Smeaton v Victorian Workcover Authority (General) [2012] VCAT 435

1. The respondent's application that this proceeding be struck out on the basis that VCAT does not have jurisdiction is rejected.
2. The proceeding is to continue on the basis that the application is with respect to the respondent being deemed to have refused the applicant's original request and the respondent now having made a decision, as set out in its letter to the applicant of 29 November 2011.
3. The respondent must select an agreed sample of the documents in the respondent's schedule of documents in dispute, which will form the basis on which the proceeding is to continue:
   • (a) including not more than ten documents;
   • (b) divided into classes of documents representing each class of document in the schedule; and
   • (c) representing each exemption claimed and each class of documents in the schedule,

and the respondent must lodge with VCAT and give to the applicant a list of the agreed sample documents.

1. The proceeding is listed for a directions hearing at 2pm on 16 April 2012 at 55 King Street Melbourne, the same time at which VCAT is scheduled to hear proceeding G73/2012 between the same parties and to hold a directions hearing in Proceeding G875/2011.
2. The purpose of the directions hearing is to set a hearing date.

1. This proceeding has on any view, a chequered history, which I set out below as far as it is required in deciding the issues put to me on 13 February 2012.
2. The Victorian WorkCover Authority ("WorkCover") submits:

1. VCAT lacks jurisdiction to hear this proceeding because, when Mr Smeaton applied to VCAT, WorkCover was not, under the Freedom of Information Act 1982 (the FOI Act), deemed to have rejected his request to it; or 2. If VCAT decides it has jurisdiction, the proceeding should be heard based on the 'the narrow view' of Mr Smeaton's request, which the respondent has responded to. In that case, the hearing should be based on a sample of 10 documents; or

1. If VCAT decides it has jurisdiction and that the proceeding should be heard based on the 'broad view' of Mr Smeaton's request, VCAT should decide it is open to the respondent to decline to process the broad request under section 25A of the FOI Act and schedule a hearing to review that decision only.
2. I deal with the first two issues in turn.

1. Under sections 53 and 21 of the FOI Act, a person who has made a request under the FOI Act may, after 45 days have elapsed and notice of the decision has not been received, apply to VCAT for review of the decision on the basis that the decision is deemed to be rejected. The sections say,

(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. This is the third time I have been asked to consider this issue in proceedings between the parties. In Proceeding G871/2011, I found VCAT did not have jurisdiction as VCAT received the application on "Day 36" or "Day 40"; when on either view Day 45 had not passed. In proceeding G785/2011, I found VCAT had jurisdiction, Day 45 having passed before VCAT received Mr Smeaton's application.
2. Having considered submissions and evidence, I have decided VCAT has jurisdiction.
3. On 10 December 2010, under the FOI Act, Mr Smeaton asked WorkCover for access to documents contained in the "email boxes" of 19 people for the months of February 2003 to December 2006. Mr Smeaton paid the fee on Wednesday 23 December 2010.
4. In my view, the 45 days after which the request would be deemed to be refused, began running on Thursday 24 December 2010 (Day 1), the day after WorkCover received Mr Smeaton's FOI request fee payment. This is because section 44(1) of the Interpretation of Legislation Act 1984 (Vic) says that where in any act a period of time is expressed to begin on, or to be reckoned from, particular day (which I say is 23 December 2011) that day should not be included in the period.
5. WorkCover submits 29 December 2010 is Day 1 because:

1. Mr Smeaton's request became compliant on Thursday 24 December 2010, the day after the fee was paid; 2. Therefore, Day 1 was the next day after 24 December 2012, which was Christmas day and a holiday;

1. Because Day 1 would have fallen on a holiday, Day 1was Wednesday, 29 December 2010, the next non-holiday day after 25 December. It refers to section 44(3) of the Interpretation of Legislation Act 1984 which says,

Where the time limited by an Act ... for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the act or thing may be done, on the day next following that is not a holiday.

1. It refers to two decisions in support being:
   1. Kyriazis v Department of Justice (General) [2010] VCAT 1788 (20 October 2010), paragraph 8; and
   2. My decision in Keating v La Trobe University (General) [2011] VCAT 1564 (16 August 2011).
2. I disagree with WorkCover's submission that because Day 1 would have fallen on a holiday, Day 1 was Wednesday, 29 December 2010, the next non-holiday day after 25 December. In my view, section 44(3) of the Interpretation of Legislation Act 1984 applies where, "the time limited by an Act ... for the doing of any act or thing expires". There was no such time limit for the paying of the fee. In this context, the only time limit was the 45 days. Therefore, section 44(3) does not assist. This subsection would apply if, for example, the 45 days ended on 25 December 2010.
3. In my view the two decisions cited do not assist WorkCover's submission:
   1. In Kyriazis, McKenzie DP said, "... if a non-compliant request is made, and later it becomes compliant, then the date of receipt of the request is the date when the request becomes compliant." That view does not assist the interpretation, as submitted by WorkCover, that Mr Smeaton's request became compliant the day after he paid the fee; and
   2. I do not agree that my decision in Keating supports WorkCover's submission. There, Mr Keating's cheque was received on 14 January 2011. I decided to 45 days began to run, "from 14 January 2011". The issue of whether Day 1 was 24 January or the next day was not relevant in that case.
4. On 26 January 2011, WorkCover sent Mr Smeaton a letter 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. WorkCover wrote that the consultation period would end on 4 February 2011.
5. This action "stopped the clock".
6. By e-mail dated 1 February 2011, Mr Smeaton advised WorkCover as to what he said was the scope of the request "I was expecting [WorkCover] to carry out searches of its current live e-mail system together with any relevant personally based archives." He continued, "I trust tomorrow will see the start of day 37 of the 45 day time span to fulfil the request".
7. In my view, time started to run the day after WorkCover received the e-mail. By my calculation, 2 February 2011 is Day 34.
8. I do not accept WorkCover's submission that the consultation period continued to run to and including 4 February 2011, as originally set in WorkCover's letter of 26 January 2011. I have sympathy with the view that, as WorkCover submits, "the fact that the e-mail was sent to WorkCover on 1 February 2011 does not mean that the consultation ended at that moment". However, in my view, VCAT should prefer the certainty arising from a basic calculation from the day a person requesting documents clearly advises the decision maker of its view as to whether it will narrow the scope of the request.
9. I do so in the context of interpreting the FOI Act, as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information (see section 1).
10. On 14 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[1]. This gave rise to this proceeding.
11. By my calculation, 14 February 2011 was Day 46 because,

1. 24 December 2010 was Day 1; 2. 25 January 2011 was Day 33;

1. on the next day, 26 January 2011, the clock stopped;

1. on 1 February 2011 Mr Smeaton ended the consultation period by way of his e-mail at that date; 2. 2 February 2011 was Day 34; 3. 13 February 2011 was Day 45 and 4. Therefore, Mr Smeaton's application to VCAT on 14 February 2011 was made on Day 46.

1. WorkCover submits that in the course of this proceeding, Mr Smeaton effectively narrowed his request from seeking e-mails of 19 people to being for the "live e-mails" of seven employees, not including archived material and the material of former employees. It has provided Mr Smeaton with approximately 800 pages of e-mails with some personal affairs exemptions and advised it considers 80 documents as fully exempt.
2. It supports this view with reference to the hearing of this matter on 27 May 2011 and evidence of Mr Koc, in his witness statement dated 12 May 2011.
3. Mr Smeaton submits he narrowed his request to not include backup tapes but always included all material available on the live e-mail system for all 19 people.
4. I accept WorkCover's submission. I have listened to the relevant audio recording of the hearing on 27 May 2011. There is no doubt the agreed path forward was that WorkCover would commence a search of the live e-mail system with respect to six employees. I note WorkCover's decision letter of 29 November 2011 and WorkCover's submissions on this point refer to seven employees. The debate at the hearing about the "seventh employee" was that this person was a board member who did not hold an e-mail account within the WorkCover system. No evidence or submissions had been put to me about this difference. However, it would appear it is not material to my decision here.
5. WorkCover's agreement to process the reduced request was in the context of Mr Koc's evidence on the hearing day, that searching that material would take say two hours per e-mail box, a total of 12 hours. He gave evidence about the live e-mail system being in two parts, the e-mails an employee sees day to day on his or her computer screen and an archive system (not backup tapes) relatively easily accessible from the computer screen.
6. Following that evidence, over the lunch break Mr Hurley sought instructions from WorkCover. He received his instructions on the basis that if six employees were now the focus of the search, WorkCover would commence the search process. He spoke of the scope of the request being in effect been narrowed. At that point, WorkCover reserved its right to return to VCAT if in its view it became obvious even the search of six employees e-mails would require substantial resources. As it has happened, even though 800 pages of e-mails have been provided and approximately 80 pages of e-mails are claimed as exempt, hardly a minor exercise, WorkCover did not return to VCAT but processed the request.
7. At the hearing, Mr Smeaton made no objection to Mr Hurley's statements. He did not say, "no I want the live e-mails of all 19 employees searched".
8. I find that on 27 May 2011 at the hearing before me, Mr Smeaton consented to the request proceeding based on a search of live e-mails of six employees.
9. Therefore, I have made orders that WorkCover is to file and serve a schedule of sample documents. This proceeding will now be listed for hearing concerning exemptions claimed by WorkCover as set out in its letter of 29 November 2011.
10. Given these orders, I do not deal with WorkCover's third submission, as described above.
11. I have scheduled a directions hearing with a view to deciding a final hearing date.
12. In closing, I observe the entire '45 day debate' could have been avoided if Mr Smeaton had not 'played chicken' with the time limit. It is obvious from notes made by him on his application that he intended to make the application to VCAT on Day 46. While I have not considered his logic as recorded in those notes, as it happened I have decided he achieved the result. However, allowing say a seven-day margin of error would have avoided time and expense for all concerned and the risk he ran that, as in another proceeding, VCAT would decide it had no jurisdiction.

[1] WorkCover's submission is that the application of was made on 16 February 2011. I have returned to the proceeding file. The application was e-mailed to VCAT on Monday 14 February 2011. This is also the date is shown in VCAT's computer records.