Zeqaj v Ombudsman Victoria (General) [2010] VCAT 1204

Proceeding dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

1. Mr Zeqaj says that he has been the victim of assaults by members of the Victoria Police. He made complaint to the Ethical Standards Division and to the Office of Police Integrity. Subsequent to the making of those complaints he said he was charged himself with assault, resisting arrest and hindering police. Ultimately those charges were withdrawn, he says, because of a vast preponderance of evidence showing that he was the victim and the police were the wrongdoers. Nevertheless, he is thoroughly dissatisfied with the manner in which the institutions intended to deal with citizen complaints against police members in this State, namely the Ethical Standards Division of the Victoria Police and the Office of Police Integrity and also the Victorian Ombudsman have dealt with his complaint.
2. He made a request under the Freedom of Information Act to the Office of the Victorian Ombudsman seeking access to the following material:

A complete Victorian Ombudsman procedures and policies in relation to investigations.

A complete Victorian Ombudsman procedures in relation to the complaints against Victorian Ombudsman staff.

A complete Ombudsman Victoria relevant policies and guidelines for review officers.

Records of all the phone conversations between I, Visho Zeqaj, and the Victorian Ombudsman staff.

Notes of conversation I had with all Victorian Ombudsman staff.

A correct and complete list of Victorian Ombudsman staff names and who I, Visho Zeqaj, had conversations with.

Police notes, statements and photos provided by police and OPI in relation to my case file.

1. In the subsequent request Mr Zeqaj sought in effect access to all documents held by the office of the Victorian Ombudsman which related to him.
2. The Ombudsman's office says that it provided responses to the first three items on the request, namely by granting access in full to procedures and relevant policies. The balance of the items have not been provided. As a result Mr Zeqaj has filed an application for review in this Tribunal under the terms of the Freedom of Information Act. He contends that in the circumstances there has been a deemed refusal to provide him with the access which he seeks.
3. In response the Victorian Ombudsman seeks an order for summary dismissal of the review application under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. Section 75 authorises the Tribunal on application of a respondent to dismiss or strike out all or part of a proceeding if the proceeding is frivolous, vexatious, misconceived or otherwise lacking in substance. Whilst the terminology of the section varies somewhat it is clearly modelled on and intends to cover the same ground as the power of the Supreme Court of Victoria and the County Court of Victoria to dismiss frivolous and vexatious proceedings under Order 23 of their Rules.
4. The words 'frivolous', 'vexatious', 'lacking in substance', 'misconceived' are all somewhat harsh and pejorative in their purport. As a matter of law what they really mean is proceedings which are doomed to fail. The Ombudsman contends that in the present circumstance Mr Zeqaj's proceeding is doomed to fail. He relies on Section 29A of the Ombudsman Act 1973 in support of that argument. I will return to that section in a moment.
5. It is clear however that the cases under Section 75 of the Tribunal statute and the corresponding provisions in the Rules of Court state that a summary dismissal should be made only in the clearest of cases. Summary dismissals should not be made where for instance the matter depends on an issue of disputed evidence or where there is a case that is in any way arguable at all. The clearest instance where it is appropriate to affect a summary dismissal is where even if everything alleged by an applicant or a plaintiff is true, the law still does not grant a legal remedy.
6. I turn now to Section 29A of the Ombudsman Act. It states, inter alia:

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of the Ombudsman or any officer of the Ombudsman, to the extent to which the document discloses information that relates to -

1. It is the contention of Ms Loh who appears on behalf of the Ombudsman, that all of the documents sought by Mr Zeqaj apart from those which have already been provided, fall within that exclusory provision in that they all relate to a complaint. She says with respect to the recordings of phone conversations between Mr Zeqaj and Ombudsman staff that these telephone conversations were for the purpose of Mr Zeqaj making a complaint in the circumstances which I have already described. Similarly, she says the conversations which Mr Zeqaj had with the Ombudsman staff are in the same category. He was making a complaint and the staff were listening to the complaint that was being made. As to the list of Ombudsman staff with whom Mr Zeqaj dealt, that list relates to his complaint because the common factor which unites the people whose names might be on the list is that they were involved in dealing with Mr Zeqaj's complaint. Similarly the notes, statements, photos and so forth provided to the Ombudsman were given in connection with Mr Zeqaj's complaint.
2. The letter of determination from the Ombudsman conveying the Ombudsman's position on these matters says that all the documents which the office holds relative to Mr Zeqaj relate to his complaint or complaints and so are excluded by Section 29A(1)(a).
3. Mr Zeqaj for his part is bitterly critical of what he says is a culture of secrecy and brotherhood where one officer of the State supports and protects another who is the subject of justifiable complaint by members of the public such as himself. He draws attention to a statement made by representatives of the Police Association to the effect that the Office of Police Integrity does not pursue complaints when those complaints may reflect upon the conduct of a politician as distinct from a member of Victoria Police. For these purposes Mr Zeqaj is critical of a number of Ministers of the Victorian Government including the Premier, the Deputy Premier and Attorney-General and the Minister for Police and Emergency Services. He says they are implicated in the wrongdoing of which he has been a victim because they have failed to intervene to redress the wrong that has been done to him, have failed to take proper action to discipline the wrongdoers and so forth. Hence he believes that the particular concerns enunciated by the Police Association as to the involvement of politicians are also a factor in the failure adequately to deal with his grievances.
4. Mr Zeqaj further contends that it would be possible for the Ombudsman's office to edit the material which he seeks so that any difficulties either with exemptions under the Freedom of Information Act or exclusions from the freedom of information regime under Section 29A of the Ombudsman Act would be removed and once that process was complete some transparency could be brought to the consideration of his concerns rather than what he regards as the cloak of secrecy which has descended.
5. It is necessary to consider first the nature and operation of Section 29A of the Ombudsman Act. It is not as some provisions that are to be found in the Freedom of Information Act merely the creation of an exemption under that Act subject to the usual restrictions and exceptions which operate on exemptions. If this were an ordinary exemption it would be possible to demonstrate that the public interest required it to be overridden. The cases in the Tribunal where applicants make those sorts of arguments are very common indeed. Here, Section 29A is not an exemption rather it is a provision that an entire class of documents are entirely excluded from the freedom of information regime. Given that Section 29A is not an exemption the provision for editing of documents to be found in Section 25 of the Freedom of Information Act requiring a respondent to edit out exempt material so that a redacted version of a document may be released without releasing any exempt material does not apply directly here at all.
6. On the other hand Section 29A perhaps includes its own provision for editing because it excludes documents of the relevant type from the freedom of information regime but only 'to the extent to which the document discloses information that relates to'. The existence of this restrictor on the breadth of Section 29A therefore gives some hope for a person in Mr Zeqaj's situation that documents could be released in some edited form. The problem as to the practical application of this approach is that the sweep of Section 29A is so broad that entire classes of documents are likely to be covered by its curtain entirely leaving nothing which may be released subject to editing. So for instance it is not possible under Section 29A to edit simply to remove a name or an address, a process which might be a sufficient editing under Section 25 of the Victorian Freedom of Information Act so as to deal with Section 33 personal information exemption.
7. Section 29A operates with respect to a document merely because of that to which it relates. I have to say that the submission put by Ms Loh to the effect that all of the documents which had been sought and which had not been provided in one way or another relate to Mr Zeqaj's complaint appears correct. It has not been suggested and Mr Zeqaj certainly does not suggest that he has ever had any connection with the Ombudsman's office than as a complainant. Therefore every dealing that he has with the Ombudsman relates to a complaint and every document that is generated in the process relates to a complaint. It might be that if the week's footy tips happen to be written at the foot of a particular document which was a record of a conversation between an Ombudsman officer and Mr Zeqaj about his complaint could in theory be the subject of editing. There is no reason to think that any extraneous material has been added to any of these documents, hence it seems to me that Section 29A for the reasons already given constitutes an unanswerable and impermeable response to the claim for access under the Freedom of Information Act. Mr Zeqaj himself said 'as soon as I pick up the telephone and start talking about my complaint by virtue of Section 29A', he didn't have quite the words to say it, I suggested 'a curtain of secrecy descends' and he agreed with that. I think that that is precisely the effect of Section 29A. It is not for me to express a view as to the wisdom of that policy. I would observe in so far as Mr Zeqaj has expressed displeasure and dissatisfaction with the performance of the institutions in this State which now deal with complaints of corruption and misconduct against police, that the Premier has announced a revamp of those institutions and the creation of a new one.
8. The result however is that I accept the submissions put by Ms Loh and hence I will make an order under Section 75 that the present application be dismissed.