1. The respondent's decision of 8 November 2011 under s 25A(1) of the Freedom of Information Act 1982 to refuse to process the request of the applicant dated 10 December 2010 is affirmed.

1. On 10 December 2010, Mr Smeaton requested the Victorian WorkCover Authority ("WorkCover") to provide him with copies of documents contained in the "email boxes" of 14 people employed by CGU (WorkCover's agent) for the dates 1 August 2003 to 31 December 2006 that contain references, "surrounding Smeaton".
2. The long history of this dispute is detailed in my previous decision in Proceeding G86/2011 and my two interim decisions in this proceeding[1].
3. Mr Smeaton seeks review of WorkCover's decision of 8 November 2011 to refuse to process his request under section 25A(1) of the Freedom of Information Act 1982 (the FOI Act), because processing the request would substantially and unreasonably divert its resources from its other operations.
4. I heard the application on 13 June 2012. Mr Smeaton represented himself. The Department was legally represented.

1. The object of the FOI Act is to give the community a right of access to documents in the possession of government 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 (s 3(1)(b)). Section 13 provides a 'right of access to documents'.
2. Also, section 25A(1) of the Act relevantly says[2],

(1) The agency 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 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 ...

(2) Subject to subsection (3) but without limiting the matters to which the agency ... may have regard in deciding whether to refuse under subsection (1) to grant access to the documents to which the request relates, the agency ... is to have regard to the resources that would have to be used -

(a) in identifying, locating or collating the documents within the filing system of the agency; or

(b) in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used -

(ii) in consulting with any person or body in relation to the request; or

(c) in making a copy, or an edited copy, of the documents; or

(d) in notifying any interim or final decision on the request. ...

(4) In deciding whether to refuse, under subsection (1), to grant access to documents, an agency must not have regard to -

(a) any reasons that the person who requests access gives for requesting access; or

(b) the agency's belief as to what are his or her reasons for requesting access. ...

(6) An agency must not refuse to grant access to a document under subsection (1) unless the agency has -

(ii) identifying an officer of the agency with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and

(b) given the applicant a reasonable opportunity so to consult; and

(c) as far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such a form.

(7) For the purposes of section 21, the period commencing on the day an applicant is given a notice under subsection (6)(a) and ending on the day the applicant confirms or alters the request following the consultation referred to in subsection (6) is to be disregarded in the computation of the 45 day period referred to in section 21. ...

1. Mr S. Rajan, Solicitor, Freedom of Information and Privacy Branch, WorkCover gave evidence, in his capacity in managing FOI requests within the Branch, not as a solicitor concerning legal advice he provides to WorkCover. He said:

1. CGU workers compensation (Vic) Ltd (CGU) is a claims agent appointed by WorkCover to administer part of the workers compensation scheme created by the Accident Compensation Act 1985 (Vic); 2. Mr Rajan is aware Mr Smeaton's wife made a claim under the AC Act and CGU was the claims agent;

1. Concerning Mr Smeaton's December 2010 request under the FOI Act which is the subject of this proceeding, in February 2011 WorkCover advised Mr Smeaton it considered his request potentially fell under section 25A(1) and invited him to narrow the scope of his request. In June 2011, Mr Smeaton confirmed the scope remained as originally requested;

1. Mr Rajan asked CGU to conduct a preliminary search of the relevant e-mail accounts. CGU did so, and in August forwarded WorkCover box containing approximately 1000 pages of printed e-mails; 2. In cross-examination, it became apparent that with respect to FOI requests by Mr Smeaton, the 'division of labour' between CGU and WorkCover was unclear. While Mr Rajan was not able to provide a precise explanation as to why CGU had in this case not processed the request, his evidence was that it had decided to send the documents to WorkCover for processing. Mr Rajan thought this appropriate in the interests of consistent decision-making with respect to Mr Smeaton's applications; 3. After consultation, in November 2011, Mr Rajan advised Mr Smeaton he had decided to refuse to process the request under section 25A(1) of the FOI Act; 4. Concerning resources available at WorkCover to process your request, the 'FOI Unit' consists of six people, one who works part-time. The Unit is fully occupied in processing requests under the FOI Act and the AC Act; and 5. Concerning his opinion as to the resources required to process the request, I quote from his witness statement,

In my view the processing of the request, would be an unreasonable diversion of resources. The process and assess, to determine whether these documents are exempt as a whole or in part, editing, and photocopying the documents will take about 8 to 10 min per page depending on the nature of the records contained in the documents. Using this calculation to process the Applicant's request would take approximately 160 hours.

This work would certainly be an unreasonable diversion of my and the agency's resources over many weeks. I have other duties to perform and it is not possible to devote so much time to process and assess a large number of documents for one request. It may be that only those people who are familiar with the documents will be able to determine whether those documents are exempt as a whole or in part. I have mainly processed many of the Applicant's other requests. I am familiar with the nature of the documents. The other colleagues in my branch are fully occupied on processing other FOI requests. The Respondent receives about 2000 FOI requests every year.

The obligation to comply with the FOI Act is an important obligation of the Respondent. Because of the volume and nature of the request, it impairs my ability to process other requests and attend to other tasks such as conducting internal reviews, complying with subpoenas and other related work.

1. In cross-examination, Mr Smeaton challenged Mr Rajan's evidence as to the 8 to 10 minute per page estimate noting he is familiar with the circumstances surrounding Mr Smeaton's FOI requests. For example, numbers of e-mails may be duplicates of each other as a result of e-mail trails. Mr Rajan responded that even where there is duplication, the person processing the request must read each page in order to appropriately assess it and to ensure the assessment of that page is consistent with the assessment of other identical text.
2. At my invitation, Mr Smeaton gave evidence summarising how his wife was twice injured at work and their interactions with WorkCover, its agents, medical practitioners and others. In my view, this was relevant to the public interest issue I discuss below. However, section 25A(4) of the FOI Act says his reasons or my belief as to his reasons are not relevant considerations in making a decision under section 25A(1).

1. I affirm WorkCover's decision. In my opinion, processing Mr Smeaton's request would substantially and unreasonably divert its resources from its other operations.
2. The starting point is the purpose of section 25A(1).
3. When section 25A was introduced into the FOI Act in 1983, in the second reading speech for the Freedom of Information (Amendment) Act 1993 the Attorney-General said,

Voluminous requests have caused serious problems in the administration of freedom information since its inception. Evidence given to the Legal and Constitutional Committee in its 38th report to Parliament suggest that although the number of voluminous requests was relatively small it nevertheless caused severe disruption to agencies. At present there is no provision in the Act to refuse to process the request on the grounds that it would unreasonably and substantially divert the agency's resources.

The Bill permits agencies to refuse to process a request where to do so would unreasonably and substantially divert the resources of the agency.

That provision is similar to the Commonwealth Freedom of Information Act. Applicants will be given the opportunity to relodge their request in a form that will remove the ground for refusal. There is also a right to complain to the Ombudsman where the request is refused on those grounds.

Most agencies could produce numerous examples of applicants who abuse the spirit of the FOI Act by making requests of an extent and scope which unreasonably divert their resources. For example, one applicant lodged a request relating to a mining group which involved over 2000 documents in some 250 files.

1. In 1999, Lyons SM said in Mildenall v Department of Education (unreported, VCAT, 19 April 1999) at paragraph 30,

Section 25A seeks to balance competing interests. There is a public interest in agency not being diverted from its core work through needing to process a very broad-ranging request for documents. On the other hand, the agency can only refuse to process such a request if it sought to consult with the applicant so as to confine the request to manageable dimensions, and has failed in this endeavour [see 25A(6)]. Section 25A put pressure on agencies to identify voluminous requests quickly and to take steps to narrow such requests so that the requests can then be processed. Only if these steps fail can an agency rely on section 25A as the basis for refusing to grant access to the documents requested.

1. In 2001, the Court of Appeal (Chernov JA, with whom Calloway JA agreed, paragraph 48) in Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 said,

... it is plain enough that s.25A was introduced to overcome the mischief that occurs when an agency's resources are substantially and unreasonably diverted from its core operations by voluminous requests for access to documents. The emphasis of the amendment was on the prevention of improper diversion of the agency's resources from their other operations. The provision was introduced to strike a balance between the object of the Act to which reference has already been made and the need to ensure that the requests under the Act did not cause substantial and unreasonable disruption to the day to day workings of the government through its agencies.

1. WorkCover went through the mandatory consultation process set out in section 25A(6), before it reached its decision.

1. Once an agency refuses to process a request under section 25A(1), in a proceeding at VCAT it bears the onus of establishing that it has reasonably estimated the resources required to process the request.
2. In McIntosh v Victoria Police (General) [2008] VCAT 916 (16 May 2008), VCAT said,

... in asserting section 25A, an agency cannot be obliged to specify exactly how much time and energy would be spent by the agency in processing the request. Estimates only are acceptable, as to ensure precision would mean the agency would have to do the very work that section 25A is designed to prevent.

1. Bearing the factors to be taken into account in estimating resources (section 25A(2)), I accept Mr Rajan's estimate and find it will take approximately 160 hours to process the request. Mr Rajan is very experienced in the processing of FOI requests. He gave careful and considered evidence on this issue.

1. In considering the available resources of the Department as at the VCAT hearing, I considered Re SRB and Department of Health, Housing, Local Government and Community Services [1994] AATA 79; (1994) 19 AAR 178 at 187. The Commonwealth Administrative Appeals Tribunal was dealing with s 24(1)(a) of the Commonwealth FOI Act, which is in substantially the same terms as 24(1)(a) of the Victorian Act. It said:

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. Those resources include the resources of the FOI Unit where Mr Rajan works (see Chief Commissioner of Victoria Police v McIntosh [2010] VSC 439).
2. I find the resources available to WorkCover to process the request is essentially Mr Rajan's time, perhaps with some assistance from others in the Unit.
3. In my view, this is not a case where an agency is seeking an excuse for not processing a large request based solely on the absence of sufficient staff members, rather than on a balanced consideration of the reasonableness of the request. To my knowledge, WorkCover has dealt with at least 50 FOI requests from Mr Smeaton. There may have been more, given I know of those requests where he applied for review of WorkCover's decision at VCAT. As far as I am aware, this is the first time WorkCover has refused one of his requests under section 25A(1).

1. I accept WorkCover's resources would be substantially diverted by processing the request. On any view, the allocation of 160 hours of the time of one person in a six person team is a substantial diversion from the overall work of the team.

1. On the issue of what is unreasonable I am again guided by Re SRB, where the Tribunal said,

In administrative review is not necessary to show ... that the extent of the unreasonableness is overwhelming. It is this tribunal to weigh up the considerations for and against the situation and to form a balanced judgement of reasonableness, based on objective evidence.

1. An FOI request which requires 160 hours to process is at the lower end of those requests, where VCAT or other tribunals have affirmed a decision under section 25A(1) or its equivalent in other Australian jurisdictions.
2. An example at the 'low end' is Cainfrano v Director General, Premier's Department [2006] NSWADT 137 (9 May 2006), where the Tribunal accepted the number of documents affected was 11,400 and the required officer time 229 hours. It thought there was a real possibility the estimate may be exceeded. The Tribunal noted the amount of work to be at the "lower end" of what may justify a decision, the subject matter (the 2002 sale of the Sydney Markets to Sydney Markets Limited) as one of public importance and the request while broad was not a "fishing expedition"
3. In AB v Department of Education (15 August 2012)[3], I decided to affirm the decision of the Department of Education and Early Childhood Development under section 25A(1) where I found it may take that Department's FOI Unit approximately 170 hours, substantial time of a school principal and some time of other parts of the Department to process an FOI request. This was in the context of the request being extremely detailed and similar in scope to a previous application by the applicant arising from the same circumstances to which the second request related.
4. There are multiple cases at the high end (months or years to process) as I discuss in AB, where tribunal's have affirmed 25A(1) or its equivalent decisions.
5. Cases where it was decided the request should be processed include:
   1. Asher v Department of Innovation, Industry and Regional Development (General) [2005] VCAT 1734 (24 June 2005), VCAT did not accept the Department's estimate that the process would require 5½ weeks full time work and 5½ weeks part-time to complete. VCAT said the task was "nowhere near as complicated" as was claimed; and
   2. McIntosh v Victoria Police (General) [2008] VCAT 916 (16 May 2008) where VCAT preferred the applicant's estimate that processing time would be approximately 55 hours.
6. In deciding this proceeding, I adopt an approach similar to that employed by President O'Connor in Cainfrano in listing factors and forming a judgement.
7. I have adapted the factors he used (which in part referenced the Victorian Administrative Appeals Tribunal in Re Borthwick and University of Melbourne (1985) 1 VAR 33).

1. I considered:
   1. Whether the terms of the request offers a sufficiently precise description to permit WorkCover, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort.

1. The public interest in disclosure of documents relating to the subject matter of the request

I have dealt with many of Mr Smeaton's FOI requests. He and his wife make these requests to understand WorkCover's actions in around 2003. In their view, those actions and the actions of other professionals led to Mrs Smeaton, an injured worker, suffering greatly in psychological as well as physical terms, to the point that she attempted suicide and spent many months in hospital under psychiatric care.

These matters have been the subject of Parliamentary debate, an Ombudsman Report, a report by KPMG, the involvement of a QC mediator and an independent mediator and media coverage involving at least one member of Parliament.

The Smeatons seek to discover all of the information in what they view as a cover-up by WorkCover. Through FOI, they have obtained substantial information relating to the events in question.

Mr Smeaton says he intends, once he has all the information he considers relevant, to write a submission for government to consider in order to prevent other injured workers going through the experiences his wife and his family have suffered.

I understand WorkCover concedes mistakes were made in the past, which have long since been rectified.

In my view, the issues of public interest raised by the experiences of the Smeatons have been considered through a variety of avenues. It is unlikely that processing of this request will further the public interest.

1. Whether the request is a reasonably manageable one, giving due but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications.

I do not regard the request as reasonably manageable but rather as a request which could only be managed by placing an unreasonable demand on the FOI Unit.

1. The Department's estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost;

I have found processing approximately 1000 printed pages of emails would take approximately160 hours.

1. The reasonableness or otherwise of the Departments initial assessment and whether Mr Smeaton has taken a co-operative approach in redrawing the boundaries of the application.

I accept WorkCover's initial assessment was reasonable. While Mr Smeaton has not changed the scope of his request, it would be difficult for him to do so. He is on a fishing expedition, hoping to discover some relevant documents from all of the e-mails which, "surround Smeaton". Given that, it is difficult to see how he could further define the request.

1. The 45-day statutory time limit for making a decision in this application.

The requirement to make decisions within 45 days is clearly relevant. However, the reality is there are many examples where WorkCover has not met the 45-day time limit with respect to Mr Smeaton's other FOI requests. I say this because the majority (if not all) of Mr Smeaton's applications to VCAT in the last few years have been made on the basis that WorkCover has not made a decision within 45 days and thus is deemed to have refused the request. WorkCover has said at various times in various of these proceedings this is in part due to the number of Mr Smeaton's requests in the context of its limited resources.

1. The degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made.

Given Mr Rajan's experience in processing FOI requests, it is likely his estimate is reasonably accurate.

1. That Mr Smeaton is a repeat applicant to WorkCover and VCAT, which I now address.

1. Returning to Secretary, Department of Treasury and Finance v Kelly, Chernov JA, with whom Calloway JA agreed (paragraphs 48 and 49)

It would defeat all or much of that purpose if the provision were to be read so as to enable a person to avoid its operations simply by dividing what would otherwise obviously be a "voluminous" request which would fall within s.25A(1)(a), into several parts none of which, by itself, would offend the provision, but all of which, if considered together, would substantially and unreasonably divert the agency's resources from its other operations.

... Such a result would promote form above substance and would defeat the underlying purpose of s.25A. The purpose is, as I have said, to balance the object of the Act to give persons access to government information with the need to ensure that scarce resources of agencies are not substantially and unreasonably diverted from their core activities of implementing government policy in order to deal with voluminous requests for information. To construe s.25A(1) as entitling the agency in the above circumstances to aggregate these 100 requests for relevant purposes would be consistent with the purpose of the provision.

1. Mr and Mrs Smeaton have not set out with the intention of avoiding refusal under section 25A(1) by dividing what would otherwise be a large request into multiple smaller requests. Rather, the long history of their FOI applications to WorkCover stems from them making applications and obtaining documents which caused them to conclude there are further documents elsewhere, making more applications, obtaining yet more documents, making more applications, etc.
2. I say long history, because since 2007 Mr and Mrs Smeaton have separately or together made 46 applications to VCAT, both successful and unsuccessful. They have made a few related applications against the Minister for Finance, the Ombudsman and the Accident Compensation Conciliation Service[4].
3. In a similar vein to that expressed in Kelly, in my view, concerning this request, the unreasonableness of the diversion of the resources is added to given the resources WorkCover has over many years allocated to dealing with Mr Smeaton's requests. The request is a straw which would unreasonably strain (but I doubt break) the 'camel's back'.

1. Now focusing on all the factors I discuss above, I am satisfied the diversion of resources to process Mr Smeaton's request would have been 'substantial' and 'unreasonable'. Balancing the objects of the FOI Act and the need to ensure that the requests under the Act do not cause substantial and unreasonable disruption to the day to day workings of WorkCover, the balance favours affirming WorkCover's decision.

[1] Smeaton v Victorian Workcover Authority (General) [2012] VCAT 73 (18 January 2012) and Smeaton v Victorian Workcover Authority (General) [2012] VCAT 434 (11 April 2012)

[4] Calculation based on search of VCAT computer records.