1. Under s 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal:
   1. Sets aside the deemed refusals, under s 53 of the Freedom of Information Act 1982, of the applicant's requests to the respondent for the Harrison e-mails and the Butts emails; and
   2. Refuses, under s 24A of the Freedom of Information Act 1982, to grant access to those documents for the reasons provided below.

1. On 7 July 2014, Mr Smeaton made an application to VCAT under the Freedom of Information Act 1982 (the FOI Act), on the basis that the Victorian WorkCover Authority (WorkCover) was deemed to have rejected two requests by him under the FOI Act.
2. One was for the 'Harrison emails' and the other was for the 'Butts emails', which are set out below.
3. When he made his VCAT application, Mr Smeaton was not aware WorkCover had on 3 July 2014:
   • (a) Decided to reject the request for the Harrison emails under s 24A of the FOI Act as a repeat request; and
   • (b) Advised a search for Butts emails had not produced any relevant documents.[1]
4. On 11 December 2014, I rejected WorkCover's application that the proceeding be struck out. See Smeaton v Victorian WorkCover Authority (Review and Regulation) [2014] VCAT 1540.
5. On 18 March 2014, I heard the application and reserved my decision.
6. The issues for me to decide were:
   • (a) Whether the FOI request for the Harrison emails should be rejected under s 24A of the FOI Act (as WorkCover submitted) or remitted to WorkCover for processing; and
   • (b) Whether the FOI request for the Butts emails should be rejected under s 24A of the FOI Act and if not, whether VCAT had the power to order a further search.

1. Mr and Mrs Smeaton have conducted a long-running campaign against WorkCover, concerning its treatment of Mrs Smeaton in the early to mid 2000s. Mrs Smeaton was seriously injured at work.
2. Part of the campaign has involved making approximately 60 applications to VCAT under the FOI Act.
3. On 19 May 2014, Mr Smeaton made the following FOI requests to WorkCover.

1. Mr Smeaton requested what I refer to as the 'Harrison emails'.

23 March 2004 Mr Tim Fox sent an email with an attachment to VWA's Jane Harrison. The attachment was a VCAT case called Salcedo v TAC with a note, "here is an (unhelpful) decision [Attached]".

I request under this FOI Jane Harrison communications regarding who she sent this emails content on to, either as an email, memo, brief, letter, etc."

I request information relating to those in VWA who received this Salcedo v TAC VCAT order and their communications if they forwarded said case onto others.

I seek knowledge as to who in VWA had knowledge of this case prior to KPMG and the Ombudsman's reports of Oct 2005 and Nov 2006.

I request as part of the searches a search be carried out in the old backup email tape of May 2004 for said email information. VWA did not print and file email to TRIM in the past and deleted email.

1. In requesting the emails, Mr Smeaton referred to the Salcedo v TAC decision.
2. In 2004, WorkCover's lawyers advised it of a VCAT decision Salcedo v TAC [2002] VCAT 419.[2] A young woman visiting Australia was rendered paraplegic in a car accident. Her mother came to Australia and in part cared for her in hospital. TAC was to authorise the mother as an attendant carer and pay her as such for a set duration each day.
3. WorkCover's lawyers sent the decision to WorkCover with a one-line comment on an email saying the decision, "did not help" WorkCover's denial of funding for Mr Smeaton as night carer for his wife. Mr Smeaton obtained the email with the one line comment under the FOI Act.
4. I understand the objective of Mr Smeaton's current FOI request is to trace who Ms Harrison sent the email to in order to understand the extent of WorkCover's knowledge of that decision as it opposed his wife's request.

1. Mr Smeaton also requested what I refer to as the Butts emails:

I request under FOI searches to be undertaken into the new VWA email backup system that covers the time span from 10:01. am on 8 March till 30 March 2006.

I request a copy of every email that Ray Butts sent onto any others in VWA or its agents or Ministers office that contains a copy of the Ombudsman's email that he either passed on as a forwarded copy or as an email with attachment.

I request a copy of any email sent, by those in VWA who received a copy of the Ombudsman to Ray Butt's email, i.e., any email where they have sent it onto others as either an attachment or forwarded copy. Example of others being - VWA personnel, VWA Management, VWA PA's Board Members, Audit Risk Management Committee members, VWA CEO1 Deputy CEOP, VW.4 Chair, VWA Deputy Chair, Board Members, Ministers Office, Personnel in Allianz or C&U.

I have attached a copy of what was released in a past FOI request showing Mr Butts sent the Ombudsman email onto Jane Harrison and Kylie Menz. Kylie Menz sent it onto Bernie Dean. As an example of what I expect from this FOI. I would be seeking a copy of who else Kylie Menz, Jane Harrison and Bernie Dean sent this Ombudsman email on to, who the receiver of their email then passed it onto that fall under VWA FOI jurisdiction

Mr Butts along with anyone else who reads the content of the Ombudsman email can see the Ombudsman has made it explicitly clear his section 14 investigation is confidential, while VWA are aware he is conducting an investigation what it surrounds remain secret, I wish to discover who breached the confidentiality order contained in the Ombudsman email, who alerted colleges to the secret information the Ombudsman investigations were underway into Sue Smeaton's case.

I believe his investigations were seriously compromised by the conduct of VWA personnel alerting each other, a situation I see reflected by the inaccuracies and flaws within the Ombudsman's report of 30 Nov 2006.

1. As I detailed in Smeaton v Victorian WorkCover Authority (Review and Regulation) [2014] VCAT 1540, VCAT had (and retains) jurisdiction to review the above decisions under s50(1)(a) of the FOI Act because his requests were deemed refused under s 53(1) of the FOI Act.

1. With the FOI requests which are the subject of this proceeding deemed refused, as discussed above, WorkCover then made decisions.
2. Section 53(5) says:

Where, after an application has been made to the Tribunal by virtue of this section [i.e. on the basis of a deemed refusal] but before the Tribunal has finally heard the application, a decision, other than a decision to grant, without deferment, access to the document in accordance with the request, is given, the Tribunal may, at the request of the applicant, treat the application as extending to an application for review of that decision in accordance with this Part. (my emphasis)

1. Where VCAT is reviewing a deemed refusal under s 53, and the agency has made a decision after the application to VCAT, the issue of the exercise of the discretion under s 53(5) is a first step. Usually this is not contentious. Without explicitly addressing the point, VCAT reviews the agency's decision.

1. Here, I have not made a decision to treat the application for review as extending to either of WorkCover's 3 July 2014 decisions. Rather, I have, standing in the shoes of the decision maker, decided the FOI requests afresh, with reference to the parties' submissions.
2. Concerning the Harrison emails this avoids any confusion as to whether Mr Smeaton has requested VCAT to review WorkCover's decision. The substance of what is to be decided is unchanged.
3. Concerning the Butts emails, this responds to WorkCover's s 24A submission and avoids unnecessary complication concerning the extent of VCAT's jurisdiction to order searches at this time (but see comment below).

1. In this proceeding, VCAT, under s 51 of the Victorian Civil and Administrative Tribunal Act 1998, stands in WorkCover's shoes and has the decision making powers WorkCover had when it had received Mr Smeaton's FOI requests, including the power under s 24A of the FOI Act, which deals with repeated requests.
2. I have refused Mr Smeaton's request for the Harrison emails under s 24A of the FOI Act.
3. Section 24A relevantly says an agency (here WorkCover) dealing with an FOI request such as those the subject of this proceeding may refuse to grant access to documents without having caused the processing of the request to have been undertaken or at any later time, if the agency is satisfied:
   • (a) The request is made by, or on behalf of, a person who, on at least one previous occasion, has made a request to the agency for access to the same documents or the same information; and
   • (b) The request was refused and VCAT, on reviewing the decision to refuse the request, confirmed the decision; and
   • (c) There are not reasonable grounds for making the request again.
4. The purpose of s 24A was explained in the relevant Second Reading Speech as:

Existing legislation does not provide adequate protection to agencies from requests for the same document or the same in formation that are repeatedly lodged by the same applicant without reasonable grounds.

Applicants have used the provisions of the Act to harass agencies by making repeated requests for documentation and amendment of personal records. This harassment includes lodging appeals to the Administrative Appeals Tribunal (AAT) on identical matters. Agency resources can be severely affected by having to process these requests.

For example, an applicant submitted a request seeking the identity of a confidential informant. Access was refused by the agency. Subsequently the applicant lodged more than 15 further requests relating to the same information. This same applicant also lodged six appeals to the AAT seeking the in formation. The agency estimates that more than $30 000 has been expended in dealing with these requests.

The Bill permits an agency to refuse to process a repeated request. Applicants will have a right of appeal to the AAT.[3]

1. I now address the decision criteria under s 24A.

Had Mr Smeaton on at least one previous occasion, made a request to the agency for access to the same documents or the same information? - Yes

1. Mr Smeaton's current FOI request is set out above.
2. In November 2009, Mr Smeaton made an FOI request to WorkCover for access to documents being "all TRIM files (and Information management system) relating to Sue Smeaton". This broad request encompassed the Harrison e-mail. Mr Smeaton sought review by VCAT of the deemed refusal of his request.
3. This became VCAT proceeding G244/2010. In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1908, VCAT affirmed various of WorkCover's decisions not to release documents, decided to release one document and part of another, Mr Smeaton withdrew part of his request and aspects of the proceeding were referred to a compulsory conference. Mr Smeaton later withdrew the remaining aspects of his application.
4. In December 2010, Mr Smeaton made an FOI request to WorkCover for access to documents being

that the email boxes in and out of the below listed personnel be searched between the dates of Feb 2003 and Dec 2006 for any internal emails, and also any email communication between them and Alilanz and CGU surrounding Smeaton

1. Ms Jane Harrison was one of the named personnel.
2. Mr Smeaton sought review by VCAT of the deemed refusal of his request. This became VCAT proceeding G105/2011, which had a long chequered history, from February 2011 to May 2014.
3. In proceeding G105/2011:
   • (a) In Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1549, VCAT considered the live emails of the employees (including Ms Jane Harrison after 2005); and

• (b) In Smeaton v Victorian Workcover Authority (Review and Regulation) [2013] VCAT 1433, VCAT considered the 'archived material' (i.e. the mail box of Ms Jane Harrison before 2005 which includes the dates subject to the request in this proceeding.

1. I find Mr Smeaton, in what became proceedings G244/2010 and G105/2011 sought access to the same documents (the relevant emails) and the same information (as to who Ms Harrison and Mr Butts sent the emails) as he sought in this proceeding.

1. Both requests were deemed refused under s 53 of the FOI Act.

Did VCAT on reviewing the decision "confirm" the decision? - Yes

1. Section 24A(1)(b) requires before s 24A can be invoked that, "the request was refused and the Tribunal, on reviewing the decision to refuse the request, confirmed the decision".
2. I agree with WorkCover's submission that the reference to "confirmed the decision" [to refuse the request] must be interpreted in context. The power is not limited to primary decisions to refuse that are upheld by an identical VCAT decision. The term refers to a previous FOI request where a primary decision (actual or deemed) was confirmed (in the sense of finalised or concluded) by a VCAT decision which determined the issues in dispute between the parties.
3. Sections 51 and 51A of the Victorian Civil and Administrative Tribunal Act 1998, which set out VCAT's powers on review, only include a power to "confirm" the decision under review where an applicant in a review proceeding does not appear at a hearing.
4. Any other approach would usually prevent s 24A being used to address the issues the section was inserted into the FOI Act to address.
5. In proceeding G244/2010, in Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1908, VCAT affirmed various of WorkCover's decisions not to release documents, decided to release one document and part of another, Mr Smeaton withdrew part of his request and aspects of the proceeding were referred to a compulsory conference. Mr Smeaton later withdrew the remaining aspects of his application.
6. VCAT decided the proceeding G105/2011 was confirmed by the decisions in Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1549 ('Live email boxes') and Smeaton v Victorian Workcover Authority (Review & Regulation) [2013] VCAT 1433 (Archived emails).

Were there reasonable grounds for making the request again? - No

1. In the course of hearing Mr Smeaton's submissions, I asked him what reason lay behind the FOI requests which are the subject this proceeding. The events in question happened years ago.
2. He and his wife believe while WorkCover's current policy allows for a family member to provide attendant care to an injured worker in exceptional circumstances, in reality WorkCover continues to resist funding such services.
3. They seek reform at WorkCover such that its culture changes to reflect its policy on the issue. As part of that, they seek to persuade that if WorkCover is providing advice that that this is already the case, it should not be trusted, given, the Smeatons claim, WorkCover's past deceptive practices.
4. The current FOI requests are part of their attempt to demonstrate that in the past WorkCover misled the minister of the day responsible for WorkCover. Mr Smeaton provided a detailed chronology in which, he says, WorkCover advised the minister that there was no legal precedent for funding a family member as attendant carer. At the time, the Salcedo decision had recently been made. Mr Smeaton says more likely than not, tracing the Harrison e-mail as it was distributed throughout WorkCover, will add to the case that those advising the Minister were aware of the Salcedo decision and hid it from the Minister.
5. They also seek to demonstrate that WorkCover misled the Ombudsman. Their case is that when Mr Butts received an e-mail from the Ombudsman requiring him to attend an interview and instructing him not to tell others of this, in the context of an Ombudsman's investigation into the treatment of Mr Smeaton, he immediately sent the e-mail to others at WorkCover. Mr Smeaton says this is symptomatic of WorkCover resisting any investigation in the context of its resistance to fund family members as attendant carers.
6. While it was not provided at the hearing, I located and read what I understand to be the relevant policy, "Attendant Care - Guidelines for providing attendant care services to injured workers, October 2014,[4] at page 4. It is not necessary to set the policy out here.
7. I have, in deciding various VCAT FOI proceedings concerning the Smeatons, commented they are motivated by their strong honestly held beliefs. I repeat that observation here.
8. However, in my view there are not reasonable grounds for making the FOI request for the Harrison emails again. VCAT has dealt with the issues, as described above. Mr Smeaton did not appeal those decisions. It is about 11 years since the events in question. Even if this application revealed new emails (in my view unlikely), it is difficult to see how the Smeatons would persuade people today that those long past events are indicative of WorkCover's current practices and/or culture.
9. Also, s 24A is intended to protect the limited resources of agencies to deal with FOI applications. Taking this FOI request further would be an unwarranted use of those resources.

Decision - Ray Butts emails - request for further searches

1. I decided to refuse Mr Smeaton's request for the Butts emails under s 24A of the FOI Act.

Had Mr Smeaton on at least one previous occasion, made a request to the agency for access to the same documents or the same information? - Yes

1. Mr Smeaton's current FOI request is set out above.
2. In August 2011 Mr Smeaton made an FOI request to WorkCover for access to documents being emails for, "all [Ray Butts'] E records surrounding Smeaton, we request searches of you sent and received e-mails and we want all attachments". His following VCAT application became proceeding G874/2011.
3. In Smeaton v Victorian Workcover Authority (General) [2012] VCAT 521 at [3], I wrote:

Mr Smeaton has made similar past requests for 'Mr Butts' emails. In response to his September 2011 request, WorkCover refused the request on the grounds there were no new documents in addition to those previously released. Mr Smeaton asked for an internal review of that decision. On internal review, WorkCover found an additional document that had been located and released it. In November 2011, Mr Smeaton applied to VCAT asserting further documents probably exist. The proceeding reached final hearing on 3 April 2012. I heard evidence and submissions from both parties as discussed below.

1. WorkCover had refused to search its computer backup tapes for the emails.

Did VCAT on reviewing the decision "confirm" the decision? - Yes

1. In Smeaton v Victorian Workcover Authority (General) [2012] VCAT 521, VCAT ordered:
   • (a) The decision of WorkCover was affirmed except that:
     1. WorkCover is to search for the requested emails, as defined in Mr Smeaton's application for review, on the first backup tape available for its current email system on which email is stored, as discussed in the Reasons for Decision below; subject to:
        1. Mr Smeaton first paying search costs, if
        2. The search will require WorkCover to pay its information technology provider extra fees for work not within any general service agreement between them.
     2. WorkCover was to search for the requested emails as defined in Mr Smeaton's application for review, on the pre 2005 back up tapes on which email is stored for May, June, August, and October 2004, as discussed in the Reasons for Decision below, subject to Mr Smeaton first paying search costs payable by WorkCover to third parties.
   • (b) The parties had liberty to apply seeking further orders on the fee issues (quantum only).

Were there reasonable grounds for making the request again? - No

1. Again, in my view there are not reasonable grounds for making the request again. VCAT has dealt with the issues, as described above. Mr Smeaton did not appeal those decisions. It is 11 years since the events in question. If this application revealed new emails, it is difficult to see how the Smeatons would persuade people today that those long past events are indicative of WorkCover's current practices.
2. Again, s 24A is intended to protect the limited resources of agencies to deal with FOI applications. Taking this FOI request further would be an unwarranted use of those resources.

1. First, at the end of the hearing on 18 March 2015 I reserved my decision in this proceeding. VCAT received correspondence from Mr Smeaton via email dated 20 March 2015. He sought a directions hearing to hear from him as to whether to grant leave for him to provide further documentation. At my request the VCAT registry sent a copy to WorkCover for comment. WorkCover responded there was nothing in his request that persuaded it that VCAT should reopen the preceding.
2. Mr Smeaton's submission has not persuaded me to reopen the hearing in this proceeding. In large part his submission concerns issues with respect to the evidence of Mr Osman Koc, Technical Domain Manager, IT Shared Solutions, WorkCover. He gave evidence in this and previous proceedings. I have not addressed Mr Koc's evidence given in this proceeding as it focused on the adequacy of WorkCover's search following Mr Smeaton's FOI request for the Butts emails which in part gave rise to this proceeding. It also appears Mr Smeaton wished to dispute the merit or existence of a $15,400 quote from external contractors for retrieving data from old backup tapes. These issues have largely previously been aired. As I described above, in Smeaton v Victorian Workcover Authority (General) [2012] VCAT 521, the parties had liberty to seek further orders concerning "the fees issue", which refer to "search costs" as referred to in the other orders. The other issues raised in his submission do not persuade me there is utility in allowing the repeat requests.
3. Second, given my decisions in this proceeding, it is not here necessary to decide whether VCAT has jurisdiction where the FOI request is deemed refused under s 53 of the FOI Act, to order the agency which received the FOI request to make further searches for the document/s requested.
4. I comment that should that scenario arise, as WorkCover submitted, one avenue open to VCAT would be to remit the matter back to the agency, with the agency aware of the concerns of the applicant, for the agency to decide whether to make further searches. If the agency declined to search further it would advise it had not located relevant documents. If the agency searched further but found no documents, it would provide the same advice. It would then be open to the applicant to complain to the FOI Commissioner about the adequacy of the agency's search.

[1] For the precice dates see Smeaton v Victorian WorkCover Authority (Review and Regulation) [2014] VCAT 1540.

[2] The Court of Appeal of the Supreme Court of Victoria dismissed TAC's appeal on this point Transport Accident Commission v Salcedo [2003] VSCA 226.

[3] Mr Haddon Storey MLC in Hansard Legislative Council, 20 May 1993, Vol 412 p 1148.

[4] www.worksafe.vic.gov.au under Attendant Care Policy