Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing; be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of a dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

1. The applicant accused the respondent of "making a fortress out of a dictionary" in its approach to each paragraph of her request.
2. She says further that it is not appropriate for the respondent to be asking the applicants to identify the documents sought by type, by whom they were created or the time frame in which they were created. She says that these things are peculiarly within the knowledge of the respondent and not her.
3. She asks me to take the approach of Deputy President Forgie in the AAT in the Russell Island Development Association Inc v The Department of Primary Industries and Energy[3] when he said this.

[34] Those who make requests may not know the correct terms in which to frame their requests. That should not mean that their requests are read narrowly. Rather, they should be interpreted fairly with an eye to what the person making a particular request is trying to describe regardless of the terms used.

1. She also relied upon a County Court case of Penhalluriack v Department of Labour and Industry (unreported County Court 19 December 1983) at page 54 where the Judge indicated that if an agency knows very well what is being sought, criticism of the request is no excuse for noncompliance.
2. Even as recently as the case of Manu Chopra v Department of Education and Training[4], the Senior Member commented that in his view in almost all cases, it will be possible to arrive at some type of reasonable interpretation of an FOI request.
3. Thus the applicant submitted that it would be a mistake to look at her request through the eyes of a person with no knowledge of the context in which the request was made or a person with an eye attuned to find fault with the wording of the request.
4. The applicant also provided me with a decision of Deputy President MacNamara as he then was in the case of O'Brien and the Department of Justice[5]. In that case the applicant was seeking documents broadly relating to problem gambling. The agency had objected that the term problem gambling needed to be clarified and that the request without that clarification offended under section 17(2) of the Act.
5. The applicant's response to the agency's objection was terse and to the point:

I also note your advice that for a thorough and diligent search to be undertaken by the Department, the term problem gambling needs to be clarified. On this particular point I suggest either you, or the person who advised you, are not responsible officers of the department; or alternatively you are being obtuse and obstructive in this matter. If you genuinely need an explanation to understand the phrase "problem gambling" then I suggest you ask Minister Robinson who used the term frequently in media releases as late as the 8th of this March. Whether the gamblers are the focus of your campaigns or whether "significant others" or other "at risk groups" are the target of the advertising campaigns is immaterial; if the activity of gambling is a problem, then the campaign is relevant irrespective of the target group."

1. The Tribunal endorsed this response and Deputy President MacNamara added his own deprecatory comments on the agency's response. The Deputy President said this:

I should record this first that insofar as the Department called for a clarification of the concept of "problem gambling" it is difficult not to regard such query as captious. On the day prior to the hearing I conducted a search on google seeking the phrase problem gambling within the domain vic.gov.au. This produced some 7,170 results, to the text of which I did not turn.

In popular discourse in 21st century Victoria the phrase "problem gambling" is a well-known one having the connotation that I have just described. There was no need for Mr O'Brien to provide any clarification as to what it meant."

1. Paragraphs 23 and 24 of his decision in the case are particularly relied upon by the applicant. They read as follows:

It must be borne in mind that an applicant for access to documents under the Freedom of Information Act whether he or she is a politician, a community activist or an ordinary private citizen, is not possessed of full knowledge of what the relevant government agency is or is not doing in a particular field, what it does or does not do. A legitimate purpose for requesting documents under the Freedom of Information Act is to gain answers to these sorts of questions. The process of obtaining documents under the Freedom of Information Act will be greatly hobbled if to make a valid request an applicant were required to demonstrate the sort of knowledge that only access to the government agencies records would give him. This would be to create the proverbial catch 22. It is legitimate for someone having an interest whether as a politician or otherwise in government programs on problem gambling to seek by accessing documents under the Freedom of Information Act to ascertain, for instance, whether there was or was not a single campaign or campaigns that could be said to be attributable to problem gambling."

I respectfully agree with the statement by Mrs Coghlan at paragraph 39 of her decision in McIntosh's case [2009] VCAT 1923 that the statement by Ormiston JA in Kelly's case that it was not competent for an applicant for access to every document in a broad category as necessarily a failure to comply with section 17 of the Freedom of Information Act is not to be regarded as part of the court's ratio in Kelly's case.

1. Relying upon this line of reasoning, the applicant has provided dictionary definitions of various terms which she has used in her application. She has also provided evidence by way of her affidavit as to examples where the respondent and persons closely associated with the respondent have used various terms about which the respondent complains, in its own press releases or in documents or conversations.
2. The respondent did not take issue with the approach I have set out above. The respondent agreed that in viewing a request, the agency must use the knowledge of its organisation in interpreting the request.
3. It submitted however, that even doing so, the impugned sub paragraphs of Ms Macdonnell's letter did not contain sufficient information to enable Mr Meggs (or anyone else) to identify the documents sought.

1. I will first deal with subparagraph 1 of the letter. That reads as follows.

Documents containing any direction from the Minister for Sport or his Department or any other representative of the Victorian Government, to the State Sports Centres' Trust or its chief executive officer, to focus on professional - elite athletes in its management of Melbourne Sports and Aquatic Centre or containing any encouragement or endorsement of that focus.

1. The respondent complains that this paragraph does not identify the type of document sought either by timeframe or by whom it was created. The respondent also says that the request is so broad that it could conceivably encompass any document in any form from any person for any period since the opening of the Melbourne Sports and Aquatic Centre in 1997.
2. Further the respondent complains that paragraph 1 requires the respondent to make a value judgement as to whether a document was in fact a direction, encouragement, or endorsement, and whether the document can be described as requiring a "focus."
3. The respondent says that each one of these terms are nebulous and imprecise and raise the practical question of how the respondent could search for documents containing words which amount to an "encouragement" or "endorsement" of an action. Compliance with paragraph 1 would not require just a word search, but an inspection of an undetermined number of documents to decide whether in each individual case that document could be said to contain anything that could be described as encouragement or endorsement of a focus on professional or elite athletes.
4. The respondent further says that the vice of paragraph 1 is that it does not direct itself to documents, but to a particular subject matter.
5. The applicant submitted that her affidavit demonstrated that the respondent already had a clear knowledge of the nature of the documents sought in this paragraph.
6. The applicant said that her references in paragraph 23 of her affidavit demonstrated that Mr Meggs had himself had used words such as "focus," and that in discussions with staff he had referred to a need to "focus on elite athletes".
7. She submitted that this issue should thus not be looked at in a vacuum. It should be looked at in the context of the communications between herself and the respondent and that it was disingenuous of the respondent to say that Mr Meggs, as the respondents FOI officer, did not understand what is meant by the documents sought in this paragraph.
8. She said that his own statements to staff and other persons, (set out in her affidavit) revealed that Mr Meggs already knew all about what the controversy was about and could easily provide documents in response to the first paragraph.
9. Given that the responsible officer was the source of this concept of "focussing on elite athletes", he could be expected to know whether there are any documents to support the concepts and to suggest that he would be unable to provide the relevant documents without further refining of the paragraph is fanciful.
10. Further she said that the request could be seen to be limited in time because these concepts were only disseminated by Mr Meggs who has only been chief executive officer of the respondent for a short time. She said that there was no suggestion that any of these documents would have predated his appointment as chief executive officer.
11. Therefore, she said the paragraph was not nebulous or imprecise and did not call for a value judgement. It simply called for documents that Mr Meggs himself had relied upon in claiming that there would be a focus on elite athletes, and that he would well know whether any such documents existed.
12. She pointed out that she could not possibly be expected to know what documents he had relied upon and in what form those documents took, whether they were emails, letters or in some other form.
13. She said that she has the right to assume that Mr Meggs would bring his own knowledge to bear when he read the request in paragraph 1.
14. She also tendered an email from the respondent to members in which the word focus was used and referred to newspaper article in which Mr Meggs had used the same language.
15. The respondent noted that at paragraph 23 of the affidavit which she swore, the applicant appears to be limiting her request to the question of whether the respondent preferred elite sports persons at the expense of local residents.
16. However, paragraph 1 captures any statement by the Minister of Sport or anyone else representing the government, made at any time in any context, and is certainly not limited to the matters which she deposes are of concern in section 23 of her affidavit.
17. In my view the paragraph does not reasonably identify the documents requested. It would be impossible to conduct a sensible search as that paragraph is presently worded.
18. It would not take much thought by the applicant to amend the paragraph to make it plain that she was only seeking documents relied on by Mr Meggs in making the statements attributable to him (if this is what she seeks) and in limiting the request to a certain time frame. The applicant has not done so.
19. The paragraph, as it presently stands, is not compliant with section 17(2)

1. The third paragraph of the applicant's request reads as follows:

Documents in which risks of any kind to any person, and to the SSCT, were assessed prior to the making of the decision to move group exercise classes from the studio titled Aerobics on the 1997 plan of MSAC to the area denoted as Centre Management on that plan.

1. The respondent complains that paragraph 3 does not identify the type of documents sought, the timeframe during which they are sought (except to say that it must be a document created prior to making a decision to move group exercise classes), or by whom it was created.
2. The respondent points out that as it presently stands, that paragraph could refer to any documents from staff members that discusses risks of any kind to any person, and not necessarily risks in relation to the making of a decision, but simply documents created prior to the making of that decision.
3. The respondent accepts that there was a decision made to move classes and that this is identifiable but says that the way in which the paragraph is framed goes well beyond the way in which this issue is framed in the affidavit filed by the applicant. In this respect the respondent relies particularly on paragraphs 30 to 42 and 52 of that affidavit.
4. The wording of the document as it stands could encompass documents in which risk was discussed which were not in any way related to the decision to move the group exercise classes.
5. The respondent says that if the respondent is required to read this paragraph in conjunction with the contents of the applicant's affidavit, the respondent is in fact being forced to engage in a de facto consultation process, in attempting to interpret the words of the paragraph in the light of the affidavit material.
6. The applicant submits that those paragraphs in her affidavit in which these risks are referred to are not designed to limit in any way the operation of the paragraph, but to demonstrate that Mr Meggs clearly knows what risks were assessed and therefore what the paragraph refers to.
7. She points to some correspondence she had with him by her letter of 10 February 2018 and his response of 12 February 2018. She emphasises that in his response he did not say that he did not understand what she meant by the term "risk assessments", and indeed on 20 February Mr Hawkins, the General Manager of the respondent responded to her that "all risk assessments had been obtained".
8. In her affidavit she describes what she physically saw at the Aerobics studio and having been told that the floor was not strong enough to contain the classes.
9. Using the same argument as advanced in relation to paragraph 1, she submitted that it was clear from her affidavit material that the responsible officer, Mr Meggs understood well what documents it was she was seeking.
10. I raised with the parties whether the word "assessed" in paragraph 3 required the making of a value judgement by the respondent. To that question the applicant submitted that the term "assessment" was a formal process and a set methodology well understood by fitness businesses and indeed that her exhibit JN16 at page 4 of her affidavit showed how such an assessment should be carried out.
11. She said that the respondent would be clearly aware of this methodology and would not be required to make any value judgement as to whether risks were "assessed", but would simply be required to provide methodology of risk assessment which was well known throughout the industry. She submitted that the subject matter of paragraph 3 was well connected and well limited. She pointed out that it was clear from her affidavit that prior to this proceeding the agency had already been asked for this document and not said that it did not understand what was meant.
12. Ms Macdonnell also relied on the fact that in the letter from the respondent which is attached to her application, the respondent had referred to a document which described as a New Group Fitness Space Structural Adequacy Report. She said that if the respondent had not known what paragraph 3 referred to then they would not have been able to identify this document.
13. She said that she was not able to be more specific in the paragraph but she relied upon the fact that Mr Hawkins the General Manager of the respondent was described in his CV has having had experience in risk management and that the terms "risk assessment" and "risk management "are clearly referred to in the respondent's annual report.
14. She submitted that clarification of the words of sub paragraph 3 was not required because both Mr Hawkins and Mr Meggs could identify from their experience what documents were required.
15. In my view the wording of the paragraph goes far beyond the matters with which the applicant says she is concerned. It is far too broad in its application. Once again, I do not see that it would be difficult for the applicant to refine the request to make the purpose of the paragraph clear. Absent that refinement, the paragraph also offends against section 17(2).

Documents relating to athlete performance centre (including documents showing the cost of works and equipment, cost of hire -access to the room, and marketing strategy).

1. The respondent claims that this paragraph does not identify the type of document sought, the timeframe or by whom it was created.
2. It submits that as it presently stands, it could encompass any documents from any staff member that discusses the athlete performance centre and its operation. It was suggested by the respondent that it would be very difficult to search for documents of this description, given that the paragraph refers to the documents by subject matter, rather than by description of the type of document or groups of documents required.
3. It was suggested that even documents such as an email regarding the opening and closing time of the centre may be caught by such a broad description.
4. The respondent also submitted that the word "including" presupposed that there were other documents of an undetermined nature to be disclosed, as well as those documents described in the brackets of the clause.
5. The applicant submitted that the material in her affidavit made it plain that this was a quite limited category of documents. She emphasised that the athlete performance centre was not completed and not operational. She said that this meant that it would not have received emails about opening and closing times. She submitted that the material in her affidavit made it plain that this was in fact a limited avenue of enquiry and therefore there was no basis to suggest that it would be difficult to perform a search for the documents sought. She said she doubted that there were in fact any other documents than those that the respondent had already identified.
6. She pointed out that in the letter accompanying her application the respondent had identified a project financial gym development document outlining the costs of the centre project and also a report exploring the current need for such a facility. She said that if those documents could be identified from the paragraph in the factual circumstances set out in her affidavit which were unchallenged, it could not be said that the request was too broad.
7. Given that the affidavit discloses that the athlete performance centre has not been completed and is not operational, my view is that the timeframe applicable is quite restricted, and the class of documents requested by the applicant is capable of being ascertained.
8. This paragraph thus does not offend 17(2).

Documents relating to the operation of the bar called the Deck including the decision to operate that bar and the circumstances in which it seeks to operate.

1. The respondent complains that paragraph 7 does not identify the type of documents sought or the timeframe or by whom it was created. The respondent says that the request could be taken to encompass all documents no matter how small or inconsequential, including stock purchase receipts, individual bar sales records and employment records because all of these sorts of documents could be considered to be part of the operation of the bar.
2. Once again the applicant says that the request in paragraph 7 should be looked at in the light of the material in her affidavit. In the affidavit she refers to issues about the level of advertising of the bar. She has also given evidence that her observation was that the bar was run by a sole trader and did not provide written receipts.
3. The respondent says that this subparagraph goes far beyond those matters raised by the applicant at paragraph 73 of her affidavit.
4. At that paragraph she says that she wants documents regarding the decision to operate and the circumstances of the bar ceasing to operate.
5. The respondent suggests that if this is her concern then the paragraph should be amended so that this is clarified.
6. The applicant submitted overall that her request was not invalid simply because of the broad range of documents identified. The question was whether it provided the information required by this respondent in the circumstances as set out in her affidavit. She further submits in relation to this request and also the sixth request that the Victorian container terminal case is authority for the proposition that I should regard objections that were only tangentially related to the request. The reference here is to paragraph 44 of that decision.
7. She said that these objections show that the respondent was trying to be overly semantic, disregarding the context of the requests made.
8. Given that the affidavit discloses that the bar operated only for a very short space of time, and is therefore unlikely to have generated a significant number of documents relating to its operation, I find that this paragraph does not offend against paragraph 17(2).

Documents in which risks of any kind to any person, and to the SSCT, were assessed prior to the making of the decision not to staff the reception desk in the wellness zone (which has now been reversed).

1. The respondent complains that this paragraph is far too broad. Although it identifies the period as being "prior to the making of the decision not to staff the wellness zone", it does not make it clear that it is only concerned with risks relating to the decision not to staff the reception desk in the wellness zone. It is so broad that it could encompass any documents in any form discussing that decision. The type of risk is not limited, and the word "assessed" requires a value judgement to be made by the respondent as to whether a particular document assesses risks rather than just refers to them.
2. Further the respondent points out that this paragraph captures matters going well beyond the matters referred to at paragraph 77 to 87 of the applicant's affidavit. In that affidavit she refers to issues of theft and health and safety.
3. In response the applicant says that the types of documents sought are well known to Mr Meggs because he was very involved in the decision not to staff the reception desk. She says that her affidavit sets this out in detail and also sets out conversations in which he indicated that he made the decision and which she had pointed out to him the safety issues surrounding that decision.
4. Ms Macdonnell also referred in her affidavit to a letter signed by the members to Mr Meggs in relation to "risks" to person and property from that decision. That letter is exhibit JM17 to her affidavit.
5. She also relies upon statements referring to risk assessments in various letters copied into Mr Meggs and his response that he would consider changes.
6. She submitted that Meggs well understood what was meant because he had already identified documents, or one document which was referred to in the respondent's letter attached to her application. This document is the Wellness Zone - Assessment O7-17. She thought it likely that this may be the only document but did not wish to limit her request to just this document as suggested by the respondent in its letter of 1 June 2018.
7. Finally, the applicant said that it was fanciful to suggest that the paragraph might pick up an email from any person who had made a comment about risk and that the conversations between her and Mr Meggs on the very topic of risk which was set out in her affidavit show Mr Meggs level of knowledge as to what this paragraph meant.
8. In my view this paragraph is far too broad. Once again it could easily be amended by the applicant to identify only the documents she referred to in her submissions should she choose to do so. As presently worded, it offends against section 17(2) of the Act.

Documents created in the period from 1 March 2016 to date containing comparisons of MSAC's membership fees and casual visit charges with other gyms.

1. The respondent says that this request does not identify the type of documents sought or by whom it was created. The respondent submits that the request is so broad that it could encompass any documents in any form from any staff member that discusses any comparison of the respondent's membership fees.
2. The respondent points out that this category is defined by reference to the content of the document itself rather than to the type of document and would need the respondent to examine every email or other document since 1 March 2016 from any person to see whether that document fell within the category.
3. In response, the applicant said that she had communications with Mr Meggs about this very issue and a person by the name of Cook had responded on behalf of Mr Meggs behalf. The period which she required was only the period while Mr Meggs was the CEO of the organisation and it was fanciful to suggest that it might pick up an email from any person who made any comment about membership fees. She urged that the conversations between herself and Mr Meggs which were set out in her affidavit are the context within which this request must be viewed and in that context the request is understandable and able to be satisfied.
4. In my view this request, for the reasons advanced by the respondent, does not provide such information concerning the document sought as is reasonably necessary to enable the responsible officer of the agency to identify the document.
5. I find that this paragraph also offends against section 17(2).

1. I have decided that some parts of the request of the applicant dated the 29 March 2018 do not comply with section 17(2) of the FOI Act because they do not provide such information concerning the document in those sections as is reasonably necessary to enable a responsible officer of the agency to identify the document.
2. The next question is whether this means that as a matter of law the letter sent by Ms Macdonnell is not a valid request under the Act. If I find that it is not a request then the relief the applicant seeks under section 50(1)(ea) is not available because it cannot be said that the agency has refused to grant access to a document. This is because the applicant has not made a request as that term is used under the Act.
3. The applicant submitted that in truth the document dated 29 March 2018 contained nine separate requests. She submitted that those requests which I found to be compliant with section 17 attracted the operation of section 50 of the Act and that they should be listed for a final hearing in this Tribunal.
4. The respondent says that it is not possible for the document dated 29 March 2018 to be looked at in separate parts. The respondent says that if one or other of the parts of that document do not comply with section 17(2) of the Act this means that the request as a whole is noncompliant.
5. I now consider the relevant cases referred to by the parties in relation to this issue.

Chopra v Department of Education and Training

1. The most recent decision in this issue by this Tribunal is that of Senior Member Proctor in the case of Manu Chopra v Department of Education and Training[6], which was decided in May of this year. The facts in that case were very similar to those in this application. Dr Chopra had written to an agency seeking 14 different categories of documents within the same letter of request. The Senior Member considered each one of the categories and found that 13 of those 14 were compliant with section 17(2) of the Act.
2. The case came before the Senior Member as a section 75 application by the respondent. The grounds of the section 75 application were, as is the case before me, that the description of the documents identified in those 14 categories was not compliant with section 17(2) of the Act and therefore there was no reviewable decision in this Tribunal.
3. Senior Member Proctor ordered that the proceeding should be dismissed under section 75. He did so even though he found 13 out of the 14 requests to have complied with section 17(2).
4. In dismissing the proceeding and thus upholding the section 75 submission, he said this:

Where a request is made up of a number of parts and it could be said that some of those parts comply with section 17(2) and some do not, the whole request necessarily fails because it fails to comply with section 17(2). Requests may not be split into parts for the purposes of the FOI Act.

1. At paragraph 91 of his reasons he then said this:

[91] In my view, the principles that a noncompliant request cannot be made compliant and that if one part fails to comply the whole request fails to comply are sound. This is consistent with my observation in International Container that one must judge where a request sits on the range. Its position results from the whole, not part of the request. VCAT has no power to amend the FOI request before it. It is also consistent with Ross J's approach in McIntosh.

1. The respondent in this case urges me to follow the reasoning in Chopra. If I were to do so, given that I have found that some parts of the letter dated 29 March 2018 do not comply with section 17(2) of the Act, then this section 75 application would be successful.

1. Senior Member Proctor relied on his previous observations in the case of Victorian International Container Terminal Ltd v Port of Melbourne[7] in coming to his decision.
2. In that case, an applicant made a request consisting of six paragraphs. The question was again whether or not that request complied with section 17(2). Once again the issue before the Senior Member was that if the request was found to not comply with section 17(2) it would then not be a valid request and therefore the Tribunal would not have jurisdiction.
3. In that case the Senior Member considered each paragraph of the request, but made it clear that he considered his job to be to look at the request as a whole, rather than seeing each one of the paragraphs in isolation.
4. Doing so in the circumstances as he outlined in this case it was his view that the request did comply with section 17(2).
5. Therefore, no issue about splitting of the request arose in that case.
6. However, in that case there were various observations by the Senior Member which were taken up by the parties in this case.

The respondent emphasised that the Senior Member had dealt with a request as one request and expressed the view that in dealing with the section 17(2) question the document needed to be looked at as a whole.

1. The applicant emphasised that the Senior Member had acknowledged the need in interpreting a request to give effect Parliament's intention that the Act be interpreted consistent with Parliament's objective to extend as far as possible the right of the community to access information, and in particular by extending the right of access by enabling the 45 day decision period which applied in that case to commence as soon as reasonably possible.
2. The Senior Member had also emphasised in that case that he had taken a broad interpretation of the categories and that the next stage was for the respondent to consider whether it wished to take the position under section 25(a) of the Act that processing the request would substantially and unreasonably divert its resources from other operations.
3. The Senior Member appeared to be suggesting that a section 25(a) (1) enquiry was a more appropriate path to follow than to raise issues of difficulty in processing a request when considering the application of section 17(2).
4. The applicant also relied upon the Senior Member's indication that in his view in that case the categories were described in reasonably comprehensible language (relying on Penhalluriack) and phrased in better than broad terms (relying upon McIntosh) and contained reasonably specific particulars enabling the identification of documents (relying upon Zeqha).
5. He specifically found in that case that the request did not place an unreasonable responsibility on the decision maker to "tease out" the meaning of the request and observed that interpreting the request was part of the agency's obligation to assist a person making a request under the FOI Act.

1. In the decision in International Container, Senior Member Proctor referred to McIntosh v Department of Justice[8].
2. This case was decided by Vice President Judge Ross in February 2009. In that case an applicant had requested documents from an agency in six separate letters. Each of those letters were described in that judgement as being a request. This case did not involve section 17(2) of the Act. Instead, as in International Container, the respondent made a section 25(a)(1) objection to the request - that is, that each one of the requests should be refused because of the scope of the combined requests was such that to process it would be an unreasonable diversion of the respondent's resources.
3. As with the procedure under section 17(2), a respondent seeking to invoke section 25(a)(1) is required to consult with an applicant to assist in reducing the request to a digestible form.
4. However, the applicant issued an application for the Tribunal before that consultation period had concluded.
5. The issue before the judge in that case was whether the application should be struck out pursuant to section 75 because at that time the respondent had not made a decision and the time period in the Act had not elapsed.
6. Thus the judge was called upon to consider whether the request complied with section 17(2). The respondent in that case had contended that in considering that issue a request would not comply unless it permitted the respondent as a practical matter to locate the documents sought within a reasonable time and with the exercise of reasonable effort. It was specifically submitted that part of the request was "impossibly broad", specifying neither a relevant time period nor the meetings from which the documents were expected to be generated.
7. In that case Ross J took the view that there was no warrant for importing into section 17(2) a requirement that the request contains sufficient information to allow a respondent to locate the documents sought within a reasonable time and with the exercise of reasonable effort.
8. However, he found the request lacking in particularity and that part of the request was unintelligible. He thus found that the letter of 14 February 2008 which constituted the first request was not a valid request.

1. In Chopra, Senior Member Proctor also referred to a decision of Zeqaj v Victoria Police (2010) VCAT 1132. This was a decision by Vice President Judge Misso made in July 2010.
2. In this case the applicant had sent a request with 8 subheadings, and then a further application requested documents in relation to 12 named persons who were apparently police officers.
3. The respondent complained that each request was too generic in nature for the specific documents to be identified. The applicant filed an application for review and a section 75 application was made by the respondent seeking for the application to be struck out on the basis that neither letter constituted a valid request under section 17(2) of the Act.
4. His Honour viewed each request to have what he described as "serious flaws". Some of the requests were unintelligible. Others of the requests were in fact requires for information and not documents. For instance, the second request which sought all documents in relation to certain named persons was clearly in that category. So also were requests for documents in relation to police culture and brotherhood.
5. Thus it was a very clear case of the application of section 17(2).
6. However, in the course of his judgement His Honour said the following:

[31] It is not the task of the responsible officer to try to tease out from such a request what the applicant might be getting at. Firstly, for the responsible officer to do that would be a failure on the part of that responsible officer to undertake the statutory task set by section 17(2), and secondly, the responsible officer might inadvertently provide documents which are not what the applicant was seeking which would inevitably lead to unnecessary and possibly protracted correspondence between the applicant and the responsible officer in an effort to try to work out what is constituted by the request, and at worst the making of an unnecessary application for review.

1. And then after referring again to the respondent's obligation under section 17(3), the Judge commented as follows:

[34] It seems to me that the applicant set the respondent a near impossible task in endeavouring to determine what the request sought in order to provide access to any documents.

1. In that case Misso J also referred to the observation of Rowlands J in Borthwick v University of Melbourne[10] in which that judge said this:

Whether the information concerning the document is reasonable depends upon the particular case and whether the applicant has provided a sufficiently precise description of the documents sought to permit the respondent, as a matter of practicality to locate the document.

1. He further noted that Rowlands J had emphasised that responsibility rests upon the applicant to strive to define with as much precision as he can what it is that he wants.

1. This is a decision of Senior Member Megay made in 1998. Once again it was a decision about the application of section 25A of the Act. The respondent in that case estimated that the request encompassed some five million documents because of the broad nature of the request.
2. At the time this case was decided there was very little case law on section 25(A). Each of the parties to the application before me relied upon this case only insofar as the Senior Member observed that each application must be considered in its factual context balanced against the objects of the legislation - that quotation being referrable to the first Wright case. There were also observations in the second Wright case[12] which followed on the first case. The issue in that case was whether there had been appropriate consultation required by a section 25A and whether the task of obtaining the documents requested was so great that the work involved in processing the applicants request for substantially and unreasonably divert the resources of the respondent.
3. So the case essentially dealt with a section 25 issue.
4. However, in coming to her conclusion she made the following observations which were relied upon by counsel for the respondent. She said this:

I have given some thought to whether certain paragraphs of the request might, because of their narrow compass, be severable from the main request.

1. She goes on to identify those paragraphs about which she is talking. She identifies that material as being "of very narrow scope" and "in a very discrete" form.
2. She then goes to say this:

But I have come to the conclusion that the legislation does not contemplate the severing of individual items from the body of a main request. This is so because there is no barrier to an applicant, at any time, making a further and discrete request for particularly specified documents.

Secretary Department of Treasury and Finance v Kelly

1. The most significant case analysed by both parties in this application, (apart from Chopra), was Department of Treasury and Finance v Kelly[13], which was once again a case concerning section 25A(1) (a) of the Act.
2. The case arose out of a deadly explosion at the Longford Gas Plant. The applicant made 321 separate requests to the respondent for documents broadly relating to that explosion. The applicant appeared to have done so because he clearly anticipated that the response would be that the request would have fallen foul of the section 25A requirements if the request had been contained in the one document. That is, it would have been successfully argued by the respondent that to deal with such a voluminous request would substantially and unreasonably divert the resources of the agency from its other operations. The applicant therefore used what the court referred to as a device of splitting the documents into separate requests on the basis that none of the requests would individually offend against that section.
3. The case was therefore in some respects the very reverse of the case with which I am to deal today.
4. The court decided that the 321 requests should be aggregated for the purpose of considering the section 25A issue. In explaining why this should be so, Chernov J, said this:

In my view, there are at least two reasons why the 321 requests or at least some of them should be aggregated for the purpose of determining whether processing them will create the impression contemplated by section 25A(1)(a). First, such a construction of the provision will promote its purpose and would give effect to substance rather than form. The respondent's contention, however has the unacceptable consequences of promoting form above substance and, in effect, disregarding the aim or purpose of the provision. The underlining purpose of the section can be deduced not only from its wording but also from the circumstances in which it came into existence.

1. The Court thus found that the underlining purpose of the section would have been circumvented if the request was to be dealt with as multiple requests where the substance of the case was that it was a single very large request.
2. The respondent urged me to take the same approach in the case before me. Hence, the letter should be dealt with as a whole, with each of the individual paragraphs aggregated for the purpose of considering the s17(2) issue.
3. In Kelly it was significant that any other approach would have led to administrative chaos. The court was concerned to emphasise that the device of splitting the requests into multiple documents had the effect of avoiding the sanction set out in section 25(a). At page 601 of his judgement, Ormiston likened this device to a situation where multiple claims might be issued in respect of the same cause of action, divided so as to avoid the operation of monetary jurisdictional limits in lower courts by breaking claims up into sums which separately came within the jurisdictional ceiling of the lower court, but in aggregate far exceeded that ceiling.
4. I accept the respondent's argument that in the context of this case the reality is that the applicant has made one request to the respondent, and that request must be assessed as a whole, rather than as a series of separate requests. Any other approach would not promote the purpose of the Act. It would artificially separate different sections of the request into different streams of litigation in the Tribunal, leading to the possibility of inconsistent outcomes, and by its unmanageability defeat the purpose and structure of the Act.

1. The applicant relies on some observations in Kelly to make an argument that where section 17(2) refers to a request, that singular reference must be taken to include the plural word "requests".
2. The applicant says that as a matter of statutory construction, I should read the word request where it appears in section 17 of the Act and elsewhere as encompassing both the singular and the plural. She submits that approach would lead me to determine that the applicant had made several requests under the Act and that each one of those requests needed to be dealt with separately by this Tribunal.
3. In making this argument she relied upon sections 35, 36 and 37 of the Interpretation of Legislation Act 1984.
4. Section 35 provides that a construction that would promote the purpose or object underlining the Act shall be preferred to a construction that would not promote that purpose or object. It also allows a court or Tribunal to take into account various documents such as Hansard and explanatory memoranda in doing so.
5. Section 37 provides that in any Act unless the contrary intention appears words in the singular include the plural and words in the plural including the singular.
6. Thus the applicant says that when considering whether she has made a valid request I should treat the word request where it appears in section 17 and thereafter as including the plural.
7. The difficulty with this argument, as pointed out by the respondent, is that the real question before me is not whether the words should be seen as singular or plural. It is whether a request once made can be split into different compartments, and those compartments be subject to different processes within the Act.
8. The applicant placed weight on comments made by Callaway J in Kelly as to the application of the singular/plural rule.
9. He concurred in the majority decision in that case but added some comments on the application of the Interpretation of Legislation Act 1984 and particularly section 37 of that Act.
10. He said this at page 597 of the judgement:

I agree, as I believe it was ultimately conceded by counsel for the appellant, that it is inappropriate to resolve the issue by an application of the singular-plural rule as embodied in section 37 of the Interpretation of Legislation Act 1984. Section 25(1)(a), whatever be the proper interpretation of the word request, is intended to operate distributively, that is, it is intended to apply to each request made pursuant to section 17 of the Act. Ordinarily, therefore, each request is to be looked at separately for the purposes of section 25A.That is not the end of the matter, however, for the issue here is whether the appellant could properly characterise all the requests as effectively a single request. Despite the protestations of the respondent there is no real factual problem in treating all the requests as it least related and directed to a single subject matter, namely the circumstances surrounding the explosion and fire on 25 September 1998 at the ESSO BHP plant at Longford in Gippsland, although some may have been drawn too widely.

1. Justice Callaway went on to describe the separation of the requests as being "as transparent a means of evading the requirements of section 25A as one could fairly imagine."
2. I agree with the submission of the respondent that the approach of Callaway J as to the applicability of section 37 does not assist the applicant.
3. I consider that section 37 of the Interpretation of Legislation Act 1984 does not assist me in determining the issue before me. The real question is whether the document dated 29 March 2018 should be read as a whole so as to constitute a request under the Act, or whether it can be divided into sections, some compliant with the Act, and some not.

1. In its submissions, the respondent spoke in terms of whether or not various categories could be severed from other categories. The applicant rightly protests that the concept of severance is a precise legal concept unsuited for freedom of information jurisprudence. I agree, but the practical question which I need to determine is what will happen as a matter of practice if part of the document dated 29 March 2018 is to go forward to a hearing before this Tribunal and the balance is to remain in limbo.
2. I accept the respondent's submission that such a result would be chaotic administratively and would cause confusion, with different paragraphs of the document being dealt with under different sections of the Act, and potentially giving rise to issues being raised in conflict with each other. This cannot reflect the purpose and structure of the Act.

Can the respondent invoke section 17(2) more than 30 days after the receipt of a FOI request?

1. The applicant submitted that it would not be consistent with the object of the Freedom of Information Act for any agency to be able to invoke section 17(2) more than 30 days after receipt of a FOI request.
2. She noted that the Tribunal had not had to deal with this issue before because the cases to which I was taken in argument in respect of section 17(2) had been cases where that issue had been raised prior to the expiry of 30 days after receiving a request. She emphasised Parliament's emphasis in the Act on promptitude and low cost and the requirement in section 16(1) which requires agencies to administer this act with a view to making the maximum amount of government information promptly and inexpensively available to the public.
3. She submitted that the Act made time of the essence in dealing with a request for access. She noted section 21(1) which provides that an agency is required to take all reasonable steps to enable an applicant to be notified of a decision on a request as soon as practicable but not later than 30 days after the date on which the request is received. She submitted that rather than further the object of the FOI Act, it would thwart Parliament's intention of promotion of disclosure and the requirements for prompt decision making if, after 30 days have elapsed, an agency was still free to invoke section 17(2) to claim that the request did not provide such information concerning the document as is unreasonably necessary to identify the documents.
4. Thus, the applicant says that taking into account the need to construct the sections of the Act to promote the purpose or object underlining the Act, it cannot be the case that Parliament intended that the duty on the respondent to assist an applicant to make a request was not subject to any time constraints.
5. If there was no time limit to apply to the section 17(2) objection this would mean that an agency would be able to adopt a cavalier or leisurely approach to dealing with the request under the Act. There would be in effect no sanction to be applied to an agency who did so.
6. Thus she said that in the absence of a decision on her letter of 29 March 2018, the task for the Tribunal now is to proceed to make the correct or preferable decision on the documents which she has sought.
7. This was a matter which concerned me. I therefore asked the respondent to provide a written submission setting out what sanctions were available to a respondent who capriciously or tardily failed to deal with an application raising the section 17(2) issue but not determining it.
8. The respondent submitted that the legislation provides a remedy to an applicant in that situation through a right to apply to the Information Commissioner rather than the Tribunal for a review of the decision. This right arises under section 49A(1)(a) of the Act. That section provides that there is a right to review where there has been a decision of an agency refusing to grant access to a document in accordance with the request...
9. Therefore, if an agency fails to comply with s17(4) of the act, whether by tardiness or otherwise, section 49A(1)(a) gives redress to the applicant.
10. I accept that the Tribunal does not have legislative power to arbitrarily determine that section 17(2) does not apply more than 30 days after submission of a request. The section itself does not authorise this and it is not necessary to import such a requirement into the Act.
11. However, I do not accept that the solution for an applicant when dealing with a tardy agency is for an application to be made to the Information Commissioner under section 49(1)(a) of the act. That application would meet the same logical obstacle as the application in this case. That is, the agency could argue that there was no request made and therefore the application was misconceived.
12. The correct approach appears to me to be this. It is clear that the formulation of a compliant request is one of the foundation stones of this legislation. The Tribunal simply does not have jurisdiction in the absence of a properly framed request. Given this hurdle and given that many applicants are acting for themselves and have no real knowledge of freedom of information law, there is a significant responsibility placed on an agency to enter into the section 17(4) consultation process.
13. An applicant has the choice of either participating in that consultation, or, if the applicant thinks that process is being unreasonably delayed by the agency, bringing an application under the deemed decision provisions. In doing so, an applicant runs the risk of having that application struck out as being premature, (because the required consultation has not run its course) or because it is founded on a non-compliant request.
14. Here Ms Macdonnell has spurned the consultation process completely and issued her application in the Tribunal. Had the document on which she relies been found to be a compliant request, her application would have been listed for hearing.
15. She is still at liberty to make a further application, but of course in any further application will face the same issues as to the construction of any amended request that I have outlined in these reasons.

1. I have found that subparagraphs 1, 3, 8, and 9 do not comply with section 17(2) of the Act. I apply the reasoning in Kelly and Chopra to conclude that the request must be seen as a whole and that I have no power to hive off the compliant paragraphs from the document as Ms Macdonnell would wish me to do.
2. The document stands or falls on that basis.
3. The document as a whole is not compliant, and therefore is not a request under the Act.
4. The proceeding is therefore misconceived or lacking in substance and I will order that it be dismissed under section 75 of the Act.

[1] [2016] VCAT 337

[2] [2009] VCAT 92

[3] [1994] AATA 2 at paragraph 34

[4] [2018] VCAT 808

[5] [2018] VCAT 1379

[6] [2018] VCAT 808

[7] [2016] VCAT 337

[8] [2009] VCAT 92

[9] [2010] VCAT 1132

[10] 1985 1 VAR 33

[13] [2001] VSCA 246; (2001) 4 VR 595