1. Briefings & Reports by CPV to Minister for Police & Emergency Services and Briefings & Reports by CPV to the Secretary Department of Justice;
2. Documents discussing the future of CPV created or received by the Department of Justice between 1/1/2004 to 1/6/2006;
3. Any document that sets out the organisation and purpose of CPV together with a copy of the electronic documents directories operated by or on behalf of CPV;
4. A list of entries on the Department's electronic document management system created when a search is undertaken with the search elements of 'Crime Prevention Victoria' and separately 'CPV'."[1] (the first request)

5. The Respondent wrote to the Applicant on 11 March 2008, seeking clarification of the request[2] and on 19 March 2008 the Applicant's representative, Mr Coulson, wrote to the Respondent clarifying the request.
6. On 27 March 2008 the Applicant made 5 further requests for access to documents under the FOI Act, all of which concerned the activities of CPV as referred to in a report by the Nous Group titled "Safer Streets and Homes - High Level Review Final Report" (the Nous Report). The terms of the requests were as follows:
   • (1) "... all documents requesting access to data and all documents requesting interaction with staff for the purposes of completing a high level review of the 'Safer Streets and Homes' crime preventions strategy, as referred to on page 3 of the Nous Group report titled 'Safer Streets and Homes - High Level Review Final Report' dated February 2005."

(2) "All documents detailing 'interim results from independent evaluations of key crime prevention initiatives', as referred to on page 4 of the Nous Group report titled 'Safer Streets and Homes - High Level Review Final Report' (The Nous Report), dated February 2005, as well as all evaluations of initiatives conducted under Safer Streets and Homes that were produced between the launch of Safer Streets and Homes and 1 March 2008, and the terms of reference governing those evaluations.

Without limiting the scope of the request I include evaluations of four initiatives referred to on page 13 of the Nous Report titled the Early School Leavers Pilot Program, the Truancy Reduction Pilot Program, the Branching Out Project, and the Arrest Referral Program.

Included in this application are the electronic or paper-based summaries of 'Evaluations' documents which are retained in the Department of Justice document management system and/or screen-prints of the full folder structure and folder name within the electronic document storage system operated by the Department of Justice where the 'Evaluations' documents are stored."

(3) "All documents detailing the crime and violence prevention draft strategy for 2005-2009, as referred to on page 4 of the Nous Group report titled 'Safer Streets and Homes - High Level Review Final Report', dated February 2005, as well as the final strategy adopted, all briefings provided to the department secretary regarding the development and adoption of that strategy and all briefings provided to the Minister for Police and Emergency Services regarding the development and adoption of that strategy.

Included in this application are the electronic or paper-based summaries of 'Crime Prevention Strategy' documents which are retained in the Department of Justice document management system and/or screen-prints of the full folder structure and folder name within the electronic document storage system operated by the Department of Justice where the 'Crime Prevention Strategy' documents are stored."

(4) "... page 5 of the Nous Report titled 'Safer Streets and Homes - High Level Review Final Report' (The Nous Report), dated February 2005. In particular I refer to the term 'Knowledge Bank' in relation to the database. For the purposes of this application I ask that the term 'Knowledge Bank' apply to the database referred to on page 5 of the Nous Report, by whatever name it may now or have been known.

I request access to copies of the 'Knowledge Bank' database as at 1 March 2005 and as at 1 March 2008.

Included in this application are the electronic or paper-based summaries of 'Knowledge Bank' documents which are retained in the Department of Justice document management system and/or screen-prints of the full folder structure and folder name within the electronic document storage system operated by the Department of Justice where the 'Knowledge Bank' documents are stored ..."

(5) "Documents detailing each of the initiatives and investments made under each initiative under the Safer Streets and Homes crime prevention strategy as referred to on page 11 of the 'Safer Streets and Homes - High Level Review Final Report' (the Nous Report), dated February 2005.

I also request Financial Management reports on each initiative under the Safer Streets and Homes strategy produced as part of the periodic Financial Management reporting process during the period 1 January 2002 to 1 January 2006. I request that these reports be provided in electronic form."

1. By letter dated 2 May 2008 the Respondent wrote to the Applicant's representative advising that the 6 requests had been combined to form a single request (the combined request) because all 6 requests had been received within a similar date range and they all related to the functions of the former CPV and/or the Safer Streets and Homes Strategy. This letter also advised the Applicant that it proposed to refuse to process the request under s 25A(1) of the FOI Act, on the grounds that the scope of the combined request was such that to process it would be an unreasonable diversion of the Respondent's resources. The Applicant was invited to consult with the Respondent to assist in making the request in a form that would remove the ground for refusal.[8]
2. Some consultation took place in the form of a telephone conversation between Mr Coulson and Ms Friel of the Respondent. Ms Friel agreed to make some inquiries as to whether a list of files that required searching could be created to assist the Applicant in amending the terms of the request. On 2 June 2008, before Ms Friel was able to respond, the Applicant filed this application for review. During his evidence before the Tribunal Mr Coulson stated that the application related to the deemed refusal to supply the documents requested in the letter dated 14 February 2008.
3. Having received no further communication from the Applicant, the Respondent took the filing of the application to be a refusal by the Applicant to consult further about the terms of the request. On 19 June 2008 the Respondent refused to process the combined request under s 25A(1)(a) of the FOI Act, on the basis that to process the request in its current form would substantially and unreasonably divert the Respondent's resources from its other operations.[9]
4. The Respondent has made application pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) to have the application for review dismissed.
5. I propose to briefly set out the legislative context before turning to the evidence and submissions of the parties.

1. The object of the FOI Act is to extend as far as possible the right of the community to access information in the possession of the Government of Victoria and certain other bodies by, relevantly, creating a general right of access to information in documentary form. Such a general right is 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 by agencies (see s 3(1)).
2. The provisions of the FOI Act and any discretions conferred by it are to be exercised, so far as possible, so as to 'facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information'[10]. It follows that while the issue will ultimately depend on the proper construction of the relevant provisions of the FOI Act the Tribunal should generally lean in favour of disclosure and construe the exemptions narrowly.[11]
3. Section 13 confers a broad right of access to information, in the following terms:

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

1. a document of an agency, other than an exempt document; or
2. an official document of a Minister, other than an exempt document."
3. Four observations may be made about this provision:
   • the right to access conferred by s 13 comes into existence as an enforceable right only if a request is made which satisfies the requirements of the FOI Act;[12]
   • the expression 'Subject to this Act' makes it clear that the right of access is qualified by provisions such as s 14 and Part IV of the FOI Act which deals with exempt documents;
   • 'an agency' means a department, council or a prescribed authority (see s 5(1)); and
   • 'a document of an agency' means 'a document in the possession of an agency... whether created by the agency or received in the agency' (see s 5(1)).
4. If an agency refuses to grant access to a document, s 51 provides that the applicant may apply to the principal officer of the agency for internal review of the decision. If the applicant is not satisfied with the internal review decision, he or she may apply to the Tribunal under s 50 for a review of the decision. The Tribunal reviews decisions on the merits and is not restricted to the arguments or evidence taken into account by the agency.
5. In review proceedings the agency to which the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant (see s 55(2)).
6. In this matter the Respondent has refused to process the Applicant's request on the basis that to process the request in its current form would substantially and unreasonably divert the Respondent's resources from its operations (s 25A(1)(a)).
7. I propose to deal first with the Respondent's s 75 application.

1. The principles relevant to an application to dismiss or strike out a proceeding pursuant to s 75 of the VCAT Act may be shortly stated:
   • The power should be exercised with great care and only if it is clear that there is no real question to be tried[13] or, to put it another way, where the Tribunal is satisfied that the proceeding is undoubtedly hopeless, obviously unsustainable in fact or in law or be bound to fail.[14]
   • It is an interlocutory application and the Tribunal is obliged to proceed on the assumption that the Applicant will be able to prove each fact alleged in the claim.
   • A proceeding should not be dismissed or struck out under s 75 if the ultimate fate of the proceeding depends upon contested questions of fact.
2. I have applied these principles to the matter before me.
3. The Respondent's primary contention is that the Tribunal should dismiss the application on the basis that it is misconceived and lacking in substance. It is submitted that at the time the application was lodged on 2 June 2008 the Respondent had not made a decision in relation to the first request or the combined request and nor had the time period in s 21 of the FOI Act elapsed.
4. Section 50(2)(a) provides that an applicant may apply to the Tribunal for a review of 'a decision refusing to grant access to a document in accordance with a request'.
5. The Applicant contends that the Respondent made a decision refusing to grant access to documents in accordance with this request by virtue of ss 21 and 53(1) of the FOI Act.
6. Section 21 requires an agency to notify an applicant of a decision on a request not later than 45 days after the day on which the agency receives the request.
7. Section 53(1) provides:

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

(b) the time period provided in section 21 or section 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 section 50, be deemed to have made, on the last day of the relevant time period, a decision refusing to grant access to the document." [emphasis added]

1. The Respondent contends that the Applicant cannot rely on s 53(1) in this case because the 45 day time period provided in s 21 had not elapsed on 2 June 2008 when the review application was lodged.
2. The first request was made by letter dated 14 February 2008. On 11 March 2008 the Respondent wrote to the Applicant seeking clarification of the request. The relevant parts of the letter state:

"Your request has been assessed and information has been obtained from the Department's Justice Policy Branch regarding the terms and the scope of the five parts. Based on that advice, I am of the view that the request does not comply with the provisions of section 17(2) of the Act for the following reasons and that the request has not been accepted as a valid request.

This part does not specify a time frame. Also do you mean "agendas & minutes" of particular meetings held within Crime Prevention Victoria (CPV) or all meetings held/attended by officers connected with CPV, including meetings involving other areas of the Department and/or other agencies.

A time frame would assist in the search for documents relevant to the request. Also you will need to be more specific regarding the subject matter of the briefings and/or reports.

In view of the recent release to you of the "Nous Report", you may care to specify whether the documents subject to that request are meant to be included in this part.

This part of the request asks for any document that sets out the organisation structure and purpose and the electronic directories operated by or on behalf of CPV. The first part of the request has been interpreted to mean access to a single document that sets out the organisation, structure and purpose rather than all documents that refer to this part. The second part appears to ask for a copy of the Department's electronic document management system database (EDMS) that is used to manage documents on behalf of CPV. It is not clear what you mean by the term "electronic document directories".

Under section 17(3) of the Act, there is a responsibility on the Department to assist you in framing a valid application. You will need to provide better particulars and also a date range where appropriate."

1. On 19 March 2008 Mr Coulson wrote to the Respondent, on behalf of the Applicant, clarifying the first request. The relevant parts of the letter state:

In response to your Part 1 comments I note your belief the lack of a time frame is such a flaw as to take the request outside the scope of section 17(2). I also note that the phrase "agendas & minutes of Crime Prevention Victoria" is also sufficiently unclear as to render the request outside the scope of section 17(2).

It is the understanding of the Applicant that CPV was a sub entity of the Department created sometime around 2001 or 2002 and closing around 2006. Based on this understanding the request seeks Agendas & Minutes of the meetings of the governing body of CPV [what ever form that body took eg a Board or Committee of Management or an oversight committee etc.] for CPV created during its life.

I note your letter appears to contend the lack of time frame is such a flaw as to take the request outside the scope of section 17(2). I would refer you to the advice on a time frame set out in my response to Part 1.

If the Nous Report is a document that you consider fits the terms of Part 3 of the request then I require you to reconsider whether the exemptions claimed in the earlier application are still valid and if they are then the report may be excluded; but if they are not valid then the report should be included. Either way I ask that the decision is included in any decision advice you provide.

I confirm this part of the request seeks any document that sets out the organisation structure of CPV [for example an organisational chart or perhaps position descriptions for positions within CPV] and any document that sets out the purpose of CPV [for example a set of Aims & Objectives or an advice memo to the Minister advising the purpose of CPV] - should you have multiple documents that contain similar or the same information regarding this category then consideration for release should only be considered for one copy.

In relation to the reference to electronic document directories operated by or on behalf of CPV - I refer to the normal folder system that operates in the windows environment. I understand that the Department had a specific drive or set of folders that was available to CPV staff for the storage of electronic documents - it is the directories that relate to that drive or those folders that this part of the request refers to ...

Notwithstanding the failure of the Department of Justice to comply with the Freedom of Information law, I do not agree that the application failed to meet the terms of section 17(2) of the Act in this case and as a result I do not accept that this clarification constitutes a remedy to a defective application, merely clarification of the intent of the request."

1. The Respondent contends that it was only after receipt of the clarification on 19 March 2008 that the request was sufficiently clear to comply with s 17(2) of the Act. On this basis the 45 day period is said to have commenced on 19 March 2008 and was due to expire on 3 May 2008.[15]
2. It is common ground that the 45 day period in s 21 only commences when a request complies with s 17(2) of the FOI Act. Such a construction is consistent with the terms of s 17(4) which contemplates that an agency or Minister may refuse to comply with a request on the ground that the request does not comply with s 17(2)[16].
3. I deal later with the question of whether the request of 14 February 2008 complied with s 17 of the FOI Act.
4. The next element of the Respondent's argument concerns the operation of s 25A and in particular ss 25A(6) and (7).
5. On 2 May 2008 the Respondent notified the Applicant's representative that it was considering refusing to process the combined request under s 25A of the Act, on the ground that to process it would be an unreasonable diversion of the Respondent's resources. The Respondent invited the Applicant to consult in relation to his request, as required by s 25A(6).
6. Section 25A(7) provides that the period commencing on the day an applicant is given notice under s 25A(6)(a) and ending on the day that the applicant confirms or alters the request following consultation is to be disregarded in the computation of the 45 day period referred to in s 21.
7. The Respondent contends that while some consultation took place, it had not concluded, and the Applicant neither confirmed nor altered his request before lodging this application on 2 June 2008. The Applicant did not take issue with this proposition and it is common ground that the letter dated 2 May 2008 constituted the notice under s 25A(6)(a). Section 25A(7) provides that the period which is to be disregarded in the calculation of the 45 day period in s 21 commences 'on the day an applicant is given a notice under subsection (6)(a)'.
8. On this basis the Respondent submits that the time after 2 May 2008 is to be disregarded in the computation of the 45 day period in s 21 and hence that time period had not elapsed when the application was lodged on 2 June 2008. There being no deemed refusal under s 53(1) the Applicant was not entitled to lodge the application.
9. The Applicant accepts that the s 25A(6)(a) notice was faxed to Mr Coulson, the Applicant's representative, on 2 May 2008[17]. It follows that the period to be disregarded in calculating the 45 day period commenced on 2 May 2008.
10. The Respondent's primary submission in support of the dismissal of the review application turns on whether the request of 14 February 2008 complied with s 17 of the FOI Act.
11. Section 17 states, relevantly:

"(1) A person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or Minister as the case requires for access to the document.

(2) A request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document ..."

1. It is common ground that the 45 day period only commences if and when a request complies with s 17 of the FOI Act. In particular a request must provide 'such information as is reasonably necessary' to enable the agency to identify the document (s 17(2)).
2. The Respondent contends that a request will not comply with s 17(2) unless it permits a Respondent, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort. Two cases are relied upon in support of this proposition. The first is a decision of Judge Rowlands in Re Borthwick and University of Melbourne (Borthwick)[18].
3. Borthwick was concerned with a request for access to 'all files in Central Administration on the University Assembly or where papers relating to Assembly initiatives have not been transferred to the Assembly file or copies have not been placed on that file, to the Central Administration files relating to the individual issues'. The application for review was dismissed on the basis that the applicant had not sought an internal review as provided for in s 51 of the FOI Act. In the course of decision his Honour made some general obiter remarks about the nature of the request:

"It must depend on the particular case whether or not a sufficiently precise description is received to permit the respondent, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort ...

A responsibility rests on the applicant to strive to define with as much precision as he can precisely what he wants ... broad fishing and perhaps perverse requests which are maintained in an ill defined form despite frank and willing assistance by Freedom of Information Officers may not, as a matter of policy, be supported by the Tribunal."[19]

1. The second decision relied upon is that of Judge Davey in Coulston v Office of Public Prosecutions (Coulston)[20]. In that matter his Honour said:

"Unless sufficient information is provided so that the document can be properly identified not only by a reasonable description but also by date or within a reasonable time period, in my view the request may not be a valid request."[21]

1. In the matter before me the Respondent contends that the first request, made by letter dated 14 February 2008, was unclear and did not contain the necessary information to enable the Respondent to identify the documents sought by the Applicant. By way of example it was submitted that:
   • the first part of the request is 'impossibly broad', it specified neither a relevant time period nor the CPV meetings of which minutes and agenda were sought; and
   • the second part of the request is 'extraordinarily broad', seeking all briefings and reports by CPV to the Minister and the Secretary without reference to either date or subject matter.
2. The Respondent submits that the description of the documents sought was not sufficiently precise to satisfy the test articulated in Borthwick.
3. In reply the Applicant submits that the request of 14 February 2008 complied with the requirements of s 17 and was a valid request. The Applicant relied on a decision of Deputy President Forgie in Russell Island Development Association Inc v Department of Primary Industries and Energy (Russell Island)[22] and in particular the following observation by the Deputy President:

"As section 15 gives an applicant a broad indication only of how he or she may frame a request and as the documents requested may be described in broad terms also, it follows that a request cannot be interpreted with the same degree of precision as one would approach a piece of legislation or even a set of pleadings. It is neither legislation nor pleadings and had not necessarily been drafted with the same eye to detail."[23]

1. For my part I am unable to agree with the Respondent's contention regarding the test to be applied in determining whether a request complies with s 17(2). Subsection 17(2) is concerned with the provision of sufficient information to enable the identification of the document(s) sought. There is no warrant for importing into s 17(2) a requirement that a request contain sufficient information to allow a respondent to locate the document(s) sought 'within a reasonable time and with the exercise of reasonable effort'. Two points may be made in this regard.
2. The first is that s 17 is to be construed having regard to the direction in s 3(2) that the provisions of the FOI Act are to be interpreted so as to further the object of extending so far as possible the right of the community to access information in the possession of the Government of Victoria. The construction of s 17(2) advanced by the Respondent entails the implication of additional requirements before a request can be regarded as valid. The implication of such additional requirements is inimical to the objects of the FOI Act.
3. The second point is that s 17 must be read in the context of the FOI Act as a whole[24]. The time and resources required to identify documents which are the subject of a request are matters which are specifically addressed in s 25A. They are not matters with which s 17 is concerned.
4. In relation to the observation made by Judge Rowlands in Borthwick it is important to bear in mind that the case was decided before the enactment of s 25A. Indeed his Honour remarks on the absence of a provision in similar terms to s 24 of the Commonwealth FOI Act (which is broadly similar to s 25A of the FOI Act):

"The Victorian Freedom of Information Act was to a large degree modelled on the Commonwealth legislation. An important difference is the exclusion from the Victorian Act of a provision similar to the Commonwealth s 24(1) ...

Clearly that was a considered decision by the legislative in favour of 'open government' but the Tribunal must imply some concept of reasonableness if the legislation is to work in the community interest. The community has an interest in both a broad access to government information and in government employing its resources in the most beneficial manner."[25]

1. It is apparent that his Honour's formulation of the test posited by s 17(2) - a formulation which is adopted by the Respondent - had regard to the absence of a provision such as that which now appears as s 25A.
2. The question for determination is whether the request of 14 February 2008 provides such information about the documents sought as is reasonably necessary to enable those documents to be identified. In this regard I agree with the proposition that the documents requested may be described in broad terms and need not be expressed with the same eye to detail as a legislative provision or a set of pleadings.
3. However, I find that the letter dated 14 February 2008 does not comply with the requirements of s 17(2). In particular the first part of the purported request, that is for 'Agenda & Minutes of Crime Prevention Victoria', lacks the level of particularly required by s 17(2). Indeed this part of the request is unintelligible.
4. The reference to 'agenda & minutes' presumably relates to meetings of particular bodies. But CPV was not a single committee or working group. It was a business unit within the Department of Justice. Hence the type of meetings contemplated by the request is not apparent. No doubt the officers of CPV attended a range of meetings.
5. This part of the request does not provide such information as is reasonably necessary to enable the Respondent to identify the documents sought. It follows that the letter of 14 February 2008 was not a valid request.
6. Adopting the other aspects of the argument advanced by the Respondent (which were not challenged by the Applicant) I find that at the time the application for review was lodged no decision, or deemed decision pursuant to s 53(1), had been made refusing access to the documents requested by the Applicant. An application for review pursuant to s 50(2)(a) may only be made after a decision has been made refusing to grant access to a document. Absent such a decision there is no basis upon which a review application may be made.
7. It follows that the review application before me is misconceived and lacking in substance. On that basis I will grant the Respondent's application and dismiss the review application pursuant to s 75(1) of the VCAT Act.

[1] Document A annexed to the s 49 statement

[2] Document B annexed to the s 49 statement

[3] Document E annexed to the s 49 statement

[4] Document G annexed to the s 49 statement

[5] Document I annexed to the s 49 statement

[6] Document K annexed to the s 49 statement

[7] Document M annexed to the s 49 statement

[8] Document O attached to the s 49 statement

[9] Document T annexed to the s 49 statement

[10] See s 3(2) of the FOI Act and more generally s 35(a) of the Interpretation of Legislation Act 1984, which directs that in the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.

[11] See generally Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 at 61 per Ashley J; Accident Compensation Commission v Goom [1991] VicRp 72; [1991] 2 VR 322 and Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 at [13].

[12] See Wallace v Health Commission of Victoria [1985] VicRp 43; [1985] VR 403 at 406; Birrell v Victorian Economic Development Corporation (1989) 3 VAR 358.

[13] Fancourt v Mercantile Credits Pty Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Lay v Alliswell Pty Ltd [2001] VSC 385 at [14]

[14] State Electricity Commission of Victoria v Rabel [1998] IVR 102; Forrester v Aims Corporation [204] VSC 506 (8 December 2004)

[15] Where a period is to be calculated from a particular event - in this case the receipt of the request - the time is to be reckoned exclusive of that day or the day of that event: s 44(1) Interpretation of Legislation Act 1984.

[16] See further: Wallace v Health Commission of Victoria [1985] VicRp 43; [1985] VR 403 at 406

[17] See paragraph 4 of Ms Friel's witness statement, Exhibit R1

[18] (1985) 1 VAR 33

[20] Unreported VCAT decision 6 March 2001

[22] [1994] AATA 2, 13 January 1994

[24] Commissioner for Railways (NSW) v Agalionos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon J, cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 at 509

[25] (1985) 1 VAR 33 at 35-36