1. In summary, Ms Risson says the complaint to the OPI arose from her in 2005 being employed in the construction industry by a large group of organisations, associated with a religious organisation. She says during and after her employment she was subjected to vilification, sexual assault, harassment, intimidation, threats of harm and other criminal activity. She complained to Victoria Police in late September 2006, with no result.

1. Ms Risson made her request to the OPI, she said under the FOI Act, for:
   • (a) A full copy of her OPI file created after she filed her complaint about Victoria Police;
   • (b) Copies of correspondence of all records between the OPI and third parties such as Victoria Police and all government agencies; and
   • (c) Copies of the personal material and phone surveillance transcripts that may have been provided by OPI to various named third parties.
2. An OPI FOI officer replied by letter dated 13 August 2012, saying the Officer located the OPI file (referring to the request described at paragraph 8(a) above) and, "assessed it in accordance with your Freedom of Information Request".
3. The Officer decided the OPI file created after Ms Risson filed the complaint was, "exempt under the FOI Act" with reference to s 51(1) of the the PI Act.
4. Concerning Ms Risson's request as described at paragraphs 8(b) and 8(c) above, the Officer's search revealed no relevant documents. These reasons do not further address those elements of Ms Risson's request as there was no issue of insufficient search for documents before VCAT.
5. Ms Risson sought internal review of the above decision. The request was referred to an OPI FOI Internal Review Officer, whose decision, in a letter dated 24 September 2012, I quote in full:

Freedom of Information Request - request for internal review

I refer to your request dated 10 September 2012, seeking an internal review of the decision made by the Freedom of Information (FOl) Officer dated 13 August 2012.

The review sought relates to your request for documents under the Freedom of Information Act 1982 received at this office on 26 July 2012.

I am a person authorised by the Acting Director, Police Integrity to conduct a review of the decision.

The reasons for seeking a review are that you disagree with the decision made by the Office of Police Integrity (OPI) Officer and request all documents be provided. I have reviewed the original decision and have determined that the application of the exemption under section 51 of the Police Integrity Act 2008 applies to the request for documents. The attached Notice sets out the decision and reasons.

1. In November 2012, Ms Risson applied to VCAT for review of the 24 September 2012 internal review decision. This proceeding has seen ten listings of directions hearings to consider jurisdictional issues, applications to stay the proceeding and Ms Risson's successful application to reinstate the proceeding.
2. In the meantime, legislation[1] abolished the OPI, replacing it with IBAC. Transitional provisions of the Independent Broad-Based Anticorruption Commission Act 2011 substituted IBAC as respondent in this proceeding and preserved s 51 of the PI Act as the relevant legislation.
3. Also in the meantime, legislation amended the FOI Act from 1 December 2012, which among other changes, introduced the FOI Commissioner. This proceeding was decided with reference to the FOI Act as it was in force before that date.
4. On 8 April 2014, the proceeding came before me for a directions hearing to consider an application by IBAC, that the proceeding be dismissed.
5. While Ms Risson appeared at the hearing, she said she was feeling ill and had an appointment to see a potential legal adviser later that week, which may result in her pursuing her concerns in another jurisdiction and not continuing this proceeding. IBAC opposed another adjournment.
6. I ordered that:
   • (a) The matter proceed on the basis that IBAC would make its oral submissions, which augmented written submissions already filed and served;
   • (b) VCAT's principal registrar provide an audio recording of the directions hearing to Ms Risson, principally to assist as she sought legal advice with an appointment days away;
   • (c) Ms Risson to advise whether she intended to continue with this proceeding; and if so
   • (d) She was to file and serve her written submissions, after which I would decide the strike out application without further hearing.
7. I was satisfied Ms Risson was content to proceed on this basis. She listened to IBAC's oral submissions, appropriately asked questions and engaged in discussion.
8. In due course Ms Risson advised she was continuing with the proceeding and filed written submissions, supplementing earlier written submissions and submitted the proceeding should be stayed on the basis of disability and lack of legal representation.
9. I rejected Ms Risson's application that this proceeding be stayed.

1. The proceeding had seen multiple adjournments, leading to the strategy I adopted at the 8 April directions hearing. Both parties have made substantial submissions, IBAC's in writing, supplemented by oral submissions of the directions hearing and Ms Risson's in writing.
2. While Ms Risson said she suffers physical disability, it was not evident that any such disability has hampered her submissions in this proceeding and no medical evidence was provided with her stay application.
3. On the issue of legal representation, one of the reasons for delaying the decision in this proceeding was that she was in the process of seeking such representation, apparently without success. Ms Risson submitted, but I do not agree, that the matter is so complex that it should be stayed until she secures representation. The fact that Ms Risson alleges systematic corruption and privacy breaches, which she says place her at an unreasonable risk of harm is not relevant to the strike out application.
4. The issue for me to decide is whether VCAT has jurisdiction and whether the proceeding should otherwise be struck out, given the operation of s 51 of the PI Act.

Does VCAT have jurisdiction to accept Ms Risson's application?

1. IBAC submitted that the OPI Internal Review Officer's decision was not in substance a decision to refuse Ms Risson's request under the FOI Act. It characterised the decision as a decision under s 51 of the PI Act.
2. Section 51 of the PI Act says:

51 Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of a relevant person or body to the extent to which the document discloses information that relates to -

(a) a complaint investigated by the Director under this Part; or

(b) an investigation under this Part (whether in relation to a complaint or otherwise); or

(c) a report on that investigation, including a report on the progress of the investigation.

document has the same meaning as in the Freedom of Information Act 1982;

(b) an employee in the office of the Special Investigations Monitor;

(e) a member of staff of the Office of Police Integrity;

(f) a person engaged under section 17(1)(b), or an officer or employee of such a person;

(g) a body engaged under section 17(1)(b), or a member, officer or employee of such a body.

1. IBAC submitted the effect of the section is that when it receives a request, said to be under the FOI Act, for documents within the scope of s 51(1), the FOI Act does not apply. The OPI should have, with reference to section 51, clearly refused to address the issue under the FOI Act. It further submits that decision would not be a decision under the FOI Act, nor would it in any way be reviewable under the FOI Act by VCAT.
2. It further submitted in summary:
   • (a) Section 51 says, "The Freedom of Information Act 1982 does not apply to a document that ...", which shows Parliaments clear intention that the FOI Act has no role to play when documents fall within s 51's scope. Section 51 does not create an exemption of the same nature as, for example, s 38 of the FOI Act;
   • (b) There is no enabling enactment which creates a right of review of a decision by the OPI under s 51 of the PI Act, such that s 48 of the VCAT Act operates to confer jurisdiction on VCAT;
   • (c) Its position is consistent with decisions of Macnamara DP, as he was then, in Smeaton v Ombudsman Victoria (General) [2009] VCAT 2771 and Zeqaj v Ombudsman Victoria (General) [2010] VCAT 1204. Macnamara DP spoke of s 29A of the Ombudsman Act 1973, which is in similar terms to s 51 of the PI Act, exempting the operation of the FOI Act such that error may be the subject of judicial review by the Supreme Court, not VCAT.
   • (d) IBAC noted:
     1. its submission is inconsistent with the recent decision of Jenkins VP in Luck v Independent Broad-based Anti-corruption Commission (Review and Regulation) [2013] VCAT 1805, but submitted I was not bound by that decision;
     2. Jenkins VP struck out Ms Luck's application on the basis the documents sought were clearly within s 51's scope. Ms Luck sought leave to appeal to the Court of Appeal. In Luck v Independent Broad-based Anti-corruption Commission S APCI 2103 0168 (unreported) the Court of Appeal refused her application. However, as the ground of appeal was that Jenkins VP had made an error of law in deciding the documents were within s 51's scope, the decision is not authority for her decision that VCAT had jurisdiction. IBAC had given the Court notice that if leave to appeal was given, IBAC would raise the jurisdictional issue for the Court's consideration when the appeal was heard.

1. Ms Risson submitted VCAT should, as Jenkins VP did in Luck, decide VCAT has jurisdiction.

1. VCAT may only exercise jurisdiction Parliament confers on it. Here, jurisdiction is conferred under s 50(2)(a) of the FOI Act, as in force before 1 December 2012 which relevantly said:

(2) Subject to sections 51 and 51A, an applicant may apply to the Tribunal for review of -

(a) a decision refusing to grant access to a document in accordance with a request; ...

1. The OPI was an "agency" within the meaning of s 5 of the FOI Act, as prescribed in the Freedom of Information Regulations 2009.
2. The decision OPI communicated to Ms Risson by its letter from an internal review officer dated 24 September 2012, says the internal review officer is authorised to conduct a review of the FOI Officer's decision which in turn is described as arising from Ms Risson's request under the FOI Act.
3. In my view, the OPI refused to grant access to a document in accordance with a request under the FOI Act. That the internal review officer relied on s 51 of the PI Act to deny access does not alter the nature of the decision. There is no basis to conclude from reading the letter that in substance it was a refusal under the OPI Act without reference to the FOI Act. For example, it was not a case of the letter wrongly having a heading which referred to the FOI Act but the following paragraphs addressing only the PI Act, making no reference to the FOI Act.
4. That decision under the FOI Act by an internal review officer of an agency, as defined in the FOI Act, which is an enabling enactment for the purposes of s 48 of the VCAT Act, is reviewable by VCAT. The fact that s 51 itself does not confer jurisdiction is not relevant.
5. Therefore, as Jenkins VP decided in Luck, I decided VCAT had jurisdiction to determine whether the documents are excluded from operation of the FOI Act under s 51 of the PI Act.

1. In Luck, Jenkins VP considered the analogy proffered by IBAC with s 29A of the Ombudsman's Act. In doing so she said (from paragraph 67):

Section 29A of the Ombudsman Act was considered by the Tribunal in Zeqaj v Ombudsman Victoria. In that case, the Ombudsman claimed that the documents being sought by the applicant disclosed information that related to his complaint. Deputy President Macnamara (as His Honour then was) made the following remarks as to the nature of s 29A of the Ombudsman Act:

It is not as some provisions that are to be found in the Freedom of Information Act merely the creation of an exemption under that Act subject to the usual restrictions and exceptions which operate on exemptions. If this were an ordinary exemption it would be possible to demonstrate that the public interest required it to be overridden. The cases in the Tribunal where applicants make those sorts of arguments are very common indeed. Here, Section 29A is not an exemption rather it is a provision that an entire class of documents are entirely excluded from the freedom of information regime. ... [emphasis added]

The 'exemption' created by s 51 of the PI Act has the same effect as the exemptions created by s 29A of the Ombudsman Act, that is to take the documents outside of the regime of the FOI Act. Accordingly, there is no requirement to determine whether the s 51 document falls within an exempt category under the FOI Act. Any document which can be accurately described as being in the possession of a relevant person or body which discloses information that relates to a complaint investigated by the Director under Part 3, or an investigation under this Part (whether in relation to a complaint or otherwise), or a report on that investigation, including a report on the progress of the investigation, is excluded from the operation of the FOI Act.

1. Contrary to IBAC's submission, I do not accept that in Zeqaj v Ombudsman Victoria, Macnamara DP was saying s 51 of the PI Act deprived VCAT of all jurisdiction. He considered whether there was any basis to conclude that the documents in question in that case contain any extraneous material which may not fall within the scope of s 51. He decided there was no reason to think so (see paragraph 15).
2. I was also not persuaded Macnamara DP's decision in Smeaton v Ombudsman Victoria assisted. It dealt with the very different topic of an attempt to alter a published Ombudsman's report.

1. Having rejected IBAC's submission concerning lack of jurisdiction, I turned to its submission that the proceeding should be struck out as it is evident that the documents Ms Risson sought fall within the scope of s 51.
2. In my view, the proceeding should be struck out for that reason.
3. I agree with and paraphrase, in summary form, Jenkins VP's reasoning in Luck from paragraph 62, as applied here.
4. Ms Risson requested a full copy of the OPI file created after she filed a complaint about Victoria Police. The OPI located that file and no other documents. The documents in that file, as can be seen from the description of documents filed in this proceeding, are clearly documents in the possession of a relevant person or body, as defined in s 51, which wholly discloses information that relates to Ms Risson's complaint investigated by the Director under Part 3 of the PI Act.
5. As Jenkins VP said in Luck, this is not a decision that the documents fall within the exempt category under the FOI Act. Rather it is a decision that the documents can be accurately described as being in the possession of a relevant person or body which discloses information that relates to a complaint investigated by the Director under Part 3 of the PI Act, or an investigation under that part (whether in relation to a complaint otherwise), or a report on that investigation, including a report on the progress of the investigation, and are excluded from the operation of the FOI Act.
6. As stated by Macnamara DP in Zeqaj, summary dismissal should only be used in the clearest of cases, the clearest instant being where, even if everything being alleged by a party is true the law still does not grant a remedy. This is the clearest of cases, with respect to every document sought by Ms Risson being undoubtedly a document in relation to investigation under Part 3 of the PI Act.
7. In making this decision, I considered and rejected submissions from Ms Risson because:
   • (a) Given the operation of s 51 to exclude the documents in question from the operation of the FOI Act, no issue of public interest override under s 50(4) of FOI Act can arise;
   • (b) There is no basis to conclude that IBAC breached duties as a model litigant before VCAT;
   • (c) The following are not relevant to this decision, given the operation of s 51:
     1. the merit of Ms Risson's allegations concerning conduct to her and others;
     2. any issue of how the OPI collected information recorded in documents on the investigation file nor defamatory matter allegedly relied upon by IBAC;
     3. if any of the information contained in the OPI file has already been published to world at large;
     4. IBAC's conduct with respect to any matter outside the scope of this proceeding;
     5. that Ms Luck absented herself from the hearing which resulted in Jenkins VP's decision in Luck. Here, Ms Risson put submissions;
     6. decisions of VCAT and other tribunals, addressing exemptions from release under the FOI Act, eg on the basis of Cabinet-in-Confidence status; and
     7. any order issued by the United States of America's Foreign Intelligence Surveillance Court, nor reviews on intelligence and communication technologies; and
   • (d) there is no basis to invoke Victoria's Charter of Human Rights and Responsibilities Act (2006), nor international human rights instruments.
8. It is convenient to note here that, in her 21 May 2013 submissions, Ms Risson sought orders that the Victorian Ombudsman be granted full independent investigative powers related to her allegations. VCAT has no power to make such orders.

1. I rejected Ms Risson's application for anonymisation orders. Such orders should only be made if a criteria in s 18 of the Open Courts Act 2013 is met. There is no evidence before me to support a conclusion that anonymisation is required because:
   • (a) It is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice;
   • (b) An order is necessary to protect the safety of any person; or
   • (c) It is in the interests of justice.
2. I have in these reasons only provided a very brief summary of Ms Risson's allegations, not identifying the organisations she names. Also, under the VCAT Act, the VCAT proceeding file in this proceeding is not available for inspection by any person, including the parties, as is the case for all proceeding files created following the receipt of an application under the FOI Act.

[1] The Broad-Based Anticorruption Commission Amendment (Investigative Functions) Act 2012 and the IBAC Act.