It is at least possible, and I would think highly probable, that when the legislature in the closing words of s.17(4) referred to 'consultation with a view to the making of a request in a form that does comply with' sub-s.(2), the last thing that Parliament intended was in any way to discourage free and if need be frequent collaboration to achieve a satisfactory outcome on an existing request which would render quite unnecessary any further request, internal review or any resort to the court. Where the trained departmental eye detects a possible ambiguity in a request, it would certainly seem to accord with the spirit and object of the legislation­ not only to be implied from the operative provisions but largely declared expressly by Parliament- that the agency should write to the applicant a letter asking whether he would care to write clarifying his request in certain specified respects, and that an applicant should be prepared to do so.

... it behoves an applicant who is invited to consult and will not do so, to have couched his request in reasonably comprehensible language. (my emphasis)

... mere bread is not a fatal objection to a request. ... So, very often the applicant will be a complete stranger to the departmental organisation, its filing, indexing and retrieval systems, and use language which, given greater awareness, he would choose differently. But if the department knows very well what is being sought, and it can find the material, or the better part of it, then it seems to accord with sense and the court should say that a skilful critique of the question is no substitute for a fair answer and criticism of the request no excuse for non-compliance.

1. In Borthwick v University of Melboume 1985 1VAR 33, 35, Rowlands J said:

It must depend on the particular case whether or not sufficiently precise description is received to permit the respondent, as a practical matter, to locate the documents sought within a reasonable time and with exercise of reasonable effort.

A responsibility rests on the applicant to strive to define with as much precision as he can precisely what he wants. ...

perverse requests which are maintained in an ill-defined form despite frank and willing assistance by Freedom of Information Officers may not, as a matter of policy, be supported by the Tribunal. (my emphasis)

1. In McIntosh v Department of Justice (General) [2009] VCAT 92, Ross J discussed what amounts to sufficient information under s 17. He concluded:

The question for determination is whether the request ... provides such information about the documents sought as is reasonably necessary to enable those documents to be identified ... the documents requested may be described in broad terms and need not be expressed with the same eye to detail as a legislative provision or a set of pleadings. (my emphasis)

1. In Zeqaj v Victoria Police (General) [2010] VCAT 1132, Miso J considered s 17:

The reference to "such information" in the section must mean reasonably specific particulars enabling the proper officer to identify the document which is the subject of the request.

The reference to "as is reasonably necessary" qualifies the extent that the information provided is specific enough for the document to be capable of identification.

It is not the task of the responsible officer to try to tease out from such a request what the applicant might be getting at. Firstly, for the responsible officer to do that would be a failure on the part of that responsible officer to undertake the statutory task set by section 17 (2), and secondly, the responsible officer might inadvertently provide documents which are not what the applicant was seeking which would inevitably lead to unnecessary and possibly protracted correspondence between the applicant and the responsible officer in an effort to try to work out what is constituted by the request, and at worst the making of an unnecessary application for review.

That is not to say that the responsible officer is relieved of any obligation to the applicant where some doubt exists as to what documents are sought by the request. (my emphasis)

1. In O'Brien v Department of Justice (General) [2010] VCAT 1379 (23 August 2010) at [23], Macnamara DP said:

It must be borne in mind that an applicant for access to documents under the Freedom of Information Act whether he or she is a politician, a community activist or an ordinary private citizen is not possessed of full knowledge of what the relevant Government agency is or is not doing in a particular field, what it does or does not do. A legitimate purpose for requesting documents under the Freedom of Information Act is to gain answers to these sorts of questions. The process of obtaining documents under the Freedom of Information Act would be greatly hobbled if to make a valid request an applicant were required to demonstrate the sort of knowledge that only access to the Government agency's records would give him. This would be to create the proverbial 'catch 22'. ...

1. The extent to which FOI requests comply with s 17(2), vary from precise requests, which clearly comply, to unintelligible requests, which clearly do not. Where a particular request sits within this range is a matter for judgement in the context of the request and the right for access to documents, as enshrined in the FOI Act.
2. I tested where VICT's request fell within the range by interpreting it, as it was and in the context in which it existed on 21 September 2015, 46 days before VCAT received VICT's application.
3. While doing so, I considered PoMC's detailed submissions about the grammatical and logical structure of the request, which it submitted demonstrated ambiguity such that the request was not compliant. I rejected the submissions, finding the detailed analysis overly semantic such that it did not assist interpretation.
4. While VICT's request must be considered as a whole, it is helpful to first consider the individual paragraphs.

1. By paragraph 1 of the request, VICT provided information that it was seeking:

Any lease, deed or other agreement recording the new lease arrangements for DP World Australia's West Swanson Terminal at the Port of Melbourne entered into on or about 3 August 2015 (the New Lease Arrangements).

1. It is plain VICT was seeking the document or documents which record new lease arrangements for a physical location (the terminal named; apparently with reference to DP World, the leasee) entered into on or about a specific date (3 August 2015).
2. When the responsible officer of an agency considers a request, it is possible the particular officer does not have detailed knowledge of the subject matter of the request. The FOI Act envisages an officer will take reasonable steps within the agency in question to inform him or herself of the subject matter.
3. Here, the officer would not have had to go far. The joint media release from PoMC and DP World dated 3 August 2015 described the new lease arrangements. Knowledge of those arrangements must have been readily available within PoMC.
4. In making this interpretation, I have not relied on the content of the press release. Knowing of its existence, supported my conclusion that if the officer conducted a reasonable search, he or she would have easily found it and/or have learnt of the lease arrangements in question.
5. This interpretation of the New Lease Arrangements informs and clarifies the following paragraphs.

1. By paragraph 2 of the request, VICT provided information that it was seeking:

Any document recording the rent payable by DP World Australia under the New Lease Arrangements over the agreed lease term, including the date or dates on which the rent is to be reviewed and the method or other basis upon which each rent review is to be undertaken.

1. PoMC submitted, with reference to issues raised on that topic in POMC's 9 October 2015 letter each of the paragraphs 2 to 6 was ambiguous to the point that VICT's request did not comply with s 17(2). I disagreed.
2. In my view, paragraph 2 yields two potential reasonable interpretations of the documents requested.
3. The request could be interpreted to mean (placing the word to be interpreted in quotation marks followed by an interpretation in bold surrounded by brackets):

Any "document" (document/s) recording the rent payable by DP World Australia under the New Lease Arrangements over the agreed lease term, "including" (only if the document includes both) the date or dates on which the rent is to be reviewed and the method or other basis upon which each rent review is to be undertaken.

1. It is unlikely VICT sought to restrict the request such that only documents containing all elements mentioned would be within its scope.
2. Drawing from the context which gave rise to the request, so far as I can understand it in the context of the evidence in this s 75 application, it appears VICT was seeking documentation relevant to DP World Australia securing the lease. A broader interpretation would support that likely objective. In my view, the paragraph can be reasonably and broadly read, which removes ambiguity, as:

Any "document" (document/s) recording the rent payable by DP World Australia under the New Lease Arrangements over the agreed lease term, "including" (which may or may not include) the date or dates on which the rent is to be reviewed and the method or other basis upon which each rent review is to be undertaken.

Any document relating to the decision to negotiate the New Lease Arrangements by private negotiation and not by way of a public tender or other competitive process, including the reasons for the making of that decision.

Any "document" (document/s) "relating to" (about) the decision to negotiate the New Lease Arrangements by private negotiation "and not" (rather than) by way of a public tender or other competitive process, "including" (only if the document/s include) the reasons for the making of that decision.

1. Concerning, "related to", it is unlikely VICT sought documents only tangentially related to the decision in question. Again, it is unlikely VICT sought to narrow its request in the above fashion.
2. The paragraph can be broadly interpreted, consistent with VICT's likely objective:

Any "document" (document/s) "relating to" (about) to the decision to negotiate the New Lease Arrangements by private negotiation "and not" (rather than) by way of a public tender or other competitive process, "including" (whether or not the document/s include) the reasons for the making of that decision.

1. VICT provided information that it was seeking:
   1. Any document relating to the decision to grant DP World Australia a 50 year lease term under the New Lease Arrangements, including the reasons for the making of that decision and the statutory or other power pursuant to which this decision was made.
2. A narrow interpretation is:

Any "document" (document/s) "relating to" (about) the decision to grant DP World Australia a 50 year lease term under the New Lease Arrangements, "including" (only if the document/s include both) the reasons for the making of that decision and the statutory or other power pursuant to which this decision was made.

1. Again, it is unlikely VICT sought to narrow its request in the above fashion.
2. The paragraph can be broadly interpreted, consistent with VICT's likely objective:

Any "document" (document/s) "relating to" (about) the decision to grant DP World Australia a 50 year lease term under the New Lease Arrangements, "including" (whether or not the document/s include) the reasons for the making of that decision "and" (and/or) the statutory or other power pursuant to which this decision was made.

1. Paragraphs 5 and 6 can similarly be narrowly and broadly interpreted. It is unnecessary to repeat the above analysis, except to record below my broad interpretation of each paragraph.
2. In reaching the broad interpretation of paragraph 6, I have not relied on the list of documents PoMC later supplied to VICT, with respect to that paragraph.

1. Using the interpretations adopted above, the whole request can be interpreted as follows, removing ambiguity.
   1. Any lease, deed or other agreement recording the new lease arrangements for DP World Australia's West Swanson Terminal at the Port of Melbourne entered into on or about 3 August 2015 (the New Lease Arrangements).
   2. Any document/s recording the rent payable by DP World Australia under the New Lease Arrangements over the agreed lease term, which may or may not include the date or dates on which the rent is to be reviewed and the method or other basis upon which each rent review is to be undertaken.
   3. Any document/s about the decision to negotiate the New Lease Arrangements by private negotiation rather than by way of a public tender or other competitive process, whether or not the document/s include the reasons for the making of that decision.
   4. Any document/s about the decision to grant DP World Australia a 50 year lease term under the New Lease Arrangements, whether or not the document/s include the reasons for the making of that decision and/or the statutory or other power pursuant to which this decision was made.
   5. Any document/s which Port of Melbourne Corporation (PoMC) sent to or received from DP World Australia about target volumes (eg TEU's per year) for West Swanson Terminal over the term of the New Lease Arrangements and/or any guarantee given by DP World Australia in relation to the target volumes.
   6. Any document/s provided to DP World Australia by the PoMC, or by PoMC's agents or advisors, containing information about the agreements between the Port of Melbourne and VICT about the development and lease arrangements relating to Webb Dock.
2. In my view, the request complies with s 17(2).
3. The above interpretation shows the request was in "reasonably comprehensible language" (Penhalluriack), was phrased in "better than broad terms" (McIntosh) and "contained reasonably specific particulars" enabling identification of documents (Zeqaj).
4. VICT largely discharged its duty to provide sufficient information in its first request. I accept it may have assisted in the process if it had provided clarification to PoMC. However, the duty of applicants to respond to requests for clarification is balanced with a right of access, having already provided sufficient information.
5. VICT's request did not involve placing an unreasonable responsibility on the decision maker to tease out the meaning of the request (Zeqaj). Interpreting the request was part of the process of assisting a person making a request under the FOI Act to achieve his, her or its objective. The request was not "perverse" (Borthwick).
6. This interpretation of VICT's request is consistent with:

1. Rights to access to documents under the FOI Act; 2. Parliament's intention that the FOI Act be interpreted consistent with Parliament's objective to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies (see s 3(2) of the FOI Act);

1. Extending the right to access by enabling the 45 day decision period to commence as soon as reasonably possible; and

1. If a request gives rise to a broad interpretation of documents requested, the option available to PoMC, under s 25A of the FOI Act, to refuse to process a valid request under s 17(2), if in its view that processing would substantially and unreasonably divert its resources from other operations. If pursued here, that path would involve PoMC consulting with VICT about the scope of the request as understood by PoMC. Therefore, commencing with a broad interpretation under s 17(2) does not oblige PoMC to accept that interpretation and would give VICT the opportunity, during consultation under s 25A to narrow its request, as interpreted, if it chose to do so.
2. With the s 75 application dismissed, various procedural options are available to VCAT concerning the deemed refused request under review.
3. I have scheduled a directions hearing to enable the parties to make submissions about and VCAT to decide the future of the proceeding.