The Tribunal's decision is that the Respondent cannot rely on s25A of the Freedom of Information Act 1982 to refuse to process part of the Applicant's request under that Act.

1. A compulsory conference in this matter was held in August 2007. Orders were made with the consent of the parties which first set down a preliminary point for hearing, and then set a timetable which would bring the matter on for final hearing in November 2007. This is my decision on that preliminary point.

1. I have before me written and oral submissions on the preliminary point. For the purposes of this preliminary hearing, the factual background is common ground.
2. On 3 September 2004, the Respondent (Vic Police) received from XYZ a request under the Freedom of Information Act 1982 (Vic) (the FOI Act). The request contained a number of parts. One of these was -

Any audit of the Register of Complaints Serious Incidents and Discipline (ROCSID), ESD database to show all enquiries on XYZ...for the period 01/01/2000 to 01/09/2004'.

I have omitted from this quotation XYZ's Vic Police staff number. 'ESD' refers to the Ethical Standards Division of Vic Police.

1. It is clear from the letter by Vic Police acknowledging the request and its accompanying fee and from the subsequent correspondence which refers to 'the request' and 'your request', that Vic Police treated this letter as a single request. After a number of letters from Vic Police to XYZ apologising for the delay in processing the request, Vic Police wrote to him on 31 December 2004 mentioning s25A of the FOI Act.
2. On 1 February 2005, Vic Police wrote to XYZ in clear terms indicating its intention to refuse to process the request under s25A. The letter explains that, because of the number of staff and significant time that would be needed to locate the documents sought, it was the view of Vic Police that the processing of the request would substantially and unreasonably divert resources from Vic Police's core functions. The letter then gives XYZ an opportunity to consult with Vic Police with a view to narrowing the request in a way that would remove the grounds for refusal. Consultation was to occur not later than 18 February 2005.
3. That consultation occurred. XYZ reframed his request. In its reframed form, the request was treated by the parties as being divided into six parts. One of these related to the ROCSID audit and was in the terms I have earlier mentioned.
4. On 19 May 2006, Vic Police wrote to XYZ. It first set out the six parts of the reframed request, including the part relating to the ROCSID audit. It explained that its searches had located 839 pages of material relevant to the request. It released five pages of that material in part, 114 pages in full, and denied access to the rest (720 pages). The letter goes on to explain, by reference to various provisions of the FOI Act, why access to some documents in whole and to some in part was denied. The provisions mentioned do not include s25A. The letter did not again mention that part of the request relating to the ROCSID audit. For the purpose of my decision on this preliminary point, I accept Vic Police's submission (which was not for this purpose disputed by XYZ) that its failure to deal with the ROCSID audit documents was an oversight. The letter concludes by drawing the applicant's attention to his right under s51 of the FOI Act to seek internal review of this decision.
5. It was submitted by Vic Police that this letter did not constitute a decision on that part of the request relating to the ROCSID audit. A contrary submission was made on behalf of XYZ. In my view, the letter, read as a whole, contains Vic Police's decision on the entire request. It mentions the whole request, and informs the applicant of his right to seek internal review of the decision.
6. By letter dated 26 May 2005, XYZ did seek that internal review. By letter dated 8 June 2005, Vic Police informed him that, on the internal review, the decision had been affirmed.
7. XYZ then applied to VCAT for a review of that decision. At a directions hearing on 1 September 2006, the Applicant drew to the attention of Vic Police that the amended statement lodged by Vic Police under s49 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) did not (among other things) refer to the ROCSID audit.
8. In a letter dated 22 December 2006 Vic Police informed XYZ that, in relation to the ROCSID audit documents, to identify the necessary documents requested would be onerous and would substantially and unreasonably divert the resources of ESD, and that it intended to refuse the request under s25A(1). The letter then suggested that consideration be given to narrowing the request. It is common ground that Vic Police now wishes to refuse to process the ROCSID audit part of the request under s25A(1).

1. Section 3 of the FOI Act sets out the object of the Act. That object includes-

'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 constituted under the law of Victoria for certain public purposes by-

b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.'

'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. Section 35 of the Interpretation of Legislation Act 1984 (Vic) contains provisions with more general application but which are in many ways similar to s3 of the FOI Act. The effect of s35 is that an Act is to be interpreted so as to promote and not hinder its underlying purpose (a purpose which may be express or implied).
2. In the light of s3, a number of the authorities have said that, since the FOI Act is remedial legislation, its provisions which give rights of access to documents should be read liberally, and the exemptions or exceptions to those rights narrowly[1]. To this I would add that the Act's object does, however, make it clear that there are some limitations on the rights of access which the Act grants. Also, the object of the Act cannot be used to give an unnatural or strained interpretation to clear language in the rest of the Act. Words used must be given their ordinary meaning in their context.
3. Section 13 occurs in Part 3 which is headed 'access to documents'. Among other things, its effect is that, subject to the Act, 'every person has a legally enforceable right' to obtain access, in accordance with the Act, to 'a document of an agency', other than an exempt document. Section 17 sets up the mechanism by which a person can exercise this right to obtain access to documents. In the context of this case, the person must make a written request to the relevant agency. The section contains other requirements with which the request must comply.
4. Section 20 concerns the making of the decision on a request duly made under s17. Its effect is that access to the requested document is to be given unless the document is an exempt document. Provisions of the Act such as Part 4 relate to what are exempt documents.
5. Relevantly in this context, the effect of s21 is that the agency must take all reasonable steps to notify the applicant of a decision on the applicant's request as soon as practicable 'but in any case not later than 45 days after' the request is received. Section 24 permits an agency to defer access to certain documents - for example, those prepared for presentation to Parliament.
6. Section 25A must be read in the context of the provisions I have just mentioned. It relevantly provides -

(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; or

(2) Subject to subsection (3) but without limiting the matters to which the agency or Minister may have regard in deciding whether to refuse under subsection (1) to grant access to the documents to which the request relates, the agency or Minister is to have regard to the resources that would have to be used-

(a) in identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or

(b) in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used-

(ii) in consulting with any person or body in relation to the request; or

(c) in making a copy, or an edited copy, of the documents; or

(d) in notifying any interim or final decision on the request.

(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.

(7) For the purposes of section 21, the period commencing on the day an applicant is given a notice under subsection (6)(a) and ending on the day the applicant confirms or alters the request following the consultation referred to in subsection (6) is to be disregarded in the computation of the 45 day period referred to in section 21.

1. Some general things can be said about the section. First, unlike most other sections of the Act, its provisions refer to 'documents' rather than 'a document'[2].
2. Second, section 25A(1) does not relate to the situation where a request has been processed, documents have been located and examined, and a decision has been made to grant or refuse access to particular documents. Section 25A(1) permits the refusal of a request without processing it.
3. Third, s25A(1) (combined with the rest of the section) operates in this way. A decision to refuse a request without processing it cannot be made unless the agency or Minister has first done three things. The agency or Minister must give the applicant notice stating his, her or its intention to refuse the request, and nominating an officer with whom the applicant may consult. The agency or Minister must give the applicant a reasonable opportunity to have that consultation. The agency or Minister must give information to assist the applicant to make the request in a form that would remove the grounds for refusal. The effect of s25A(7) is that the clock (which sets the time limit within which a decision on the request must be made) stops while these three things happen.

1. It was submitted for XYZ that Vic Police cannot rely on s25A(1) to refuse, without processing, part of the request at this stage. Vic Police made a contrary submission. For two reasons, I accept the submission on behalf of XYZ. I deal with each in turn.

Has Vic Police made a decision on the entire request?

1. In my view it has. On its proper interpretation, the letter from Vic Police dated 19 May 2006 contains a decision on the entire request. In particular, it mentions all parts of the request, and informs the applicant of his rights to have the decision internally reviewed. He did this. When the decision on internal review confirmed the original decision, he applied for review to VCAT. The FOI Act does not permit Vic Police now to revisit and change its original decision on the request.

1. If I am wrong, and Vic Police has indeed not dealt with that part of the request relating to the ROCSID audit, then my view is that s25A(1) does not permit it to refuse a request in part, particularly after the applicant has applied to VCAT for review of the decision on the request. Section 25A(1) contemplates the refusal of the request without processing it. If an agency goes through a process of identifying some documents which it considers not voluminous, and some which it considers so voluminous that the work involved in dealing with the request would substantially and unreasonably divert the agency's resources from its core functions, that involves the processing of the request. Section 25A(1) aims to remove from an agency the need to process a request where it can be seen, at the outset, that the work involved would unreasonably and substantially divert it from its core functions. The provision is dealing with a threshold issue. This is, for instance, clear from s25A(7) which has the effect of stopping the clock (which sets the timeframe for the decision on the request) while notification and consultation takes place. That clock sets a maximum period of 45 days within which the request is to be decided, starting from the date when the request is received.
2. I do not agree with the submission by Vic Police that this interpretation leads to results so absurd and inconvenient that Parliament could never have intended them. First, in my view, the words of s25A(1), read in the context of the section, are clear.
3. Second, I agree with the submission made on behalf of XYZ that the section contains within itself a process by which an applicant, after consultation and assistance from the agency, may decide to alter his or her request in a way that will remove the grounds for refusal under s25A(1). That reframing may involve the deletion of parts of the request, and the making of separate and new requests in respect of those deleted parts.
4. Third, my reading of s25A(1) is consistent with the use of the word 'documents' in that subsection.
5. Fourth, the authorities relating to s25A(5) have interpreted that provision as relating to entire requests, and not parts of requests[3]. It is true that s25A(5) deals with a somewhat different matter. Broadly speaking, it permits an agency to refuse to grant access to documents without identifying any or all of the documents to which the request relates and without specifying, in respect of each document, provisions of the Act under which the document is claimed to be an exempt document if (among other things) it is apparent from the nature of the documents as described in the request that all of them are exempt documents. However, it would be unusual if, in the same section, 'request' referred in one subsection to an entire request and in another to a request or part of a request. In my view, 'request' has a consistent meaning in s25A(1) and (5).
6. I would add that both parties submitted that the object provision in s3 of the Act would assist me in interpreting s25A. I have not found that provision of great assistance. It is, of course, very broad. This breadth enabled it to be relied on by both parties in support of competing and contradictory interpretations of s25A. It was submitted for XYZ that the interpretation argued for by him promoted the object of the Act by limiting the scope of s25A, which was an exception or exemption to the general right of access granted by the Act. On the other hand, it was submitted for Vic Police that its interpretation of s25A(1) promoted the object of the Act by ensuring that early access could be obtained to at least some of the documents requested[4].

1. I conclude that Vic Police cannot rely on s25A(1) to refuse part of the request at this time. I have found it unnecessary to deal with a number of matters raised by the Applicant and the Respondent, given my conclusion. I make some final comments.
2. First, it may well have been open to Vic Police, at the very outset when the request was received, to treat it as two separate requests (and ask for two fees, or grant an appropriate fee waiver) - one request related to the ROCSID audit, and the other containing the rest of the original request. While it would be inappropriate to divide up what is clearly one request artificially into several separate requests, it may have been open to Vic Police to divide this request into two[5].
3. Second, if the government considered that the consultation procedure in s25A(6) was a cumbersome way of dealing with a request to part of which s25A(1) clearly apply and part of which concern documents that could be easily identified and located, it could no doubt amend s25A(1).
4. Third, I do not agree with the suggestion in one of the Vic Police submissions that the primary purpose of the 45 day time limit in s21 of the Act is to enable an applicant to apply for a review to VCAT when that period has ended on the basis that there has been a deemed refusal of a request. Certainly, s21 has this effect when combined with s53 of the Act. But s21 is also directed to requiring an agency to decide on a request in a timely way. I note that here, more than 115 days passed between the receipt of the request (on 3 September 2004) and the Respondent's notification to the Applicant that it intended to refuse the request without processing it under s25A.

[1] See Ryder v Booth [1985] VicRp 86; [1985] VR 869; The Victorian Public Service Board v Wright [1986] HCA 16; 160 CLR 145; Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322

[2] See Democratic Nillumbik Assoc Inc v Nillumbik SC [1998] VCAT 303

[3] See Olexander v Department of Premier and Cabinet, VCAT, unreported, Judge Strong VP, 23 May 2002; for a similar conclusion concerning the equivalent of s25A(5) in the Freedom of Information Act 1982 (Cth) see Re Papps v Australian Postal Corporation [2004] AATA 833 and Delagarde Legal Services Pty Ltd v Commonwealth Scientific and Industrial Research Organisation [2006] AATA 772

[4] As to a similar interpretation of s25A(1), see Wright v State Electricity Commission [1998] VCAT 162

[5] See for example Wilson v Department of Premier and Cabinet [2001) VCAT 663. For a case where the Victorian Court of Appeal upheld (on appeal) an agency's decision to treat 321 separate requests as one global request, see Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246