The respondent's decision of 29 May 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 access to,

a KPMG report regarding Smeaton sent to VWA dated around April 2006 that the attached e-mail speaks about, IT report finalised for a 13 April 2006 meeting. The KPMG report however possibly may have ended up being prepared for later date.

I also request any other KPMG report regarding Smeaton that may exist after the one mentioned in the attached e-mail, if there is indeed any more.

1. He makes this request because WorkCover has released to him an email dated 7 April 2006. The email relevantly says,

Attached is the KPMG Smeaton report updated with the latest management comments.

Can each of you please review, provide your update comments, and reply to me with your sign off NO LATER THAN 12 NOON ON MONDAY 10.04.06. This must go back to KPMG to allow them to prepare the report for the next ARMC meeting next Thursday.

In signing off on the comments, please bear in mind that this report, and the commitments to which you will be accountable, are likely to be widely circulated and appear in Parliament, be reviewed by the ombudsman, etc - as Len has said, you are signing in your own blood on this, so please make sure that it reflects your position and comments, and actions and commitments have been completed.

1. Mr Smeaton concluded after reading this, in the context of having been provided with a copy of the first report by KPMG, that there is a second report by KPMG, a draft of which was attached to the email.
2. As I discuss in my decision in Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1549, the attachment to the email is not any form of a KPMG report. It is a multi-page table that collects KPMG's recommendations from the 'first report' (which have been released) with commentary by various officers about implementing the recommendations. It is a document of its moment describing implementation at that time which no doubt soon became outdated.
3. Having learned this in the course of 'VCAT 1549', Mr Smeaton made this FOI request, searching for a second KPMG Report.
4. However, WorkCover's position is that there was never a second KPMG report. It instructs Mr Hurley that if it existed, it would have been a high profile document, which would have long since been discovered because of searches of WorkCover's documents due to Mr Smeaton's previous FOI requests. Also, if it existed, WorkCover would have no reason to withhold it from Mr Smeaton. It provided him with a copy of the first report.
5. Returning to Mr Smeaton's request which gave rise to this proceeding, on 22 May 2012, WorkCover advised Mr Smeaton it took the view that given its previous searches as result of Mr Smeaton's previous requests, the only place left to search was the entire WorkCover e-mail database. Therefore, it regarded the request as voluminous and invited Mr Smeaton to consult with a view to amend or narrow his request. Mr Smeaton declined.
6. Mr Smeaton seeks review of WorkCover's decision of 29 May 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.
7. Over 11 and 12 October 2012, I heard three applications between the parties. Mr Smeaton represented himself. WorkCover was legally represented. I decided one on the day, giving oral reasons, reserving my decisions in this proceeding and in Proceeding G515/2012. In July, I had reserved my decision in Proceeding G105/2011. As some factual background and legal issues are to an extent common the proceedings, and my later decisions cross-reference each other, it is convenient to list them with the citation, as it will be when they are published on Austlii. They are each handed down on 29 October 2012:

1. G105/2011 - Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1549; and 2. G515/2011 - Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550; and

1. G525/2011 - Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1551;

1. WorkCover called Mr Osman Koc, Technical Domain Manager, IT Shared Solutions, WorkCover, to give evidence. His main duties are to oversee the network infrastructure systems and end user services of WorkCover and the Transport Accident Commission. He gave evidence concerning access to e-mail systems in three VCAT proceedings arising from Mr Smeaton's requests including VCAT 1549.
2. He understands Mr Smeaton's request that gave rise to this proceeding in his witness statement of the following opinion,

To establish whether any documents as requested existing the respondent's e-mail system require research across the entire VWA mail domain. It would require research of the current/live e-mail boxes of current contractors and employees and restoring the archives of past employees (and contractors) so they also may be searched. The search has to be done at the individual mailbox level.

In May 2012 IT service desk was asked to search for e-mail inbox systems current/live and archived for 'KPMG Smeaton report". The IT service desk was given a copy of the request. The search involves searching each of the individual mailbox is all VWA personnel over the period 20 months from 1 May 2005 (the start of the referral to KPMG) to 31 December 2006. There are about 1200 employees and contractors of the respondent who have e-mail inboxes. There are also an unknown number of staff and contractors who have e-mail boxes that have been closed. One of my staff considered the request. It is not possible to conduct such a search across the entire system or domain.

It was reported to me that my staff and considered the request search is so enormous it could not realistically be done.

I also personally considered the request and the work required. In my opinion it is an enormous task that requires restoring an unknown number of e-mail boxes, and searching each individual mailbox for the terms specified. I cannot state the time this task would require. But assuming as a minimum it took one hour to consider each existing e-mail box for a period of 20 months (which I do not consider realistic) this alone would take 1200 hours.

1. While giving evidence, Mr Koc said when he raised the concept of performing the search with the contractors who provide such services to WorkCover, they were not willing to provide a quote as they thought the job unrealistic.
2. Mr Smeaton's cross-examination of Mr Koc failed to challenge the evidence as to the enormity of the task as requested. He did raise the issue of whether in fact the search for the hypothetical second report requires a searching of the e-mails of apparently 1200 people. If the search was to be done, it could perhaps be focused on a much smaller group of people within a reasonable period after the date of the e-mail. However, the time for such refinement of the request was during the consultation offered by WorkCover following the original request. The issue before VCAT is WorkCover's decision with respect the original request as confirmed after consultation.

1. I affirm WorkCover's decision.
2. It is unnecessary to here repeat the analysis of the law, which I recently set out in G515/2011 - Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550 and AB v Department of Education (General) [2012] VCAT 1233.
3. In my opinion, processing Mr Smeaton's request would substantially and unreasonably divert WorkCover's resources from its other operations because;

1. Consultation -WorkCover went through the mandatory consultation process set out in section 25A(6), before it reached its decision. 2. Estimated time to process - Bearing the factors to be taken into account in estimating resources (section 25A(2)), I accept Mr Koc's estimate that the task would be enormous.

1. Available resources - the resources available to WorkCover to process the request is its subcontractors. It is not certain that the contractors would agree to do the job if asked.

1. Substantial diversion -The concept of substantial diversion is dwarfed by the enormity of the task. 2. Unreasonable diversion - This case is an example of the multiple cases at the high end (months or years to process) where tribunals have affirmed 25A(1) or its equivalent sections in other jurisdictions.
2. As I regard the correct and preferable decision in this proceeding as obvious, I do not address the factors set out in Cainfrano v Director General, Premier's Department [2006] NSWADT 137 (9 May 2006) as I have done in the two decisions I cite at paragraph 15.
3. I add that given the history of the FOI requests Mr Smeaton has made to WorkCover, the number of VCAT proceedings between the parties, and the history of the issues between the parties, it appears highly unlikely that a second KPMG report exists. However, I understand why based on the, apparently very clumsily worded, 7 April 2006 email, Mr Smeaton suspects otherwise.