1. I reject WorkCover's submission that it should not be ordered to search the one Current Backup Tape as Mr Smeaton now requests, because the FOI Act only requires WorkCover to produce a written document containing the information requested in discrete form by the use of a computer or other equipment that is ordinarily available to the WorkCover for retrieving or collating stored information.
2. The Administrative Appeals Tribunal of Victoria considered section 19(1)(c) in Halliday and Corporate Affairs (1991) 4 VAR 327. In that case, the applicant sought a document that could only be produced by the respondent causing a computer program to be written to extract the data from computer records. Member Rosen (now Pruess SM) decided considered section 19(1)(c), which has not changed, with the phrase ordinarily available in mind. Member Rosen said (page 338),

The evidence ... was a new program would need to be written to retrieve the information in the first instance. Whilst it was not clear from the evidence as to the time involved in such an exercise, it was clear that it would involve time and some disruption of the respondent's computer facilities.

In my view, there are circumstances where an existing program could easily be modified to satisfy subs 19(1)(c). ...

However, the evidence in this case is that a wholly new program would have to be written to provide the information and the computer then used to collate the information requested. In these circumstances it is my view that the respondent is not required to supply the information under s 19. Accordingly the applicant's application to review [the] decision in relation to his request for statistics ... is refused.

1. Member Rosen focused on the degree of effort required by the respondent to produce the document. While she decides writing a completely new computer program is not in the realm of "ordinarily available", she says modifying a program may be.
2. Concerning the Current Backup Tapes, which Mr Koch says are available via a request to an outsourced information technology services company, which works with Mr Koch, using the current system. I see no basis for saying this information is not "ordinarily available". As I understand it, no new processes are required to access the data. I see accessing a backup tape as perhaps not an every day event, but still within the realm of ordinarily available.
3. In deciding that I have in mind section 3(2) of the FOI Act,

It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

1. I see Mr Smeaton's request as reasonable. He only seeks access to data from one tape. However, if accessing the data will require WorkCover to pay its IT contractor for extra services not ordinarily provided within any service agreement between them, WorkCover is only required to perform the search if Mr Smeaton first pays that extra charge.
2. If Mr Smeaton pursues this aspect of his request and if WorkCover says fees are payable, hopefully the parties can resolve that issue between themselves. If not, they have liberty to apply and I would intend to hear them and make orders on the issue.

Old Backup Tapes- Search of four tapes ordered subject to Mr Smeaton paying third party costs

1. In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264 (4 August 2010) (VCAT Proceeding G177/2010), I ordered a search of the same Old Backup Tapes to retrieve other data, subject to Mr Smeaton paying the search fees. WorkCover had secured a quote to have the work done. I note, in that proceeding, the issue of "ordinarily available" in section 19(1)(c) was not raised in submissions. I did not consider it.
2. With the "ordinarily available" issue raised, the issue of access to the Old Backup Tapes is more difficult. WorkCover does not have the technology in-house to read these tapes. Mr Koch described it as WorkCover using our VHS video system when the old tapes are on the now defunct Beta video system. To update the analogy, I understand it is like WorkCover now having access to data on USB sticks and only having technology to access that storage media, while the old backups are on CDs and WorkCover not having its own CD players. To continue the analogy, it could hire a company, which has CD players and conversion equipment to transfer the data on the CDs to USB. It was apparent form Mr Koch's evidence that this exercise was not ordinarily done.
3. However, on balance, I also see this information as being ordinarily available. Again, I have in mind section 3(2) of the FOI Act. While I understand Mr Koch's evidence to be that this exercise is not day to day practice, the data from the Old Backup Tapes is "ordinarily available", in the sense that all that is required is WorkCover must engage an IT contractor to provide it. It is evident it is quite feasible for WorkCover to do that It previously sought a quote to do the same type of exercise with respect to VCAT Proceeding G177/2010.
4. Drawing an analogy from Halliday, in my view the effort and expense required does not remove it from the realm of ordinarily available. Engaging a contractor is presumably far less effort than modifying a computer program.
5. Having dealt with that issue, I take the same approach as in Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264 (4 August 2010). I ordered a search of the Old Backup Tapes, subject to Mr Smeaton first paying any costs payable to a third party to retrieve the data.
6. I see this as reasonable given:
   1. It appears there is a small potential for relevant documents to exist on the Old Backup Tapes. Apart from the cost, I understand the process to not be overly burdensome on WorkCover and thus not an unreasonable diversion of WorkCover's resources; and
   2. Given WorkCover has already provided existing e-mails, that potential is so small that is not reasonable to require WorkCover to pay the recovery costs payable to a third party.

1. Finally, I note the issue of agencies' obligations to investigate computer backup medium, when responding to FOI requests is problematic and little explored. The Victorian Government may wish to consider whether clarification via legislative amendment is desirable.