McIntosh v Victoria Police (General) [2009] VCAT 1923

The applications by the respondent for orders pursuant to s 75 of the Victorian Civil & Administrative Tribunal Act 1998 dismissing the applications for review are dismissed.

1. In 2008, Mr Andrew McIntosh made a number of requests under the Freedom of Information Act 1982 to Victoria Police.
2. In response to one of his requests he was provided with a printout of at least 18 pages, listing computer file folders relating to the Workforce Planning and Placement Division of Victoria Police. Mr McIntosh refers to this as an "electronic folder tree".
3. On 22 August 2008 Mr McIntosh made two further requests and they are the subject of these applications for review.
4. The first request (G814/2008) seeks a list of documents that are contained in a selection of 7 folders and subfolders listed in the document already provided to him.[1] The selected folders are identified by reference to their title and to the page on the list provided where the title appears.
5. Mr McIntosh makes it clear whether all folders and subfolders are sought, or whether it is a main folder and subfolder. Attached to the request are the relevant pages of the list. What is sought is additionally sidelined and highlighted. For the purpose of the request, Mr McIntosh calls these pages "screen prints of WPPD folder documents."
6. The request continues:

I seek a copy of the "Screen prints of WPPD folder documents", pursuant to the provisions of the Freedom of Information Act 1982. The form of access I require is provision in the form of an electronic copy; however I would also be satisfied with a paper-based copy if that form is more appropriate. I would ask that the listings be created by following the "screen print" protocol for creating a screen print common to Microsoft programs.

1. Victoria Police responded to this request saying:

I note that your request is for a list of all files contained within 7 folders (and numerous subfolders) of the Workforce Planning & Placement Division computer drive. In response to your request I draw your attention to section 17(2) of the Act which states:

'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.'

Your request, as it stands, is not a valid request because it fails to identify the document(s) sought by you, or at the very least the nature, type or subject matter of the document(s) that are the subject of your request. I therefore request that you advise me of the topic, subject or nature of the documents to which you are seeking access.

Under section 17(4) of the Act, an applicant must be given a reasonable opportunity of consultation in order to make the request in a form that would comply with section 17(2) of the Act.

1. There followed some correspondence between the parties. On 6 October 2008, Victoria Police wrote to the applicant rejecting the request on the basis that it did not comply with s 17(2) of the Act.
2. On 10 October 2008, Mr McIntosh applied to the Tribunal for review on the basis that there was no decision on the request within the prescribed time. Under the Act when a decision is not made within the required time there is a "deemed refusal" (see s 53(1)), giving rights of review.
3. The second request (G815/2008) again concerns documents contained in various folders and subfolders within the electronic drive of the Workforce Planning and Placement Division of Victoria Police. Mr McIntosh seeks a copy of all documents stored in the folders titled "Police cost per unit" and "New Labor Govt 06". Those folders appear respectively on pages 17 and 18 of the list printouts previously provided to Mr McIntosh.[2]
4. There was correspondence between the parties. Victoria Police responded to this request again saying that the applicant had failed to submit a valid request in accordance with s 17(2) of the Act.
5. As he had done with respect to G814/2008, Mr McIntosh applied for review on the basis that there was a "deemed refusal". With respect to both applications Victoria Police has applied for an order under section 75 of the Victorian Civil & Administrative Tribunal Act 1998 dismissing the applications. The applications were heard together.
6. Victoria Police's position is that as there has been no valid request under s 17 of the Act, there can be no "deemed refusal", and thus the Tribunal has no jurisdiction.

1. Mr Batskos represented Victoria Police. He called Inspector Downes Victoria Police's deputy freedom of information officer. He had prepared a statement. He gave evidence and was cross-examined. Mr Batskos filed extensive submissions and he elaborated on them in the hearing.
2. Mr Cameron appeared with Mr Tracy for Mr McIntosh. He called Mr Coulson, Parliamentary Adviser who had prepared a statement. He gave evidence and was cross-examined. Mr Cameron referred to written submissions filed and made brief oral submissions.

1. To dismiss or strike out the applications I would need to be satisfied that the requests did not comply with s 17(2) of the Freedom of Information Act 1982 and were therefore not valid requests.
2. These applications raise some interesting issues. I am conscious that the object of the Act is to extend as far as possible the right of the community to access information in the possession of, in this case, government agencies. Further, that the Act creates a general right of access to information in documentary form, limited only by exceptions or exemptions (see s 3 of the Act).

1. Extensive written submissions were filed for Victoria Police.
2. Those submissions first set out the relevant legislative provisions concerning the objects of the Act and to the fact that "a request" for access to a document must be duly made (ss 5, 20(1)). They emphasised that a request had to be made in accordance with s 17, and that a request is duly made when it is made in accordance with each of the requirements in s 17. It was submitted that the right created by s 13 of the Act is to get access to "a document of an agency" or "an official document of a Minister" other than an exempt document. It was submitted, that the Act is not about access to information as such, but rather information in documentary form.
3. Returning to s 17, the submissions set out the requirements to be satisfied for a valid request for access to a document.
4. It was submitted that for a request to be validly made "in accordance with the Act", three requirements in s 17 must be satisfied:

(b) the request must be accompanied by an application fee of two fee units (s 17(2A)); and

(c) 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 (emphasis added): s 17(2).

In terms of whether this third requirement is satisfied in any particular case[3], it was stated by then President of the Victorian AAT:

"On the other hand 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." (emphasis added)[4]

Similar sentiments have been expressed by His Honour Justice Ormiston in the Court of Appeal when he stated in relation to the breadth of requests and the operation of s 17(2):

"One can imagine more broadly stated requests, but they would almost invariably fall foul of s 17, especially subs (2), which requires sufficient information 'to identify the documents'. Requests must be for specific documents or categories of documents, not for every document in a broad category." (emphasis added)[5]

The policy against allowing fishing or perverse requests under freedom of information legislation has also been recognised in other jurisdictions.[6] In the United States it has been held that freedom of information legislation does not allow requesters to conduct fishing expeditions through agency files,[7] nor (to continue the metaphor) does it require that the government go fishing in the ocean for fresh water fish.[8]

The policy against allowing fishing requests was also been recognised in the Guidelines published by the Government when the Act was first introduced. The Freedom of Information Handbook (2nd Edition) stated:

"1.9.3 Generic requests (ie for all documents on...) and fishing requests (ie documents which may exist relating to...) are not specifically provided for in the Act. These requests will have to be dealt with by the agency having regard to what is reasonable in the circumstances of the case. The agency must decide in each case whether the applicant has provided such information as is reasonably necessary to enable the documents to be identified (section 17(2))..." (emphasis added)[9]

In determining whether or not a request for access to documents falls foul of s 17 of the Act it is necessary not to lose sight of the democratic rationale for the existence of the Act and the concept of freedom of information. This was summarised by the Australian Law Reform Commission and Administrative Review Council in a joint report:

"The effective operation of representative democracy depends on the people being able to scrutinise, discuss and contribute to government decision making. To do this, they need information. While much material about government operations is provided voluntarily and legislation must be published, the FOI Act has an important role to play in enhancing the proper working of our representative democracy by giving individuals the right to demand that specific documents be disclosed. Such access to information enables people to participate more effectively in the policy and decision making processes of government." (emphasis added)[10]

Similarly, the democratic basis for the FOI Act is succinctly set out in the Queensland case of Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs[11]:

"[C]itizens in a representative democracy have the right to seek to participate in and influence the processes of government decision-making and policy formulation on any issue of concern to them (whether or not they choose to exercise the right). The importance of FOI legislation is that it provides the means for a person to have access to the knowledge and information that will assist a more meaningful and effective exercise of that right." (emphasis added)

Therefore, a request for access to documents must not be a broad, fishing or perverse request, but rather must be one which seeks specific documents in relation to particular subjects or issues of concern to the applicant making the request. If it were otherwise, it would be contrary to the policy behind the FOI Act and a request would not be providing such information as is reasonably necessary to enable the agency concerned to identify the document sought. A request for access under the Act cannot be a request for information as such but rather must be for information in documentary form.

1. Mr Batskos in his oral submissions emphasised that a request must describe what is being sought, not dictate to an agency where to find information and how to look for it. In these applications, he submitted Mr McIntosh is seeking access to information not documents, because he is telling Victoria Police where and how to find that information. In summary he submitted that the requests do not seek particular documents, nor do they reasonably describe documents by reference to the specific information they contain. Therefore he submitted that requests are not valid, unlike for example a request for documents relating to a particular subject matter.
2. The applicant's submissions were fairly straightforward. In a nutshell it was contended that the requests for the list of documents (G814/2008) and all documents in certain folders (G815/2008) do provide sufficient information concerning the documents to which access is sought, to enable a responsible officer to identify the documents. Thus the requests comply with s 17(2).
3. In support of the contentions, the applicant relied on a decision of the Federal Administrative Appeals Tribunal in Russell Island Development Association v Department of Primary Industries [1994] AATA 2; (1994) 33 ALD 683. The Tribunal in that case considered s 15(2)(b), a provision of the Commonwealth Freedom of Information Act 1982. It is in similar terms to s 17(2) of the Victorian Act.
4. In that case the Tribunal held at 692 that s 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 has not necessarily been drafted with the same eye to detail.

In determining what is relevant to the request, regard must first be had to the words of the request...

The request cannot be considered solely in isolation but must be considered in the context in which it is made. Part of that context is formed by the events leading to the request...

... must stand back and take an overall view of the request and the context in which it is made bearing in mind that those making requests under the Act cannot necessarily be expected to have an intimate knowledge of the subject matter of the documents they seek or of the workings of government and also bearing in mind what [the applicant] submits was intended to be covered by the request.

1. The submissions also relied on the decisions in Penhalluriack v Department of Labour and Industry (unreported, Viz County Court, 19 December 1983) and Borthwick v University of Melbourne (1985) 1 VAR 33 in support of the contentions regarding the application of s 17(2).
2. In Penhalluriack's case Judge Lazarus said at p54:

[M]ere breadth is not a fatal objection to a request... [I]f the department knows very well what is being sought, and if it can find that material, or the better part of it, then it seems to accord with sense and the court should say that... criticism of the request [is] no excuse for non-compliance.

1. Judge Rowlands in Borthwick's case said at p34:

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.

1. In particular, the applicant contends that with regards to G814/2008 the documents sought and their nature is clear. The document sought is the list of the titles of documents stored in 7 named folders and their subfolders. As Mr Cameron submitted, the request identifies the nature and type of the documents sought and is a sufficient description to fulfil the requirements of s 17(2).
2. The applicant also relied on s 19(1) of the Act which is about requests involving the use of computers. That section says:

(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in documents of the agency; and

(c) the agency could produce a written document containing the information in discrete form by -

(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or

(ii) the making of a transcript from a sound recording held in the agency -

the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession."

1. The request it was submitted was precisely for a written document containing the information sought, being a list of the documents contained within 7 named folders held in a computer server.
2. So far as proceeding G815/2008 is concerned it was submitted that the request for all documents in two particular folders which are identified, is sufficient to comply with s 17(2). Whilst the applicant could not describe the nature of the documents sought, because he is unaware of their nature, the request for all documents in those folders is clear.
3. Mr Cameron pointed out in his oral submissions that were an applicant in any request required to identify the nature of documents sought, it would make no sense. It is often precisely because they do not know what the documents are that they are seeking access to them.

1. I agree with the respondent's submissions that the Act is about access to information in documentary form.
2. The Act contemplates that the end product of a request is the production of a document, and access to that document subject to exemptions and exceptions. It contemplates that a request will provide such information concerning the document so that the agency can identify the document. Section 17(3) imposes a duty on the agency to assist a person who has made a request that does not comply with s 17, to make a request in a manner that complies with the section.
3. Section 19 of the Act referred to by the applicant, also contemplates that if the document requested is not available in discrete form in documents of the agency, and the agency could produce a written document containing the information in discrete form, by the use of a computer, the agency shall deal with the request as if it were a request for access to a written document so produced, and the Act applies as if the agency had such a document in its possession.
4. All that s 17(2) requires is that the request provide such information concerning the document sought, as is reasonably necessary for the agency to identify the document.
5. Each request to an agency needs to be considered in those terms. I agree with and adopt the approach taken to how an agency should regard a request, as set out in the decision in Russell Island. I agree with the approach in Borthwick's case that it will depend on the particular case whether or not there is a sufficiently precise description of what access is sought to, to permit an agency as a practical matter to locate the documents requested. I agree with the approach in Penhalluriack's case that mere breadth is not fatal to a request. It must be remembered too that Ormiston JA's comments at p 431 in Department of Treasury v Kelly's case were in the nature of an aside, made when the issue on appeal was whether the agency should have refused the request where it was claimed processing would unreasonably divert resources of an agency.
6. Depending on each request it may well be that it will be so vague or broad as to be unintelligible or incapable of being responded to. There could be insufficient information provided in a request to enable the agency to identify what is sought. There is nothing in s 17(2) that requires an applicant to identify the nature of the documents sought or their type, which were the reasons Inspector Downes gave in answers to questions put to him in cross-examination, for why he understood the requests were not valid requests. Nor is there anything in s 17(2) that requires one to identify the subject matter. Whilst such information might be useful in assisting an agency to respond to a request, the lack of such features does not invalidate the request.
7. I observe here that s 17 requires an agency to assist an applicant to frame their request and then, there is a separate regime in s 25A of the Act, which gives an agency the right to refuse requests which would unreasonably divert the resources of an agency and what steps must be taken before such a decision can be made.
8. Looking at the first request (G814/2008), it is for a list of the documents in nominated folders. The request for a list on its face is a request for a document. The fact that the applicant has advised or directed Victoria Police how to interrogate the electronic system is a distraction. To have done so, has done no more than make the request clearer to Victoria Police.
9. If it turns out that such a list could not readily be produced potentially the application of s 25A might become relevant. Even though the Department may not at this point in time, have a print out of the lists requested, s 19 applies as if it had such a document in its possession. The request for a list is not so broad as to be regarded as so vague it cannot be responded to. Inspector Downes in his evidence made it clear he did not know one way or the other whether there were in fact any documents in the folders. That is for another day.
10. It goes without saying that the applicant is interested to know what might be on the lists. He has made a freedom of information request. Until he receives the list or is advised there are no document titles in the folders which is a possibility, he does not know what is on the list and whether his interest goes further. But that is no reason to claim the request is not a valid request. There is nothing in the Act that prevents an applicant from making a broad request, provided the request enables the agency to identify the document sought. It is precisely because people have not got the information they seek that they will make a request under the Act in the first place.
11. I am satisfied it is a request which fulfils the requirements of s 17(2), and is a valid request.
12. The second request (G815/2008) is more straightforward. It is seeking all documents in the named folders. Again we do not know, according to the evidence of Inspector Downes, whether or not there are any documents in the named folders. That aside, on its face the request fulfils the requirements of s 17(2) and is a valid request.
13. Issues of whether processing the request would unreasonably divert the agency's resources is a question for another day.

1. For these reasons the applications of the respondent for orders pursuant to s 75 of the Victorian Civil & Administrative Tribunal Act 1998 dismissing the applications are dismissed.

[1] See Attachment A for the letter of request in full with the attached pages

[2] See Attachment B for the letter of request in full with the attached pages.

[3] The first two requirements are not in dispute in these proceedings.

[4] Borthwick v University of Melbourne (1985) 1 VAR 33, 35

[5] Secretary, Department of Treasury and Finance v Kelly (2001) 18 VAR 427; [2001] VSCA 246 at [6] contra McIntosh v Department of Justice [2009] VCAT 92 per Judge Ross VP

[6] Eg Cainfrano v Premier's Department [2006] NSWADT 137 at [47] per President O'Connor.

[7] Immanuel v Secretary of the Treasury No 940884, 1995 WL 464141, at 1 (D.Md.Apr.4, 1995) affd 81 F.3d 150 (4th Cir. 1996); Dale v IRS 238 F. Supp. 2d 99, 104-05 (D.D.C. 2002)

[8] Freeman v U S Department of Justice No. 90-2754, slip op. at 3 (D.D.C. Oct 16, 1991).

[9] Volume 2, Guideline 1, Handling Requests for Access, September 1985.

[10] Open government: a review of the federal Freedom of Information Act 1982, (1995) page 12 at [2.3]

[11] [1993] QICmr 2; (1993) 1 QAR 60, 86 at [71]