Lovell v Dept of Human Services (General) [2010] VCAT 1965

1. The respondent have leave to call evidence on the hearing of the application for review of a decision made by it on 20 July 2010 refusing to grant the applicant access to documents within s 25A(1)(a) of the Freedom of Information Act 1982.

1. On 18 February 2010, the applicant made a request to the respondent under the provisions of the Freedom of Information Act 1982 ('the Act') for access to certain documents.
2. The respondent did not make a decision on the applicant's request within forty-five days of receiving it.
3. In those circumstances, s 53(1) of the Act deems the respondent to have made a decision 'refusing to grant access to the documents'.
4. On 3 June 2010, the applicant applied to the tribunal for review of the respondent's deemed decision 'refusing to grant access to the documents'.
5. Before the applicant's review application was heard and determined by the tribunal, the respondent exercised powers under s 25A of the Act. On 15 June 2010, the respondent gave a notice to the applicant under s 25A(6) of the Act of its intention to make a decision to refuse to grant access to the documents sought in the request on the basis that the work involved in processing the request would substantially and unreasonably divert the respondent's resources from its operations. The notice invited the applicant to reframe her request reducing the number documents that might fall within its embrace.
6. The applicant did not alter her request and seeks to proceed with her application in the tribunal to have it review the respondent's deemed refusal to give her access to the requested documents.
7. On 20 July 2010, the respondent made a decision exercising the power contained in s 25A(1)(a) of the Act to refuse the applicant access to the documents requested on the basis that to comply with the request would involve it 'substantially and unreasonably diverting the resources of the respondent from its other operations'.
8. These facts raise a preliminary question for determination by the tribunal before hearing and determining the applicant's application for review. The preliminary question was couched by Mr Pizer of counsel, who appeared on behalf of the respondent, in oral submissions in the following way:

Can the respondent rely upon its actual decision made under s 25A(1) to justify its deemed refusal?

1. The answer to this preliminary question will determine how the final hearing before the tribunal is conducted.
2. In the respondent's written statement of legal contentions, it submitted the preliminary question raised two questions for determination. They are set out at paragraph 5 of the written contentions in the following terms:
   1. This raises two questions.
      • 5.1 The first is whether a respondent may make an actual decision under s 25A(1) of the Act after a deemed refusal application has been filed in this tribunal.
      • 5.2 The second, which only arises if the first question is answered in the affirmative, is whether a respondent may discharge its onus of establishing that the deemed decision was justified by reference to that actual decision.

1. The Act is divided into 7 Parts. Part I, Preliminary, includes s 3 which contains the objects of the Act.
2. Shortly stated, the community has 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)).
3. Part III of the Act deals with 'access to documents'. Section 13 is important. It provides a 'right of access to documents'. It is in the following terms:
   1. Right of access

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to -

(a) a document of an agency, other than an exempt document; or

(b) an official document of a minister, other than an exempt document.

1. Section 17 is also in Part III of the Act. It enables a request for access to be made. So too is s 21 found in Part III. It requires 'a decision on a request as soon as practicable but in any case not later than 45 days after the day on which the request is received'.
2. Part III contains other sections relevant to 'access to documents'. Section 22 relates to charges for access to documents. Section 23 deals with different ways by which access to documents might be given. Section 24 gives a power to defer access to documents. That is a power not couched in the form of an exemption and is to be properly understood as an exception.
3. Section 24A provides a power to refuse, in various situations, collectively summarised as 'repeated requests'. Again, that is a power not couched in the form of an exemption and is to be properly understood as an exception.
4. Section 25 provides a power to delete exempt matter or irrelevant matter. Again, that is a power more readily to be understood as an exception.
5. Section 25A is the section invoked by the respondent in this matter to make the actual decision. It provides a power to 'refuse to grant access to documents in accordance with the request' where the provisions of the section have otherwise been complied with. The power to refuse to grant access to documents is in the nature of an exception under the Act. The exercise of the s 25A power is not dependent on the documents being of an exempt kind.
6. Section 25A provides a right of refusal to access to documents, relevantly, where to do so would substantially and unreasonably divert the resources of the agency from its other operations (s 25A(1)(a)). Section 25A in terms does not require the agency or the minister to exercise the power contained in the section within a proscribed period of time. Mr Tracey of counsel, who appeared on behalf of the applicant, submitted that if the respondent wanted to refuse to grant access to documents on the basis of s 25A, then it would have to do so within 45 days of receiving the request. I do not accept that argument. Had the Parliament intended that to be the way the section was to operate, it would have said so in clear terms. The section is silent as to a time requirement save for sub section (7) which provides for any period of time caused by activation of the power in sub section (6) not to be counted in the calculation of the 45 day period for the purposes of sections 21 and 53(1).
7. If Mr Tracey's submission is correct, the power to refuse access on the basis of the exception in section 25A would be lost and not reviewable if not exercised within 45 days. In my judgment, had Parliament intended such a serious consequence, it would have said so in clear terms when the section was introduced as an amendment to the Act in 1993.
8. Sections 26 and 27 of the Act provide for who can make a decision and for reasons to be given in writing in the event of a decision that the applicant is not entitled to access to a document.
9. Part IV of the Act provides for various categories of exempt documents.
10. Part VI of the Act concerns 'review of decisions'. Section 50(2) enables an applicant to apply to the tribunal for a review of:

(a) a decision refusing to grant access to documents;

(c) a decision as to the amount of a charge for access.

1. A decision refusing to grant access may include a refusal on the ground a document is exempt or a refusal on the basis of an exception within, for example, s 25A(1).
2. On the hearing of an application for review the tribunal has the same powers as the minister or the agency (s 50(4)).
3. Section 51 provides for an internal review procedure within the office of the relevant minister or agency before resort is had to the tribunal.
4. Section 53 deals with 'reviews where decision delayed'. Here, the applicant's application depends on this section. Relevantly, s 53 of the Act provides as follows:
   1. Reviews where decisions delayed
      • (1) Subject to this section, where -

(a) a request has been made to an agency or minister;

(b) the time period provided in s 21 or s 43 as the case may be has elapsed; and

(c) notice of a decision on the request has not been received by the applicant -

the principal officer of the agency or the minister shall, for the purpose of enabling an application to be made to the tribunal under s 50, be deemed to have made, on the last day of the relevant time period, a decision refusing to grant access to the document.

(5) Where, after an application has been made to the tribunal by virtue of this section but before the tribunal has finally heard the application, a decision, other than a decision to grant, without deferment, access to the document in accordance with the request, is given, the tribunal may, at the request of the applicant, treat the application as extending to an application for review of that decision in accordance with this part.

(6) Before further hearing an application made by virtue of this section, the tribunal, may on the application of the agency or minister concerned, make an order allowing further time to the agency or minister to deal with the request.

(7) The tribunal may make an order under subs (6) subject to such conditions as the tribunal thinks fit, including a condition that if a decision is made during the further time to grant access to a document any charge that, under the regulations, is required to be paid before access is granted shall be reduced or waived.

28 The decision here, which is being reviewed, is a deemed refusal to grant access to the documents sought within s 53(1).

1. Section 55 of the Act is also important. It provides that in proceedings for review of decisions under Part IV, the evidentiary onus is on the agency or the minister to which the request was made to establish 'that a decision given in respect of a request was justified'.

1. Here, the review is under s 50(2)(a) of the Act. It is a review of a decision 'refusing to grant access' to documents. That refusal is a deemed refusal. The tribunal can, in my view, look at the question of whether, the refusal can be justified as an exemption under the Act or at the question of whether the refusal can be justified as an exception. They are the limitations on access to documents according to the objects of the Act in section 3. The Act in terms does not confine the respondent in the evidence which it might call to justify its decision whether deemed or actual.
2. In oral submissions I understood Mr Tracey to concede the respondent can still make an actual decision after a deemed refusal of access has been made within section 53(1) of the Act. But he contended the actual decision made subsequent to the deemed decision should have no relevance on review of the deemed decision by the tribunal.
3. Mr Tracey argued that although on review of the deemed decision the respondent can put on evidence to justify the refusal, in practical terms (because the documents would not normally have been identified or put before the tribunal) any evidence put on by the respondent must necessarily be confined to arguing the existence of one or other of the exemptions in Part IV.
4. I do not accept that to be the correct approach. There is nothing in the Act that confines the respondent in that way. The Act requires the tribunal on review to assess the evidence before it and balance an applicant's right to access to documents against any limitations by way of exemptions or exceptions and in an appropriate case to also consider public interest factors in the way set out in the Act. In my judgment it would be wrong to restrict or prohibit a respondent from putting on evidence to make out an applicable exception where such evidence is available.
5. I set out above the two questions which Mr Pizer posed as questions that need to be answered in order to decide the preliminary points that are raised on this application.
6. Section 53(5), in my judgment, clearly envisages a decision to refuse access to documents being made by a minister or a responsible agency after an application has been made to the tribunal to review the deemed decision to refuse access to documents within s 53(1). In that circumstance, the answer to the first question posed by Mr Pizer, in my judgment, must be 'yes'.
7. Section 53(5) in terms clearly gives the applicant the right to request the tribunal to treat the review not as a review of the deemed refusal but as a review of the actual subsequent decision. But what if the applicant makes no such request? Mr Tracey submitted the tribunal is then confined to review the 'deemed refusal only'.
8. Mr Tracey advanced a number of further arguments. He contended that the tribunal can only review the actual decision instead of the deemed refusal where the applicant requested it to do so and not where there has been no such request by the applicant as is the case here. He argues that had the Parliament intended the review to proceed as a review of the actual decision to refuse access to documents it would have said so in clear terms and it did not do so.
9. Mr Pizer agreed with a submission by Mr Tracey that s 53(5) of the Act is in terms different to the equivalent provision in the Commonwealth Freedom of Information Act. But, he contended, whether or not the applicant here has requested the tribunal to review the actual decision is not to the point. The point is simply whether the respondent is stopped from leading evidence justifying an actual decision when it is a deemed refusal that is the subject of review.
10. Mr Tracey submitted the tribunal's task now is to review the deemed refusal of access to documents only and not allow the actual decision to interfere with that process. Put simply, he submitted, both the notification of intention to make a decision and the subsequent actual decision in the exercise of the power in s 25A(1), post-dated the deemed decision and the actual decision is not subject to review. He contends the actual decision is irrelevant to the tribunal's consideration.
11. Mr Tracey submits the tribunal cannot perform a decision-maker's function under s 25A(1). He contends the tribunal is not in the position where it has the documents in its possession, or even a list of the documents as they have not been produced. The tribunal, he contends, is not familiar with the work involved in processing the request or the other competing demands of the respondent.
12. Further, he points out the tribunal is not able to comply with the pre-conditions to the making of a decision under s 25A(1), namely, those set out in subs 25A(2) to (4) inclusive and 25A(6) to (9) inclusive. Mr Tracey urged me to adhere to principle and to follow Mildenhall v Department of Education[1] and find that the tribunal cannot exercise an agency's power under s 25A(1) following a deemed refusal as here.
13. Recognising that the Act in s 54 places the onus on the respondent to justify the refusal to grant access to documents, Mr Tracey submitted the respondent ought not be permitted to lead evidence of an actual refusal to grant access to documents under s 25A(1) to justify a deemed refusal under s 53(1).
14. I do not accept this argument. The review is a review of a decision refusing access to documents under s 50(2)(a) of the Act. It matters not whether the decision under review is a deemed decision to refuse access or an actual decision to refuse access. On the review, the respondent may call appropriate evidence to justify the decision refusing access to the documents. The tribunal's task is that adumbrated by President Curtis in Re Smedley v The Department of Business, the Arts, Sports and Tourism.[2]
15. If the tribunal permitted the respondent to lead evidence in this hearing which justified the actual decision under s 25A(1), the tribunal would have to be satisfied by appropriate evidence that all the provisions contained in s 25A had been complied with. In this case, the tribunal could hear such evidence if it exists. I emphasise, I am not here deciding whether the respondent has discharged the onus it bears. That is for later a hearing.
16. If the respondent had made a decision under s 25A(1) within the 45 day time limit, that decision could be reviewed by the tribunal. In my view, the tribunal is just as capable of assessing whether a decision under s 25A(1) was justified even if it was made after the 45 day time limit, provided all of the provisions proscribed by the whole of s 25A have been met.
17. As Mr Pizer submitted, this case is clearly distinguishable from Mildenhall. In Mildenhall there had not been an actual decision within s 25A(1). Here there has been an actual decision. I accept that Mildenhall is distinguishable on that basis. The problems raised by the tribunal exercising the agency's powers envisaged by Senior Member Lyons in paragraph 30 of Mildenhall do not arise in this case because there has been an actual decision made by the agency. Whether or not that decision can be justified by the respondent will depend on the evidence led by the agency in justifying the decision to refuse access to documents.
18. After completing the argument in this case, both counsel referred me to a decision of Senior Member Billings in McIntosh v Victoria Police (General).[3] In that decision, the applicant sought review of a deemed decision to refuse access to documents. Before the review was heard, the respondent made an actual decision to refuse access under s 25A(1) of the Act. Before hearing of the review, the respondent applied to the tribunal under s 80 of the Victorian Civil and Administrative Tribunal Act to substitute the actual decision to refuse access to documents for the deemed decision to refuse access to documents. Senior Member Billings refused the application on the basis that it was an inappropriate use of the power in s 80 of the Victorian Civil and Administrative Tribunal Act to effectively substitute a proceeding in one form for another.
19. The decision in McIntosh is different to this case. Here, the preliminary point raised is not that of substitution but whether in discharge of its onus imposed by s 55(2) of the Act, the respondent can adduce evidence of the reasons justifying an actual refusal to grant access to documents under s 25A(1) in order to justify a decision refusing access to documents deemed to have been made by s 53(1), the 45 day time limit imposed by s 21 having lapsed.

1. In my judgment, the answer to the second question posed by Mr Pizer in his contentions is also 'yes'. The purpose of the Act is to grant an applicant access to documents limited 'only by exceptions and exemptions'. The applicant's right of access to documents in s 13 of the Act is 'subject to this Act'. A minister or agency may refuse access to documents on the basis of exceptions of which s 25A(1) is but one or on the basis of exemptions provided for in Part IV of the Act. Where there is a decision 'refusing to grant access to a document' that decision is reviewable in the tribunal (s 50(2)(a)). The task for the tribunal is to review the decision to refuse access to documents (Smedley supra). The respondent bears the onus of justifying the decision refusing access to documents (s 55(2)). The Act does not limit the tribunal to hearing evidence justifying a decision to refuse access to documents based on an exemption only. In order to comply with the stated purposes of the Act, where there is evidence justifying a refusal to grant access to documents based on an exception under s 25A(1) of the Act, the tribunal can, and should, hear that evidence. To suggest otherwise would circumvent the clear purpose of the Act.
2. For these reasons, I decide the preliminary question raised in favour of the respondent.

[2] 41 ALD 779 at para 13.