Smeaton v Victorian Workcover Authority (General) [2012] VCAT 434

1. This proceeding will proceed on the basis that the Respondent may discharge its onus of establishing that the deemed refusal decision, which gave rise to this proceeding, was justified, by reference to the Respondent's decision of 8 November 2011, refusing the Applicant's request for documents under Freedom of Information Act 1982, under section 25A(1) of that Act.
2. The matter is listed for a directions hearing on 16 April 2012 at 2:00 pm at 55 King Street Melbourne.

1. On 23 December 2010, under the Freedom of Information Act 1982 (the FOI Act), Mr Smeaton asked the Victorian WorkCover Authority ("WorkCover") for access to documents contained in the "email boxes" of 14 people employed by CGU (WorkCover's agent) for the dates August 2003 to December 2006.
2. On 7 February 2011, Mr Smeaton applied to VCAT on the basis that WorkCover was deemed to have failed to make a decision, under section 53 of the FOI Act. That application gave rise to Proceeding G86/2011.
3. Also on 7 February 2011, Mr Smeaton received a letter from WorkCover under section 25A(7) of the FOI Act, saying WorkCover regarded the request as unclear, too broad and voluminous. Under section 25A(6) of the FOI Act, it informed Mr Smeaton of its intention to refuse access to the documents sought, subject to an invitation to Mr Smeaton to consult with WorkCover with a view to amending his request to be in a form that would remove this ground for refusal.
4. In Proceeding G86/2011, on 27 May 2011, I dismissed Mr Smeaton's application, because he had applied before the 45 day time limit, after which a decision is deemed to have been refused, had not expired.
5. On 25 September 2011, VCAT received a further application from Mr Smeaton, arising from his 23 December 2010 FOI request to WorkCover. He said WorkCover was then deemed to have rejected his FOI request. This second application gave rise to this proceeding, G875/2011.
6. On 8 November 2011, WorkCover refused Mr Smeaton's 23 December 2010 request under section 25A(1) as one that would unreasonably divert the resources of WorkCover.
7. On 18 January 2012, I decided VCAT had jurisdiction to hear this proceeding. I decided Mr Smeaton hade made his second application to VCAT after 45 days had passed. Therefore, WorkCover was deemed to have failed to make a decision, under section 53 of the FOI Act
8. The next issue to consider was the further progress of this proceeding. Mr Smeaton had briefly submitted that WorkCover's decision of 8 November 2011 to refuse Mr Smeaton's request under section 25A(1), is of no effect and the proceeding at VCAT should proceed on the basis that WorkCover is deemed to have refused his application.
9. In Victorian Administrative Law, Pizer J (at [FOI.25A.180] (Update 113) discussed the relationship between sections 25A(1) and 53 of the FOI Act. He noted the decision in Mildenhall v Department of Education (unreported, VCAT, Dr Lyons SM, 9 April 199) where VCAT decided it did not have the power to make a decision under section 25A(1) on a deemed refusal application and, as such, ordered that the respondent could not rely upon section 25A(1) to justify a deemed refusal.
10. As WorkCover had not had an opportunity to make a considered submission on this issue, I scheduled a further directions hearing.
11. At the directions hearing on 13 February 2012, the parties made submissions as to the future conduct of this proceeding.

1. The deemed rejection being discussed arises under section 53 and 21 of the FOI Act.

(a) a request has been made to an agency or Minister;

(b) the time period provided in section 21 or section 43 as the case may be has elapsed; and

(c) notice of a decision on the request has not been received by the applicant -

the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 50, be deemed to have made, on the last day of the relevant time period, a decision refusing to grant access to the document.

21 Time within which formal requests to be decided

An agency or Minister shall take all reasonable steps to enable an applicant to be notified of a decision on a request as soon as practicable but in any case not later than 45 days after the day on which the request is received by or on behalf of the agency or Minister.

1. Section 25A sets out when a FOI request may be refused without processing because it would substantially and unreasonably divert the resources of the agency from its other operations. It relevantly says,

(1) The agency or Minister 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 or Minister 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; ...

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

(ii) identifying an officer of the agency or a member of staff of the Minister 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. In my opinion, this proceeding should proceed on the basis that the Respondent may discharge its onus of establishing that the deemed refusal decision was justified, by reference to its actual decision of 8 November 2011. While I have considered Mr Smeaton's submissions, I agree with the decision and reasoning of Lacava J in Lovell v Department of Human Services [2010] VCAT 1965. After distinguishing Mildenhall, Lacava J decided,

35. Section 53(5), in my judgment, clearly envisages a decision to refuse access to documents being made by a minister or a responsible agency after an application has been made to the tribunal to review the deemed decision to refuse access to documents within s 53(1). In that circumstance, the answer to the first question [whether a respondent may make an actual decision under s 25A(1) of the Act after a deemed refusal application has been filed in this tribunal] ... must be 'yes'. ...

49 ... the answer to the second question ... [whether a respondent may discharge its onus of establishing that the deemed decision was justified by reference to that actual decision] is also 'yes'. The purpose of the Act is to grant an applicant access to documents limited 'only by exceptions and exemptions'. The applicant's right of access to documents in s 13 of the Act is 'subject to this Act'. A minister or agency may refuse access to documents on the basis of exceptions of which s 25A(1) is but one or on the basis of exemptions provided for in Part IV of the Act. Where there is a decision 'refusing to grant access to a document' that decision is reviewable in the tribunal (s 50(2)(a)). The task for the tribunal is to review the decision to refuse access to documents (Smedley supra). The respondent bears the onus of justifying the decision refusing access to documents (s 55(2)). The Act does not limit the tribunal to hearing evidence justifying a decision to refuse access to documents based on an exemption only. In order to comply with the stated purposes of the Act, where there is evidence justifying a refusal to grant access to documents based on an exception under s 25A(1) of the Act, the tribunal can, and should, hear that evidence. To suggest otherwise would circumvent the clear purpose of the Act.

1. I note, in Update 130 of Victorian Administrative Law, J. Pizer now mentions Lovell, at [FOI.25A.180].
2. I have scheduled a directions hearing to decide the steps now required to reach a final hearing in this proceeding.
3. Finally, I note J. Pizer's closing observation on the topic [FOI.25A.180],

McIntosh and Lovell pose a conundrum as to the proper role of the VCAT in such a proceeding. The respondent would be given an opportunity to make out its claim section 25A(1) applied. If the respondent was successful, the VCAT would affirm the deemed refusal decision on the basis of section 25A(1). But what if the respondent were unsuccessful? Should the VCAT (i) set aside the deemed refusal rejection and remit the matter to the agency, or (ii) set a timetable leading to a final hearing at which the VCAT review the deemed refusal decision or (iii) adopt some other course?