The respondent's decision of 20 June 2012 under s 25A(1) of the Freedom of Information Act 1982 to refuse to process the request of the applicant dated 19 April 2012 is affirmed.

1. On 19 April 2012, Mr Smeaton requested the Victorian WorkCover Authority ("WorkCover") to provide him with copies of,

all documents signed by Mr Steve Marshall in the timeframe, start of business 10 May 2004 till end of business 14 May 2004. This FOI also specifically requests any letter signed by Mr Marshall sent to Smeaton that is dated in said time frame, stemming from the Allianz archive search.

1. On 22 May 2012, WorkCover advised Mr Smeaton that it regarded the request as voluminous and invited him to consult with a view to amend or narrow his request. Mr Smeaton declined the invitation.
2. Mr Smeaton seeks review of WorkCover's decision of 20 June 2012 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[1].
3. I heard the application on 11 October 2012. Mr Smeaton represented himself. WorkCover was legally represented.
4. While these reasons concern this application, I have used a framework I recently used in deciding another proceeding between these parties (Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1236 (15 August 2012)). In that proceeding, I affirmed a separate decision by WorkCover to refuse, under section 25A(1), to process another request by Mr Smeaton.

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. However, 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. ...

1. Mr Peter Koutsambasis, Business Support Manager, Allianz Australia Workers Compensation (Vic) Ltd, was called by WorkCover to give evidence. He said:

1. Allianz is an approved claims agent for WorkCover under the Accident Compensation Act 1985 (Vic). Part of its role is to deal with applications for access to files by injured workers under section 107A of the Accident Compensation Act and (far fewer) applications under the FOI Act with respect to documents relevant to its role as WorkCover's agent; 2. He has been employed in his current role for about three years, is familiar with Allianz's paper record management system and is not aware of any significant changes to the system since 2004;

1. Allianz holds an injury claim file relating to Mrs Smeaton (Mr Smeaton's wife who suffered a serious work injury at one time managed by Allianz). Mr Smeaton has had access to that file on Mrs Smeaton's request. That is not the focus of his FOI request.

1. Given Mr Marshall was in 2004 the State manager for the relevant operations of Allianz, it is probable that document signed by him are stored in 80 archive boxes which Allianz holds in an off site archive. Mr Koutsambasis identified those boxes through a search of an electronic archive index available to him. 2. Concerning his opinion as to the resources required to process the request, I quote from his witness statement,

The index indicates that there are over 80 boxes stored in the Allianz archive for 2004, the year relating to this request. To identify and locate the documents sought under the request Allianz employees would require searches across each and all of these boxes. It is not clear how many documents or pages are in these boxes. I estimate on average each box to contain more than 300 pages.

There are general documents that have been archived in secondary storage for Steve Marshall's tenure[3] in that position. However, these are not stored in an order around date documents signed, nor does it flag if the documents contained actually signed documents as these are archived by topic. The amount of time it would take to fully review all archived files and records the content, including signatories, would be substantial. I estimate on average each box would take 300 minutes, therefore a total time per 80 boxes could range to 400 hours.

I am satisfied that the work involved would divert Allianz and WorkSafe's resources substantially and unreasonably from its other operations. As part of its statutory obligations Allianz processes approximately 250 requests per month from injured workers for access to their claims records under s 107A of the Accident Compensation Act 1985 (Vic). This amounts to almost 3000 request per year. We have limited resources to process this request by the applicant and would require Allianz to divert resources from its other statutory obligations.

1. Challenged Mr Koutsambasis' opinion that it would take 300 minutes to examine the 300 pages in each box at a minute a page. He put to Mr Koutsambasis that the first step with any document in a box would be to see if it was a letter which could require Mr Marshall signature. If not, the document need not be further examined. Next, the date of the document could be read. If it did not fall within the five-day date range of the FOI request, it need not be further examined. Next, it would be relatively simple matter to look at the end of the document or the relevant point in the document to see if Mr Marshall was by way of the printed text of the purported author of the document whether there was a signature. Mr Smeaton had asked his teenage child to examine 18 pages of various documents obtained by Mr Smeaton through his earlier FOI requests to see if any of the documents fell within the criteria of the FOI request. His child took about a minute to do so. While Mr Koutsambasis said he could "see Mr Smeaton's point", he did not change his estimate. 2. Asked why it would be necessary for all 80 boxes to be searched. Mr Koutsambasis replied the index available to them did not allow further refinement;

1. Challenged Mr Koutsambasis' evidence that resources were not available to Allianz, given the substantial funding provided by WorkCover to Allianz as its agent. Mr Koutsambasis replied the potential resourcing was as he had given evidence
2. Mr Smeaton gave evidence summarising why he was making the request. In my view, some of this was relevant to the public interest issue, which 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). I take section 25A(4) to refer to the specific reasons for a request, not the general background to the request.

1. I affirm WorkCover's decision. In my opinion, processing Mr Smeaton's request would substantially and unreasonably divert its resources (in terms of its agent Allianz) 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 Koutsambasis' estimate that each box contains 300 pages, which Mr Smeaton did not challenge and so estimate there are 24,000 pages to search.
2. However, I do not accept Mr Koutsambasis' estimate that it will take approximately 400 hours to process the request, based on his assumption that it would take a minute page. I agree with Mr Smeaton that there will be documents which are evidently not of the type which require a signature or if there is a letter with a signature, there will be attachments which do not require a signature. Further, the five-day date range of the FOI request will presumably allow for quick exclusion of most of the documents.
3. On the other hand, I do not accept Mr Smeaton's calculation which he put in submissions as follows. He submitted if his teenager could examine 18 pages in a minute, 300 pages could be examined in 16.6 minutes (300 pages, divided by 18 pages a minute). At 16.6 minutes a box, it would take 23 hours to examine all the documents. Add to that and say 10 hours for additional work including recognising it is a different thing to have a person examine just 18 documents once in a minute, rather than continuing on to examine 2400 pages. Mr Smeaton estimates that the 80 boxes could be examined in 33 hours.
4. In my opinion, Mr Smeaton's calculation is overly simplistic. Little can be concluded by a simple task handed to a teenager, which is conducted in a context entirely divorced from the relevant work environment. He gives no real basis for adding 10 hours.
5. Having accepted neither opinion offered to me I am left to make my own estimate. I estimate 90 hours as follows:

1. Mr Koutsambasis or someone he nominates to make a list of and then request the boxes from archives - two hours; 2. Location of boxes at the archive and delivery to Mr Koutsambasis - four hours;

1. Careful search of each box so that the person or persons examining approximately 300 pages could after one examination have recorded with certainty whether documents within the range of the FOI request existed, having; 1. examined a presumably wide variety of documents of varying types and lengths, maybe learning along the way what Mr Marshall's signature looks like; 2. deciphered whether any signatures (where the document was in the date range) where the signatory was not identified were those of Mr Marshall; 3. decided whether any letter signed by Mr Marshall within the specified dates, was one that fell within the FOI request because it was generated by Allianz as an agent of WorkCover or whether it did not, because it was generated by Allianz to meet its non-WorkCover concerns. This could prove to be time consuming. It could require research into the context in which the document was created which is not evident from the document alone; 4. copied all documents that potentially fell within the request; 5. recorded the existence of the documents on an index so that if required, the originals could be once again located from the archive box and 6. resealing the archive box and storing them for collection

In reaching this tentative estimate, I am mindful I am not familiar with the types of documents that stored in the boxes. Also, all too often the time it actually takes to perform a substantial task proved to be longer than an earlier estimate of that required time. However, in making this decision on review, I am required to make the best estimate I can; and

1. return of archive boxes to archives - four hours.

1. In considering the available resources of WorkCover (including Allianz as its agent) 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 filling 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. In my view, those resources include the resources of Allianz. I accept Mr Hurley's submission that while the FOI Act does not specifically say so, considering the issue in context, the resourcing referred to in section 25A must include the resourcing of an agent of the department or agency which is responsible for responding to the FOI request. That context is that in responding to an FOI request the agency must consider documents in the possession of itself or its agent. WorkCover routinely does, with respect to FOI requests, where there are documents in the hands of one of its agents. It logically follows the resource in question raised by section 25A attaches to the resources available in this proceeding both by WorkCover and, in this case, its agent Allianz.
2. I find the resources available to WorkCover to process the request is largely the time of the Allianz team as described by Mr Koutsambasis. While it was not the focus of the evidence or submissions, I understand if the search was undertaken and documents located, they would be sent to WorkCover where the WorkCover FOI Unit would decide whether they should be released to Mr Smeaton in whole or in part.
3. In making this finding, I reject Mr Smeaton's submission to the contrary on the basis that the record of a Public Records Office in Victoria - Records Management Network Meeting of 29 May 2012 (apparently the public domain) records the Deputy Ombudsman Victoria referring to an Ombudsman's investigation into record-keeping deficiencies by WorkCover agents tabled in Parliament in May 2011. Mr Smeaton attempted to extrapolate from an observation that in 2009/10 WorkCover paid its agents fees of over $200m to manage over 56,000 claims relating to injured workers in Victoria, to persuade me that the funding enables his request to be processed. I find that there is no basis for deducing from the Deputy Ombudsman's observation (as reported), the funding is available to process Mr Smeaton's request.
4. 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 only those requests where he applied for review of WorkCover's decision at VCAT. As far as I am aware, this is the second time WorkCover has refused one of his requests under section 25A(1). I affirmed that decision on review in Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1236.

1. I accept WorkCover's resources would be substantially diverted by processing the request. On any view, the allocation of 90 hours of the time of one person in a small 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 90 hours to process is, taken in isolation, below 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 of 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 (General) [2012] VCAT 1233 (15 August 2012), I affirmed the Department of Education and Early Childhood Development's decision under section 25A(1). 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. In Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1236 I accepted WorkCover's decision having accepted its estimate that processing approximately 1000 pages of printed e-mails would take 160 hours.
5. There are multiple cases at the high end (months or years to process) as I discuss in AB, where tribunals have affirmed 25A(1) or its equivalent decisions. I also note VCAT's recent decision in The Age Company Pty Ltd v CenITex (General) [2012] VCAT 1523 where VCAT accepted processing two requests was likely to take many months (at least).
6. 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.
7. In deciding this issue, I adopt an approach similar to that employed by President Justice O'Connor in Cainfrano in listing factors and forming a judgement.
8. 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.

Allianz is only able to say that the documents may exist in the 80 archive boxes. The time it will require to locate them within the boxes is the issue before me

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. Broadly speaking, he and his wife make these requests to understand WorkCover's actions in around 2003 and 2004. 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 members 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.

Mr Smeaton says neither he nor his wife have plans to institute legal proceedings against Mr Marshall (as Mr Hurley submitted).

An issue they raise is that in a letter dated 14 May 2004, WorkCover informed Mr Smeaton of the result of an internal review at WorkCover of its earlier decision that he may not be paid as a night carer for his wife. The letter confirms that a Dr Strauss had orally advised a WorkCover employee that Mr Smeaton was not suitable to act as Mrs Smeaton's night carer.

As it happens, the issue of Dr Strauss' opinion came before me in 2009 in another proceeding between the parties. In Smeaton v Victorian WorkCover Authority (General) [2009] VCAT 1977 (24 September 2009), I recorded that Dr Strauss gave evidence (and I then found) that he had never held the opinion that Mr Smeaton was not a suitable person to be appointed as Susan Smeaton's night carer. He had no recollection of giving an oral report to Allianz and it was his practice not to give oral reports.

Mr Smeaton believes Mr Marshall signed the 14 May 2004 letter and alleges Mr Marshall or others acted improperly such that the person who made the (flawed) first decision was able to influence the (flawed) outcome of the review decision. While I make no comment on Mr Smeaton's beliefs, I note that in submissions he attempts to support them with careful reference to documents he has obtained from WorkCover under the FOI Act.

Mr Smeaton also made submissions concerning a sequence of events, which culminated in the 14 May letter. He submits that a WorkCover conciliator called for Dr Strauss's opinion as to whether Mr Smeaton was suitable to be Mrs Smeaton's night carer. Unknown to the Smeatons or the conciliator, WorkCover first requested that opinion then withdrew the request. This frustrated the conciliation process and significantly contributed to the statement in the 14 May letter as to Dr Strauss's opinion about Mr Smeaton. While again I expressed no view concerning the substance of the submission, I again note Mr Smeaton made reference to supporting documentation.

According to the Hansard of the Victorian Parliament, legislative Council, 25 May 2010, WorkCover advised Parliament (via the relevant Minister) `previous enquiries have been unable to establish the identity of the individual officer who endorsed the decision that is the subject of this question (the 14 May letter). I understand this remains WorkCover's position.

Allianz refuses to state who signed the letter, as evidenced by its letter to Mr Smeaton dated 27 January 2010.

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

I understand WorkCover concedes mistakes were made in the past, which have long since been rectified. Mr Smeaton was appointed night carer for his wife.

Also, whether or not Mr Marshall signed the letter, it is a letter from WorkCover, presumably signed by a person with authority to sign it. Its legal effect is unchanged by the identity of the author. In terms of the issues the Smeatons wish to raise, being able conclusively to identify the author does not seem to significantly advance their cause.

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 Allianz team.

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;

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

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 for signatures. 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.

My 90 hours estimate is my best estimate in the context of the evidence before me. I lay no claim to its certainty.

1. That Mr Smeaton is a repeat applicant to WorkCover, 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 48 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 and recently the Transport Accident Commission[4].
3. Further, this is the fifth VCAT proceeding by which Mr Smeaton has attempted to obtain signatures of Mr Marshall. This is the first of those proceedings where it has become necessary for VCAT to consider the substance of his request. The summary history of previous proceedings is:

1. G83/2011 resulted in WorkCover providing the 20 signatures mentioned above to Mr Smeaton. VCAT was not called on to make a decision; 2. In G871/2011, VCAT decided it did not have jurisdiction as Mr Smeaton had made his "deemed rejected" application before 45 days had expired;

1. In G944/2011, Mr Smeaton requested documents surrounding Sue Smeaton from archives from April 2004 forwards. WorkCover responded that its index did not indicate that the archives held documents 'surrounding Smeaton' VCAT dismissed Mr Smeaton's application for orders that it search the archive boxes; and

1. G73/2012 which VCAT dismissed for want of jurisdiction
2. In a similar vein to that expressed in Kelly, in my view, concerning this request, the unreasonableness of the diversion of the resources is in my view closely related to the resources WorkCover has over many years allocated to dealing with Mr Smeaton's requests. I repeat what I said in Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1236 with respect to this proceeding. The request is a straw which would unreasonably strain (but again I doubt break) the 'camel's back'.
3. I understand a 90 hour estimate has not previously caused a tribunal to affirm a section 25A(5) (or its Commonwealth or interstate legislative equivalent) refusal. Perhaps it is unlikely that it will again, although each case is decided on its merits.
4. That said, Mr Hurley has provided me with a copy of a report of the Australian Information Commissioner to the Commonwealth Attorney-General dated February 2012 titled, Review of charges under the Freedom of Information Act 1982. The Commissioner recommends an agency should not be required to process an FOI request that is estimated to take more than 40 hours to process. The estimate would be reviewable. Mr Hurley advised that to his knowledge, the Australian Government has not responded to the recommendation. He described the report as showing "which way the wind is blowing". I have not taken the report into account in reaching my decision. Nor do I express a view about the recommendation.

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 or its agent Allianz, the balance favours affirming WorkCover's decision.

[1] When the application was made it was on the basis that the decision was "deemed rejected". With the substantive decision now made, that decision is the subject of the proceeding. Lovell v Department of Human Services [2001] VCAT 965 and McIntosh v Victoria Police [2010] VCAT 1790.

[2] References to the Minister and 25A(7) omitted.

[3] I understand Mr Marshall was employed in the relevant position before and after 2004.

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