In addition to the request for rosters from November 2007, the applicant lodged a similar request seeking copies of rosters for October 2008 ...

1. As a consequence of the two previous requests referred to above, this is a third request by the applicant in relation to rosters of the respondent. However, in this request, the applicant is only seeking the information for one pay period.

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

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

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

1. In the first statement by Paul van Gemert, an Acting Inspector of Police and Deputy Freedom of Information Officer, at paragraph 10 of his witness statement, he sets out 10 steps that are used to process a freedom of information request -
   1. FOI requests are processed by the Division as follows :
      • 10.1 New requests are received by the pre-assessment team.
      • 10.2 The requests are checked to make sure they are valid, for example whether they have the correct application fee or fee waiver, identification or authority and whether the scope of the request is clear such that the documents sought can be identified.
      • 10.3 Acknowledgement letters, or a letter requesting clarification of the request or application fee are sent to the applicant, as the case may be.
      • 10.4 Files are then allocated to FOI assessing teams where a VPS2 support officer sends out a file to the relevant Police member for them to undertake a thorough and diligent search for all relevant documents. A two-week period is allowed. An extension of time is granted if a Police member is on leave or away from their usual workstation (because of problems with access documents, computer drives and the like).
      • 10.5 Files are returned to the Division (usually later than the two week deadline) and checked by a support officer to ensure all documents are discovered.
      • 10.6 Small files are identified for easy assessment by support officers or assessors.
      • 10.7 As requests become urgent, due to impending court cases or the urgency of a matter, these are prioritised.
      • 10.8 Assessors take the file from the shelf and assess documents for release in accordance with Freedom of Information Unit Practice Note No 01/2007, ...
      • 10.9 A draft response letter is prepared for the FOI Office to review and sign-off and a full set of documents to be released is prepared.
2. At paragraph 18 of Acting Inspector van Gemert's second statement, he describes the time that was taken by the respondent to process one of the previous requests. He states :

In summary, I estimate that, based on Victoria Police's previous experience and the sample exercise which I have undertaken, that it will take at least 640 hours for Victoria Police (including the time taken by the FOI Unit, staff officers and OICs at stations/units) to process the approximately 450 pages of rosters that will be relevant to the current requested, calculated as

Number of hours = 213 (conservative calculation of FOI unit's time; see para 50 of my previous statement) + 152 (Staff officers' time calculated as 4 days x 7.6 hours/day x 5 regions) + 275 (OIC's time; see para 16 above)

Number of pages for one roster period = 900 (pages from the applicant's May 2008 request for 2 roster periods) + 2.

1. It must be remembered that the request that Acting Inspector van Gemert refers to above, was in relation to two pay periods but, in the present application, the applicant is only seeking information in relation to one pay period. Therefore, instead of the 900 pages that Acting Inspector van Gemert refers to in his statement, there would be half of that amount relating to this request, which is 450 pages.
2. It should also be noted that the information that is required, needs to be sought from approximately 550 police stations throughout Victoria. It is unsurprising that each of these 550 police stations vary in size. It should also be noted that the rosters from different police stations came in different sized paper. Some stations used A4 and some A3. Therefore, it was necessary when copying the rosters for the purposes of the applicant's other requests, that they be made a uniform size. Further, often the rosters contained handwriting which relates to changes in the rosters that are made after the roster is prepared.
3. Mr Coulson made two statements which were both tendered on behalf of the applicant. From 19 November 2007 to the present time, Mr Coulson has been employed on a full time basis by the Leader of the Opposition as a Parliamentary Advisor with particular responsibility for the management of freedom of information applications. Prior to that time, and going back to 1972, it is clear that Mr Coulson has been involved in several departments as records manager and involved or in charge of freedom of information requests by the public to the different departments. At paragraph 3 of Mr Coulson's second statement, he claims that the step method referred to above used by the Police are circuitous - involving double and triple handling of documents for the purpose of adding to the estimate of the workload. At paragraph 3, Mr Coulson criticizes the method that the Police used. He there states :
   1. Having read the statements of the respondent I would make the following observations :
      1. The estimates provided by Ag Inspector van Gemert, Sgt Savickas and Inspector Wedgwood appear to be based on the following general steps -
         1. FOI Unit seeking copies of the rosters from each unit via Regional Command
         2. Regional Command acquiring and sorting the rosters relevant to each region and forwarding them onto the FOI Unit
         3. an officer of the FOI Unit scanning each roster as an electronic document capable of being amended by the 'Redact' computer program
         4. an officer of the FOI Unit assessing the scanning image and deleting exempt material
         5. the FOI Officer reviewing the material and signing a decision letter.
      2. My estimates provided previously are based on the following broad steps -
         1. FOI unit to despatch a routine request for documents to each relevant unit - incorporating instructions for the deletion of exempt material;
         2. the officer in charge or the office responsible for rostering to locate copy, amend the copy in line with the instructions

iii return the amended copy of the roster to the FOI Unit

1. an officer of the FOI Unit reviewing the material and preparing a decision letter - based on previous decision letters.

1. As a result direct comparisons between the two methods of estimation are difficult. The essential difference is that in the Police model the activities are focussed inside the FOI Unit, while in my model the activities are distributed amongst a few hundred sub-officers or officers with the FOI Unit acting in a management role.

1. The police estimates do not appear to allow for any efficiencies that could be reasonably applied by reference to the fact that they have done this exercise a number of times before - and the various units supplying the rosters should have little or no difficulty in complying efficiently - with less fuss than may have been experienced the first time in 2008.
2. The police process appears to be deliberately circuitous - involving double and triple handling of documents for the purpose of adding to the estimated work load. As an obvious [but not the only] example - even if the decision is made to centralise the deletion process from the units to the FOI Unit, the police process requires a unit to copy the roster and send it to Regional Command - then for Regional command to send the copy to the FOI Unit and finally the FOI Unit to scan the roster in preparation for the electronic deletion of exempt material. Common sense would dictate the originating unit could reasonably scan the roster and send it electronically directly to the FOI Unit - thus saving many tens of hours of work generated by the triple handling of the paper document. Even more time would be saved if the FOI Unit allowed the unit to provide a scanned copy of both the full roster and an amended roster.
3. Much of the evidence of Inspector van Gemert is focussed on the present workload of the FOI Unit ... the present or past work load of the respondent's FOI unit has little relevance to the requestion of whether processing a request would be an unreasonable diversion of the resources of the whole agency.

4. Estimates for the time required for the management of the request by each of the respondent's officers appears to be -

• 213 hours of Assessor time over a two month period for the processing steps (i), (iii) & (iv) of the above police model by an experienced Assessor

• 228 hours of Assessor time over a six week period for the processing steps (i), (iii) & (iv) of the above police model by an experienced Assessor plus an undisclosed amount of assistance from support staff;

• 38 hours for step (ii) in relation to one region - extrapolated across 5 regions equals 190 hours for step (ii) across Victoria Police.

1. At paragraphs 6 to 8 of Mr Coulson's statement, he refers to matters deposed to by the respondent's witnesses which suggest both inefficiency and extravagant use of time by the respondent. Mr Coulson states :

The amended request - limited to one pay period of rosters - could be expected to provide approximately 460 pages of documents [based on the first request for two pay periods producing 916 pages in total]. The estimate by the respondent that it would take approximately one hour per page to acquire assess, amend and release each page of a standard type document with simple and clear exemption claims is demonstrative of how excessive the estimates are to an experienced FOI Officer.

The position of the respondent in this matter is characterised by the opening statement of paragraph 41 of Inspector van Gemert - 'Quite simply, the FOI Unit is currently not in a position to be able to process the applicant's request'. I believe the respondent's position in this matter is not that the request itself would unreasonably divert the resources of Victoria Police, rather that processing this request would take resources of the FOI Unit away from other requests because the FOI Unit is inherently under-resourced.

To illustrate this point I would refer the Tribunal to the 2006 report of the Ombudsman into the operation of the Freedom of Information Act where the Ombudsman reported the average ratio across the ten departments was 48.5 requests per officer per annum, while Victoria Police was 200 per officer per annum [2000 requests handled by ten staff] ... Based on the estimates provided by the respondent in the statement of Inspector van Gemert at paragraphs 28 [ being 2500 requests for the 2009 calendar year] and 12.8 EFT staff presently in the FOI Unit - not much has changed since the Ombudsman's report in terms of ratio - still around 200 per officer per annum.

1. In a statement prepared at an earlier time which is attached to Mr Coulson's first statement, he states that the time for producing the documents that have been requested, is not realistic, and he states that the time should be 55 hours. He states as follows :

Resources by an experienced FOI Officer (steps 1, 2, 7,10) - 5 hrs 30 min

Resources by a less experienced Officer (steps 3, 6, 8 & 9) - 24 hrs 50 mins

Resources by Sergeant/Senior Sergeant at each unit (steps 4 & 5) at 7 mins per unit - 55 hrs 10 min

As outlined in the above table and based on my years of experience in Records Management and in the management of Freedom of Information requests across many government agencies I estimate the resources required for Victoria Police to effectively manage this request to be approximately 30 hours for the FOI Unit and 7 minutes each for the police operational units totalling approximately 55 hours across 550 units.

My experience is that most agencies receive a mix of simpler and more complex requests - simple requests typically taking 3 to 9 hours of work and more complex requests typically requiring 15 to 30 hours of work. This request is in essence a simple request covering a large number of documents and in this way is a little unusual only because of the number of documents requiring filing and sorting. The assessment task is a simple one.

Based on my experience, I estimate the processing of this request to be a larger task than many requests, but nonetheless simple and would not require more than most requests in specialist knowledge ie: about 5 hours 30 minutes as outlined above. The more labour intensive task of filing & faxing could adequately be undertaken by support staff and I estimate this to be approximately 25 hours. Finally the most time consuming task of copying and deleting names and sending the amended copy of each roster into the FOI Unit is estimated at some 55 hours, but this task is spread out across 550 different officers and only requires about 7 minutes for each other.

1. Sergeant Darren Savickas worked for nine months secondment in the Freedom of Information Unit of the Victoria Police from August 2008 to May 2009. In that time, he assisted in processing the applicant's second request. At paragraphs 20 to 22 of his witness statement, Sergeant Savickas sets out matters involved in processing that request. He states :
   1. In short, the work involved in assessing and processing the previous request was very detailed and time consuming. If I had to summarise the most time consuming tasks involved in processing the previous request they would be :
      • 20.1 Cross checking every roster requested supplied against the list of stations and units requested by the applicant
      • 20.2 Following up Police members and stations about rosters that were not provided the first time around and liaising with busy operational members who thought that what they had previously provided was sufficient when in fact something further was required. This was particularly relevant in relation to obtaining copies of rosters from smaller Police stations and one person stations which have very limited resources to undertake tasks over and above their normal operational and administrative duties.
      • 20.3 Redacting documents, especially for the rosters in which information such as a name, rank and number are not in separate columns and I was unable to simply draw a neat box around the information to be removed.
      • 20.4 Investigating other issues on the rosters and seeking responses on defendants' names and Operation names.
      • 20.5 Ensuring that handwritten notes, remarks, amendments and addendums on the rosters were also assessed and redacted where necessary (eg each shift change is approved by a sub-officer (and there are typically many changes on any given roster) who then initial the amendment and write his/her Police number next to it, which then has to be redacted.
   2. Had I not been involved in processing the previous request, I estimate that I would have been able to complete an average of ten FOI request files per week. This estimate takes into account the variation in the type, complexity and size of FOI requests received by the FOI Unit.
   3. In terms of the impact the processing of the previous request had upon the FOI Unit and its ability to carry out its normal functions and duties, I can say that it essentially took one assessor away from his normal functions and duties for approximately six weeks on a full time basis. Further, it took two other FOI assessors away from their normal functions and duties for a total of four days over a nine week period to assist and/or provide advice to and consult with me. In short, I believe that it had a deleterious effect upon the FOI Unit and its ability to adhere to legislative timeframes and policies.
2. Sergeant Savickas stated that when documents started to come into his office for processing, he said that he spent all day every day for a period of two weeks working on the documents by redacting the same and making sure that no information was supplied of a personal nature or other type information where exemption may be claimed. He said that "took all day every day". When I questioned the Sergeant about this matter, he said that the documents began to flow slowly into his office, at first "a handful" and then they increased and, presumably, later tapered off. I asked him why he would need to spend a full day on documents when only a "handful" arrived, he was unable to give me a satisfactory explanation on this matter. Thus I gained the impression that there was exaggeration in the time he was taking to process these documents.
3. It is also notable that the second request was fulfilled in a relatively short time. The Sergeant said that he started work on documents in relation to the request of 12 November 2008, on 27 November 2008, in the sense that the searching of the documents commenced at that time. During cross-examination, the Sergeant said that it took a total of 4 days in a nine week period. It is further noted that the documents were signed off on 16 January, and released to the applicant on 19 January 2008.
4. With that being the timeframe, I have formed the view that the time spent on actually collecting, collating, processing, including redacting, was far less than the time stated by the respondent and its witnesses.
5. I also heard evidence from Inspector Kathleen Wedgwood who was involved with the first request as a staff officer to Assistant Commissioner Region 3.
6. In paragraphs 7 to 9 inclusive of her statement she comments about the time taken in relation to the applicant's first request. She there states :

I received the FOI Unit's request for documents on 20 May 2008 and sent the documents to the Unit on 10 July 2008. In respect to myself, I estimate the total work period equated 3 to 5 days of full time work. I cannot comment in respect to other persons involved in the Region.

The most time consuming task involved collating documents relevant to the 2008 request and advising various managers what they were required to provide in order to comply with the request. I had to respond to numerous email and telephone queries from managers about the request, and send back any wrong documentation that was received. I also had to re-check the documentation collated to ensure that the request had been complied with.

The impact collating of documents had on my other work and that of the Region in terms of our ability to carry out our normal functions and duties was considerable. For the most part of a week, this task was all that I was able to deal with. This impacted on dealing with other correspondence/email requests and so on. In addition, although the time involved with this particular request equated to approximately one working week, the continual interruptions by having to answer queries via phone and email to my normal duties occurred over a six week period. These interruptions required extended time in order to deal with and finalise other issues.

1. I formed the view, after hearing Inspector Wedgwood being cross-examined, that if instructions had been given by her divisions to collate the documents in question in the clearer and more unambiguous manner, there would have been a saving of time. The Inspector stated that on a number of occasions, the documents would come back to her in an improper form and she answered questions in relation to those to whom she had set tasks of finding and collating the documents.
2. The Police generally after having that experience, in my view, should now be able to put in very clear terms what each division's task is and precisely what is required. Further, the experience learnt from the previous applications, would assist those of lesser rank, in preparing the documents in the way that the Inspector required of them. Therefore, there would be considerable time saving in the latest request as opposed to the previous request. Further, it is noted that the current issue before me only relates to one pay week period while previously it had related to two.

WHETHER PROCESSING REQUEST WOULD SUBSTANTIALLY AND UNREASONABLY DIVERT RESOURCES OF THE AGENCY FROM ITS OTHER OPERATIONS

1. Mr Niall, on behalf of the respondent, submitted that I should take into account the two other requests that have been made by the applicant in considering the question of the substantial and unreasonableness of diverting resources. He referred me to Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246; [2001] 4 VR 595, which concerned some 321 requests in relation to the Longford gas blow out in 1998, and each request was extant at the time of the hearing. The relevant part of the decision of Chernov JA is summarised in the head note. It is there stated :

The 321 requests should be aggregated for the purpose of determining whether processing them would create the oppression contemplated by s 25A(1)(a) as that construction of the provision would promote its purpose and would give effect to substance rather than form. In addition, some of the requests in terms excluded documents that were referred to in other requests, so that even if s 25a(1)(a) were confined to a single 'request', at least all those requests which referred to others would have to be considered together to determine whether they were oppressive.

1. Thus, Mr Niall suggested that all the applicant's previous requests, being of a similar nature to the present one, should be aggregated with this request in order to decide whether the present request would "substantially and unreasonably divert the resources of the agency from its other operations".
2. However, Mr Meagher QC with Mr Cameron counsel for the applicant, stated that this request being the subject of this application should not be aggregated with previous requests. They stated that Kelly's case was not applicable to this situation. In Kelly's case, the Court of Appeal was dealing with 321 requests for documents. In this particular application, the two other requests have been dealt with and, as a result, there is only one request which is the subject of this application. They pointed out that s 25A(1) deals with "an agency" and the request. Since 25A(1) focuses upon the request before the Tribunal, there is no basis for bringing into account previous applications.
3. The respondent in making their calculations as to the time taken to process the request, made an allowance for approximately 30 minutes for each of the 550 stations to take approximately 30 minutes for the purpose of finding, retrieving and producing the rosters for the particular period.
4. Mr Meagher and Mr Cameron said that the 30 minutes at each station should not be aggregated. Inspector Wedgwood stated that in most stations, the person who would seek out the relevant roster would be the same person who prepared the roster. Therefore, it would be a relatively simple task. Further, there is a difference between having a number of people (550) working for 30 minutes than the aggregate of that time being performed by a small group of people. It seems to me that 30 minutes of the time of a policeman or administrative staff at a police station individually is not a very great time at all. It is difficult to imagine that any of the normal operations of these police stations would be adversely affected by a policeman taking a relatively small amount of time to find the rosters for one particular week. It is difficult to see how that could be a substantial and unreasonable diversion of resources.
5. While it is wrong to say there is no diversion of resources from each police station to search out the rosters, it is equally wrong to say that the time for each station should be aggregated. There should be a relatively small amount of weight given to the time that it took each station to search out the roster. Put another way, it is a very minimal diversion for 550 people each spending a half hour to search out and copy documents. It certainly is not a serious diversion. In my view, it is unlikely to tie up and/or divert the OIC from other functions for any appreciable length of time.
6. Therefore, I find that that time should by and large be discounted from the time that the respondent has stated for the use of its resources.
7. The respondent in calculating the time taken to process the applicant's request, took into account the time taken by the freedom of information officers employed (including the administrative staff) in that department. It correctly stated that the relevant part of the Freedom of information Act refers to "its (the police) other operations". It also correctly stated that a freedom of information department is a key function in answering requests. That is the purpose for it being set up. It has no other operations, although at times its officers are seconded for other duties. This is unlike where a police station has a request by a staff officer for documents. In that circumstance, clearly the officer would, if not searching for documents, be performing other functions. It is a diversion of those functions that the section is referring to. It cannot be that a person from the respondent's FOI department when working on an FOI request is being diverted from other functions.
8. Therefore, I find that in relation to the applicant's request, the time taken by the freedom of information section of the respondent should not be calculated in deciding whether s 25A(1)(a) applies. To interpret the section otherwise would be to deny the word "other" plays any part in interpreting the section. That is, the word "other" would be given no meaning.

1. Having found that the respondent's FOI department does not come within s 25A(1)(a), it is unnecessary for me to comment on the resources of the respondent's FOI department. However, as the question of resources has been argued, it is desirable that I make comment.
2. It was said by the respondent's witnesses that the freedom of information section had difficulty coping with requests because of a lot of its resources were diverted as a result of the bushfires in Victoria in February 2009, that is, a number of members from that department were seconded to other places for a short while.
3. Mr Niall submitted on behalf of the respondent that in assessing the question of substantially and unreasonably diverting resources, I should take into account only the resources that the relevant part of the department had at the time of the request or the time of the hearing. For this proposition, he relied on Re SRB and Department of Health, Housing, Local Government and Community Services [1994] AATA 79; (1994) 19 AAR 178 at 187 where the Commonwealth Appeals Tribunal was dealing with s 24(1)(a) of the Commonwealth Act which is in substantially the same terms as 24(1)(a) of the Victorian Act. It is stated by the Tribunal that :

The resources of the agency referred to in s 24(1)(a) must be the resources which the respondent had at the time the request was lodged or had as at the date of the hearing. It cannot mean resources which the respondent might be able to obtain or even resources constituted by the filing of establishment positions. It also cannot mean the whole of the resources of a large Department of State. To find this would make the section meaningless. We consider it means the resources reasonably required to deal with an FOI application consistent with attendance to other priorities.

1. However, that does not mean that a department may have scant resources or use its resources elsewhere. In fact in the above quote it is stated that the meaning in s 24(1)(a) of the Commonwealth Act means "resources reasonably required to deal with an FOI application".
2. Senior Member Megay was also concerned with this problem in Re A v Department of Human Services 13 VAR 235 at 245 when she stated :

Although I am not entirely in agreement with the learned members' proposition that the resources of an agency do not mean the resources that an agency might be able to obtain, I disagree only insofar as their reasoning, viewed in isolation, might provide agencies with a readymade excuse for non-compliance with large requests based solely on the absence of sufficient staff members, rather than on a balanced consideration of the reasonableness of the application. Each application must be considered in its particular factual context balanced against the objects of the legislation. (see s 3 of the Act).

1. I note that s 3(2) of the Act which deals with objects of the Act states :

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information

1. Having considered all these matters, I do not believe that it is reasonable that I should take into account the fact that the FOI department of the respondent was very poorly staffed because of the unfortunate effect of the bushfires. In my view, the Department must be given adequate resources. Not to do so would enable an excuse for not processing an FOI application. It cannot be that Parliament intended that a freedom of information department of an agency should have anything but reasonably adequate resources to process the requests that were made to it.

1. While it is not possible for me to calculate the exact amount of time it would take for the respondent to process the applicant's request, it is clear from what I have stated above, that the time estimate given by the respondent is greatly exaggerated and takes into account matters that should not be taken into account. For example, the time taken by the freedom of information department itself to process the request. Further, the respondent has failed to give sufficient discount in the time that it would take to process one pay period rather than two. It would be noted that the first and second requests related to two pay periods.
2. Also I take into account the fact that the process used by the respondent to furnish the second request was extremely cumbersome and I agree with Mr Coulson that the model that he proposed would take 55 hours and 10 minutes, which time is more realistic than the time that the respondent says the processing would take. From that should be deducted an amount of time that would he used by the freedom of information department of the respondent. I am comforted in the view I have expressed by the fact that the second request which the applicant made was made on 12 November 2008, and the search began for the documents on 27 November 2008. By 16 January 2008, the request was completed and ready to hand to the applicant. The handing over of the documents requested took place on 19 January 2009. If the hours taken to process that request were as the respondent would have me believe, in my view, it is very unlikely that the request would have been able to be met in the 53 days that were taken.

3. It is conceded by both parties that the respondent has the burden of proving that s 25A applies. For the reasons I have stated above, I am not satisfied that the respondent has discharged that burden. This is a similar outcome to that decided by Her Honour Judge Harbison in McIntosh v Victoria Police (unreported) 16 May 2008, albeit for somewhat different reasons. Therefore, I will make similar orders to that which her Honour made.