer the requests to the respondent.

3. On 31 May 2000, the solicitors acting for the respondent, advised the applicant of their instructions to inform him that the respondent had decided to refuse to grant access "to those documents which would fall within the terms of the request ... on the basis that to do so would substantially and unreasonably divert the resources of (their) client from its other operations". In amplification of the decision, the letter went on to advise that "scoping" conducted by the respondent had revealed that to process the requests would require several thousand files to be retrieved and searched, it being estimated that up to 12,000 files would need to be reviewed. The letter in part refers to "request" and in another part to "requests" but appears to have been written on the basis that it was meant to embrace all of the applicant's requests.

4. The respondent's decision was affirmed on internal review.

5. In the meantime, the State of Victoria initiated an application in the Federal Court to restrain the prosecution of the freedom of information requests it being submitted in part that they substantially or entirely overlap with orders for discovery of documents in the Federal Court action.

6. The applicant, who is the legal representative of Esso in the proceedings in the Federal Court, applied to this Tribunal for review of the respondent's decision refusing access.

"25A(1)The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request -

(a) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations; or

(b) in the case of a Minister - would substantially and unreasonably interfere with the performance of the Minister's functions.

(2) Subject to sub-section (3) but without limiting the matters to which the agency or Minister may have regard in deciding whether to refuse under sub-section (1) to grant access to the documents to which the request relates, the agency or Minister is to have regard to the resources that would have to be used -

(a) in identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or

(b) in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used -

(ii) in consulting with any person or body in relation to the request; or

(c) in making a copy, or an edited copy, of the document; or

(d) in notifying any interim or final decision on the request.

(3) The agency or Minister is not to have regard to any maximum amount, specified in regulations, payable as a charge for processing a request of that kind.

(4) In deciding whether to refuse, under sub-section (1), to grant access to documents, an agency or Minister must not have regard to -

(a) any reasons that the person who requests access gives for requesting access; or

(b) the agency's or Minister's belief as to what are his or her reasons for requesting access.

(5) An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if -

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and

(i) it is apparent from the nature of the documents as so described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document; or

(ii) it is apparent, from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document.

(6) An agency or Minister must not refuse to grant access to a document under sub-section (1) unless the agency or Minister has -

(ii) identifying an officer of the agency or a member of staff of the Minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and

(b) given the applicant a reasonable opportunity so to consult; and

(c) as far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such a form.

(7) For the purposes of section 21, the period commencing on the day an applicant is given a notice under sub-section (6)(a) and ending on the day the applicant confirms or alters the request following the consultation referred to in sub-section (6) is to be disregarded in the computation of the 45 day period referred to in section 21.

(8) If a complaint is made to the Ombudsman about a decision to refuse access to a document under this section, the Ombudsman must deal with the complaint within 28 days.

(9) If the applicant is not satisfied with a decision of the Minister or the agency about which a complaint has been made to the Ombudsman, the applicant may, after the expiration of 28 days after making the complaint, apply to the Tribunal for review of the decision.

(10) If an applicant applies to the Tribunal for review of a decision of the Minister or agency about which complaint has been made to the Ombudsman, the Ombudsman must provide a written report to the Tribunal".

8. It is not contested that the respondent is an agency for purposes of the Act.

9. The applicant contends that the respondent's freedom of information officer has failed to carry out her obligations pursuant to s.25A(6)(c) in that she did not, so far as was reasonably practicable, provide the applicant with any information which would assist the applicant in making his request in a form which would remove the ground for refusal.

10. In her statement (Exhibit 3), the senior freedom of information officer, Karen Jean Macdonald, who made the original decision to refuse access, said that she had made the decision on the basis that to process "the request" would substantially and unreasonably divert the resources of the respondent from its other operations. She said that such "a request" of the magnitude was "unparalleled" in her experience. She has held the position of FOI officer in the respondent since 25 May 1998. She said that it was the scope of "the applicant's request" which gave rise to "the most significant difficulty in terms of processing". She determined to review "a random sample" of certain of the files identified as likely to contain material answering the applicant's request.

11. In determining which files to examine, she sought the assistance of one Christopher Smith formerly employed by the Energy Projects Division of the respondent to manage its records system. She said that he reviewed the applicant's 321 requests and advised her that the most likely place to find documents relating to various subject matters concerning the Victorian Gas Industry would be amongst the files of the former Energy Projects Division which had been formed in July 1996 to manage the reform and privatisation of the gas, aluminium and electricity industries. Mr Smith informed her that there were approximately 12,500 to 13,000 files and 7,000 document records in existence and that the 7,000 document records comprised documents sufficiently significant to be registered individually. Of these 2,600 related to gas. Mr Smith advised Ms Macdonald that it was unlikely that certain of the estimated total of 12,500 files would contain material answering the applicant's requests and that, whilst others would probably contain some relevant documents, virtually all of the 2,600 files relating to gas would contain relevant material.

12. Ms Macdonald acted upon his advice and selected samples from the 2,600 files. To select the sample group, she sought the assistance of Mr Graeme Walker, the Applications, Development and Maintenance Officer within the respondent, to prepare a random file selection programme which would randomly select a number of files from the relevant 2,600. Initially, 21 files were selected and of these Ms Macdonald reviewed 10. All contained material which she considered fell within the scope of the applicant's requests. On the basis of time taken to conduct the review of 10 files, she estimated that for one officer to process all of the 2,600 documents, it would take "in the vicinity of 670.41 standard public service weeks" representing approximately 14.57 years.

13. It is the express object of the Act to extend the right of access to government information to the community (s.3(1)) and it is clear enough that the object of s.25A(6)(c) is to facilitate that access. The measure imposes a positive obligation upon a respondent to assist the applicant in providing information.

14. Ms Macdonald said that she had provided advice to the applicant to make his requests more specific. She conceded that she had not had regard to individual requests for purposes of determining whether individually, they constituted voluminous requests. The thrust of her evidence was that it was her view that the onus was on the applicant to confine his requests rather than for her to provide information to assist in that regard.

15. The sampling exercise embarked upon by Ms Macdonald appears to have been not so much in immediate response to the freedom of information requests but to have occurred subsequently for the purposes of the application for review in this Tribunal.

16. In the course of the exercise, the respondent prepared an index of the relevant 2,600 files. It is an index which provides the folder number of each file, its location, title and broad description. It was not, however, provided to the applicant. When asked why in cross-examination, Ms Macdonald said that she did not consider that it would be helpful. This view appeared to be based upon the fact that the index referred by description to each file as a whole without indicating the particular documentation contained on the file.

17. Having seen the index, it is our view that although file titles may reasonably be said to be expressed in general terms, in many cases, those terms are such as at least to indicate the possibility, if not the likelihood, that the file and its contents have no bearing on the information sought in the various requests and that had the index been available to the applicant early in the proceedings, it may well have assisted him in either narrowing or refining his requests. There is no doubt that it was reasonably practical for the respondent to have provided the index to the applicant. The respondent ought not to have refused the request without having first done so. Accordingly, we ordered that the index be released to the applicant. The respondent has failed in that regard to comply with s.25A(6)(c) and ought not, on that basis alone, to have refused to grant access to the information requested.

18. We turn now to the issue of the grouping of the applicant's requests by the respondent.

19. Although no reference was made to the Interpretation of Legislation Act 1984 in submissions, we consider it appropriate to consider the possible application of s.37(c) which provides that in an Act or subordinate instrument, unless the contrary intention appears, words in the singular include the plural.

20. In our view, it is clear that the procedures set out in the Freedom of Information Act contemplate the processing of requests individually and that thereby there is an apparent contrary intention. Were it otherwise, the application of many of the provisions of the Freedom of Information Act would be unworkable, for example, in cases where information in particular requests was of a different character requiring different responses from that in other requests sought to be processed as one. Furthermore, it is improbable that Parliament intended it to be possible for an applicant to avoid paying the fee of $20 required by s.17(2) of the Act or intended it to be possible for an agency to avoid a duty to provide access to information by the simple pretext in either case, of characterizing a number of requests as one. That cannot be an approach which would promote the purpose of the Act as required by s.35(a) of the Interpretation of Legislation Act 1984.

21. It is apparent and was conceded by Ms Macdonald that the respondent did not have regard to the applicant's various requests individually but dealt with them to the extent to which they were considered, as if they were one broad request. It is possible that one or more of the requests if individually regarded, might have constituted a voluminous request entitling the respondent to rely upon s.25A. However, save for some evidence from Ms Macdonald in regard to one of the applicant's requests that the pursuit of it would involve communication with some 1,500 parties, there was no evidence to support what must remain a matter of speculation.

22. It is our impression that it was the grouping and the grouping alone of 321 requests by the respondent which caused it to characterize the combined requests as being of a voluminous nature.

23. Section 25A is concerned with individual requests and not with groups of requests. In Re Shrewcroft v Australian Broadcasting Corporation (1985) 2 AAR 496 the Administrative Appeals Tribunal (Commonwealth) by reference to a Commonwealth legislative measure in similar terms to s.25A expressed the view that the approach of the respondent in that case in treating eight requests as a general or global request accorded with the facts. Sir William Prentice (Senior Member) said :

"And it appears to me that the spirit of the Act calls for them to be so considered, when deciding whether s.24 (equivalent of 25A) be applicable to the situation existing once the requests had been made. It would appear to make a nonsense of that section, if in a case where it would clearly apply to a request for a huge volume of nominated documents, that application of s.24 could be avoided by the mere breaking down of such an overall request to a multitude of virtually contemporaneous requests for single documents or parcels of them which would aggregate to the whole".

24. It would, however, be even more inappropriate were respondents able to avoid the processing of a multitude of non-voluminous requests from the same applicant in a particular case by the simple device of aggregating them with one request which has the character of a voluminous request or by simply contending that a number of non-voluminous requests when aggregated invoked s.25A.

25. The Tribunal in the Shrewcroft case may have been influenced by the fact that the multiple requests in that case, were all for access to papers, minutes and sound and video recordings of meetings of the respondent. In any event, we are not of the view that there is anything said in that case which influences us to depart from the view that, in this case, there was no justification on the part of the respondent to deal with 321 distinct and separate requests as if they were a single request.

26. If we are wrong in our finding that there was a failure on the part of the respondent to comply with s.25A(6)(c), in any event, we are of the view and find that the respondent has failed to establish that any one of the 321 requests made in this case was of the kind that the processing of it would substantially and unreasonably divert the resources of the respondent from its other operations. The respondent's case was put on the basis that dealt with as a group, the requests would have that consequence.

27. Furthermore, we are not persuaded by the evidence that the processing of the applicant's requests, even if grouped as a single request would more probably than not substantially and unreasonably divert the resources of the respondent. In this case, that conclusion has been drawn by the respondent by reference to the sampling of ten files and the conclusions drawn by a relatively inexperienced freedom of information officer who has substantially relied upon the opinion of another officer (Smith) who was not called. It was conceded that most of the files sampled were derived from only one area of information to which access was sought.

28. Ms Macdonald found that it took her an average of 86.6 minutes to review each of the 10 files. However, in one case, it took only 4 minutes and in two others 17 minutes and 20 minutes respectively. It is difficult to accept that a selection of 10 files from a total base of 2,600 is a convincing measure of the time likely to be taken to review the whole if, indeed, after proper consultation, the whole was anything like 2,600 files. A former government freedom of information officer since retired, Mr Richard Francis Farlow, was approached by the respondent with a view to conducting a similar sample review to that undertaken by Ms Macdonald. He took an average of 77.3 minutes to review each file and extended the time for processing of all 2,600 to a period of 13.12 years for one officer. A third view was expressed by Laurinda Amy Gardner, the Executive Director, Strategic Management of the Department of Treasury and Finance, who, in an undated statement of evidence (Exhibit 1), having read the statements of Macdonald and Farlow, formed the opinion that, on the basis of the deployment of one officer, it was unlikely that the applicant's request could be processed in under 10 years, the more likely time frame appearing to be in the vicinity of 13 to 15 years. Notwithstanding the reasonable proximity of the first two estimates, we remain of the view that the sampling of 10 files is an inadequate indication of expectation of time for the processing of the whole.

1. The respondent's determination refusing to process the applicant's requests is set aside.

(a) to comply with the provisions of s.25A(6)(a)(b) and (c) of the Freedom of Information Act 1982;

(b) for recommendation of whether any one or more requests are exempt by reason of the provisions of s.25A(1) of the Freedom of Information Act 1982.

3. Liberty to either party to apply generally on 7 days written notice to the Tribunal and to the other party.