1. Mr and Mrs Smeaton have conducted a long-running campaign against the Victorian Workcover Authority concerning its treatment of Mrs Smeaton in the 2000s. Mrs Smeaton was seriously injured at work.
2. Part of the campaign involved making over 50 applications to VCAT under the Freedom of Information Act 1982 (the FOI Act).
3. An important issue for them has been WorkCover resisting paying Mr Smeaton as night carer for Mrs Smeaton. WorkCover eventually agreed to pay Mr Smeaton to undertake this role.
4. At one point in the dispute, WorkCover's lawyers advised it of a VCAT decision Salcedo v TAC [2002] VCAT 419.[1] A young woman visiting Australia was rendered paraplegic in a car accident. Her mother came to Australia and in part cared for her in hospital. TAC was to authorise the mother as an attendant carer and pay her as such for a set duration each day.
5. WorkCover's lawyers sent the decision to WorkCover with a one-line comment saying the decision, "did not help" WorkCover's denial of funding for Mr Smeaton as night carer. Mr Smeaton obtained the document with the one line comment under the FOI Act.
6. In November 2012, Mr Smeaton made an FOI request to TAC seeking documents recording communication of the Salcedo decision to WorkCover, the hourly rate paid to the mother, whether it was paid directly or via an agency and any involvement by the TAC Audit Risk Management Committee. Mr Smeaton sought to limit his request by agreeing to much information relating to personal affairs being redacted.
7. WorkCover says it made extensive searches and discovered six documents. It wrote to Ms Salcedo's lawyers, who advised Ms Salcedo did not consent to information relating to her personal affairs being released to Mr Smeaton. TAC decided not to release the documents. It advised Mr Smeaton of the general rate payable for attendant care in 2002, making no comment on the specific rate paid in the Salcedo case.
8. In February 2013, Mr Smeaton made a second FOI request for documents relating to the Salcedo decision. It was more of a submission in support of the first request. No further documents were located.
9. Mr Smeaton made two requests to the FOI Commissioner. He sought review of TAC's decision to refuse him access to the identified documents. He complained to the FOI Commissioner about the adequacy of TAC's searches for documents.
10. While preparing submissions to the Commissioner, TAC discovered a Briefing Paper to its Minister concerning the Salcedo decision.
11. In July 2013 the FOI Commissioner denied Mr Smeaton access to the documents. In October 2013, the Commissioner advised Mr Smeaton that following enquiries she was satisfied the further documents Mr Smeaton sought did not exist.
12. In August 2013, VCAT received Mr Smeaton's application for review of the Commissioner's 1 July 2013 decision denying him access to the documents. In March 2014, I heard the application.

1. While TAC located seven documents, by the end of the hearing Mr Smeaton sought six documents:
   • (a) a, 'Briefing Paper for the Minister Responsible for the TAC 3 July 2002' (Document 2); and
   • (b) Five letters from TAC to Ms Salcedo (the daughter) regarding attendant care payments (Documents 3 to 7).
2. Mr Smeaton no longer sought Document 1, Payment Summary Relevant Attendant Care Payments dated 9 February 2013, in part because he was advised the 2013 date was the date the summary was printed but the Document 1 showed payments made more than a decade ago.
3. His interest in the documents stems from his belief that if TAC had completely followed the Salcedo decision, it would have created precedent for a family member being authorised as an attendant carer. This could have led to his earlier authorisation as an attendant carer, avoiding severe distress to his wife himself and his family.
4. He notes Bowman J ordered TAC to authorise Ms Salcedo's mother as an attendant carer of Ms Salcedo.
5. However, in the FOI Commissioner's decision, dated 21 October 2013, concerning his complaint about TAC's searching for documents, she notes TAC had advised Mr Smeaton that it had made payments to Ms Salcedo (the daughter) to reimburse her mother for attendant care services provided while Ms Salcedo was in hospital. Mr Smeaton submitted this showed TAC failed to properly abide by VCAT's decision. Bowman J had ordered the payments be made to Ms Salcedo's mother, not as happened to Ms Salcedo. Mr Smeaton submits this was likely done so TAC could avoid setting a precedent of approving a family member as attendant carer. This, he says, is what would have assisted him.
6. Mr Smeaton has no interest in intruding into to the personal affairs of Ms Salcedo and/or her family. Rather he is pursuing a matter of principle. To the extent that releasing documents would disclose information relating to the personal affairs of Ms Salcedo and/or her family, Mr Smeaton said while that is regrettable, the issues he is pursuing are already in the public arena. VCAT and the Court of Appeal published the decisions concerning Ms Salcedo. He spoke of Ms Salcedo having a website.

1. After discussion at the hearing, Mr Smeaton advised he only sought text in the Briefing Paper relevant to VCAT's Salcedo decision. While TAC adopted the FOI Commissioner's reasons for refusing to release Document 2, at hearing it agreed in substance to two paragraphs relating to VCAT's decision being released.
2. Section 33 of the FOI Act concerns personal affairs. A document is an exempt document if its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person, including information that identifies or discloses a person's identity, address or location.
3. Victoria Police v Marke [2008] VSCA 218, Weinberg JA and Pagone AJA approached the question as to whether release would entail unreasonable disclosure as requiring a balancing exercise. See [96] - [98] per Pagone AJA where His Honour said it was necessary to consider:

Any matter that is relevant to the statutory condition, which bears logically upon a consideration of it, and which may have a probative effect upon the decision-maker.

1. In my view, the information I decided should be released, under s 25 of the FOI Act which enables redacted versions of documents to be released, while related to the personal affairs of Ms Salcedo, is uncontroversial and on the public record. I ordered the release of a number of standard headings in the document, to give the two paragraphs of substance context. The redacted text relates to other issues relevant to the private affairs of Ms Salcedo. Mr Smeaton has no interest in it. Even if he did, I would view it as exempt under s 33.
2. The exempt text was obtained as a result of dealings between TAC and Ms Salcedo, it is not relevant to Mr Smeaton's interests, it is of reasonably private nature relating to matters over a decade ago, Ms Salcedo objects to its release and no public interest would be promoted.
3. On the issue of Ms Salcedo's affairs being in the public arena given her presence on the Internet, while the issue was not addressed at the hearing I easily found a YouTube video featuring Ms Salcedo speaking. Relatively recently, she lived in Melbourne. She speaks movingly of her positive approach to life since the accident, her achievements and the need for society to improve its attitude to disabled people. She is available to speak via a speaking bureau.
4. However, that is not reason to release personal information concerning her past.
5. In my view, it is contrary to the public interest to release the name of the author of the briefing paper, written over a decade ago. Mr Smeaton seeks the name as it allows him to follow any paper trail relevant to his interests. While I understand the author held a relatively senior position with TAC in 2002 and left TAC in 2006, it is contrary to the public interest to release the name and potentially dredge up very old issues. Mr Smeaton does not seek the telephone number.

1. At a directions hearing in this proceeding before me in December 2013, Mr Smeaton advised he no longer sought Documents 3 to 7. I recorded that in orders.
2. At the hearing on 3 March 2014, he advised he had changed his mind within the last month and sought the documents. He had not notified TAC or VCAT and provided no reasonable explanation. TAC opposed the application.
3. I asked to see the documents. TAC had not previously provided them because Mr Smeaton did not seek them. I heard brief submissions and reserved my decision as to whether I would consider them.
4. VCAT has obligations to conduct proceedings fairly and efficiently. While Mr Smeaton is self-represented, he has extensive experience in conducting proceedings before VCAT. He is no ordinary self-represented party. He is able to make skilled submissions and usually raises issues of concern to him at the first opportunity in writing before the hearing date.
5. I refused his application that the previous orders be revoked and I review the Commissioner's decisions concerning Documents 3 to 7. I regard his request as an abuse of process. Mr Smeaton presents no reasonable explanation for not providing prior notice of his change of mind. TAC did not have the opportunity to prepare submissions prior to the hearing on the issue. As Mr Nekvapil for TAC submitted, there may be grounds to consider the documents if their contents contained a 'smoking gun'. Documents 3 to 7 contain no such thing. They are procedural documents reflecting what is already known, that following the Salcedo decision, TAC made payments directly to Ms Salcedo, the daughter.

1. Since 1999, VCAT, and before it the Administrative Appeals Tribunal of Victoria regarded the FOI Act as conferring jurisdiction for the Tribunal to order agencies to further search for documents within the scope of an FOI request.
2. Relatively recent examples of VCAT 'employing' the jurisdiction include Friends of Mallacoota Inc v Department of Planning and Community Development (General) [2011] VCAT 1889, Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (No 1) (Review and Regulation) [2013] VCAT 1234 and Tabcorp Holdings Limited v Secretary to the Department of Treasury and Finance (Review and Regulation) [2013] VCAT 1731.
3. In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264, I said, in my view VCAT must follow Victoria Police v Burton [1999] VSC 534 (16 December 1999). Hedigan J said it was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal. Section 51 of the VCAT Act sets out VCAT's functions on review, including reviewing a refusal.
4. The then FOI Act had relatively little to say about rights to challenge whether a government agency had conducted a thorough and diligent search for documents. Section 27(e) gave, in an indirect fashion, a right to complain to the Ombudsman:

where the decision does not relate to a request for access to a document that if it existed would be, an exempt document under section 28, 29A or 31 but the decision is to the effect that the document does not exist or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Ombudsman

1. The then Act said nothing further on the topic. Section 50 conferred jurisdiction on VCAT. The 'old s 50' was relatively brief compared to the new s 50 (see below).
2. On 1 December 2102, the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012 amended the FOI Act to change the 'FOI scheme' in Victoria to among other things introduce the Freedom of Information Commissioner.
3. In my view, VCAT's jurisdiction to order an agency to search for documents, where the agency has already searched for documents, ended that day.
4. Parliament's intention, as expressed in the amendments, is that the FOI Commissioner, not VCAT, deal with complaints about thoroughness and diligence of searches for requested documents.
5. The current FOI Act contains the new s 27(e), which speaks of the applicant's right to complain to the FOI Commissioner. The Ombudsman no longer has a role. The current FOI Act then goes further.
6. It creates the right to complain to the FOI Commissioner about a decision by an agency that a document does not exist or cannot be located (s 61A(1)(a)). If the Commissioner accepts a complaint, she may make enquiries or consult with the agency (s 61G) and compel the agency to produce documents (s 61J). The Commissioner also has power to make recommendations to the agency in relation to a complaint (s 61L).
7. Importantly, s 61B(3) says the Commissioner must dismiss a complaint, if VCAT could deal with the substance of the complaint by an application for review. This clarifies the demarcation between the Commissioner's and VCAT's roles.
8. If following the legislative amendments, VCAT retained jurisdiction to deal with the issue of complaints about thoroughness and diligence of searches, the Commissioner would have to dismiss every such complaint to her. Parliament did not intend that.
9. Before December 2012, while the Ombudsman had powers to investigate under the Ombudsman's Act 1973, that Act had no equivalent to s61B(3). The Ombudsman could investigate even though VCAT had jurisdiction to order searches.
10. The new s 50 of the FOI Act details VCAT's jurisdiction, running to approximately four pages of text. It includes new jurisdiction such as the right of an agency to apply for review of a decision by the Commissioner (s 50(3D)). However, it makes no mention of VCAT having jurisdiction to deal with thoroughness and diligence of searches.
11. If Parliament intended VCAT to have this jurisdiction it would have, when creating a detailed list of areas of jurisdiction, said so.
12. Finally, in making submissions on this issue Mr Nekvapil did not submit that the legislative amendments ended VCAT's jurisdiction to order searches in all circumstances. One of the examples he gave where VCAT may perhaps have jurisdiction was where an application is made on the basis of a deemed refusal of an agency, 45 days having passed since it received the application.
13. This is not the place to address scenarios. My decision in this proceeding only concerns where an FOI request is made and the agency has searched for and either located documents or not. At that point, any remedy lies with the FOI Commissioner, not VCAT.

[1] The Court of Appeal of the Supreme Court of Victoria dismissed TAC's appeal on this point Transport Accident Commission v Salcedo [2003] VSCA 226.