Akers v Victorian Police

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 01696

BETWEEN:

BRUCE AKERS	Applicant
v
VICTORIAN POLICE	Respondent

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2024
DATE OF JUDGMENT:	10 October 2024
CASE MAY BE CITED AS:	Akers v Victorian Police
MEDIUM NEUTRAL CITATION:	[2024] VSC 621

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ADMINISTRATIVE LAW — Appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) concerning the dismissal of an application under s 39 of the Freedom of Information Act1982 (Vic) — Scope of the Court’s supervisory jurisdiction — Jurisdiction confined to questions of law involved in the decision — Transport Accident Commission v Hoffman (1989) 167 CLR 474 and Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109 referred to — Whether notice of appeal identifies a question of law — Notice of appeal raises procedural fairness grounds with no real prospects of success and otherwise raises no question of law— Notice of appeal struck out — Approach taken having regard to the applicant being a self-represented litigant — Materials before the Court reviewed to evaluate whether a question of law is involved in the decision.

FREEDOM OF INFORMATION — Application under s 39 of the Freedom of Information Act 1982 (Vic) to amend an investigation report following a complaint to the Independent Broad-based Anti-Corruption Commission — Proper application of s 39 FOI Act principles — Crewdson v Central Sydney Area Health Service (1995) 38 NSWLR 493 applied — Re Buhagiar v Victoria Police (1989) 2 VAR 530 referred to — Section 39 is concerned with accuracy of public records, not a vehicle to attack the validity of government action— Meaning of inaccurate, incomplete, out of date, or misleading information — Withdrawal of criminal charges post-report — Whether the report is out of date as a consequence — Relevance of subsequent developments to assessment of accuracy of information and whether information is out of date — Time for assessment of whether information is out of date is date of decision, not date of document — Leave to amend notice of appeal with respect to two questions of law granted —Appeal allowed upon first question of law — Respondent to draft notation for inclusion in investigation report to bring it up to date — Parties invited to make further submissions on the second question of law.

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APPEARANCES:	Counsel	Solicitors
The Applicant in person
For the Respondent	Ms E Latif of counsel	Legal Services Department, Victoria Police

HER HONOUR:

Introduction and background

This proceeding is an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) with respect to an application under s 39 of the Freedom of Information Act 1982 (Vic) (‘FOI Act') to amend information in a public document within the meaning of the FOI Act.

Section 39 of the FOI Act provides as follows:

Where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information…that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression.

The application arose from a complaint made by the applicant, Mr Bruce Akers, to the Independent Broad-based Anti-corruption Commission (‘IBAC’) in late 2016 regarding his treatment at the hands of members of Victoria Police based at Broadmeadows police station (‘police officers’) on 3 and 4 April 2016. Mr Akers came into contact with the police officers in the context of an investigation into animal welfare concerns with respect to a herd of horses that Mr Akers was managing at a property in Bulla. On 3 April 2016, Mr Akers was taken into police custody, and on 4 April 2016 he was charged with one count of criminal damage under the Crimes Act 1958 (Vic) and 91 charges of offences under various provisions of the Prevention of Cruelty to Animals Act 1986 (Vic) (together ‘April 2016 charges’).

Mr Akers alleged, among other things, that the police officers roughly handled him prior to entering the police van and during the trip to the police station after he was taken into custody, causing him physical injuries. He said that the police officers refused to allow him to take his medication and CPAP machine (a breathing apparatus) with him to the police station. At the police station, his belt and shoes were removed, which caused further health risks to him.

While being questioned by the police officers at the police station, Mr Akers complained of shortness of breath and chest tightness, and was taken to Northern Hospital. He returned to the police station in the early hours of 4 April 2016, following which the April 2016 charges were laid. Mr Akers was then taken home by police to collect his medication, CPAP machine, and other personal items. Mr Akers said that the police officers refused to allow him to shower at his home, which exacerbated his skin condition. He also said that, upon his return to the police station, he was interviewed by both the police officers and officials from the Royal Society for the Protection of Animals (‘RSPCA’) about the alleged criminal offences when he was not in a fit state to be interviewed. Mr Akers also accused a police officer of perjury in relation to the subject matter of the April 2016 charges.

IBAC referred Mr Akers’ complaint to Victoria Police’s Professional Standards Command (‘Professional Standards’) for investigation. Following an investigation by an officer of Professional Standards (‘investigator’), an investigation report dated 28 December 2016 (‘investigation report’) recorded the investigator’s conclusions that the complaints made by Mr Akers were either unfounded or unsubstantiated.

Sometime in 2019, Mr Akers obtained a partially redacted version of the investigation report after making an application under the FOI Act.

On 23 January 2020, Mr Akers wrote to Victoria Police making a request pursuant to s 39 of the FOI Act to add his comments to the investigation report (‘application’), annexing to the application a copy of the investigation report marked up with his comments, many of which disagreed with the factual findings and ultimate conclusions in the investigation report.

The application was rejected by Inspector Craig Matters, the Deputy Freedom of Information Officer of Victoria Police, on 8 March 2020 (‘decision’).

Mr Akers sought a review of the decision by the Office of the Victorian Information Commissioner (‘OVIC’), but then took his application to review the decision to VCAT after OVIC failed to conduct the review within the timeframe prescribed by the FOI Act.

On 31 March 2023 a senior member of VCAT (‘Senior Member’) dismissed Mr Akers’ application to review the decision and published her reasons (‘reasons’).[1] Mr Akers seeks leave to appeal from the Senior Member’s orders pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). Mr Akers seeks that leave to appeal be granted, the appeal be allowed, and his application to review the decision be either remitted to a different VCAT member, or be determined by this Court.
[1]Save for making a minor correction to a street address in the investigation report, which is immaterial for present purposes.

Mr Akers represented himself at VCAT, and in this Court. There was voluminous material before VCAT and before this Court, much of which went to the events of 3 and 4 April 2016, and other concerns that Mr Akers had about the accuracy of public records concerning him and his affairs generally.

Mr Akers makes a number of complaints about the Senior Member’s decision and the process by which she arrived at that decision, which will be discussed further later in these reasons. However, with two qualifications, I accept that the Senior Member was correct to dismiss the application to review the decision, based as it was on Mr Akers’ misunderstanding of the purpose and reach of s 39 of the FOI Act. Further, I cannot find any fault with the approach and procedure adopted by the Senior Member in conducting the review.

One qualification to my conclusion above is that I consider that the Senior Member misconstrued that part of s 39 of the FOI Act which permits an application under s 39 to correct or amend any part of the personal information where it is ‘out of date’. While I shall explain this conclusion further later in these reasons, I consider that the Senior Member was in error in holding that the proper date for the assessment of whether the information in the investigation report concerning the April 2016 charges was out of date was the date the investigation report was prepared, being 28 December 2016. Rather, the proper date for the assessment of whether the relevant information was out of date was the date of the decision, being 28 March 2020.

In my view, the error concerned the proper construction of s 39 of the FOI Act, and as such, is an error of law.[2] Further, the error was material, given that in May 2017 the April 2016 charges were significantly reduced in number and downgraded in severity. Further, given the rights conferred upon the general community under s 39 of the FOI Act to correct personal information contained in public records, the issue is of some public importance, such as to justify the grant of leave to appeal. Finally, while the issue was not clearly articulated in Mr Akers’ amended notice of appeal, it was squarely raised in the materials before the Court.
[2]S v Crimes Compensation Tribunal [1998] 1 VR 83.

However, in reaching this conclusion, I am conscious of the fact that the specific legal error I have identified was not articulated in the amended notice of appeal. The authorities provide that the jurisdiction of the Court under s 148 of the VCAT Act is only enlivened by a question of law identified in the notice of appeal.[3] However, during the course of the hearing of the application for leave to appeal, counsel for Victoria Police indicated that Victoria Police would not object to leave being granted to Mr Akers to file and serve a properly formulated notice of appeal. How that will be progressed will be discussed further at the conclusion of these reasons.
[3]Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109 [41]-[45].

Another concern which arose from my review of the materials and the reasons is whether the refusal of the Senior Member to order that the part of the investigation report which concluded that Mr Akers had not been interviewed by officers of the RSPCA was arguably premised upon a misconstruction of s 39 of the FOI Act which had the effect of limiting the scope of the inquiry under s 39 to documents and information available to the investigator at the time the investigation report was prepared. Again, this issue (‘RSPCA interview issue’) was not articulated in the amended notice of appeal. I would like to hear further submissions from the parties with respect to the RSPCA interview issue. Again, how this matter is to be progressed will be discussed at the conclusion of these reasons.

My reasons follow.

The legislative framework

Section 39 of the FOI Act is the principal provision within Part V of the FOI Act, ‘Amendment of Personal Records’. Section 39 provides as follows:

Person may request amendment of record
Where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression.

Section 41 of the FOI Act provides as follows:

Agency or Minister may amend record
Where an agency to which or Minister to whom a request is made under section 39 decides to amend the record of information to which the request relates, the agency or Minister may, in its or his discretion, make the amendment either by altering the record or by adding an appropriate notation to the record.

Section 42 of the FOI Act provides as follows:

Notation on record
Where an agency or Minister amends a record by adding a notation to the record, the notation shall—
(a)specify the respects in which the information is incomplete, incorrect, out of date or misleading; and
(b)in a case where the information is claimed to be out of date—set out such information as is required to bring the information up to date.

Section 49 of the FOI Act provides as follows:

How corrections or amendments are made
Where a request for correction or amendment under section 39 has been acceded to by an agency, the correction or amendment may take the form of a notation of the original document but no correction or amendment shall be made which has the effect of deleting or expunging the information which has been corrected or amended or of destroying the document except with the concurrence of the Keeper of Public Records.

Relevantly, s 55 of the FOI Act, which concerns applications to VCAT for review of decisions made pursuant to the FOI Act, provides as follows:

Onus
(1)In proceedings under this Division by virtue of section 12, the principal officer upon whom the notice was served has the onus of establishing that the document concerned is not a document as described in section 8(1) or section 11(1).
(2)In proceedings under this Division (except under section 50(3D)), the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

This application for leave to appeal is brought under s 148 of the VCAT Act. Section 148 of the VCAT Act provides as follows:

Appeals from the Tribunal
(1)A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.
…

(2A)The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
(3)If leave to appeal to the Trial Division of the Supreme Court is granted, the appeal must be instituted—
(a)no later than 14 days after the day on which leave is granted; and

(b) in accordance with the rules of the Supreme Court.
…
(7)The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal—
(a)an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceeding;
(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.
(8)If the court makes an order under subsection (7)(c), it must give directions as to whether or not the Tribunal is to be constituted for the rehearing by the same members who made the original order.

…

The proceeding at VCAT

Mr Akers’ application to review the decision was heard by the Senior Member via a videoconference hearing on 3 November 2022 (‘hearing’). At the conclusion of the hearing, the Senior Member provided the parties with an opportunity to produce further documents, file further submissions, and to request a further hearing. Both parties filed further written submissions, but neither requested a further hearing.

In an affidavit sworn in this proceeding on 10 August 2023, Mr William Jones, the Managing Principal Lawyer for Victoria Police, put in evidence all of the documents which were before the Senior Member. Also in evidence was the transcript of the hearing before the Senior Member.

Mr Akers disputed the accuracy of the transcript of the hearing produced by Victoria Police, and relied upon a transcript of the hearing provided by another reputable transcript provider. I have reviewed both transcripts for the purpose of preparing the remainder of this section of these reasons.[4]
[4]Where in these reasons I have referenced what was said during the course of the hearing, I have used the transcript provided by Mr Akers.

At the hearing on 3 November 2022, the following documents were before the Senior Member (‘tribunal book’):

(a) various medical reports concerning Mr Akers, including a medical panel opinion dated 14 August 2019;

(b) Mr Akers’ witness statement and statement of legal contentions;

(c) the investigation report with Mr Akers’ proposed amendments;

(d) a transcript of a meeting between officers of the RSPCA and Mr Akers at Sunbury police station on 4 April 2016 (‘RSPCA transcript’);

(e) a Victoria Police record of what transpired with the April 2016 charges. In summary, on 31 May 2017, the charge of criminal damage was withdrawn, and the bulk of the remainder of the April 2016 charges were withdrawn. Ultimately, Mr Akers pleaded guilty to 24 charges of failing to provide proper and sufficient food and drink and shelter for an animal under s 9(1)(f) of the Prevention of Cruelty to Animals Act 1986 (Vic);

(f) correspondence between Mr Akers and Victoria Police regarding, among other things, Mr Akers’ various freedom of information requests;

(g) the statement provided by Victoria Police to VCAT under s 49 of the VCAT Act and enclosures;

(h) the witness statement of Inspector Craig Matters of the Freedom of Information Division of Victoria Police; and

(i) Victoria Police’s legal contentions in relation to Mr Akers’ application to VCAT to review the decision.

Also in evidence before me were the written submissions to the Senior Member after the hearing on 3 November 2022, a summary of the April 2016 charges, the orders made by the Senior Member on 3 November 2022 and 31 March 2023, and the reasons.

Given that Mr Akers contends that the Senior Member failed to afford him procedural fairness, it is necessary to recount what transpired at the hearing in some detail.

After dealing with some preliminary matters, the Senior Member administered the oath to Mr Akers and requested that he identify the significance of the documents in the tribunal book to his application for review, and to go through each of his proposed amendments to the investigation report, which he proceeded to do, in some detail.

Mr Akers was cross-examined by Mr Jones, who represented Victoria Police at the hearing. During the course of the cross-examination, the Senior Member questioned Mr Akers at some length regarding the RSPCA interview issue. The Senior Member also asked Mr Jones for further details and clarity regarding the April 2016 charges, and whether in fact Mr Akers had been charged with criminal damage, saying ‘this seems to me something that might be suitable for s 39’.[5]
[5]Transcript of VCAT proceeding no Z327/2020, 3 November 2023, T36, 13-14.

The Senior Member then expressed her preliminary view regarding the distinction between matters of fact and matters of opinion for the purpose of s 39 of the FOI Act, saying as follows:

I’m interested - sorry, can I say this as a provisional comment, Mr Akers. There are parts where you have a different opinion about what occurred and you have concerns about the accuracy of how the police officer recorded, wrote down, took down your statement, or how he interpreted what you were saying. And you disagree with versions of events given by Victoria Police Officers involved. But I’m interested to just - and I have concerns about whether they would fit within s 39 or whether I could make the findings you’re asking. But on questions of fact, you know, ‘Was Mr Akers charged with that?’ is a straightforward yes or no. The issue about owning the property, it’s a yes or no. And these are things that I just would ask, if it hasn’t been done already, for everyone to look through and identify, because they might be matters that properly fall within s 39?---Yes.[6]

[6]T37, 15-31.

After a short break, the Senior Member asked Mr Akers to identify the documents he relied upon in support of each of his proposed amendments to the investigation report, which he proceeded to do. Mr Akers referred to, among other things, the striking out of the criminal damage charge and the withdrawal of a large number of the remaining April 2016 charges on 31 May 2017.

The Senior Member then asked Mr Akers whether he had drawn her attention to the matters he wanted her to have particular regard to, including his proposed amendments to the investigation report. Mr Akers confirmed that he had done so.

Inspector Matters was then sworn in. He adopted the contents of his witness statement, and was cross-examined by Mr Akers. Mr Akers questioned Inspector Matters regarding, among other things, the following matters:

(a) the number of police officers who gave statements to the investigator (‘police statements’);

(b) whether Mr Akers had been charged with obstructing police arising out of what occurred when he was taken into custody on 3 April 2016;

(c) what Inspector Matters knew about the criminal proceeding arising out of the April 2016 charges;

(d) the subject matter of the investigation report and what Mr Akers told Victoria Police about his health in January 2016; and

(e) whether Inspector Matters agreed that annotations could be made to a hard copy file.

During the course of the cross-examination of Inspector Matters, the Senior Member occasionally redirected Mr Akers’ questioning away from what she considered to be irrelevant matters. Inspector Matters had limited direct knowledge of the subject matter of the investigation report.

During the course of Inspector Matters’ evidence, the Senior Member asked Inspector Matters and Mr Jones for further information regarding the April 2016 charges. Mr Jones confirmed that the April 2016 charges included one charge of criminal damage, 22 charges of animal cruelty, and the remainder of the charges included charges of failing to provide proper and sufficient food, drink and shelter and appropriate veterinary attention to animals, and charges of aggravated animal cruelty.

After the luncheon break, the Senior Member made the following remarks about the approach she intended to take to Mr Akers’ application for review:

So, in my view, the s 39 application can't be used, in effect, for me to somehow reinvestigate the complaints Mr Akers made. It’s also not appropriate, I don’t think, for s 39 to be used in situations where some people say different things about what happened, and there’s disagreement. So who said what. People can have different views about what they - what occurred, what was said, what was done. That's not a proper ground for s 39, in my view. Section 39, I don't believe, is appropriately used, for example, for me, to reanalyse whether the charter was breached or not.
But it does seem to me, clear, that s 39 may allow preferably a notation to be added where, objectively, it's clear something was incorrect or inaccurate or would be misleading if left as it is. That’s the purpose of s39. It seems to me that can be done in a way that makes plain it's a notation under the Act, so as not to be inconsistent with what's there, so it can be highlighted or expressed in a particular way.
So one of the matters that I would like to consider, and you can perhaps make submissions about later, is the fact that there's a reference to there having been no interview at the time when the RSPCA inspectors, together with some police officers, were with Mr Akers I believe on 4 April. Because the transcript shows there was a lengthy discussion. Now it might not be a formal police interview, but questions were asked, including by various people, including the RSPCA officers, and as I read it, the police officer.
So potentially, in light of the existence of the transcript, that part of the final report might be misleading and warrant a notation being made.[7]

[7]T65, 11-31, T66, 1-11.

The Senior Member then noted that the police statements were not in the tribunal book, and arranged for those to be provided to her after the conclusion of the hearing, along with what was described as the ‘Northern Health letter’. She said that the purpose of obtaining the police statements was to compare the contents of the police statements with the summary of the police statements in the investigation report in order to ensure that the summary in the investigation report was accurate.

The Senior Member then asked whether there should be a further hearing after the provision of the further material referred to above, but Mr Akers said that he would be happy to put his additional submissions in writing. Mr Akers then made brief oral submissions.

The Senior Member then asked Mr Jones to address the RSPCA interview issue in Victoria Police’s written submissions, and stated that unless one of the parties asked for a further hearing, she would deal with the application on the basis of the documents in the tribunal book, the additional materials to be provided and what she had heard that day.

At the conclusion of the hearing, the Senior Member once again asked Mr Akers whether there was anything else he wanted to draw to her attention. Mr Akers responded in the negative.

After the hearing, the Senior Member made the following observations and orders:

The Tribunal records:
The Tribunal Book did not contain copies of documents which provide background to the dispute about whether a document dated 28 December 2016 and headed ‘Final Investigation Report’ (the Report) ought to be amended or corrected under section 39 of the Freedom of Information Act 1982 (Vic) (FOI Act). In order to allow the applicant to consider whether, in his view, the content of those documents. was accurately or fairly summarised or transcribed in the Report, it is necessary for all parties and the Tribunal to have copies.
Unless the respondent locates copies of the documents sooner, the applicant will send the copies of the documents listed below to the Tribunal and the respondent. He may also send submissions as to any instances of inaccurate or misleading summaries or transcriptions contained in the Report.
The respondent is to send the Tribunal and the applicant copies of the summary of charges which were laid against the Applicant on 4 April 2016 (being the documents showed to all parties during today’s hearing).
The respondent may send the Tribunal and the applicant any submissions in reply to items 1 and 2 above and any additional submissions regarding matters canvassed at the hearing today.
The respondent is only required to provide the Tribunal and applicant with copies of documents released to the applicant previously, including any existing redactions.
The Tribunal confirms that the additional documents and submissions are not intended to raise questions about the application of FOI Act exemptions in the past or to amount to a request for the Tribunal to re-investigate the complaints which were the subject of the Report.
The Tribunal orders:
1.By 24 November 2022, the applicant must send the Tribunal and the respondent copies of the following:
(a)His statement made to the investigator who compiled the Report;
(b)Statements made by police officers to the investigator who compiled the Report;
(c)The medical reports referred to in the Report (at the top of Tribunal Book, page 420); and
(d)The letter from Northern Health refenced to in the Applicant's application (at the bottom of Tribunal Book, page 417).

2.Also by 24 November 2022, the applicant may send the Tribunal and the respondent additional submissions as to the content of the Report in the light of the documents referred to in order 1.
3.By 20 December 2022, the respondent must send the Tribunal and the Applicant the summary of charges refenced to in item 3 above (received after the hearing on 3 November 2022) and any additional submissions as referred to above.
4.Unless either party seeks a further hearing or I consider it appropriate, the decision will be made by me in chambers having regard to the evidence heard today, the materials and submissions received as at 3 November 2022 and the further materials received under these orders.

Mr Akers filed his further written submissions on or about 18 November 2022. In his covering letter, Mr Akers identified the documents which were said to demonstrate that the investigation report was out of date, incomplete, misleading or inaccurate. Enclosed were Mr Akers’ further submissions, which canvassed the following matters:

(a) some events in the years leading up to the events of 3 and 4 April 2016, including details regarding some interactions between Mr Akers and Victoria Police in January 2016;

(b) information and documents said by Mr Akers not to have been provided by Victoria Police in its s 49 statement;

(c) Mr Akers said that he had no right of reply to the statements provided by the police officers to the investigator;

(d) Mr Akers said that he disagreed with the findings in the investigation report and wanted to add his comments to the investigation report;

(e) Mr Akers said that the investigation report is out of date given the withdrawal of many of the April 2016 charges;

(f) Mr Akers commented upon the witness statement of Inspector Matters and the police statements;

(g) Mr Akers included a table which juxtaposed Mr Akers’ comments against specific paragraphs of the investigation report (‘summary table’); and

(h) Mr Akers provided an accurate summary of the principles governing the scope and operation of s 39 of the FOI Act.

Victoria Police filed its written submissions on or about 19 December 2022. In those submissions, Victoria Police:

(a) noted that not all of the documents referred to in the orders made by the Senior Member on 3 November 2022 had been produced by Mr Akers;

(b) commented upon the specific charges and annotations to the investigation report proposed by Mr Akers;

(c) in relation to the April 2016 charges, Victoria Police submitted as follows:

This information in the Report sets out the charges that were laid against the Applicant and their position in the court as at the date of the Report.
The addition sought by the Applicant relates to what ultimately occurred with the charges and, as the Report was written prior to the occurring, it cannot be said that the Report is inaccurate, incomplete, out of date, or misleading as it reflected the information as at the date it was written.
The Applicant has been advised on many occasions that details of the ultimate result of the charges are on LEAP.

(d) in relation to the RSPCA interview issue, Victoria Police submitted as follows:

The issue of the RSPCA questioning is relevant to allegation 4 made by the Complainant:-
At Sunbury on 04 April 2016, police facilitated Mr AKERS’ being interviewed by the RSPCA when he was not in fit condition due to not having access to his C Pact [sic] machine for two days prior to the interview.

In preparing the Report the Investigator had regard to the various Member’s statements. On the second page of the first Member’s statement provided to the Tribunal by the Applicant, the author states:
I discussed this with Mr AKERS and advised him that the RSPCA wished to serve him with some notices and they would like to record it and asked if he would be willing to do it.
He advised that he didn’t feel that he was thinking straight because he had not been able to use his CPAP machine for a number of days.
I considered his suggestion, however in contrast I was aware that he was assessed by the FMO to be suitable for interview and in addition to that, I was informed by the RSPCA officers that they were not interviewing him, but rather, they were serving seizure notices on him. So with all the above information considered, l reaffirmed to Mr AKERS that it was up to him and he didn't have to say or do anything at all if he didn’t want to.
I advised Mr AKERS that he did not have to say anything and he didn't have to do if he didn't want to, but it would be an opportunity for a conversation to be recorded, which would allow him to go over it later if he wished to do so.
Mr AKERS agreed to be recorded for this purpose.
He was shown into an interview room, where the RSPCA officers served him with the seizure notices.

This is the only reference to the RSPCA speaking with the Applicant contained in the Member’s statements.
Pages 289 to 348 of the Tribunal Book contain a typed version of the conversation between the Applicant and the RSPCA officials. The Investigator did not have access to this at the time the Report was prepared.
Under the heading of “Police version 4’ on page 428 of the Tribunal Book, the Report states that the Applicant was not interviewed by the RSPCA. This was based on the statement from the Member referred to above. The Applicant says he was interviewed. In the Applicant’s statement he refers to being “questioned” and also that he did not feel it was right to be “interviewed”. This version is included in the Report under ‘Complainant’s version 4’ on page 426 of the Tribunal Book.
It is not clear whether the finding that this allegation was unsubstantiated was based on a determination of whether the Applicant was or wasn’t ‘interviewed’ or a determination of whether he was well enough to speak with RSPCA officials. If it was the latter then it appears that the Member’s statement above where the FMO’s assessment is referred to would appear to be the basis of that decision.
Regardless of which it is and noting that each of the Applicant’s and the Member’s version of events is included in the Report it is submitted that the uncertainty does not render the Report (or that part of it) inaccurate, incomplete, out of date, or misleading.

Victoria Police’s submissions concluded as follows:
The Applicant bears the burden under section 39 of showing that the Report is inaccurate, incomplete, out of date, or misleading. The additions he seeks to make to the Report are either his contrary opinions to what is contained in the Member's statements or information that was simply not provided to the Investigator at the time the Report was prepared.
The Tribunal should not be concerned with re-opening or re-investigating the Complaint. Its task is to determine whether any personal information concerning the Applicant and read by third persons, does not unfairly harm or misrepresent personal facts about the Applicant. It is concerned that the third persons reading the personal information do not get the wrong impression. (See G v Health Commission of Victoria (Unreported, County Court of Victoria, Rendit J, 13 September 1984), p10; as endorsed in Re Buhagiar and Victoria Police (1989) 2 VAR 530).
Even if the Tribunal were to find that some matters were not correct (which the Respondent does not admit) these would not defeat the overall findings in the Report nor give a person reading it the wrong impression.
The Senior Member’s decision and reasons

In the reasons, the Senior Member commenced by outlining the legal principles relevant to applications under s 39 of the FOI Act, as follows (omitting footnotes):

In such an application, the applicant carries the onus of providing evidence there is a prima facie case for correction or amendment and, if that onus is met, the agency is required to justify its refusal to do so.
The FOI Act does not define the terms ‘inaccurate’, ‘incomplete’ or ‘out of date’ or explain the meaning to be applied to the phrase 'where it would give a misleading impression’.
Having said that, it is understood that section 39 can apply to words which are inaccurate resulting from a wide range of causes including malice, false assumption, a misunderstanding of the facts or simply clerical error.
A ‘misleading statement or impression’ is one which is untrue or is likely to lead to an erroneous conclusion. Whether there would be a 'misleading impression' is objective: so, an interpretation that is fairly and reasonably open on a reading of the material is not likely to be misleading. Recorded facts may be inaccurate and give a misleading impression but also, recorded facts which are accurate may nevertheless give a misleading impression.
Section 39’s purpose has been described as ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm or misrepresent personal facts about the applicant. It is also concerned with ensuring that third persons reading the personal information do not get the wrong impression.
It is understood that the purpose of section 39 is not to entitle an individual to ‘shape or colour’ information held by an agency according to his or her own preferences.[8]

[8]Akers v Victoria Police (Review and Regulation) [2023] VCAT 326 (‘reasons’) [4]-[9].

The reasons went on to describe Mr Akers’ application to Victoria Police to amend the investigation report and his application to review the decision, noting as follows:

On 23 January 2020, Mr Akers wrote to Victoria Police about the Report. He said (underlining my emphasis):
I make a further application to add my comments to findings of an IBAC complaint that I made on the treatment of me by Police on or around the 3 April 2016.

Mr Akers attached a copy of the Report into which he typed in comments, descriptions of events or relevant matters, each of which were preceded by an indication of the basis for amendment or correction under section 39- that is he indicated parts he considered to be inaccurate, incomplete, out of date or misleading. That document is attached to these Reasons in Attachment A.
…
At the hearing before me, Mr Akers confirmed he wished to have his comments and notations as contained in the version of the Report he prepared, added to the Report (the Proposed Changes). As is apparent from the above discussion of the purpose and limits of section 39 of the FOI Act, the Tribunal’s task is not concerned with additions but rather whether corrections or amendments are required.

The Senior Member then went on to refer to the witness statement of Inspector Matters, stating that:

…I have accepted the content of Inspector Matters’ witness statement in respect of his experience and the background information which provides context to the application before me.

Inspector Matters’ witness statement provided considerable detail as to the nature of an investigation report and the process by which the investigation report was compiled and reviewed, and the Senior Member accepted his evidence in that regard. The Senior Member then reproduced the following extract of Inspector Matters’ witness statement:

There are appropriate avenues for review as outlined above and the [Professional Standards’] file should not give a misleading impression of a file outcome, by being amended by the views/opinions & version of events the complaint now wants to add. At the time the investigation was carried out by the investigating member the view and opinions of the complainant were sought and documents in relation to the original charges looked at also. As such the [investigation report] is an accurate reflection of the investigation into these complaints, it is not inaccurate, incomplete, out of date nor does it give a misleading impression in its current form. As such it does not need, nor should it have the applicant's proposed amendments included in it.
To allow the applicant's suggested amendments, has the propensity to give a misleading impression to any person reading the file and to cause unnecessary confusion.[9]

[9]Reasons [21].

The reasons then summarised Mr Akers’ evidence and submissions, and then described what transpired during the course of the hearing before her, as summarised in the preceding section of these reasons.

The reasons then went on to refer to the events of 3 and 4 April 2016 (see paragraphs 3 to 5 of these reasons), before going on to describe the structure and contents of the investigation report, the allegations made by Mr Akers against Victoria Police and set out in the investigation report, along with Mr Akers’ comments upon those allegations.

The reasons then went on to make the following observations about Mr Akers’ application for review:

First, as is apparent, the purpose of section 39 is to allow for changes to be made to documents which concern personal information. While I have given that term a broad meaning when considering the Proposed Changes, I have distinguished between what might be regarded as objective facts and the perceptions and opinions Mr Akers and the police officers had about what was happening. Differences of opinion or recall are not a sufficient basis to require a change to be made under section 39 of the FOI Act.
Second, while the Report seems to intend to objectively describe what Mr Akers and the police officers said in respect of the events and allegations they are presented as a summary rather than direct quotes. It is inevitable that they include some level of opinion or interpretation if presented in summary form. It is also likely that Mr Akers will disagree with some of what the police officers said in their statements. Unless there is a material and objectively identifiable error in the way the information was expressed or summarised, change is not required due to the choice to summarise rather than quote or because Mr Akers disagreed with what was said.
Third, the task of the author was to express opinions and make findings on the allegations. That task necessarily involves the author assessing the information. It is implicit in the Report itself and consistent with the purpose of a [Professional Standards] investigation that the ultimate findings and recommendations will be those of the author. Accordingly, it is possible that those findings and recommendations might be different to what Mr Akers or another investigator would have concluded. The fact that Mr Akers disagrees with the assessment and findings is not a basis to conclude that changes are to be made under section 39 of the FOI Act.
I agreed with Victoria Police’s submission that it was not for me to re-investigate the events, particularly when there was a dispute about the facts. Nor was it for me to re-consider the method of investigation and manner of report writing. The fact someone else might have taken a different approach to the task or reached different views, does not demonstrate the document requires correction or amendment under section 39 of the FOI Act. As a consequence, even if I agreed with Mr Aker’s [sic] comments about the importance of a fair and proper investigation of complaints … that is not the task before me.
Fourth, it is not appropriate to undertake the assessment of the Report under section 39 by having regard to events or other information which post-date the writing of the Report. It is a point in time document written in December 2016 and so should not be assessed with the benefit of hindsight, other developments or more information, such as subsequent medical reports.[10]

[10]Reasons [51]-[55].

Prior to turning to each of Mr Akers’ proposed changes to the investigation report, the Senior Member made some observations and assumptions regarding Mr Akers’ medical history and conditions, stating as follows:

I have proceeded on the basis that, prior to early April 2016, Mr Akers had the medical conditions referred to in the Medical Documents. Mr Akers' history included orthopaedic surgery to his hips and shoulders. He had heart related conditions and had been diagnosed with Obstructive Sleep Apnoea. He used a CPAP machine to manage the latter condition. He had a pacemaker inserted in March 2019.
I accept that, as a result of previous interactions with Mr Akers, at those points in time, individual police officers may have been told about his health conditions including mental health challenges. I accept that organisationally, Victoria Police had access to information about Mr Akers' medical conditions.[11]

[11]Reasons [58]-[59].

The Senior Member then went on to evaluate Mr Akers’ proposed changes, grouped by subject matter, in some detail.

Save for a correction to a typographical error to a property address, the Senior Member rejected each of Mr Akers’ proposed changes. It is not necessary for present purposes for me to canvass the Senior Member’s analysis and reasons in any detail, with two exceptions. The Senior Member’s findings with respect to Mr Akers’ proposed changes under the heading ‘criminal charges’ were as follows:

As is apparent from Attachment A, the Report referred to Mr Akers being charged with one count of criminal damage and 91 charges of animal cruelty on 4 April 2016. The Report also recorded that, at the time of writing, those matters were still before the courts.
Mr Akers disputed the accuracy of the above description of the charges and also referred to offers exchanged between the prosecution and his legal representatives and other discussions about the charges when they were before the County Court…
At the hearing, Victoria Police was able to show the charges laid against Mr Akers on 4 April 2016. The copies of the charges provided to the Tribunal and Mr Akers later that day confirmed that there were 91 charges of animal cruelty and one charge of ‘Criminal Damage (Intent Damage/Destroy)’.
The reference to that latter charge as ‘criminal damage’ in the Report is fair and not inaccurate or misleading as a description of the actual charges laid on 4 April 2016.
Irrespective of later plea arrangements or changes to the charges pursued at trial, the content of the relevant part of the Report is accurate given it was referring to the status of the charges laid in April 2016. Accordingly, no changes are required to items 18 or 61 under section 39 of the FOI Act.[12]

[12]Reasons [109]-[116].

In relation to the RSPCA interview issue, the Senior Member stated as follows:

Mr Akers complained that, the police officers only agreed to allow him to return to his home to collect his medication and CPAP machine if he ‘spoke’ with RSPCA officers who had been involved in the events leading to the criminal changes and who were present at the Broadmeadows’ police station (item 7). He also complained that he had been interviewed by the RSPCA when he was not fit to participate due to his lack of access to his CPAP machine for two days (Allegation 6).
Mr Akers’ Proposed Change item 54 concerns whether the RSPCA conducted a ‘full’ interview with him to which a police officer consented and whether he was interviewed for offences.
The relevant police officer's version of events was that Mr Akers was taken to an interview room so that the notices could be served while being recorded. The police officer stated that Mr Akers agreed to that arrangement. The Investigator found that Mr Akers' complaint was not substantiated.
Mr Akers supplied a copy of the transcript of the discussion with the RSPCA officer (the Transcript). First, it confirms that Mr Akers was told that what was happening in the interview room was being recorded. Mr Akers was told that he was not under arrest. It also shows that Mr Akers was very concerned to get home but was told he needed to be escorted by police. The police officer present told him they would ensure he did get home within his curfew (imposed as part of his bail conditions).
The Transcript shows that the RSPCA officer served the notices and provided an explanation (the Transcript). There was a discussion with Mr Akers about aspects of what had led to his arrest and what would happen next. It is fair to say there was a reasonably lengthy discussion about those matters and the notices, with the RSPCA officer answering Mr Akers’ questions as well as explaining processes. The police officer also participated in the discussion at times. At times the RSPCA officer asked Mr Akers questions which followed on from his own statements or queries. Those included questions about who was helping Mr Akers with the horses and how he was feeding and monitoring them.
It was not clear to me whether the Investigator had access to the Transcript when the Report was being written. While it appears Mr Akers sought access to it through an FOI Act request in August 2020 and he received it sometime later, it was not apparent when the Transcript had been prepared. If the Investigator did not have the Transcript or review the audio, the changes sought would post-date the time of the preparation of the Report,
In any event, it is apparent from the Report that the Investigator recorded that the police officer arranged for the service of the notices in the interview room and the recording. Whether what took place amounted to a ‘full’ interview is debateable however there is no question no caution was given and there was no direct reference to criminal charges.
Given the way in which the Report is written and the fact that the conclusions were a matter for the Investigator, I am not satisfied the changes Mr Akers sought are required for the purposes of completeness and accuracy under section 39 of the FOI Act. I do not consider the content of the relevant part of the Report to be misleading either.[13]

[13]Reasons [101]-[108].

Annexed to the reasons were two documents, Annexure A, being a copy of the investigation report with Mr Akers’ proposed changes numbered and highlighted, and a schedule of all of the medical evidence before the Senior Member.

The amended notice of appeal

The amended notice of appeal filed on 15 July 2023 identifies the following purported questions of law:

Where did a breach of natural justice occur in the decision refusing to add the application under section 39 of the Victorian Freedom of Information Act to add the Independent Board-Based Anti-Corruption Commission (IBAC), Final Report?
Where the evidence given by the Respondent discharges the onus of proof required by the Freedom of Information Act, that the Applicant’s table to be added is misleading, out of date, inaccurate, and or incorrect.
Where a breach of Natural Justice by the how is the final Report on the IBAC, accurate, not misleading when read, out of date, and incorrect by the Learned Senior Member in making the decision by not considering all of the applicant's Medical Reports and findings copies of interviews, and documents.
Whether the applicant’s original application to the Respondent or the requested clarification by the Respondent, (the table filed at the request for clarification by the Respondent) and used at the hearing should have been used for the decision by the learned Senior Member.
Is the question of the extent of disclosure a matter to which the decision-maker must have regard to decide whether acceptance of the section 39 application, after the IBAC report and findings should be taken into account of the applicant’s section 39 application under the Victorian Freedom of Information Act.
Whether the findings should be detailed correctly, taking into account irrelevant considerations.
Whether the further submissions filed by be considered, after the hearing.
Whether decision-making procedures were not observed.
Was the decision an improper exercise of the Freedom of Information Act?
Was the evidence, the 9 Victorian Police statements used for the IBAC Final Report and Findings, have been considered by the learned Senior Member?
Is it necessary, evidence by the respondent to include general statements on his personal expenses, or should the respondent’s evidence be of fact on the applicant’s complaint to IBAC?
Where to hearing has been concluded and the parties have made further submissions pursuant to the orders, should the part of the submission by the respondent instruct the learned Senior Member, it does not matter if there are parts of the findings are incorrect, these would not defeat the overall findings in the report.

As can be seen from the above, the amended notice of appeal does not, in its terms, disclose a question of law, save that the following legal issues can be gleaned from the questions in their current form:

(a) whether the Senior Member failed to afford Mr Akers procedural fairness; and

(b) whether the Senior Member took into account irrelevant considerations (although those alleged irrelevant considerations were not identified).

The amended notice of appeal identified the following grounds of appeal:

The learned Senior Member erred in holding that the Tribunal,
i.The applicant was applying to add his personal statement to the Final IBAC Report and not alter in any way the Final IBAC Report.
ii.By accepting the evidence of the Respondent, the respondent’s evidence is IBAC will review the decision on the request of the applicant, this was found to be misleading.
iii.By accepting the evidence of the Respondent, as to the Respondent’s (Inspector Matters) personal and past experiences.

The learned Senior Member erred in holding that the Tribunal, that the Respondent had discharged the Respondent's onus.
i.The Respondent’s only witness, and statement was from an Officer who was not involved in the incident, the investigation, or the review of the Final IBAC Report.
ii.The nine officers and investigating officers could have supplied or given sworn statements to the Tribunal.

The learned Senior Member erred in holding that the Tribunal, that the Freedom for information act allows under section 39 to add to the agency’s document, where the documents is personal affairs of a person.
i.The Final IBAC Report is personal information about the treatment (part of) by the Respondent on the dates of 3 and 4 April 2016.
ii.The Respondent had access to other agencies and access to the appellants treating medical persons for the investigation, it's not known by the appellant if the investigator limit of documents was the 9 Victorian Police who were involved (noting two of the officer’s statements are different in another document on the, same incident) and the appellant's statement given without notice.

The learned Senior Member errored in the review by using the application's first section 39 application under the Freedom of Information Act and not the clarification statement as requested by the Respondent.
The Senior Member errored by not taking the place of the Original Decision maker, by using the original application to the Respondent. The Final IBAC Report with attached reasons under each pargh (sic) which outlined where the Final IBAC Report is misleading, out of date, incorrect, and inaccurate, where the clarification requested by the Respondent could have been addressed.
The learned Senior Member erred in holding that the Tribunal,
i.The IBAC report is accurate when the investigator did not consider documents, and evidence, that were available to the investigator.
ii.the IBAC report is correct when the investigator did not consider documents, and evidence, that were available to the investigator.
iii.the IBAC report is misleading when the investigator did not consider documents, and evidence, that were available to the investigator.
iv.the IBAC report is out of date, the tribunal did not consider any of the applicants' reports after the Final IBAC Report.

The learned Senior erred by ordering further submissions, the application by the appellant is added to the Final IBAC Report.
i.The Learned Senior Member erred by “suggesting” the applicant is trying to shape and colour the Final IBAC Report, the application is to add under section 39 of the FOI Act a statement by the applicant.

The learned Senior Member errored by misplacing a document and not requesting it from either the appellant or the respondent.
i.The document addressed and hand give to the respondent on 4 April 2016
ii.Northern Health Hospital written instruction to the Respondent.
iii.The applicant will be all right when the appellant gets his medications, breathing machine.

The decision is an improper exercise of the Victorian Freedom of Information Act. The appellant applied to add to the Final IBAC report which was about the treatment by the respondent of the appellant.
i.The Learned Senior Member and the respondent could have addressed section 53A of the Act and if either party was concerned about the personal privacy of the Respondent’s 9 Officers.
ii.The redacted respondents’ 9 Officers’ statements, given to the appellant under the Freedom of Information Act, were used in the holding of the application.
iii.The appellant's application was not on the respondent 9 Office’s statements, it is on the Final IBAC Report.

The learned Senior Member errored by considering the Respondent’s 9 Statements used at the Tribunal.
i.The 9 redacted statements are not sworn for the complaint to IBAC by the appellant,
ii.Nor did any of the Respondent’s 9 Officers give evidence at the hearing.
iii.The appellant was denied the right under the VCAT Act, to cross-examine the respondent's 9 Officers at the Tribunal, as to the 11 statements made by the respondent's 9 officers.

The Learned Senior Member errored by considering the personal opinion of the respondent's witness,
i.the fact is the person giving evidence for the respondent was not involved,

ii. no personal knowledge of the incident or the IBAC Final Report,
iii. not relying on the Freedom of Information Act,
iv. application to add to the personal affairs of the appellant.
v.the fact that the respondent referred the applicant to IBAC to request a review of the Final IBAC Report, demonstrates the evidence given by the respondent is incorrect, misleading, and inaccurate.

The learned Senior Member erred by accepting the further submission by the Respondent, the fact, the submission was in part, “it does not matter if there are parts of the Final IBAC Report are incorrect, these would not defeat the overall findings in the report.”

As can be seen from above, Mr Akers’ grounds of appeal are more detailed and focussed than the questions of law. However, while some of the grounds of appeal refer to what might be described as procedural fairness grounds, the grounds of appeal largely go to the merits of the Senior Member’s decision, including her conclusions with respect to the evidence, and as such, do not raise or establish any legal error on the part of the Senior Member.

As observed by Victoria Police in its submissions, the Court’s supervisory jurisdiction under s 148 of the VCAT Act is not at large. As stated by the Full Court of this Court in Transport Accident Commission v Hoffman:[14]

It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision. [15]

[14][1989] VR 197, in relation to a predecessor provision to s 148. This statement was approved by the Court of Appeal in Patsuris v Goulburn Valley Water Corporation [2016] VSCA 109, and recently referred to in Chang v Office of the Chief Parliamentary Counsel & Anor [2023] VSC 516.

[15]Ibid, 199.

In Patsuris v Gippsland and Southern Rural Water Corporation,[16] Garde JA stated as follows:

The limited nature of appeals under s 148 has subsequently been further emphasised by the High Court. Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.
The ‘question of law’ requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself. It is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal.[17]

[16][2016] VSCA 109.

[17]Ibid [43]-[44].

His Honour then referred to four examples of mistakes that might constitute an error of law, namely:

whether the tribunal has identified the relevant legal test;
whether the tribunal applied the correct legal test;
whether there is any evidence to support a finding by the tribunal of a particular fact; and
whether the facts found fall within a statute properly construed.[18]

[18]Ibid [45], referring to the decision of the Court of Appeal in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771.

It would be open to me to simply dismiss the application for leave to appeal on the basis that the amended notice of appeal fails to disclose a question of law involved in the Senior Member’s decision, or, alternatively, to limit my consideration to the question of whether the Senior Member failed to afford Mr Akers procedural fairness. However, as acknowledged by counsel for Victoria Police during the course of the hearing of the application, Mr Akers is self-represented, the Court is exercising its supervisory jurisdiction, and there is sufficient material before the Court to enable me to ascertain whether a question of law is involved in the Senior Member’s decision, and if so, to evaluate the merits of any identified question of law.

Accordingly, the approach I took was to review the reasons, the materials and evidence before the Senior Member, and the parties’ submissions to this Court in order to identify any potential questions of law, and then, in relation to any such identified question, evaluate whether it is justified to grant Mr Akers leave to further amend his notice of appeal to articulate any such question of law.

The evidence

The material before the Court was in a somewhat disordered state. There was a suggestion that at a directions hearing Mr Akers told the Court that he did not wish to rely upon the original affidavit filed and served in support of his application, but changed his position at a later time. He then filed and served a further affidavit on 19 July 2023 (‘second affidavit’), which, upon review, seemed to concern matters largely irrelevant to the current application, being his dealings with Victoria Police and other government authorities prior to the laying of the April 2016 charges. Victoria Police objected to the second affidavit being received into evidence and the parties filed written submissions as to the admissibility of the second affidavit. During the course of the hearing of the application, I indicated that I would accept the second affidavit as informing the question of whether leave to appeal should be granted, as it seems that this evidence goes to the particular importance to Mr Akers of the information in public records being accurate and up to date. However, it is not necessary for me to canvass the contents of the second affidavit in these reasons.

Mr Akers’ first affidavit did address relevant matters, including the events of 3 and 4 April 2016 and the following days, and his complaint to IBAC. Exhibited to Mr Akers’ first affidavit were the following documents:

(a) the orders made by the Senior Member on 31 March 2023 and the reasons;

(b) an order made by VCAT on 9 April 2021 recording an agreement between Mr Akers and Victoria Police regarding the inclusion of the summary table in the tribunal book;

(c) a bundle of Victoria Police documents described by Mr Akers as ‘some documents that remain on [the LEAP database administered by Victoria Police] are incorrect, misleading, inaccurate and out of date’;

(d) a photograph said by Mr Akers to evidence surveillance of his property by Victoria Police in early 2016;

(e) a document prepared by Victoria Police regarding the withdrawal and amendment of the April 2016 charges on 31 May 2017;

(f) medical records and reports provided by Mr Akers to the investigator;

(g) a document headed ‘Exported Medical Record’ created by the Northern Health Emergency Department on 4 April 2016 (‘Northern Health letter’);

(h) Mr Akers’ original complaint to IBAC;

(i) the investigation report; and

(j) Mr Akers’ application to Victoria Police under s 39 of the FOI Act.

Further, prior to the hearing of the application, after the parties were unable to agree upon the contents of the court book, Mr Akers produced to the Court a bundle of documents, which, among other things, included;

(a) unsealed copies of documents filed in this proceeding, including a draft of a summons which was never filed;

(b) additional copies of exhibits to Mr Akers’ affidavits; and

(c) a transcript of the hearing before the Senior Member obtained by Mr Akers.

Time did not permit me and my staff to undertake a complete reconciliation of the documents in the court book prepared by Mr Akers with the documents already on the Court file, but the review that I did undertake suggested that there was a considerable overlap between the documents in this bundle and the documents already in evidence. I have accordingly limited my consideration to documents which have actually been filed with the Court, save for the transcript of the hearing at VCAT procured by Mr Akers, which I have reviewed in addition to the transcript obtained by Victoria Police. I have also reviewed the additional documents produced by Mr Akers and included, somewhat confusingly, in the combined book of authorities filed by the parties, insofar as those documents are relevant to the issues in the current application. The combined book of authorities included, among other things, the following documents:

(a) an OVIC report titled ‘Impediments to timely FOI and information release’ dated 1 September 2021;

(b) a summary of Akers v Victoria Police (Review and Regulation) [2021] VCAT 1060 by the Human Rights Law Centre;

(c) an extract from Victoria Police’s website regarding Victoria Police’s Freedom of Information Office;

(d) a decision by OVIC of 15 February 2023 regarding a freedom of information request by Mr Akers to Victoria Police;

(e) correspondence between Mr Akers and Inspector Matters in late 2022 regarding another freedom of information request;

(f) some redacted police statements and selected medical reports, including a medical panel opinion dated 5 February 2020;

(g) correspondence between Mr Akers and Racing Victoria;

(h) progress notes from the Northern Health Emergency Department dated 4 April 2016 (‘Northern Health progress notes’); and

(i) documents recording other applications by Mr Akers to amend information in documents held by public agencies.

However, I have primarily relied upon the documents referred to in paragraphs 28 and 29 of these reasons, being the documents before the Senior Member, which were exhibited to the affidavit of Mr Jones, the solicitor for Victoria Police.

The parties’ submissions

In his written outline of submissions filed on 12 September 2023, Mr Akers:

(a) set out the background to his complaint to IBAC and his application to review the decision;

(b) said that the police statements should not have been relied upon by the Senior Member, because the police statements were heavily redacted and the police officers were not made available for cross-examination; and

(c) submitted that he had demonstrated to the Senior Member that the investigation report was out of date, incomplete, misleading and inaccurate.

Mr Akers’ written submissions in reply were somewhat more fulsome than his original written submissions. In these submissions, Mr Akers:

(a) said that Victoria Police’s submissions painted, in part, a misleading picture of his affidavits and exhibits;

(b) set out the relevant statutory provisions and the procedural history of his application;

(c) criticised the evidence of Inspector Matters;

(d) criticised Victoria Police for delay and faults in the preparation of the tribunal book;

(e) referred to other applications made by him under the FOI Act;

(f) noted that in the reasons the Senior Member stated that the Northern Health letter was misplaced or lost;

(g) said, in relation to the possibility of a further hearing, that:

…[Mr Akers] did not seek a further hearing due to [VCAT] staying other applications which were accepted for review and not able to be listed by [VCAT] due to the available ability [sic] of the members;

(h) set out what was said to be the factual context for the Senior Member’s decision, referring to events and dealings with law enforcement authorities going back to 1984, and his health issues and financial problems over the years;

(i) referred again to the events on 3 and 4 April 2016; and

(j) referred to the complaint he made to IBAC and the application, stating as follows:

…[Mr Akers] argued that his comments were necessary to give balance and overall view of the [conduct] of [Victoria Police] to ensure the [investigation report] was accurate, complete, not out of date and did not give a misleading impression.

(k) criticised the Senior Member’s acceptance of the evidence of Inspector Matters and the police statements, for failing to consider the summary table, misplacing the Northern Health letter and failing to address various documents in the tribunal book in the reasons;

(l) he submitted as follows:

The Tribunal also noted it was not appropriate to assess the Report with regard to “events or other information which post-dates” the Report, not to assess the Report “with the benefit of hindsight other developments or more information, such as subsequent medical reports.” this the decision is wrong as the FOI Act section 39 does not limit the time frame of when the … document is out of date, incorrect, or misleading when read.

(m) rejected Victoria Police’s criticisms of the amended notice of appeal; and

(n) referred to the dispute between the parties over the contents of the appeal book.

Under the heading ‘Legal Submissions’, Mr Akers did not directly engage with Victoria Police’s submissions regarding the scope and purpose of s 39 of the FOI Act, but said that the amended notice of appeal had raised questions of law, and he had otherwise complied with all of the requirements of Part V of the FOI Act.

Under the heading ‘the Applicant raises concerns about the Tribunal’s procedure’, Mr Akers:

(a) once again criticised the late provision of the police statements by Victoria Police, and said that the Senior Member should not have relied upon the police statements;

(b) said that Inspector Matters’ evidence was irrelevant and incorrect;

(c) said that as his medical evidence was not referred to in the reasons, it can be inferred that it was not considered by the Senior Member;

(d) said that the time allocated for the hearing was insufficient; and

(e) said that Victoria Police failed to discharge its burden of proof pursuant to s 55 of the FOI Act.

In his oral submissions at the hearing of the application for leave to appeal, Mr Akers relied upon his written outline of submissions, but emphasised the following points:

(a) the Senior Member failed to take into account the Northern Health letter;

(b) the Senior Member failed to take into account the summary table;

(c) the Senior Member frequently referred to the April 2016 charges, which were not of themselves the subject of his complaint to IBAC, which may have coloured her impression of Mr Akers;

(d) he had provided VCAT with up to a dozen medical reports which showed that the investigation report was out of date, which the Senior Member failed to take into account;

(e) he has had subsequent dealings with members of the Victoria Police which have caused him to believe that the police have formed an adverse view of him based upon inaccurate information in public records;

(f) during the course of the hearing, Mr Jones shared on the screen unredacted copies of the police statements with the Senior Member, which he could not read;

(g) it was unfair that Victoria Police was permitted to file the last written submissions. He did not request a further hearing because he did not realise that he could do so. If there had been a further hearing he would have been able to address Mr Jones’ written submissions;

(h) the police statements were very heavily redacted, and he did not have an opportunity to cross-examine the police officers;

(i) Inspector Matters’ evidence was misleading, and the Senior Member limited the scope of his cross-examination of Inspector Matters;

(j) he noted that the investigator did not have access to the RSPCA transcript; and

(k) he submitted that this Court should make orders that the summary table be annexed to the investigation report.

As noted above, Mr Akers submitted that he was disadvantaged in that he did not have an opportunity to respond to the written submissions filed by Victoria Police after the hearing. I asked Mr Akers to review these submissions and to state, point by point, what submissions he would have made in response to those submissions, which he proceeded to do. However, as Mr Akers’ responses largely traversed the same ground as his written and oral submissions to this Court, I shall not recount them again here.

In its written outline of submissions, Victoria Police set out the relevant legislative framework and the factual and procedural context to the Senior Member’s decision and this application for leave to appeal, referred to the issues before the Senior Member and the Senior Member’s findings, and commented upon the evidence before this Court.

Victoria Police submitted that the amended notice of appeal is deficient, in that no question of law is raised by the amended notice of appeal, appeal grounds 1, 2 and 6 challenge the Senior Member’s factual findings or the merits of her decision, and appeal grounds 3, 4 and 5 are nonsensical.

Victoria Police submitted that, referring to the decision of O’Meara J in Chang v Office of the Chief of Parliamentary Counsel & Anor,[19] as no question of law involved in the Senior Member’s decision was raised by the amended notice of appeal, the Court’s jurisdiction under s 148 of the VCAT Act is not enlivened, and the application for leave to appeal should be dismissed.
[19][2023] VSC 516.

In its written outline of submissions, Victoria Police made the following submissions with respect to the proper construction of s 39 of the FOI Act (omitting citations):

Section 39 of the FOI Act is concerned with the accuracy of official records, not with the merit or legality of the action recorded. Attempts to use s 39 “as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event”. Section 39 does not permit amendments where the effect is to substitute the opinions of the author of the document, with the opinions of an FOI applicant.
Unlike the exemption provisions in the FOI Act, persons who apply under s 39 of the FOI Act must show a prima facie case that information in a document is inaccurate, incomplete, out of date or would give a misleading impression. If the Applicant establishes a prima facie case, the Respondent is then put to proof and must justify its decision to refuse the application.
“Information” in s 39 includes “opinion”. An opinion may however be correct, even if the procedure applied was unfair or legally flawed.
The authorities on s 39 are relatively few and tend to focus on the meaning of “misleading”. The Macquarie Dictionary defines “inaccurate” as meaning “not accurate”. “Accurate” means “exactly conforming to the truth, to a standard or rule, or to a model; free from error or defect; showing precision”.
A “misleading statement or impression is one which is untrue, or likely to lead to an erroneous conclusion”.
A statement of opinion is not out of date if it correctly records the opinion on the date it is made.

Victoria Police submitted that the Senior Member’s decision was open to her to make, and was consistent with authority. Further, Victoria Police submitted, in response to concerns expressed regarding the procedure at VCAT, that Mr Akers was provided with a reasonable opportunity to present his case. In particular:

To the extent the Applicant is concerned that the police statements considered in the Report were not included in the Tribunal Book, that omission did not result in any practical injustice to the Applicant. The police statements were ultimately before the Tribunal and considered in the review. To the extent the Applicant is concerned by the fact that the Tribunal accepted further submissions from the Respondent; the Tribunal's obligations of procedural fairness extend to both parties.

Further, in relation to Mr Akers’ submission that the Senior Member should not have relied upon the police statements because the makers of the statements were not made available for cross-examination, Victoria Police submitted as follows (omitting citations):

The Respondent submits the Applicant's submissions are directed at merit and misunderstand the Tribunal’s task. The Tribunal’s task was not to decide the Applicant’s complaints against Victoria Police for itself, but to determine whether the information in the report was incomplete, inaccurate, out of date or misleading. The Tribunal used the police statements to assist in this task. This use is permissible and does not reveal error. The Applicant made submissions about the accuracy of the police statements when he was before the Tribunal, but the Tribunal did not consider that issue because it was outside the scope of the review.

Victoria Police submitted that Mr Akers’ submissions that the investigation report was inaccurate, incomplete, out of date, or would give a misleading impression, went to the merits of the Senior Member’s decision, and did not identify any error of law.

Finally, Victoria Police rejected Mr Akers’ submission that the evidence of Inspector Matters was not relevant, submitting that:

Inspector Matters’ evidence was relevant to the Tribunal’s assessment of whether the Report was inaccurate, incomplete, out of date or would give a misleading impression and no error of law arises from the Tribunal considering that evidence. To the extent the Applicant takes issue with the absence of direct evidence from the author of the report or officers who gave statements, the Applicant’s submission again misunderstands the nature of the Tribunal’s review jurisdiction.

In her oral submissions at the hearing of the application for leave to appeal, counsel for Victoria Police submitted that the amendments and additions proposed by Mr Akers to the investigation report did not fall within the scope of s 39 of the FOI Act because the proposed amendments concerned matters of opinion or disagreement or further comment or context. The Senior Member’s approach to the proposed amendments was entirely consistent with the approach of the authorities, including the decision of the New South Wales Court of Appeal in Crewdson v Central Sydney Area Health Service (‘Crewdson’),[20] where the Court stated:

The appellant’s attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. [21]

[20][2002] NSWCA 345.

[21]Ibid [24].

Counsel submitted as follows:

The respondent says that no question of law was raised on the tribunal’s decision because the tribunal plainly construed s 39 in accordance with the law and it plainly applied a procedure that accorded with the relevant rules of procedural fairness.
It gave the applicant a fulsome opportunity to present his case and to be heard and, in fact, an opportunity that went beyond what he asked for. It was really the tribunal that enlarged the issues and gave the opportunity for enlarged material and enlarged submission to before it...

Counsel submitted that Mr Akers’ submissions concerning Inspector Matters’ evidence and the lack of opportunity to cross-examine the police officers were misconceived, given the purpose for which the police statements were before the Senior Member. She submitted as follows:

The tribunal simply did not have jurisdiction to itself look at the report and whether the investigation was a good or bad one, whether the reported outcomes were reasonable or the best exercise of reporting and investigation possible.
What the tribunal instead could do is make sure that what was in the report was an accurate record of the material that was before it.

Counsel submitted further that the Northern Health progress notes and discharge summaries provided by Northern Health with the salient information were all before the Senior Member. Similarly, the summary table simply presented Mr Akers’ proposed changes to the investigation report in a tabular format. It is clear from the reasons that the subject matter of the application was considered and dealt with by the Senior Member.

As for the question of whether the Senior Member erred in failing to find the investigation report was out of date, counsel for Victoria Police submitted as follows:

The applicant submitted today that the investigation report is out of date. The applicant appears to argue it’s out of date because subsequent events and further developments tent to show that what's expressed in the report isn’t entirely accurate, or could have been expressed in a better or more comprehensive way. That is an issue that the tribunal was alert to and did consider by looking comprehensively at all of the medical evidence.
But ultimately, the tribunal considered that error, for the purpose of s 39 - incomplete, inaccurate – couldn’t be shown by material that post-dated the report, and that wasn’t available to the author at the time of writing their report. These elements of s 39 are not judged in hindsight, so it’s not the case that the tribunal didn’t consider that argument, but rather that the tribunal wasn’t with Mr Akers in respect of that matter.

As for Mr Akers’ submission to the effect that he was denied procedural fairness by reason of Victoria Police filing the last written submissions, counsel noted that neither party contacted VCAT to request a further hearing or the opportunity to file further submissions.

Discussion

Turning now to the decision under review, fundamentally, the Senior Member’s approach to the task before her was correct. In particular, the Senior Member was correct in holding that it was not necessary or appropriate to revisit the allegations which were the subject of the investigation report, and that ‘differences of opinion or recall are not a sufficient basis to require a change to be made under s 39 of the FOI Act.’ Further, as observed by Deputy President Hall in Re Resch and Department of Veterans’ Affairs:[22]

It may be one thing to establish that factual information of the ‘personal data’ kind is ‘incomplete, incorrect, out-of-date or misleading’: it may be quite another when one is dealing with matters that depend upon professional judgment or opinion or upon subjective evaluation of an individual…[23]

[22](1986) 9 ALD 380.

[23]Ibid, 385.

The Senior Member’s summary of the relevant principles in the passages of the reasons extracted at paragraphs 48 and 54[24] of these reasons is largely correct. The Senior Member’s approach to the application for review was consistent with the principles referred to in the submissions made by Victoria Police in this Court and summarised in the preceding section of these reasons, which I agree are also largely correct.
[24]See also the observations made by the Senior Member during the course of the hearing extracted at paragraph 39 of these reasons.

It was correct for the Senior Member to say that s 39 could not be used as a vehicle for a collateral review of the merits of the findings in the investigation report.[25] Further, I agree with the following statement in Re Traynor and Melbourne & Metropolitan Board of Works[26] as an accurate summary of what s 39 is not intended to achieve:

Having regard to his required amendments as a whole, it appears to the Tribunal that the applicant seeks to redraft the reports so as substantially to change the statements of facts and opinions contained therein and thereby to communicate to the reader findings so different from the findings of those who prepared the reports as to convey an almost entirely opposite impression. What the applicant is attempting to achieve is the substitution of his opinion for theirs. Were the requested amendments to be effected, the reader would be given a far more favourable view of the work and performance record of the applicant.[27]

[25]Crewdson [2002] NSWCA 345 [24].

[26](1987) 2 VAR 186.

[27]Ibid 190.

However, the position with respect to the application of s 39 to information which records opinions and/or subjective judgments is a little more nuanced than suggested by the Senior Member in the reasons and in her remarks during the course of the hearing. There are some circumstances where it has held to be appropriate to utilise s 39 of the FOI Act to expunge, modify, or add commentary to an opinion in a document. In Re Buhagiar and Victoria Police,[28] Jones J, in his capacity as President of the predecessor to VCAT, stated as follows:
[28](1989) 2 VAR 530.

I return to s 39 of the Act. It is clear on the authorities that s 39 includes information of an opinion kind: see, for example, Re Stephens and Victoria Police (1988) 2 VAR 236. To again quote Gessel J in the RR case (at 774):
It would defy common sense to suggest that only factually erroneous assertions should be deleted or revised, while opinions based solely on these assertions must remain unaltered in the individual’s official file. An agency may not refuse a request to revise or expunge prior professional judgments once all the facts underlying such judgments have been thoroughly discredited. This position is reinforced by the Freedom of Information Act’s legislative history, where there are clear indications that insidious rumours and unreliable subjective opinions as well as factual misrepresentations fall within the ambit of the Act’s strictures.
It is unnecessary to attempt to categorise the basis on which a professional opinion could be found to be ‘incomplete, incorrect or misleading’. To that of a demonstration of total inadequacy of underlying factual information, there could no doubt be added those of the existence of bias or ill will, incompetence or lack of balance or necessary experience in the person forming the opinion, or the existence of such a trivial factual substratum as to render the opinion formed dangerous to rely upon and like to result in error, or where facts have been misapprehended.

Mr Howie in Stephens’ case (supra) at 239 identified four useful categories to consider in decided whether there should be amendment of information in the nature of opinion. With respect, I agree with his categories. They are:
1.The facts underlying such opinion have been thoroughly discredited or have been demonstrated to be totally inadequate;
2.the person forming such opinion was tainted by bias or ill will, incompetence or lack of balance, or necessary experience;
3.the factual substratum underlying the opinion is so trivial as to render the opinion formed dangerous to rely upon and likely to result in error;
4.the facts upon which the opinion was based were misapprehended.[29]

[29]Ibid 538-539.

That said, in Re Resch and Department of Veterans’ Affairs,[30] Deputy President Hall said that the American authority referred to by Jones J above is only authority for the proposition that

…an expert opinion based solely on discredited facts cannot be allowed to stand.[31]

[30](1986) 9 ALD 380.

[31]Ibid 388.

However, to the extent that the Senior Member formed the view that it was not permissible for her to go behind the conclusions reached by the investigator in the investigation report insofar as they concerned matters of opinion, I do not consider that this misapprehension led to any legal error on the part of the Senior Member, save for arguably in respect of the RSPCA interview issue. Ultimately, whether any differences between Mr Akers and the investigator on matters of opinion and/or disputed fact meant that the investigation report or any part of it was inaccurate, incomplete, misleading or out of date was a matter for the Senior Member to determine. She thoroughly reviewed the investigation report and Mr Akers’ proposed amendments. There was nothing in the materials relied upon by Mr Akers which suggested that the investigator was biased or otherwise unqualified to conduct the investigation, or that the facts underlying the conclusions of the investigator have been ’thoroughly discredited’. Section 148 of the VCAT Act is not a vehicle for the review of the merits of the Senior Member’s decision.

Accordingly, it was open to the Senior Member to refuse to make the changes and/or annotations proposed by Mr Akers, save in respect of two matters, which are discussed further below.

Further, there is no basis for Mr Akers to contend that the Senior Member denied him procedural fairness. To the contrary, the Senior Member’s conduct of the hearing was impeccable. The Senior Member provided both parties, but particularly Mr Akers, with an opportunity to present their case and make submissions both before and after the hearing. She expressly stated that a further hearing would be held if one or both parties required a further hearing, but Mr Akers failed to take advantage of that opportunity. She was careful to ensure that she had all of the relevant documents before her, and undertook a detailed and careful analysis of each of Mr Akers’ proposed changes and annotations. While I will address the specific issues raised by Mr Akers regarding the conduct of the hearing and the proceeding generally later in these reasons, my overall view is that to the extent that the amended notice of appeal raises a question of whether the Senior Member afforded Mr Akers procedural fairness, the application for leave to appeal should be dismissed, on the grounds Mr Akers’ contentions in that regard have no real prospects of success.

However, as previously indicated, two issues arise from the evidence and the reasons. First, in my view, the Senior Member misconstrued the term ‘out of date’ in s 39 of the FOI Act. This caused the Senior Member to fall into error insofar as she refused to accede to Mr Akers’ application to update the investigation report to reflect the withdrawal of the majority of the April 2016 charges. Secondly, at least arguably, the Senior Member’s refusal of Mr Akers’ application to amend a statement in the investigation report to the effect that Mr Akers had not been interviewed by officials of the RSPCA ‘for offences’ on the basis that it reflected what was known to the investigator at the time was based upon a misconstruction of s 39 of the FOI Act, in that the Senior Member construed the term ‘inaccurate’ so as to mean ‘not accurate as known to the author of the document at the time the document was made’. As a consequence, by in effect failing to have regard to the RSPCA transcript, the Senior Member reached a conclusion that was arguably not open to her to reach, based upon the evidence before her.

In both instances, the Senior Member appeared to proceed upon a mistaken assumption that events which occurred, or information which came to light after the document concerned was prepared or completed could not enliven the operation of s 39 of the FOI Act.

Having regard to the purpose of s 39, that assumption cannot be correct, at least insofar as factual matters are concerned. The fate of the April 2016 charges, and the RSPCA interview issue are factual matters, capable of being objectively determined. There is nothing in the language of the provision, or the discussion of the scope of s 39 of the authorities, which limits the scope of any enquiry by either the original decision maker under the FOI Act, or VCAT upon review, to information which was known by or available to the author of the document concerned at the time the document in question was created.

The provisions of the FOI Act should be construed expansively, given the purpose for which it was enacted. The enactment of the FOI Act was a groundbreaking legislative reform at the time. The then-Premier said as such in the Second Reading Speech, stating:

Freedom of Information is a major part of my Government’s platform and a principle to which it is totally committed.[32]

[32]Victoria, Parliamentary Debates, Legislative Assembly, 14 October 1982 (John Cain).

The Premier also said that the FOI Act was enacted to bring legislative force to a code under which the State Government had been operating for some months, which was said to embody four key principles, including the following principle:

Every person shall have the right to request the correction of information on his or her personal files where that information is inaccurate or incomplete.[33]

[33]Ibid.

In Re Buhagiar and Victoria Police,[34] Jones J referred with approval to the following statement of Judge Rendit in G v Health Commission of Victoria:[35]

What s 39 is about is ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm the applicant or misrepresent personal facts about the applicant. It is concerned that the third persons reading the personal information do not get the wrong impression. It is to safeguard against this occurring, that rights are given to an applicant under s 39 to correct his personal record.[36]

[34](1989) 2 VAR 530.

[35]Unreported, County Court, 13 September 1984.

[36]Ibid, 10.

It is also clear from the authorities that, as stated by the New South Wales Court of Appeal in Crewdson,[37] s 39:

…was concerned with the accuracy of official records and not with the merits on legality of official action recorded in them.[38]

[37][2002] NSWCA 345.

[38]Ibid [24].

However, the limited purpose of s 39 does not mean that a decision-maker should unnecessarily constrain themselves from doing what is required to fulfil the actual purpose of s 39. In particular, I do not consider that the following statement in the reasons is consistent with the text and purpose of s 39, or the authorities:

… it is not appropriate to undertake the assessment of the Report under section 39 by having regard to events or other information which post-date the writing of the Report. It is a point in time document written in December 2016 and so should not be assessed with the benefit of hindsight, other developments or more information, such as subsequent medical reports.

That the Senior Member’s inquiry was not confined to matters known to the investigator at the time the investigation report was prepared is apparent from the inclusion of the term ‘out of date’ in s 39 of the FOI Act. The reference to information being ‘out of date’ impliedly contemplates some degree of hindsight review. That much is also evident from the following passage from the decision in Crewdson:[39]

Dr Jagger had formed the opinion in the statement and her opinion was correctly recorded. The report and the statement were not misleading because their provisional nature was indicated by the heading "Interim Advice" and by the contents of the report.
The statement was not out-of-date either. It was a correct statement of the doctor’s opinion on the date it was made (Re Resch and Dept of Veterans’ Affairs (1986) 9 ALD 380,389 (Hall DP); Re Cox and Dept of Defence (1990) 20 ALD 499, 500, 501 (Todd DP). It did not purport to be a final report, and it did not state that the appellant's condition was incurable. The fact that information in Departmental records relates to a specific date does not mean that it becomes out-of-date.
The position would be different if the records relating to a public servant contained a statement that he or she had failed to pass a certain examination. Such a statement would become out-of-date if and when the public servant passed that examination but the appropriate amendment would simply add a reference to that fact.[40]
(emphasis added).

[39][2002] NSWCA 345.

[40]Ibid [20]-[22].

Accordingly, the Court in Crewdson[41] expressly contemplated a course of action which, in the reasons, the Senior Member said was not appropriate for her to take, that is, to review and possibly amend or annotate the investigation report with the benefit of hindsight and/or evidence of subsequent developments.
[41]Ibid.

In the current case, the information in the investigation report about the April 2016 charges became ‘out of date’ as soon as the April 2016 charges were revised, that is, in 2017, some years prior to the decision.

The charges upon which Mr Akers was ultimately convicted were considerably less in number and, taken as a whole, substantially reduced in severity than the April 2016 charges. Inaccurate or out of date information about a person’s criminal history in a public record is inherently capable of being prejudicial to that person. This information is factual in nature, and would be readily capable of being brought up to date by making a notation on the investigation report.

Further, the question of the scope and operation of s 39 of the FOI Act is a matter of general public importance. If the approach taken by the Senior Member in failing to take into account evidence concerning events which post-date the creation of the relevant document when determining whether the information in that document is incomplete, inaccurate, misleading or out of date gains widespread acceptance by VCAT and other relevant decision-makers, the ability of members of the public to request changes to personal information contained in public records could be substantially constrained. People who have been charged with criminal offences which were ultimately withdrawn, or were not proven, would not have the ability to correct the public record, causing potential embarrassment or other detriment.

One can think of other examples of cases where a refusal of a government agency to amend or annotate information in their records based upon later developments or information which came to light after the relevant record was created could be productive of unfairness. By way of example, records held regarding reports of child protection concerns against an individual could be highly prejudicial if the file was not subsequently updated if those concerns were later held to be unfounded. A person may wish to update public records after a change in gender identity or marital status. A current or past public sector employee may have a particular interest in ensuring that information about their qualifications or disciplinary history is up to date, and businesses contracting with the government may have a similar interest in ensuring that information about, say, their solvency status and business practices is up to date.

The information in the investigation report regarding the April 2016 charges is strictly factual. Including information in the investigation report regarding the withdrawal of approximately three quarters of the April 2016 charges would be a relatively simple matter, and would not undermine the conclusions reached by the investigator in respect of the allegations which were the subject of the investigation report.

Accordingly, subject to Mr Akers filing and serving an amended notice of appeal which properly articulates a question of law in relation to this issue, I would grant leave to appeal, and allow the appeal with respect to the Senior Member’s decision to refuse an amendment or annotation to the investigation report to reflect the true position with respect to the fate of the April 2016 charges.

The position regarding the RSPCA interview issue is not quite as clear cut. As observed by the Senior Member in the reasons, there was a ‘reasonably lengthy discussion between Mr Akers and the RSPCA official, with occasional participation from the police officer present’. Further, the Senior Member observed that ‘whether what took place amounted to a ‘full’ interview is debatable however there is no question no caution was given and there was no direct reference to criminal charges’.

The Senior Member’s observations above are correct, although, on its face, the RSPCA transcript evidences an interaction which looks, sounds, and feels like an interview within the ordinary meaning of the word. However, the arguable error in the Senior Member’s approach is, once again, that her conclusion that the changes to the investigation report requested by Mr Akers were not required for the purposes of the completeness or accuracy of the investigation report was founded upon a view that material which came to light after the preparation of the investigation report was not relevant to her inquiry in that regard.

The investigation report stated as follows with respect to the RSPCA interview issue:

Complainants version (4)
Mr AKERS states that where he was questioned by the RSPCA at Sunbury on 4 April 2016 he was not getting proper air and had not been because he did not have his C Pact [sic] machine for two days and was not right to be interviewed (folio 12, 14, 16, 31)
Police version (4)
T states that at the Sunbury Police Station RSPCA Officers advised him the Police Station, L discussed this with Mr AKERS who informed him that he had not been able to use his C Pact [sic] machine for a number of days, considers this point arising with the facts that Mr AKERS had been assessed by the FMO earlier that day and the RSPCA only wanted to serve notices. Based on this he requested Mr AKERS attend an interview room and have the serving of the RSPCA notices recorded. Mr AKERS agreed. The notices were served and the serving recorded. Mr AKERS was not interviewed for offenses (folio B, B6, B9),
·The weight of available evidence does not support the account of events as described by the complaint. On the basis the allegation is not substantiated.

Subject to receiving further submissions on the issue of whether the interaction between Mr Akers and the RSPCA officials could be described as ‘an interview for offences’, there is at least room for debate about whether such an interview took place. It is clear from the transcript of the hearing and the reasons that the Senior Member was alert to this issue, given that she had reviewed the RSPCA transcript, and asked Victoria Police to make further submissions about the RSPCA interview issue.

However, the Senior Member accepted that it was more likely than not that the investigator did not have the RSPCA transcript available to him at the time the investigation report was prepared, and if he did not ‘the changes sought would post-date the time of the preparation of the report’. Accordingly, she formed the view that this part of the investigation report was not inaccurate, incomplete or misleading, despite earlier stating that whether the RSPCA transcript evidenced a ‘full’ interview was ‘debatable’.

I repeat my observations set out in paragraphs 102 to 104 of these reasons to the effect that there is no prohibition in s 39 of the FOI Act upon having regard to documents and events which post-dated the creation of the document recording the information sought to be corrected in order to assess whether the information is out of date. I consider that these observations also extend to whether the information concerned is inaccurate, incomplete or misleading. By acting under the misapprehension that she did, the Senior Member in effect read words into s 39 that are not there, being ‘inaccurate as at the time the author recorded the information concerned’, thus misconstruing s 39 of the FOI Act, and thus applying the wrong test.

However, the RSPCA interview issue is somewhat more complex than the issue concerning the April 2016 charges.

First, the question of whether the interaction between the RSPCA officials and Mr Akers was an ‘interview for offences’ is, as the Senior Member said in the reasons, debatable. While the RSPCA transcript records, at least in part, the RSPCA officials asking questions about the horses, and Mr Akers providing answers, no caution was administered, and there was also discussion of a more general nature.

Secondly, unlike the April 2016 charges, the RSPCA interview issue goes directly to the merits of one of the complaints made to IBAC by Mr Akers, being that the police officers permitted Mr Akers to be interviewed by the RSPCA officials when he was not in a fit state to be interviewed. Accordingly, the RSPCA interview issue raises the question of whether the investigator’s opinion to the effect that this allegation was unsubstantiated should be corrected and/or qualified, which in turn raises a further issue of whether Mr Akers was in fact fit to be interviewed. Undertaking further analysis of those issues raised could indeed cause the inquiry to stray beyond the purpose of s 39 of the FOI Act.

For the reasons set out above, accordingly, I will grant leave to appeal on a properly formulated question of law, but will seek further submissions from the parties on the question of whether the appeal should be allowed, and if so, what flows as a consequence.

For completeness, the remaining complaints made by Mr Akers regarding the decision and/or the procedure adopted by the Senior Member are without merit.

I repeat my earlier observations that the Senior Member’s conduct of the proceeding was impeccable, such that any application for leave to appeal based upon an alleged denial of procedural fairness should be dismissed, on the basis that any appeal has no real prospects of success. Further, the other issues raised by Mr Akers in his submissions are no more than an impermissible attack on the merits of the Senior Members’s decision. However, I will address in turn, briefly, the following specific issues raised by Mr Akers in his submissions:

(a) the alleged undue reliance by the Senior Member upon the April 2016 charges;

(b) the reliance by the Senior Member upon the police statements;

(c) the reliance by the Senior Member upon the evidence of Inspector Matters;

(d) the issue regarding the Northern Health letter;

(e) the alleged failure of the Senior Member to have regard to the medical reports and other medical material in evidence; and

(f) the Senior Member’s alleged failure to have regard to the summary table.

In relation to the Senior Member’s reference to the April 2016 charges, while I accept that the April 2016 charges were not directly relevant to the complaints made by Mr Akers to IBAC, Mr Akers himself sought to make the April 2016 charges relevant by requesting changes to the investigation report to reflect the subsequent withdrawal of many of the April 2016 charges. It was clear from the transcript of the hearing that the Senior Member wished to clarify what charges had been laid against Mr Akers, because she (correctly) recognised that s 39 of the FOI Act would be enlivened if the description of the charges in the investigation report was inaccurate. No express allegation was made by Mr Akers that the Senior Member was biased against him by reason of the number and nature of the 2016 charges, and, in any event, no evidence of any bias or prejudgment is discernible from either the transcript of the hearing or the reasons.

In relation to the Senior Member’s reliance upon the police statements, Mr Akers’ complaint that the police statements should not have been considered given that the police officers were not made available for cross-examination by Mr Akers misconceived the purpose for which they were considered by the Senior Member. It is clear from the transcript of the hearing and the reasons that the purpose of the Senior Member in receiving and reviewing the police statements was solely to ensure that the summary of the material in the police statements in the investigation report was accurate, not to investigate the underlying facts which were the subject matter of the police statements, and indeed the investigation itself. That purpose was consistent with the scope and purpose of s 39 of the FOI Act.

In any event, my review of the transcript of the hearing shows that no application for the attendance and cross-examination of the police officers was made by Mr Akers during the course of the hearing before the Senior Member. While Mr Akers’ written submissions filed after the hearing commented upon the contents of the police statements, he did not submit that the Senior Member should not have regard to the police statements because the police officers had not attended the hearing for cross-examination.

In relation to the Senior Member's acceptance of the evidence of Inspector Matters, Inspector Matters could and did provide relevant evidence, as explained by the Senior Member in the passage of the reasons extracted at paragraphs 50 and 51 of these reasons, and, in any event, s 98(1) of the VCAT Act provides that VCAT is not bound by the rules of evidence, and VCAT may inform itself as it sees fit. Having reviewed the transcript of the hearing, while the Senior Member did to some extent limit Mr Akers’ cross-examination of Inspector Matters, she did not do so unfairly.

In relation to the Northern Health letter, the complaint to the effect that the Senior Member misplaced and therefore failed to have regard to the Northern Health letter raises an issue which is a red herring. First, it is not clear from the evidence whether the Senior Member had the Northern Health letter in the materials before her.[42]
[42]In a footnote in the reasons the Senior Member refers to Mr Akers having provided to her all of the documents she requested at the conclusion of the hearing, which included the Northern Health letter.

However, I agreed with the submissions of counsel for Victoria Police that it is clear from the reasons that the Senior Member was aware of the instructions provided by Northern Health to the police officers to the effect that Mr Akers should have access to his medication and his CPAP machine. That much is evident from the following paragraphs of the reasons:

Mr Akers included Proposed Changes in a number of places in the Report related to his complaint that the police officers had been given a letter written by a treater at the Northern Hospital that he would be ‘alright’ if he had his CPAP machine (items 15, 51, 53 and 62). He also referred to a Magistrate telling police to take him home to collect the machine (items 6 and 15).
I was unable to locate a copy of the letter Mr Akers said was given to the police officers with him at the Northern hospital in the early hours of 4 April 2016. In any event, there seems to be no dispute that Mr Akers’ medical conditions required him to make use of a CPAP machine and that his bail conditions allowed for him to return to his home to collect the machine. That is what occurred in the evening of 4 April 2016 when he was escorted home to collect the machine and his medications.
I did not understand there to be any dispute that the Magistrate made provision for Mr Akers to access his home to collect the CPAP machine (and perhaps his medication).[43]

[43]Reasons [118]-[120].

Mr Akers did not contend that there was any part of the Northern Health letter which was material to the Senior Member’s consideration of the investigation report other than the instruction given to the police officers to ensure Mr Akers had access to his CPAP machine and medication. This issue goes nowhere.

In relation to the Senior Member’s consideration of the medical evidence, Mr Akers’ submission to the effect that the Senior Member failed to have regard to the medical evidence relied upon him is completely without foundation. The passage of the reasons reproduced at paragraph 55 of these reasons makes it clear that the Senior Member had given the medical evidence before her close consideration, and she made assumptions regarding Mr Akers’ medical conditions in the relevant period which were largely consistent with Mr Akers’ contentions regarding his health status at the relevant time. It was not necessary for the Senior Member to enumerate and refer to the contents of each of the medical reports before her in the reasons.

In relation to the summary table, it was said that the Senior Member should have relied upon the summary table rather than the highlighted annotations on the investigation report. Again, even if the Senior Member’s failure to have regard to and directly refer to the summary table could possibly amount to an error of law, the contents of the summary table were not materially different to the contents of the document she did directly address, being the investigation report annotated with Mr Akers’ comments and proposed amendments. Indeed, given that the Senior Member was exercising VCAT’s review jurisdiction, it was proper and appropriate for the Senior Member to consider the document which was the subject matter of the application rather than a document created at a later time.

Accordingly, save for the issues I have identified regarding the recording of the April 2016 charges in the investigation report and the RSPCA interview issue, Mr Akers’ complaints regarding the approach taken by the Senior Member’s decision are without merit, and have no real prospects of success.

Disposition

I have concluded that the Senior Member was in error when forming the view that s 39 of the FOI Act did not require or even permit her to take into account documents and events which post-dated the preparation of the investigation report when evaluating whether certain statements in the investigation report were incomplete, inaccurate, misleading or out of date. However, this issue was not identified by Mr Akers in his amended notice of appeal, let alone articulated in any detail.

Accordingly, insofar as Mr Akers’ application concerns his proposed changes to the investigation report concerning the April 2016 charges, I will grant leave to amend the amended notice of appeal to include the following question of law and grounds of appeal:

Whether the Senior Member erred in concluding that it was impermissible and/or inappropriate to have regard to documents and/or other evidence which post-dated the investigation report when determining whether the investigation report, insofar as it referred to the April 2016 charges, was out of date?

I will grant leave to appeal on this question of law, and allow the appeal. I will seek further input from the parties as to the best way to proceed, but my preliminary view is that a notation should be added to the investigation report to reflect the true position regarding the fate of the April 2016 charges. I will invite Victoria Police to prepare a draft notation given their access to the relevant records.

As indicated earlier in these reasons, the position with respect to the RSPCA interview issue is a little more complex. I consider that the best way to proceed is to grant Mr Akers leave to amend the amended notice of appeal to include the following question of law:

Whether the Senior Member erred in concluding that it was impermissible and/or inappropriate to have regard to documents not before the investigator when determining whether the statement of the investigator that ‘Mr Akers was not interviewed for offences’ was inaccurate or misleading?

I will grant leave to appeal on this question of law, and will provide the parties with an opportunity to make further submissions as to whether the appeal should be allowed, and if so, what flows as a consequence. For example, Victoria Police may wish to make submissions as to whether, even if the statements in the investigation report regarding the RSPCA interview issue are inaccurate, incomplete, or misleading, Victoria Police was justified in refusing Mr Akers’ request to amend the investigation report in accordance with s 55 of the FOI Act. Further, I would not preclude Victoria Police from contending that the statements made by the investigator regarding the RSPCA interview issue are not inaccurate or misleading, such that any error of the Senior Member was not material.

Accordingly, subject to hearing further submissions from the parties as to the future conduct of this proceeding, I propose to make the orders largely in the form of the following:

(a) the amended notice of appeal be struck out;

(b) the applicant have leave to appeal the Orders of Senior Member Dea made in VCAT proceeding Z327/2020 on 31 March 2023 in respect of the following questions of law:

1. Whether the Senior Member erred in concluding that it was impermissible and/or inappropriate to have regard to documents and/or other evidence which post-dated the investigation report when determining whether the investigation report, insofar as it referred to the April 2016 charges, was out of date? (‘question 1’)

2. Whether the Senior Member erred in concluding that it was impermissible and/or inappropriate to have regard to documents not before the investigator when determining whether the statement of the investigator that ‘Mr Akers was not interviewed for offences’ was inaccurate or misleading? (‘question 2’)

(c) the appeal with respect to question 1 is allowed;

(d) by 4:00pm on 24 October 2024 the respondent file and serve a draft notation to be added to the investigation report to give effect to these reasons;

(e) by 4:00pm on 7 November 2024 the applicant file and serve any proposed amendments to the draft notation;

(f) by 4:00pm on 7 November 2024 the respondent file and serve its submissions in respect of question 2;

(g) by 4:00pm on 5 December 2024 the applicant file and serve any submissions in reply;

(h) the further hearing of the appeal be listed on 17 December 2024; and

(i) the parties’ costs be reserved.

[2024] VSC 621

10 October 2024