Chief Commissioner of Police v McIntosh
[2010] VSC 439
•29 September 2010
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 2437 of 2010
| CHIEF COMMISSIONER OF POLICE | Appellant |
| v | |
| ANDREW MCINTOSH MP | Respondent |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August 2010 | |
DATE OF JUDGMENT: | 29 September 2010 | |
CASE MAY BE CITED AS: | Chief Commissioner of Police v McIntosh | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 439 | |
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ADMINISTRATIVE LAW – Freedom of information – Appeal from orders of Victorian Civil and Administrative Tribunal setting aside the appellant’s refusal to process the defendant’s FOI request – whether request ‘would substantially and unreasonably divert the resources of the agency from its other operations’ – whether ‘other operations’ excludes the operations of a dedicated FOI unit in processing other requests – remittal to Tribunal – Freedom of Information Act 1982 (Vic) s 25A(1)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P.J. Hanks QC with Ms E.A. Bennett | Victorian Government Solicitor |
| For the Respondent | Mr D.J. O’Callaghan SC with Mr J.D. Catlin | Hugh D. McArdle |
HER HONOUR:
Issues and proceedings
On 21 September 2009, Mr McIntosh made an application under the Freedom of Information Act 1982 (Vic) (‘the Act’) to Victoria Police for access to staff rosters produced in each police station in Victoria for the pay periods ending in July 2009. That request was subsequently modified to refer to only the last pay period in July 2009 (‘the Request’).
On 28 January 2010, the Chief Commissioner of Police made a decision to refuse the Request in reliance on s 25A(1)(a) of the Act, which permits an agency to refuse access to documents if satisfied that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.[1]
[1] Section 25A(1) of the Act provides:
Mr McIntosh sought review by the Victorian Civil and Administrative Tribunal of the Commissioner’s decision to refuse the request. Before the Tribunal, Victoria Police produced evidence in support of its contention that to process the Request would require the diversion of substantial resources within its ‘Freedom of Information unit’ (the ‘FOI unit’), Regional Command and in each police station. It was submitted that processing the Request would therefore substantially and unreasonably divert the resources of Victoria Police from its other operations.
On 8 April 2010, the Tribunal ordered that the Commissioner’s decision be set aside and Victoria Police was ordered to process the Request in accordance with the Act.
The Tribunal member provided detailed and cogent reasons for his decision. He carefully analysed evidence from Victoria Police about the amount of work involved in processing the Request and countervailing evidence given on behalf of Mr McIntosh by Mr Coulson. Mr Coulson is currently employed by the Leader of the Opposition as a Parliamentary adviser with particular responsibility for the management of freedom of information applications and was previously a records manager and involved in or in charge of freedom of information requests in a number of different State government departments.
The evidence of Victoria Police was to the effect that, based on its previous experience and a sample exercise which had been undertaken, it would take at least 640 hours to process the approximately 450 pages of rosters that would be relevant to the Request, comprising 213 hours of the FOI unit’s time, 152 hours of staff officers’ time (calculated as 4 days x 7.6 hours per day x 5 regions) plus 275 hours of time for the ‘officer in charge’ in each of the police stations in Victoria.
Victoria Police explained the logistical difficulties by referring to the fact that the information had to be obtained from approximately 550 police ‘units’ across Victoria (a single police station may house a number of different squads or units, each with their own roster). The rosters for different units are on different sized paper. They contain handwriting which relates to changes in the rosters that are made after the roster is prepared. They are therefore not easy to manage from a copying and redacting point of view.
Mr Coulson’s evidence was to the effect that the number of steps proposed to be undertaken by Victoria Police to process the Request was circuitous, involving the double and triple handling of documents. He proposed an alternative way of processing the Request that required fewer steps. He described the essential difference between the police model and his model as being that in the police model, the activities were focussed inside the FOI unit, whilst in his model, the activities were distributed amongst a few hundred sub‑officers or officers, with the FOI unit acting in a management role.
Mr Coulson pointed out that police estimates did not appear to allow for the efficiencies that could reasonably be expected because Victoria Police had conducted the same exercise a number of times before. He also pointed out that if there were approximately 460 pages of documents, the estimate given by Victoria Police meant that it would take approximately one hour per page to process the Request, which was a clear demonstration of how excessive the estimates given by Victoria Police were.
By contrast, Mr Coulson estimated that the time for processing the Request would be approximately 55 hours (55 hours and 10 minutes, to be precise). This comprised time spent by an experienced FOI officer of 5 hours and 30 minutes, time spent by a less experienced FOI officer of 24 hours and 50 minutes and time spent by the sergeant or senior sergeant at each police station of seven minutes per station.
There were, therefore, very substantial differences between the time and resources that Victoria Police said would be needed to process the Request and the time and resources that Mr McIntosh’s witness, Mr Coulson, said would be needed to process the Request.
The Tribunal did not accept the evidence of Victoria Police about the amount of time that it would take to process the Request. For example, the Tribunal found that the time estimated for police officers at police stations to search out rosters should “by and large be discounted from the time that the respondent has stated for the use of its resources.”[2] The Tribunal then went on to say as follows:
The respondent in calculating the time taken to process the applicant’s request, took into account the time taken by the freedom of information officers employed (including the administrative staff) in that department. It correctly stated that the relevant part of the Freedom of Information Act refers to “its (the police) other operations”. It also correctly stated that a freedom of information department is [sic] a key function in answering requests. That is the purpose for it being set up. It has no other operations, although at times its officers are seconded for other duties. This is unlike where a police station has a request by a staff officer for documents. In that circumstance, clearly the officer would, if not searching for documents, be performing other functions. It is a diversion of those functions that the section is referring to. It cannot be that a person from the respondent’s FOI department when working on an FOI request is being diverted from other functions.
Therefore, I find that in relation to the applicant’s request, the time taken by the freedom of information section of the respondent should not be calculated in deciding whether s 25A(1)(a) applies. To interpret the section otherwise would be to deny the word “other” plays any part in interpreting the section. That is, the word “other” would be given no meaning.[3]
[2]McIntosh v Victoria Police [2010] VCAT 413 [29].
[3]Ibid [30]-[31].
The Tribunal concluded that while it was not possible to calculate the exact amount of time that it would take for Victoria Police to process the Request, it was clear that the time estimate given by Victoria Police was “greatly exaggerated” and took into account matters that should not have been taken into account. This included the time taken by the FOI unit to process the Request.
Because of the Tribunal’s construction of s 25A(1)(a), it deducted from the amount of time that it found it would take to process the Request (55 hours and 10 minutes) the amount of time that would be contributed by the FOI unit. Because the Tribunal accepted Mr Coulson’s evidence, the amount of time deducted was 30 hours.
The question that is now before the Court on appeal is whether the time that the FOI unit would take to process the Request ought to be taken into account in deciding whether processing the Request would substantially and unreasonably divert the resources of Victoria Police from its other operations.
Grounds of Appeal
The Commissioner appeals the Tribunal’s decision on the following grounds:
(1)In deciding that Victoria Police could not refuse, pursuant to s 25A(1)(a) of the Act, to grant the request, the Tribunal erred by finding that the words “other operations” in s 25A(1)(a) of the Act do not include the operations of the FOI unit in processing other requests for access to documents under the Act;
(2)In deciding that Victoria Police could not refuse, pursuant to s 25A(1)(a) of the Act, to grant the request, the Tribunal erred by excluding from its consideration the diversion of resources in the FOI unit that would be required to process the request.
What are ’other operations’ for the purposes of s 25A(1)(a)?
The Tribunal held that to give the word ’other’ in ’other operations’ any meaning in s 25A(1)(a), the operations must be operations that are different from FOI processing operations.
Consistently with this, Mr McIntosh submitted that when an agency has its own FOI unit, the task of which is to do nothing but process FOI requests directed to that agency, there are no ’other operations’ from which the agency is being diverted when processing an applicant’s request. The answering of FOI requests is what that part of the agency does. The diversion of resources from the agency’s ’other operations’ which the section is aimed at preventing is diversion from the agency’s ’core operations’ - in this case, ’policing’ - rather than answering FOI requests.
The Commissioner submitted that the dichotomy inherent in this argument, namely that there is a class of operations comprising processing requests received by an agency under the Act and another class of operations comprising all the other operations of the agency, is a false one. The dichotomy that is contemplated by s 25A(1)(a) is between the operation of processing the particular request in question and the agency’s other operations, which will include processing other FOI requests. The Commissioner submits that this is the natural reading of the language in s 25A(1), which contrasts ’processing the request’ with the agency’s ’other operations’.
The Commissioner submitted that this construction is supported by s 25A(2), which provides that in deciding whether to refuse to grant access to documents to which the request relates under sub-s (1), regard is to be had to the resources that would have been used –
(a)in identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or
(b)in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used –
(i)in examining the documents; or
(ii)in consulting with any person or body in relation to the request; or
(c)in making a copy, or an edited copy, of the documents; or
(d)in notifying any interim or final decision on the request.
The Commissioner submitted that the tasks described in (a) to (d) are precisely the tasks that are performed by persons who work in the FOI unit. Sub-section (2) imposes a requirement to take into account resources deployed in the performance of those tasks for the purposes of processing of the Request. There is no warrant to read sub-s (2) as excluding the performance of the relevant tasks by persons who work in a FOI unit – that would be to read words into sub-s (2) that are simply not there.
The Commissioner submitted further that such a construction was supported by the purpose for which s 25A was introduced, which was to permit voluminous requests to be refused on the basis that they caused “severe disruption to agencies”.[4] The section is not concerned with disruption to only certain of an agency’s operations, but to the entirety of its operations. This includes the processing of other FOI requests.
[4]Section 25A of the Act was inserted by the Freedom of Information (Amendment) Act 1993 (Vic). In the Second Reading Speech for the Freedom of Information (Amendment) Bill 1993 (Victoria, Parliamentary Debates, Legislative Assembly, 7 May 1993, 1738), the Attorney‑General made specific reference to voluminous requests having caused serious problems for the administration of freedom of information since its inception:
Evidence given to the Legal and Constitutional Committee in its 38th report to Parliament suggested that although the number of voluminous requests was relatively small it nevertheless caused severe disruption to agencies. At present there is no provision in the Act to refuse to process a request on the grounds that it would unreasonably and substantially divert the agency’s resources.
The Bill permits agencies to refuse to process a request where to do so would unreasonably and substantially divert the resources of an agency.
That provision is similar to the Commonwealth Freedom of Information Act. Applicants will be given the opportunity to relodge their request in a form that will remove the ground for refusal. There is also a right to complain to the Ombudsman where the request is refused on those grounds.
Most agencies could produce numerous examples of applicants who abuse the spirit of the Act by making requests the extent and scope of which unreasonably divert their resources. For example, one applicant lodged a request relating to a mining group which involved over 2000 documents in some 250 files.
In my view, the questions of law raised in this appeal can be resolved by reference to the words in s 25A(1) and (2) of the Act. The meaning of the words ’other operations’ in sub-s (1) is to be ascertained by reference to the words at the beginning of the sub-section, which concern ‘a request’, and permit the agency (or Minister) to refuse to grant access to documents in accordance with ’the request’ without having caused the processing of ’the request’ to have been undertaken, if the agency (or Minister) is satisfied of the matters that follow. Those words refer to a particular request. Dealing with or processing ’the request’ is one of the operations of the agency. Its ’other operations’ are all of the other things that it does, including dealing with and processing other FOI requests. Such a construction is supported by sub-s (2), which in my view makes plain that the performance of the relevant tasks by any of the resources of the agency, including by FOI officers or specialists, are to be taken into account.
The obligation to comply with the Act is an important obligation of an agency. If, by reason of the voluminous nature of a particular request, an agency’s ability to process other FOI requests is impaired, there is no reason why that should be ignored in applying s 25A(1).
Accordingly, the Tribunal ought to have taken into account the time that would have to be spent by the FOI unit to process the Request when deciding whether processing the Request would substantially and unreasonably divert the resources of Victoria Police from its other operations.
The Tribunal erred in law in applying s 25A(1) of the Act. The appeal must be allowed.
Should the proceeding be remitted to the Tribunal?
Having found that the Tribunal misconstrued s 25A(1)(a) and wrongly omitted to take into consideration the time that would be spent by the FOI unit to process the Request, the question arises as to what the consequences of that error should be. The Court may decline to set aside the Tribunal’s orders, even if the Tribunal has erred in law, where the error does not vitiate the Tribunal’s decision.[5]
[5]Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207, 256.
Mr McIntosh submits that the Court should affirm the decision of the Tribunal, because it is unthinkable that any properly instructed Tribunal on remittal could reasonably conclude that the requirement to devote 55 hours to processing the Request would substantially and unreasonably divert Victoria Police from its operations, however the term ‘operations’ is defined. The error is not a vitiating error.
The Commissioner submits that the reduction in the estimated time required to process the Request from 55 hours to 25 hours was not trivial. The Tribunal’s error was one of consequence and was brought about because of the Tribunal’s erroneous interpretation of s 25A(1)(a). Because the Tribunal fell into legal error in excluding from consideration some 55 per cent of the time required to process the Request, the matter should be remitted for consideration of all of the facts, including the facts relevant to the question of the diversion of resources from the FOI unit.
The Commissioner also asks that the proceeding be remitted to a differently constituted tribunal for determination according to law. He submits that while the Senior Member undoubtedly approached the task conscientiously, he has committed himself to a particular point of view which might be perceived as showing “a distinct lack of sympathy” for the case presented by the Chief Commissioner.
The error of law involved in excluding the time that would be spent processing the Request by the FOI unit would not be a vitiating error if the decision of the Tribunal would have been the same regardless of the error.[6] The decision of the Tribunal should be affirmed if there was no possibility of concluding that the processing of the Request – taking into account the time that would be spent by the FOI unit – would substantially and unreasonably divert Victoria Police from its other operations. Conversely, the decision of the Tribunal should be set aside if the conclusion could be entertained that a commitment of 55 hours to process the Request would substantially and unreasonably divert Victoria Police from its other operations.
[6]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 384 (Toohey and Gaudron JJ).
The requirements of s 25A(1) are not easily satisfied. In Secretary, Department of Treasury and Finance v Kelly,[7] Ormiston JA held that s 25A(1) should only be applied to a “clear case” of substantial and unreasonable diversion.[8] The Court was referred to a decision of the New South Wales Administrative Decisions Tribunal, Chapman v Commissioner of Police,[9] which conveniently summarised some of the Tribunal decisions in which s 25A(1) had been successfully invoked. The three matters referred to involved thousands of pages of documents and a commitment of the available officers’ time in the order of “years”, “15 – 16 months” and “between 15 and 30 weeks”.[10]
[7](2001) 4 VR 595.
[8]Ibid [6].
[9][2004] NSWADT 35.
[10]Re Coulson and Office of Public Prosecutions [2001] VCAT 10; Re Chapman and Parks Victoria (unreported, VCAT, Ball SM, 6 December 1999); Re A and Dept of Human Services (unreported, VCAT, Davis SM, 4 November 1998).
Victoria Police has processed two requests from Mr McIntosh for police rosters in the recent past. In relation to one of those requests, in McIntosh v Victoria Police,[11] Judge Harbison concluded that Victoria Police could not avail itself of s 25A(1)(a), notwithstanding that the request was for police rosters for two pay periods rather than one.
[11][2008] VCAT 919.
On its face, it seems unlikely that a commitment of 55 hours to process the Request would involve a diversion of Victoria Police resources sufficient to satisfy the requirements of s 25A(1)(a). However, without the benefit of the evidence before the Tribunal, including as to the competing demands on the time of the persons who will necessarily be involved in processing the Request, it is nonetheless difficult to conclude that the decision would not have been different had it been based on an estimated commitment of resources of 55 hours rather than 25 hours.
Mr McIntosh seeks to lower the bar further. He submits that in assessing whether it would be open to any properly instructed Tribunal to conclude that Victoria Police will be substantially and unreasonably diverted from its operations, the 55 hours should be reduced because it is not appropriate to aggregate the time spent at each police station processing the Request and the 25 or so hours that the Tribunal found that it would take the officers in charge to search out and copy documents should be discounted.
Unfortunately, this submission simply highlights the difficulty for the Court referred to above. The Court has before it the decision of the Tribunal and little else. It must rely on the facts found by the Tribunal. It does not have sufficient understanding of the evidence to make the finding or findings of fact involved in setting the discount that is proposed. Moreover, the High Court has recently stressed the limited nature of the appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, and warned against the Court making the essentially factual, evaluative and ministerial judgments that the legislature has given to the Tribunal to make.[12]
[12]Osland v Secretary to the Department of Justice [2010] HCA 24 (23 June 2010) [20] (French CJ, Gummow and Bell JJ).
Accordingly, the proceeding must be remitted to the Tribunal to be decided again.
I do not propose to remit the proceeding to a differently constituted Tribunal. I see no good reason to do that. To the contrary, allowing the Tribunal member who first determined the proceeding to determine it again in accordance with these reasons will provide greater flexibility as to how that task is carried out. It may well be possible for the Tribunal to determine on the basis of the evidence that was before it on the first hearing whether s 25A(1) applies, although that will be a matter for the Tribunal.
I will make orders that:
1.The appeal is allowed.
2.The proceeding be remitted to the Tribunal for determination according to law.
3.The parties bear their own costs of and incidental to the appeal.
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(1)The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request –
(a)in the case of an agency – would substantially and unreasonably divert the resources of the agency from its other operations; or
(b)in the case of a Minister – would substantially and unreasonably interfere with the performance of the Minister’s functions.
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