Monash University v EBT

N THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 01976

MONASH UNIVERSITY	Appellant
v
'EBT' (A PSEUDONYM)	Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2021
DATE OF JUDGMENT:	3 November 2022
CASE MAY BE CITED AS:	Monash University v EBT
MEDIUM NEUTRAL CITATION:	[2022] VSC 651

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ADMINISTRATIVE LAW – Statutory interpretation – Freedom of information – Request for access to certain specified documents of a government agency – Documents stored electronically only – Whether ‘documents’ for FOI purposes – Whether ordinary FOI access provisions applicable – Whether particular provisions relating to use of computers applicable instead – Access charge not leviable in this case if ordinary access provisions applicable – Relatively high access charges leviable if computer provisions applicable – Held that ordinary access provisions applicable and accordingly that access charges not leviable in this case – Appeal from VCAT dismissed – Freedom of Information Act 1982 (Vic) – Freedom of Information (Access Charges) Regulations 2014 (Vic) – Interpretation of Legislation Act 1983 (Vic) – Public Records Act 1973 (Vic) – Health Records Act 2001 (Vic) – Electronic Transactions Act 2000 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	R Walsh	Mick Batskos of FOI Solutions
For the Respondent	Self-represented	–
For the Attorney-General for Victoria (amicus curiae)	L Brown (Crown Counsel) E Smith	Victorian Government Solicitor

HIS HONOUR:

Overview: freedom of information, documents stored electronically and access charges

The basic issue in this application for leave to appeal from the Victorian Civil and Administrative Tribunal (‘VCAT’) is: how are electronically stored documents to be dealt with for freedom of information (FOI) purposes in Victoria? The issue is mainly one of statutory interpretation. The legislative instruments of principal relevance are the Freedom of Information Act 1982 (Vic) (‘the FOI Act’) and the Freedom of Information (Access Charges) Regulations 2014 (Vic) (‘the Access Charges Regulations’). I will also need to refer to some extent to related legislation, namely the Interpretation of Legislation Act 1984 (Vic), the Public Records Act 1973 (Vic), the Health Records Act 2001 (Vic) and the Electronic Transactions Act 2000 (Vic).

The applicant for leave to appeal, Monash University, contends, in effect, that documents that are stored only in electronic form by or on behalf of a government agency are not ‘documents of an agency’ at all within the meaning of the Victorian freedom of information (FOI) legislation; that access to them is not available to other persons under the ordinary access provisions of the FOI Act; that an agency that stores them can only be required to give access to them in the particular circumstances referred to in s 19 of the FOI Act, being a section that refers to computers; and that, as a result, agencies (such as Monash) are generally able to charge much higher fees for giving access to ‘documents’ stored electronically than for giving access to documents kept in paper form or in other form. As will be seen, Monash’s contentions were effectively rejected by the principal FOI administrator in Victoria (the Office of the Victorian Information Commissioner). Then, in the VCAT proceeding presently in question, Monash’s contentions were, in the end, of no avail to it. For the reasons given below, I would reject Monash’s contentions. Accordingly, while leave to appeal will be granted, Monash’s proposed appeal from the relevant decision of VCAT will be dismissed.

The facts in brief summary and the general nature of the proposed appeal

The respondent, EBT,[1] a former staff member of Monash, made a request to Monash under the FOI Act for access to certain emails, notes, summaries and reports relating to a completed workplace investigation concerning him. Such emails, notes, summaries and reports had been stored by or on behalf of Monash on computer discs and in other electronic or digital storage. Monash proceeded on the basis that the ordinary access provisions of the FOI Act did not apply, but that s 19 did apply. It granted access to some of the ‘documents’ sought but claimed exemptions for others. Ironically, insofar as Monash granted access, it did so by emailing the released ‘documents’ to EBT’s email address. Monash purported to impose a relatively high access charge. EBT challenged the charge before the Victorian Information Commissioner, whose delegate disagreed with the approach taken by Monash and granted a certificate to EBT under s 50(1)(g) of the FOI Act to the effect that Monash’s decision as to the access charge raised a matter of sufficient importance for VCAT to consider it. EBT then duly applied to VCAT for a review of Monash’s decision to impose the access charge.
[1]EBT is a pseudonym. The respondent has been given that pseudonym in this proceeding to match the pseudonym given to him in the proceeding at VCAT out of which this proceeding arises. It will be desirable, for completeness, for me to make an order confirming the requirement for the respondent to be referred to as EBT in the title of any documents created for the purpose of this proceeding. On the other hand, the actual name of the respondent is set out in various copy documents that have been filed in this proceeding. Accordingly, I will also give a direction that every document filed in this proceeding that contains the actual name of the respondent is to remain confidential to the parties for the purposes of Rule 28.05(4) of the Supreme Court (General Civil Procedure) Rules 2015.

At VCAT, the matter was conducted on the agreed basis that, on the date when the relevant FOI request was received by Monash, all of the ‘documents’ in question were stored by or on behalf of Monash in electronic or digital form only. Further, there was expert evidence before VCAT from Monash’s internal IT consultant, being evidence which VCAT accepted, to the effect that the electronic or digital material underlying the stored ‘documents’ is scattered around various repositories all over the world; and that, generally speaking, the material underlying any particular ‘document’ is not confined to a particular disc or tape or other repository. On the other hand, Monash has always conceded, and correctly so,[2] that the word ‘possession’ in the definitions in the FOI Act of ‘document of an agency’ and ‘document of the agency’ covers constructive possession, ie that the word picks up the concept of ‘possession, power or control’.
[2]See E Nekvapil et al, Thomson Reuters, Victorian Administrative Law, Looseleaf service, Vol 2 [FOI.5.100] (Update 199).

VCAT was not persuaded by Monash’s case. It set aside Monash’s decision to impose the access charge.[3]
[3]EBT v Monash University (Review and Regulation) [2020] VCAT 440 (‘EBT (VCAT)’).

Monash now seeks leave under s 148 of the VCAT Act to appeal from VCAT’s decision. Any such appeal must be confined to a question of law. The proposed questions of law and grounds of appeal as set out in the notice of appeal are lengthy and convoluted. However, at the hearing it emerged that Monash’s contentions are substantially as set out above.

Short answer to Monash’s case

The short answer to Monash’s case is as follows. For the purposes of the FOI Act and the Access Charges Regulations, a thing is a ‘document of an agency’ if it is a record of information and is kept by or on behalf of an agency, regardless of the way in which the thing is stored. Monash’s case depends on the remarkable proposition that records of information stored electronically or digitally by or on behalf of an agency are not ‘documents’ of that agency within the meaning of the FOI Act and the Access Charges Regulations. That proposition is not merely remarkable — it is wrong. Contrary to Monash’s submissions, it matters not that the electronic or digital elements of the record of information may be scattered around between different computer discs or in cyberspace. If the agency has the record in its possession, power or control, then the record falls within the ordinary access provisions of the FOI Act as a ‘document’ in the ‘possession’ of the agency. Section 19 of the FOI Act simply does not apply where a request is made to an agency for access to a particular pre-existing ‘document’ (in the sense of a particular pre-existing record of information) that is in the possession, power or control of the agency, notwithstanding that it may be stored electronically. Monash wrongly treats the electronic or digital elements of a single record of information as though they were separate pieces of ‘information’ within the meaning and for the purposes of s 19 of the FOI Act. Monash’s contentions as a whole are inconsistent with the text, context and purpose of the relevant provisions of the FOI Act and inconsistent with the tenor of related legislation. They are also out of harmony with applicable principles of statutory interpretation, especially the principle that, usually, a statutory provision should be understood as ‘always speaking’.

Accordingly, EBT’s request for access fell to be processed under the ordinary access provisions of the FOI Act and the Access Charges Regulations. Section 19 did not apply. Nor did Item 7 of the Schedule to the Access Charges Regulations. As will appear, and as VCAT decided, the proper result in the particular circumstances of this case was that no access charge at all was payable by EBT to Monash.

The relevant provisions of the FOI Act and the Access Charges Regulations

Monash relies heavily on the definition of ‘document’ in s 5 of the Act. It also relies significantly on s 19 of the Act and on Item 7 of the Schedule to the Access Charges Regulations, the language of which reflects that of s 19 of the FOI Act. However, rather than isolate those provisions now, I will include them, in their proper order, in the recitation/summary below of all of the relevant provisions of the FOI Act and of the Access Charges Regulations. I will proceed in that way because, as Professor Pearce points out in his leading work on statutory interpretation,[4] the starting point to the understanding of any document is that it must be read in its entirety; and, further, that a legislative instrument should be read in the ordinary way in which other documents are read, that is, from the beginning onwards.[5] The relevant provisions of the FOI Act and the Access Charges Regulations will be set out or summarised as incorporating all amendments made between 1982 (when the FOI Act was enacted) and the time of the events the subject of the VCAT case. I will identify the relevant post-1982 amendments as I proceed. As it happens, the particular provisions on which Monash principally relies were included in the original (1982) form of the FOI Act. However, erroneously,[6] Monash’s arguments pay no regard to the impact that the passage of time and the post-1982 amendments to other provisions of the FOI Act have had for the proper interpretation and application of the Act as a whole. Nor do Monash’s arguments deal with the relevant provisions of the related legislation. I will comment on many of the relevant provisions as I proceed. For convenience, and because there have been no presently significant amendments to the FOI legislation since the occurrence of the events the subject of the VCAT case, I will use the present tense.
[4]D Pearce, Statutory Interpretation in Australia (Lexus Nexus Australia, 9^th edition, 2019) [4.2].
[5]D Pearce, op cit [4.5] and cases there cited.
[6]See below.

Part I of the FOI Act – Preliminary

Section 3 of the FOI Act states its object. Section 3 certainly does not assist Monash. It provides:

3. Object of Act
(1)The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by—
(a)making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

Section 5 contains definitions. It is worth noting that s 5 is expressly limited. The definitions are expressed to operate ‘except insofar as the context or subject-matter otherwise indicates or requires’.

In s 5, ‘agency’ is defined to mean ‘a department, council or a prescribed authority’. There is a complex definition of ‘prescribed authority’ that need not be further referred to, except to say that, generally speaking, it covers governmental bodies and bodies established for a public purpose.

The definitions of ‘document’ and ‘document of an agency’ in s 5 of the FOI Act are as follows:

documentincludes, in addition to a document in writing—
(a) any book map plan graph or drawing; and
(b) any photograph; and
(c)any label marking or other writing which identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever; and
(d)any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(e)any film negative tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and
(f)anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them; and
(g)any copy, reproduction or duplicate of any thing referred to in paragraphs (a) to (f); and
(h)any part of a copy, reproduction or duplicate referred to in paragraph (g)—

but does not include such library material as is maintained for reference purposes;
document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency;
…

As will be seen, Monash contends that the effect of the definition of ‘document’ in s 5 is that, in the FOI Act and the Access Charges Regulations, the word ‘document’ does not carry or include the meaning ‘record of information’ except in the sense of a physical record, such as a document in paper form. However, in my view, as indicated above and as further explained below, s 5 does not limit the meaning of ‘document’ in that way. It is an expansive definition, not a restrictive one. It does not prevent the word ‘document’ from being read and understood in the FOI legislation in the sense of ‘record of information (however stored),’ being the sense otherwise required by the text, context and purpose of the relevant provisions.

It should also be noted that in s 5 ‘health information’ is defined to have the same meaning as in the Health Records Act 2001. There is a further reference to that related Act, and to another related Act, namely the Public Records Act 1973 (Vic), in s 6A of the FOI Act, which was inserted in 2006 and which provides:

6A Relationship with other laws
(1)This Act does not affect the operation of any other Act or law (including, but not limited to, the Public Records Act 1973, the Privacy and Data Protection Act 2014 and the Health Records Act 2001)—
(a)that requires information concerning documents of an agency or official documents of a Minister to be made available to the public; or
(b)that enables a person to obtain access to a document of an agency or an official document of a Minister.

(2) Nothing in this section limits or affects section 15 or 16.
Note
Section 10A of the Public Records Act 1973 provides that nothing in that Act prevents a person from giving access to records otherwise than in accordance with that Act where the person can properly do so or is required by law to do so. See also sections 6 and 14 of the Privacy and Data Protection Act 2014 and sections 7 and 16 of the Health Records Act 2001.

Part IA of the FOI Act – Office of the Victorian Information Commissioner

Part IA of the FOI Act establishes the Office of the Victorian Information Commissioner and sets out its composition. Part IA was substituted in 2017 for corresponding provisions that had been inserted in 2012. The Part creates an Information Commissioner and a Public Access Deputy Commissioner with various functions in relation to FOI.

Part IB of the FOI Act – Professional Standards

Part IB of the FOI Act provides for the development by the Information Commissioner of professional standards required to be met by agencies in relation to FOI. Like Part IA, Part IB was substituted in 2017 for corresponding provisions that had been inserted in 2012. Given that, in the present case, Monash argues, in effect, that, apart from s 19, the FOI Act does not recognise the digital revolution, it is instructive to note that ss 6U(4)(a) and 6V(1)(b) (both within Part IB) require the Information Commissioner to publish professional standards ‘on the Internet site of the Office of the Victorian Information Commissioner’.

Part II of the FOI Act – Publication of certain documents and information

Part II of the FOI Act, which is largely in its original form, requires agencies to make certain ‘documents’ available for inspection and purchase by members of the public and to publish certain lists of ‘documents’ or categories of ‘documents’ held by agencies. This is additional to the better known process by which persons may obtain ‘access’ to ‘documents’ under Part III of the Act. I will come to the provisions of Part III itself (which are the central focus of the present dispute) in due course.

Within Part II, s 7(1)(a)(ii) of the FOI Act provides that the responsible Minister of an agency[7] shall cause to be published as soon as practicable after the commencement of Part II, in an approved form, ‘a statement of the categories of documents that are maintained in the possession of the agency’. Section 7(1)(b) provides that this and other statements required to be published under s 7(1) are to be followed by the publication, during each succeeding year, of further statements bringing up to date the information contained in the previous statements. Section 7(6) of the FOI Act provides that the statement of the categories of ‘documents’ that are maintained in the possession of the Public Record Office of Victoria, prepared under s 7(1)(a)(ii) of the FOI Act by the Minister administering the Public Records Act 1973, shall include a statement of the categories of all ‘documents’ that are maintained in the custody of the Public Record Office of Victoria, including those ‘documents’ to which s 15 of the FOI Act applies. Section 15 of the FOI Act, in turn, deems certain ‘documents’ placed in the custody of the Public Record Office by an agency to be still in the possession of that agency.
[7]Where the agency is a Council, the responsibility falls not on a Minister but on the Council itself: s 7(1A) of the FOI Act.

More particularly, s 8 of the FOI Act (still within Part II) provides for agencies to make available, for inspection and for purchase by members of the public, on an up to date basis, subject to certain exceptions, ‘documents’ that are or may be used by the agency or its officers in making decisions or recommendations, or in providing advice to persons outside the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to or for which persons are or may be entitled, eligible or subject, being–

·‘documents’ containing interpretations or particulars of Acts or schemes administered by the agency; or
·manuals, rules of procedure, statements of policy, records of decisions, letters of advice to persons outside the agency, or similar ‘documents’ containing rules, policies, guidelines, practices or precedents.

Section 8 further requires, subject to similar qualifications, that agencies make available for inspection, and for purchase by members of the public, ‘documents’ that are or may be used by the agency in enforcing Acts or schemes administered by the agency where a member of the public might be directly affected by that enforcement, being ‘documents’ containing information on the procedures to be employed or the objectives to be pursued in the enforcement of the Acts or schemes.

In addition, s 8 requires the principal officer of an agency to publish, on an up to date basis, a statement specifying the ‘documents’ that are available to members of the public under that section ‘and the place or places where copies may be inspected and may be purchased’ (s 8(2)(a)).

Section 9 provides that where, under s 8, any agency is required to make available a ‘document’ containing a rule, policy, guideline or practice relating to a function of the agency and that agency fails to make the ‘document’ available, or to include the ‘document’ in a statement required to be published under s 8, before the time at which a person did or omitted to do any act or thing relevant to the performance of that function in relation to that person, then that person shall not be subject to any detriment by reason only of the application of that rule, policy, guideline or practice, where, with knowledge of the same, the person could have avoided the detriment lawfully.

Further, but still within Part II of the FOI Act, s 11 provides, in effect, that an agency is to publish, and to keep up to date, a statement specifying the ‘documents’ in the agency’s possession that fall within certain additional categories that are listed in s 11. The list is long, and includes many kinds of internal and external reports, reports on scientific or technical matters, consultant reports, feasibility reports, performance or efficiency reports, reports containing final plans or proposals for reorganisation of the agency, statements prepared within the agency and containing instructions submitted to Parliamentary Counsel for the drafting of a Bill, submissions prepared within the agency for presentation to the Cabinet, reports on product testing, environmental impact statements and valuation reports.

If Monash’s contention that an electronically stored document is not a ‘document’ within the meaning of the FOI Act were correct, then, in this digital age, Part II of the FOI Act would be robbed of a very large part of the operation and effect it was obviously intended to have. As a matter of statutory interpretation, such an extraordinary and unintended consequence is to be avoided if another interpretation that would not lead to such a consequence is fairly open.[8]
[8]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320–321. Pearce op cit [2.57]–[2.60]. And see further below.

Part III of the FOI Act – Access to documents

Part III of the FOI Act is entitled ‘Access to documents’. The principally relevant provisions of Part III are mostly in their original form. Part III begins with s 13, which is a pivotal section of the access provisions of the Act. Subject to the Act, s 13 creates a legally enforceable right of access in every person to a ‘document of an agency’. Section 13 provides:

13. Right of access
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to–
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.

Section 14 contains provisions that preclude the obtaining of access under Part III to ‘document(s)’ that contain information that is otherwise open to public access ‘as part of a public register or otherwise’ where that public access is subject to a fee or other charge. Section 14 also precludes the obtaining of access under Part III to a ‘document’ that is available for public inspection in the Public Record Office of Victoria.[9]
[9]See further below.

As mentioned above, s 15 deems a ‘document’ that has been placed by an agency in the custody of the Public Record Office to be still in the possession of that agency.

The general tenor of s 16 of the FOI Act, like that of s 3 (Object), is contrary to Monash’s case. Section 16 provides:

16. Access to documents apart from Act
(1)Ministers and agencies shall administer this Act with a view to making the maximum amount of government information promptly and inexpensively available to the public.
(2)Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.

Section 17 deals with the required form of a valid request for access to a ‘document’. It provides:

17. Requests for access
(1)A person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or Minister as the case requires for access to the document.
(2)A request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document.

(2A) A request must be accompanied by a fee of 2 fee units.
(2B)An application fee may be waived or reduced, whether or not the fee has been paid, if the payment of the fee would cause hardship to the applicant.
(3)It is the duty of an agency or Minister, as the case may be, to assist a person who wishes to make a request, or has made a request that does not comply with this section or has not been directed to the appropriate agency or Minister, to make a request in a manner that complies with this section or to direct a request to the appropriate agency or Minister.
(4)Where a request in writing is made to an agency or Minister for access to a document, the agency or Minister, as the case may be, shall not refuse to comply with the request on the ground that the request does not comply with subsection (2), without first giving the applicant a reasonable opportunity of consultation with the agency with a view to the making of a request in a form that does comply with that subsection.

Section 18 deals with the transfer of requests between agencies and in particular with the transfer of requests made to the Public Record Office of Victoria.

As mentioned above, Monash relies particularly on s 19 of the FOI Act, which provides:

19.      Requests involving use of computers etc.
(1)       Where—
(a)       a request is duly made to an agency;
(b)it appears from the request that the desire of the applicant is for information that is not available in discrete form in documents of the agency; and
(c)the agency could produce a written document containing the information in discrete form by—
(i)the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or
(ii)the making of a transcript from a sound recording held in the agency—

the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.

(2) In this section where appropriate "agency" includes a Minister.

I will refer further to Monash’s submissions about the interpretation of s 19 (read with the definition of ‘document’ in s 5) in due course.

Subject to the FOI Act as a whole, s 20 imposes a duty on agencies and Ministers to give effect to the legally enforceable right of a person to have access to a ‘document’ following the due making of a request. Section 20 provides:

20. Access to documents to be given on request
(1) Subject to this Act, where—
(a)a request is duly made by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and
(b)any charge that, under the regulations, is required to be paid before access is granted has been paid—

the person shall be given access to the document in accordance with this Act.
(2)An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.

Section 22 of the FOI Act deals with charges for access to documents. It provides–

22. Charges for access to documents
(1)Any charge (not being an application fee) that is, in accordance with the regulations, required to be paid by an applicant before access to a document is given, shall be calculated by an agency in accordance with the following principles or, where those principles require, shall be waived—
(a)a charge shall only cover the time that would be spent by the agency in conducting a routine search for the document to which access is requested, and shall not cover additional time, if any, spent by the agency in searching for a document that was lost or misplaced;
(b)the charge in relation to time made under paragraph (a) shall be fixed on an hourly rate basis;
(c)a charge may be made for the identifiable cost incurred in supervising the inspection by the applicant of the material to which access is granted;
(d)a charge may be made for the reasonable costs incurred by an agency in supplying copies of documents, in making arrangements for viewing documents, in providing a written transcript of the words recorded or contained in documents, or in providing a written document in accordance with section 19;
(e)a charge shall not be made for the time spent by an agency in examining a document to determine whether it contains exempt matter, or in deleting exempt matter from a document;
(f)a charge shall not be made for producing for inspection a document referred to in sections 8(1) or 11(1), whether or not that document has been specified in a statement published in accordance with sections 8(2) or 11(2) respectively;
(g)a charge shall be waived if the request is a routine request for access to a document;
(h)a charge, other than a charge for the reasonable costs incurred by an agency in making copies of documents, in making a written transcript of the words recorded or contained in documents or in making a written document in accordance with section 19, shall not be made if—
(i)the applicant's intended use of the document is a use of general public interest or benefit; or
(ii)the applicant is a member of the Legislative Council or of the Legislative Assembly of Victoria; or
(iii)the request is for access to a document containing information relating to the personal affairs of the applicant; and

(i)a charge under paragraph (d) shall be waived if the applicant is impecunious and the request is for access to a document containing information relating to the personal affairs of the applicant.

(1A)Without limiting any other power to make regulations conferred by this Act, a power conferred by this Act to make regulations for or in relation to the making of charges for access to documents may, in the case of a document referred to in section 23(1)(e)—
(a)prescribe different amounts according to the form in which access is given;
(b)prescribe amounts by reference to the usual fee of a person for a consultation of a comparable duration.

(2)Subject to subsections (3), (4) and (5), payment of a charge shall not be required before the time at which the agency has notified the applicant of the decision to grant access to a document.
(3)If in the opinion of an agency a charge may exceed $25 or such greater amount as is prescribed by regulation the agency shall notify the applicant of its opinion and inquire whether the applicant wishes to proceed with the request.
(4)In a notice given to an applicant under subsection (3), an agency must inform the applicant that the applicant will be required to pay a deposit of a prescribed amount or at a prescribed rate on account of the charge.
(5)Where an agency has required an applicant to pay a deposit on account of a charge, the applicant's request shall, for the purposes of section 21 be deemed to have been received by the agency on the day on which the applicant has paid the deposit.
(6)Where an agency has required an applicant to pay a deposit on account of a charge, the agency shall, if requested to do so by the applicant, discuss with the applicant practicable alternatives for altering the request or reducing the anticipated charge, including reduction of the charge if the applicant shall waive, either conditionally or unconditionally, the need for compliance by the agency with the time limits specified in section 21.
(7)A notice under subsection (3) from an agency to an applicant shall—
(a)state the name and designation of the person who calculated the charge; and

(b) inform the applicant of—
(i) his right to apply for a review of the charge;
(ii)the authority to which the application for review should be made; and
(iii)the time within which the application for review must be made.

(8)Subject to this section, the charges set by the regulations shall be uniform for all agencies and there shall be no variation of charges as between different applicants in respect of like services.

(9) In this section where appropriate "agency" includes a Minister.

Section 23 of the FOI Act is important for present purposes, in that it deals with the forms in which access to a ‘document’ may be granted, and especially because it contains, in s 23(1)(ba), being a provision inserted in 2012, a reference to the giving of access to a ‘document’ by way of ‘publication to an Internet site’ and because it contains, in s 23(1)(e), being a provision inserted in 2001, a further reference to the Health Records Act 2001.[10] Section 23 provides:
[10]See above and below.

23.      Forms of access
(1)Access to a document may be given to a person in one or more of the following forms—
(a)     a reasonable opportunity to inspect the document;
(b)     provision by the agency or Minister of a copy of the document;
(ba)   publication to an Internet site established by the Minister for that purpose in accordance with the regulations;
(c)     in the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images;
(d)    in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document;
(e) in the case of a document containing health information relating to the person, by a way referred to in section 28(1), (2) or (3) of the Health Records Act 2001 in the manner provided in section 29(1) of that Act.
(2)Subject to this section and to sections 19 and 25, where the applicant has requested access in a particular form, access shall be given in that form.

(3) If the form of access requested by the applicant—
(a)would interfere unreasonably with the operations of the agency, or the performance by the Minister of his functions, as the case may be;
(b)would be detrimental to the preservation of the document or having regard to the physical nature of the document, would not be appropriate; or
(c)would involve an infringement of copyright subsisting in a person other than the State, or, in the case of an application to a council, other than the council—

access in that form may be refused and access given in another form.
(4)If an applicant is given access to a document in a form that is different from the form of access requested by the applicant, the applicant shall not be required to pay a charge that is greater than the charge that would have been payable if access had been given in the form requested by the applicant.
(5)Access under subsection (1)(a) in respect of a document to which section 15(1) applies shall be given by affording the applicant a reasonable opportunity to inspect the document on the premises of the Public Record Office of Victoria.
(6)In respect of a document which is more than twenty years old or which is in the custody of the Public Record Office of Victoria, the Keeper of Public Records may determine that the granting of access in any one or more but not all of the forms referred to in subsection (1) would be detrimental to the preservation of the document or, having regard to the physical nature of the document, would not be appropriate.
(7)Where the Keeper of Public Records has made a determination in accordance with subsection (6), access shall not be granted in the form or forms specified in the determination but may be given in any of the remaining forms provided under subsection (1).

The remaining provisions of Part III of the FOI Act, which include several new or extensively amended provisions, deal with various aspects of decision-making by agencies and Ministers under the Act. Those remaining provisions need not be individually mentioned here, but, as with the provisions of Part II, it is clear that, if Monash’s arguments were correct, the provisions of Part III as a whole would, in modern times, have a much more limited operation and effect than intended. Indeed, the same could be said of all of the provisions of the FOI Act, including those in the further Parts of the Act to which I now turn.

Part IV of the FOI Act – Exempt documents

Part IV of the Act deals with exemptions for documents. It is enough for present purposes to note the short titles of the exemption provisions, namely:

·Cabinet documents;
·Documents containing matter communicated by any other State;
·Documents affecting national security, defence or international relations;
·Documents of Court Services Victoria;
·Internal working documents;
·Law enforcement documents;
·Documents relating to IBAC;
·Documents affecting legal proceedings;
·Documents affecting personal privacy;
·Documents relating to trade secrets etc;
·Documents containing material obtained in confidence;
·Disclosure contrary to public interest;
·Certain documents arising out of companies and securities legislation;
·Documents to which secrecy provisions of enactments apply.

Part V of the FOI Act – Amendment of personal records

Part V of the FOI Act deals with the amendment of personal records. It is largely in its original form. The central provision is s 39, which provides that where a ‘document’ containing information relating to the personal affairs of a 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 or out of date, or where it would give a misleading impression. The succeeding provisions of Part V refer to such a ‘document’ as a ‘record of information’ (ss 40(1)(c), 41) or as a ‘record’ (ss 42, 45, 46, 47, 48). The word ‘record’ is itself defined in s 5 to mean, relevantly, ‘a document containing information relating to the personal affairs of a person’. Sections 44 and 45 pick up certain provisions of Part III that concern decision-making on requests for access to ‘documents’ (namely ss 26 and 27) and make them applicable also to decision-making on requests made under s 39 for the amendment of personal records. Section 49 treats a record of an agency that the agency proposes to amend under Part V as being the same thing as the original of the ‘document’ that was released to the person concerned. In short, Part V of the FOI Act plainly assumes that a ‘document’ is the same thing as a ‘record of information’ for the purposes of the FOI Act as a whole.

Part VI of the FOI Act – Review of decisions

Part VI deals with the review of decisions made under the FOI Act. It has been very extensively amended since 1982. Division 1 sets out the roles of the Information Commissioner. Division 2 provides for conciliation by the Health Complaints Commissioner under the Health Records Act 2001 as an alternative to review, where the decision concerns a ‘document’ containing ‘health information’.[11] Division 3 provides for the review by VCAT of certain decisions.
[11]See above and see further below.

Part VIA of the FOI Act – Complaints

Part VIA of the FOI Act provides for the making of complaints to the Information Commissioner about the conduct of agencies and Ministers in relation to FOI requests. The Part was first enacted in 2012 and was very substantially amended in 2017. It includes specific provision for a complaint about a decision by an agency or Minister that ‘a document does not exist or cannot be located’: ss 61A(1)(a) and (ba). I note that, in the present case, Monash did not expressly say, of any of the documents requested, that ‘it does not exist or cannot be located’.

Part VIB of the FOI Act – Investigations

Part VIB of the FOI Act provides for the Information Commissioner to conduct, and to report on, investigations in respect of the performance by others of functions under the FOI Act. It consists mainly of provisions substituted in 2017 for provisions that were first inserted in 2012. Section 61R (within Part VIB) provides that the Information Commissioner must not include in a report any information that, if included in a ‘document’, would make that ‘document’ an exempt ‘document’ in accordance with s 28 or 29A of the FOI Act. Section 61T empowers the Information Commissioner to transmit a report to each House of the Parliament, via the clerk of each House. Sub-section 61T(3) provides that if the Information Commissioner proposes to transmit a report to the Parliament on a day on which neither House of Parliament is sitting, the Information Commissioner must publish the report ‘on the Internet site of the Office of the Victorian Information Commissioner as soon as practicable after giving it to the clerks’. These provisions not only recognised the Internet generally. They also treat a report of information, published on the Commissioner’s Internet site, as though it were a ‘document’.

Part VIC of the FOI Act – Coercive powers

Part VIC of the FOI Act gives the Information Commissioner a range of coercive powers to facilitate the performance of the Commissioner’s statutory functions. Like Part VIB, it was first inserted in 2012 and its provisions were largely substituted in 2017.

Part VII of the FOI Act – Miscellaneous

Part VII deals with miscellaneous matters. It contains many new, substituted or amended provisions. Within Part VII (in Division 4, Regulations), s 66 empowers the Governor in Council to make regulations. It is worth setting out s 66(1), particularly for the reference in s 66(1)(c) to regulations for giving access to ‘documents’ through an Internet site accessible to the public, and notwithstanding that no such regulations have in fact been made.[12] Section 66(1)(c) was inserted in 2012. Section 66(1) reads:
[12]See also s 23(1)(ba) of the Act, which is set out above.

66 Regulations
(1)The Governor in Council may make regulations prescribing all matters that by this Act are required or permitted to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular, making provision for or in relation to—
(a)the making of charges of amounts, or the fixing of rates, for access to documents (including the provision of copies or transcripts) in accordance with this Act; and
(b)[repealed]

(c)forms of access to documents, including access through an Internet site accessible to the public.

The relevant provisions of the Access Charges Regulations

As their formal title indicates, the Access Charges Regulations were made in 2014. In accordance with s 5 of the Subordinate Legislation Act 1994 (Vic) (the ’10 year sunset provisions’), the Access Charges Regulations revoked and replaced corresponding regulations made in 2004. They have not been amended since 2014. The relevant provisions of the Access Charges Regulations are as follows:

1.Objectives
The objectives of these Regulations are to provide for –
(a)the making of charges of amounts; and
(b)the fixing of rates –

for and in relation to access to documents and the provision of copies or transcripts of documents under the Freedom of Information Act 1982.
2.Authorising provisions
These Regulations are made under sections 22(1A) and 66 of the Freedom of Information Act 1982.
…
6.Charges
An applicant who has made a request in accordance with section 17 of the Act is liable to pay a charge set out in or calculated in accordance with the Schedule.
Note:This charge is in addition to the fee payable under section 17(2A) of the Act.
7.Charges for access to document in alternative form
If –
(a)access to a document to which a request relates may be provided in more than one form; and
(b)the applicant has not requested access to the document in a particular form; and
(c)the charge calculated in accordance with these Regulations for access to the document in the form given by the agency exceeds the charge calculated in accordance with these Regulations for access to the document in another form in which access could reasonably have been given –

the charge payable by the applicant is to be calculated in accordance with these Regulations for access to the document in the form that could have been given for the lowest reasonable cost.
…
SCHEDULE
Regulation 6

Item No. Service charged for Charge

1.
Charge for search time

If the request relates to a document other than a document in relation to which a charge is applicable under item 7 – a charge in respect of the search time.

1.5 fee units per hour or part of an hour

…

7.
Charge for providing written document

If the request is in respect of information that is not available in discrete form in documents in documents of the agency and the agency could produce a written document by–

(a) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or

(b) making a transcript from a sound recording held in the agency–

a charge in respect of providing a written document.

The reasonable costs incurred by the agency in providing the written document.

EBT’s request; Monash’s decision; the Information Commissioner’s decision; VCAT’s decision

I have already given a brief summary of the factual history of this matter.[13] The history is not in controversy. The following account is based on two main sources—a set of reasons given on 20 September 2019 by the delegate of the Victorian Information Commissioner for deciding, for the purposes of s 50(1)(g) of the FOI Act, as mentioned above, that the matter of the amount of the access charge imposed by Monash in relation to EBT’s request was of sufficient importance for VCAT to consider it;[14] and VCAT’s own reasons for decision dated 3 April 2020.[15]
[13]See [3]–[5] above.
[14]Commissioner’s reasons, CB 29–38.
[15]EBT (VCAT) [2020] VCAT 440.

As will be seen, the correspondence between the parties includes several instances where Monash’s own FOI Officer uses the word ‘document’ in the sense which I favour, ie in the sense of ‘record of information (however stored)’, being a sense which Monash now says the word does not carry in the relevant provisions of the FOI legislation.

Monash has at all relevant times been covered by the FOI Act as an ‘agency’ of the Government of Victoria.[16] As mentioned above, the respondent, EBT, was formerly employed by Monash as a member of its staff. In mid-2018, Monash carried out a workplace investigation relating to EBT. This culminated in the termination of EBT’s employment.
[16]FOI Act, s 5 (definition of ‘agency’); Monash University Act 2009 (Vic), especially ss 4, 5 and 6. In broad terms, Monash’s statutory public purpose is higher education.

On 5 September 2018 EBT made a request to Monash, relying on the FOI Act, that was expressed as a request for ‘information’ relating to the abovementioned workplace investigation rather than as a request for access to particular documents relating to that matter.[17]
[17]EBT (VCAT) [2].

On 25 September 2018, following consultation with Monash in accordance with s 17(2) of the FOI Act, EBT amended his initial request. The amended request sought access to seven categories of ‘documents’ or, to use a neutral term, things, relating to the workplace investigation concerning EBT.[18]
[18]Commissioner’s reasons, CB 30.

As expressed in the amended request, each category included a reference to EBT’s real name. In order to preserve EBT’s anonymity, I reproduce the categories in an edited fashion, as follows:[19]
[19]Ibid.

Any e-mail and attachment sent to or received from [a certain stated e-mail address external to Monash] since 18/06/2018 containing any of the following terms [here, various parts or versions of EBT’s actual name were set out] written in any combination of upper and/or lower case and whether in the subject or main body of the e-mail.
Any e-mail and attachment sent to or received by [a particular person’s e-mail address at Monash] since 18/06/2018 containing any of the following terms [here, again, various parts or versions of EBT’s actual name were set out] in any combination of upper and/or lower case and whether in the subject or main body of the e-mail.
Any e-mail and attachment sent to or received by [another particular person’s e-mail address at Monash] since 18/06/2018 containing any of the following terms [here, again, various parts or versions of EBT’s actual name were set out] in any combination of upper and/or lower case and whether in the subject or main body of the e-mail.
Any e-mail and attachment sent to or received by [yet another particular person’s e-mail address at Monash] since 18/06/2018 containing any of the following terms [here, again, various parts or versions of EBT’s actual name were set out] in any combination of upper and/or lower case and whether in the subject or main body of the e-mail.
Any notes prepared by [the person whose e-mail address was set out in the second category] of Workplace Relations as part of his investigation into [EBT].
Any investigation summary, interim or final report that is a product of the Workplace Relations investigation into [EBT].
Any appendices or documents referred to (and not already attached or incorporated) in any investigation summary, interim or final report that is a product of the Workplace Relations investigation into [EBT].

Thus, for each of the first four categories, the ‘documents’ requested were any emails (and attachments) to or from, respectively, a nominated email address, being emails (or attachments) referring to EBT. The fifth category was any ‘notes’ prepared by Monash’s investigator. The sixth category was any ‘investigation summary, interim or final report’. The seventh category was any additional appendices or documents referred to in any investigation summary, interim or final report. The amended request was understood by all to refer to any ‘documents’, in the seven specified categories, created in the period between 18 June 2018 and 25 September 2018. Monash was apparently satisfied that the amended request was valid in form for the purposes of s 17 of the FOI Act in that it sufficiently identified the ‘documents’ sought.

By letter dated 23 October 2018, Monash estimated that the request would attract access charges totalling $541.40 under s 22 of the FOI Act and under the Access Charges Regulations. In the letter, Monash sought a 50% deposit and it advised that the estimated access charges had been calculated as an estimate of the ‘reasonable costs incurred in providing written documents from electronically stored sources’, citing item 7 in the Schedule to the Access Charges Regulations.[20]
[20]Letter from Monash to EBT dated 23 October 2018, CB 21.

On 24 October 2018, Monash received EBT’s payment in full of the estimated access charges, being $541.40.[21]
[21]Commissioner’s reasons, CB 30.

By letter dated 10 December 2018, as mentioned above, Monash notified EBT of its decision on the request. As I have already indicated, Monash advised that it had ‘identified 50 documents falling within [the] amended request’.[22] The letter stated that Monash had determined to:

·release three ‘documents’ in full under the FOI Act;
·release nine ‘documents’ in part under the FOI Act;
·release 13 ‘documents’ in full or in part administratively outside of the FOI Act; and
·refuse to release 25 ‘documents’ in full on the basis that they were exempt under the FOI Act.

[22]Letter from Monash to EBT dated 10 December 2018, CB 23. My emphasis.

In explaining the various exemptions claimed, the letter from Monash stated, among other things, that the disclosure of certain ‘of the documents you have sought’ would involve unreasonable disclosure of the personal affairs of other persons, so that an exemption under s 33 of the FOI Act applied;[23] that an exemption under s 30(1) (internal working documents) applied to some ‘documents’, being ‘communications consisting of emails, memorandums, advice and reports’;[24] that some of ‘the documents sought by you’ contained confidential communications between the University and its legal advisors that were subject to legal professional privilege and that were therefore exempt under s 32;[25] that the disclosure of certain of the ‘documents’ in question would involve the disclosure of information or matter communicated in confidence to the University and that those documents were therefore exempt under s 35(1)(b);[26] and that some of the ‘documents’ were exempt under s 36(1)(b) (public interest) on the basis that those ‘documents’ comprised ‘instructions issued to or provided for the use or guidance of’ officers of the University and ‘the procedures to be followed in the execution of employee contracts and the settlement of matters relating to personnel management’.[27]
[23]Ibid CB 24–25.
[24]Ibid CB 25.
[25]Ibid CB 25–26.
[26]Ibid CB 26.
[27]Ibid.

In the same letter, the University also advised that it was imposing actual access charges of $878.49, but was discounting this by 25% for documents administratively released. Hence, the net total amount of the access charge imposed was $658.87. It advised that these actual charges, like the previously estimated charges, had been calculated in accordance with Item 7 of the Schedule to the Access Charges Regulations and stated that they were based on ‘[r]easonable costs incurred in providing written documents from electronically stored sources’. There was no express reference to s 19 of the FOI Act.[28]
[28]Ibid.

On the same day (10 December 2018), EBT paid the remaining amount ($117.47) of the actual access charges imposed. Monash then sent the released documents to EBT. At EBT’s request, Monash did so electronically (only).

On 13 December 2018, EBT requested the Victorian Information Commissioner to conduct a review of Monash’s decision, including both the decision to exempt documents and the decision to impose access charges. EBT contended that the document search time claimed by Monash was unreasonable. The Information Commissioner dealt with the access charges matter separately from, and in advance of, the exemption matter. Under the FOI Act, the Commissioner does not have jurisdiction or power to conduct a review of a decision by an agency to impose an access charge or a decision of an agency as to the amount of an access charge.[29] However, under s 50(1)(g) a requestor may apply to VCAT for review of a decision as to the amount of an access charge ‘if the Information Commissioner has certified that the matter is one of sufficient importance for the Tribunal to consider’. In the present case, the delegate of the Information Commissioner advised, by her letter of 20 September 2019, that she had issued such a certificate. The delegate was satisfied that there was a real or significant argument that there was error in Monash’s decision to impose the actual access charge in the amount that had been imposed; that there was a matter of public or general importance involved; and that the matter should otherwise be certified for VCAT’s review under s 50(1)(g) in the interests of justice.
[29]See FOI Act, s 50. Whether such a decision may be the subject of a ‘complaint’ to the Information Commissioner under s 51A of the Act or of an ‘investigation’ by the Information Commissioner, on the Commissioner’s own motion, pursuant to s 61O of the FOI Act does not arise in this case.

The Commissioner’s delegate, in her letter, recorded parts of a written submission that had been made to the Information Commissioner by Monash.[30] Monash had submitted, among other things, that due to the nature of the FOI request, seven staff members were identified as ‘holding the documents the subject of the request’. These persons were not the University’s FOI staff, but rather had the most direct knowledge of the subject matter of the request ‘and were in possession of the relevant documents the subject of the request’. The submission by Monash had continued:[31]

All staff members were required to undertake manual searches and identifications of documents from various electronic and other data bases which hold the University’s records, including email accounts. All staff members located documents that fell within the request.

[30]CB 32.

[31]Ibid.

The delegate noted that Monash had relied on Item 7 of the Schedule to the Regulations to charge for ‘the time taken to retrieve, that is, search, for the stored electronic information and print that information in order to create a written document in discrete form’.

The delegate found that, on the information before her, the ‘documents’ requested by EBT were located on Monash’s electronic document/email system and on other databases which held Monash’s records.[32] The delegate said that she did not consider that it was open to Monash to impose access charges under Item 7. She opined that Item 7 applied to documents that do not exist in a discrete form and must be ‘produced’ with the use of a computer (ie extracting information from a data base to produce a document that did not otherwise exist) in accordance with s 19 of the FOI Act. In this case, the delegate said, based on the list of relevant documents identified by Monash, the delegate considered that each of the documents located following the relevant document searches existed in a discrete form (namely, electronic form) and required printing, rather than ‘producing’ under s 19 of the FOI Act.
[32]CB 36.

On that basis, the delegate expressed the view that on a proper application of the Schedule to the Regulations, EBT would have been required to pay only $126.41 rather than $658.87 in access charges. The figure of $126.41 represented charges for document search time and to print black and white copies of documents.[33]
[33]CB 37. Monash’s FOI officer had, as part of Monash’s internal processes for responding to EBT’s request, printed out black and white copies of the documents in question.

The certificate under s 50(1)(g) having been issued, EBT applied to VCAT under that provision for review of Monash’s decision as to the amount of the access charges.

VCAT gave its decision on 3 April 2020. VCAT set aside, in its entirety, the decision of Monash to impose the access charge. It was realised at VCAT level that the documents in question all related to EBT’s personal affairs. Taking that into account, VCAT formed the view that s 22(1)(h)(iii) was prima facie applicable. VCAT further found that s 22(1)(h)(iii) was not disapplied by the opening words of s 22(1)(h), because Monash had not been involved ‘in making a written document in accordance with section 19’. Accordingly, VCAT ordered Monash to refund the entire sum of $658.87 to EBT.

VCAT’s reasons for decision

In its reasons for decision, VCAT said, citing s 3(1) of the FOI Act, that a ‘key object’ of the FOI Act is to create ‘a general right of access to information in documentary form’ held by government and agencies.[34] To that extent, VCAT was clearly correct.
[34][2020] VCAT 440 [7].

VCAT went on to say that the FOI Act must be interpreted so as to further that object, citing s 3(2) of the Act.[35] That much is also clearly correct. Then, still referring to s 3(2), VCAT said (in effect) that the FOI Act must also be interpreted so as to ‘promote, promptly and at the lowest reasonable cost the disclosure of information’.[36] The quoted words do appear in s 3(2) but Monash asserts that they are not referable to the way in which, by virtue of the sub-section, the FOI Act is to be interpreted, but rather to the way in which any discretions conferred by the FOI Act are to be exercised, namely ‘as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information’. Strictly speaking, so far as the precise terms of the statutory language are concerned, Monash is correct in this respect. And, strictly speaking, the dispute between the present parties turns on the proper interpretation of the Act rather than on any question about the exercise of a discretion conferred by the Act. However, the point does not carry Monash very far. It remains the case, as the High Court has said, that ‘the proper approach to the construction of the FOI Act… is to “further, rather than hinder, free access to information”’.[37] That approach is supported by the tenor of s 3 as a whole and by the terms of s 16, as the High Court has also said.[38]
[35]Ibid.
[36]Ibid. VCAT’s emphasis.
[37]Osland v Secretary to the Department of Justice (2010) 241 CLR 320, 330 [14] per French CJ, Gummow and Bell JJ, approving what had been said by the High Court previously in VictorianPublic Service Board (Vic) v Wright (1986) 160 CLR 145, 153.
[38]See VictorianPublic Service Board (Vic) v Wright (1986) 160 CLR 145, 153; Osland v Secretary to the Department of Justice (2008) 234 CLR 275, 305–306 (Kirby J); Osland v Secretary to the Department of Justice (2010) 241 CLR 320, 330 [14]; cf Department of Justice v Western Suburbs Legal Service Inc (2009) 22 VR 66, 74 [20] (Beach J). See generally E Nekvapil et al, Thomson Reuters, Victorian Administrative Law, Looseleaf service, Vol 2 [FOI.3.40] (Update 196).

In the balance of its reasons, VCAT appeared to accept some or all of the underlying premises of Monash’s case, but not the conclusion urged by Monash to the effect that Monash was entitled to impose the access charge. Monash now says, in effect, that VCAT’s apparent acceptance of the underlying premises of its case should have led VCAT to the conclusion sought by Monash. However that may be, in my opinion, as I have already mentioned and as I will further explain in due course, the underlying premises of Monash’s case were mistaken.

For the moment I note that Monash seems to have persuaded VCAT to proceed on the basis that Monash was not in possession of any relevant ‘document’ at the time of EBT’s request. VCAT seems to have accepted Monash’s contention (or assumption) that the emails, notes, summaries and reports released to EBT had not themselves been ‘documents’ in the possession of Monash as at the time when access to them was requested by EBT, because they had not been in hard copy form at that time. Monash also seems to have persuaded VCAT that if, at that time, one single computer disc had carried the whole of the electronic or digital material for one or other of the emails, notes, summaries or reports, and if that disc had carried no other electronic or digital material, then the disc might have constituted a ‘document’ within paragraph (d) of the definition of ‘document’ in s 5 of the FOI Act, but that, even so, only the physical thing, ie only the imprinted disc itself (as distinct from anything that might be derived from the imprinted disc) would be a ‘document’. As a factual matter, as already mentioned, VCAT accepted the evidence of Monash’s IT expert, Mr Messina, to the effect that the electronic or digital material for any particular relevant ‘document’ in the possession of Monash was stored in various different locations and, also, was ‘mixed up’ with other electronic or digital material.[39] At least at certain points in its reasoning, VCAT seems to have adopted Monash’s position that the scattered and mixed up electronic or digital material was ‘information’ within the meaning of the FOI Act, and, in particular, within the meaning of s 19 of the FOI Act of Item 7 of the Schedule to the Access Charges Regulations.[40]
[39]See [2020] VCAT 440 [11], [17], [25].
[40]Ibid [17], [26], [27], [32], [45], [46], [49], [50(a)], [51], [52]; cf [14], [16], [19], [29], [30], [31].

These matters in turn seem to have led VCAT to at least entertain Monash’s claim that the scattered or mixed up electronic or digital material was the only proper focus for the necessary exercise of interpreting and applying the statute, and also to entertain Monash’s claim that this material amounted to ‘information that [was] not available in discrete form in documents of the agency’ for the purposes of s 19 of the FOI Act.[41] However, in the final paragraphs of its reasons, VCAT went on to reject Monash’s ultimate position, as follows:[42]
[41][2020] VCAT 440 [45]. My emphasis.
[42]VCAT’s emphasis.

45.While I accept the proposition that information stored electronically, whether on one computer disc or multiple discs in different locations (including overseas), is not stored discretely, this does not necessarily mean the information is not available in discrete form in documents of the agency.
46.An email is information that has discrete form in the sense that it will have a number of unique identifying features including the sender, the recipient(s), the date, the subject matter and the contents of the email. While it is stored as a collection of digits (1s and 0s) in a disc or discs, it remains available in the discrete form once retrieved.
47.That this is so was confirmed by Mr Messina’s evidence that, in so far as Gmail is concerned, the original version of the email maintained electronically in the Gmail servers is the ‘single source of truth’. He clarified that what this meant is that the email cannot be altered and is always available to be retrieved to identify the information the email contains. By comparison, if a person forwards an email to another person, the information it contains can be altered such that it becomes a different email.
48.The interpretation that I have applied is clearly consistent with the object of the FOI Act, and the requirement to interpret that legislation to facilitate and promote the disclosure of information at the lowest reasonable cost.[43] While I accept that it will often be necessary for staff members to retrieve their own emails in order to demonstrate that thorough and diligent searches have been undertaken – and that the hourly cost of such staff members may well exceed the 1.5 units allowed to be charged under item 1 of the Schedule to the Regulations – there is nothing inconsistent with the object of the FOI Act in limiting the cost recovery by an agency to that amount.
[43]See my comments above on Monash’s criticism of a similar statement made by VCAT earlier in its reasons.
49.Importantly, the interpretation that I have applied still leaves section 19 of the FOI Act with significant work to do, as there will be many cases (as evidenced by Halliday and Clark) where the information exists but is disparate not just in the manner it is stored, but also in the manner in which it can be retrieved (ie. in separate records), such that the information is required to be collated or compiled into a single record. Further, the provision may apply in situations such as Smeaton where the document is no longer ‘available’ because the agency no longer has the technology to retrieve it.
50.By contrast, the interpretation contended for by the University would produce a range of unusual outcomes, for example:
(a)persons making applications for information relating to their personal affairs would routinely have to pay access charges, despite the evident policy of section 22(1)(h)(iii) of the FOI Act, by reason of the move by government and agencies to electronic record keeping;
(b)persons who applied for documents to an agency that maintained printed copies of emails and other communications would only be required to pay for searches at the capped statutory rate, while a higher rate would apply to electronic searches (which should in theory be easier and quicker) undertaken by an agency that stored its emails and other communications electronically; and
(c)the higher charge would not apply if an agency stored each email or other communication on a separate USB stick, but would as soon as there were two documents stored on the one USB stick.

51.There may be some merit in observations of Mr Batskos (who appeared for the University) around the difficulties associated with providing access to information which is maintained and stored in electronic form only, particularly where the information is partially exempt. To paraphrase the observation of Member Proctor (as he then was) in Smeaton, it may be an area (particularly section 23 of the FOI Act) that is worthy of further consideration by the legislature. In any event, it is unnecessary for present purposes to resolve that matter.

Conclusion and disposition
52.For the above reasons, I find that the emails and other information maintained electronically by the University remained available in discrete form in documents of the agency. I should note that, although some of the emails or other information was held by a contractor, Mr Batskos conceded that the consultant was an officer of the agency and that his emails and information were held by the University.
53.It follows that, to the extent that the Regulations applied, a charge for any searches could only be applied at the rate specified in item 1 of the Schedule.
54.However, as the University also concedes that the emails and other information sought by EBT related to his personal affairs, section 22(1)(h) of the FOI Act prevents any charge being made.
55.I will order that the decision of the University to impose the Access Charges, made on 10 December 2019, be set aside and the Access Charges refunded to EBT.

The notice of appeal and the parties’ pre-hearing written submissions

As mentioned above, Monash’s notice of appeal is lengthy and convoluted. It purports to state eight questions of law and 34 grounds or sub-grounds of appeal. Monash’s original written outline of submissions[44] is 23 pages long. It was followed by a relatively concise outline of 11 pages by the respondent, EBT, who has been self-represented throughout.[45] Monash then filed a seven page outline of submissions in reply.[46]
[44]CB 307–330.
[45]CB 341–352.
[46]CB 332–338.

The involvement of the Attorney-General for Victoria

About a week before the oral hearing was scheduled to take place, the Attorney-General for Victoria sought leave to make submissions in the proceeding as amicus curiae. The Court gave provisional leave in advance. The Attorney-General then sent to the Court and to the parties a 12 page written submission. That submission broadly supported the decision and reasoning of VCAT. At the hearing, there was no opposition to the grant of leave to the Attorney-General to appear as amicus curiae. Leave was granted accordingly, and oral submissions, in addition to the written submissions, were made on behalf of the Attorney-General in due course during the hearing.

Monash abandons a point

Monash’s written submissions[47] (though not its notice of appeal) included contentions to the effect that VCAT had no jurisdiction under s 50(1)(g) to review the matter of whether any, and if so which, of the prescribed access charges was applicable to EBT’s request, as distinct from the matter of the amount of the access charge that was applicable. The point had no merit. Ultimately, during the oral hearing, counsel for Monash abandoned it.[48]
[47]Monash’s original outline [13], [54(a)], [60], [61]; Monash’s written reply [24]–[28].
[48]Transcript of hearing before Cavanough J on 26 March 2021 (‘T’) 50, 72.

Another part of Monash’s case does not arise

In its notice of appeal[49] and written submissions,[50] Monash also complained that VCAT had not assessed the reasonableness of the amount of the access charge that Monash had purported to impose, and that VCAT had made some observations which, according to Monash, were out of harmony with what would have been involved in any proper assessment of the reasonableness of the amount. Monash further contended that this Court would have sufficient material to carry out a reasonableness assessment itself.
[49]Notice of appeal ground 3(k).
[50]Monash’s original outline [13(c)], [57], [63], [64], [66]–[70]; Monash’s written reply [19]–[23].

However, it became common ground at the oral hearing that this complaint could only arise in the event that Monash was successful in persuading the Court that VCAT should have held that s 19 of the FOI Act and Item 7 of the Access Charges Regulations were applicable. As I have already foreshadowed, Monash will not be successful in that endeavour. It follows that the matters raised by Monash concerning the assessment of the reasonableness of the amount of the access charge do not arise.

The remainder of Monash’s attack on VCAT’s decision

What remains is Monash’s main submission, namely that, on VCAT’s own findings, and having regard to the definition of ‘document’ in s 5 of the FOI Act and to the terms of s 19 thereof, VCAT was obliged to determine that the ordinary access provisions of the FOI Act did not have direct application in this case, but that s 19 did apply.

In effect, Monash submits that the language of the FOI Act is simply out of date, and that it is largely ineffective in this digital age. Monash says that the definition of ‘document’ in s 5 and the terms of s 19, being ‘old’ provisions enacted in 1982, just do not recognise, for the purposes of the ordinary access sections of the FOI Act, the concept of an electronically or digitally stored ‘document’, as such. Monash says that the definition of ‘document’ in s 5 is exhaustive rather than inclusive. According to Monash, the language of the definition of ‘document’ in s 5, especially that of sub-paragraphs (d) and (e) thereof, means that, for the purposes of the ordinary access provisions of the FOI Act, the only ‘document’ in the electronic or digital universe is the relevant ‘device’, as distinct from anything that may be extracted or derived or retrieved from the ‘device’. Monash says that, often, it would be impracticable, or even absurd, to suggest that an agency must give ‘access’ (in any of the forms referred to in s 23 of the FOI Act or at all) to a ‘device’ such as a vast network of computers, or such as the equipment used by Google to provide its cloud storage services to customers. Monash also says that it would often be impracticable for an agency to give ‘access’ in accordance with the FOI Act even to a single computer disc if the disc encompassed more than the ‘document’ or ‘documents’ sought. But Monash contends that these things do not defeat its submissions in this case. Monash says that the only relevant acknowledgment in the FOI Act of the existence of computers is what may be found in s 19; and in that regard Monash further says that, for FOI purposes, at least in general, material stored in computers is only to be dealt with under s 19.

As I have mentioned, Monash further submits, now, in effect, that, as at the critical time, being the time of the receipt of EBT’s request,[51] Monash did not have in its possession, in the form of documents, any of the things sought.
[51]Monash’s original outline, [15]. Monash here cited Birrell v Victorian Economic Development Corporation (1989) 3 VAR 358, 378, where it was said, that, for the right of access under s 17 of the FOI Act to arise, the document must be a document of the agency (that is, in the possession of an agency) when the request is made, because the right only attaches to such a document. The critical point in time is the point in time when the request is made. Monash also cites, for the same proposition, Baird v VicRoads (No 2) (1999) 16 VAR 92, 99 [18], where it was said that the date of the request is ‘the critical date which fixes the rights and duties of requesting citizen and agency’.

In relation to s 19, Monash submits that VCAT erred in its reliance on Monash’s ability to retrieve the emails and other things sought by EBT. Monash says that, because the things requested had not in fact been retrieved as at the moment of receipt of the FOI request, then, for the purposes of s 19(1)(b) of the FOI Act, the ‘information’ that EBT appeared to ‘desire’ was ‘not available in discrete form in documents of the agency’. According to Monash, ‘[s]omething further had to happen before the information would be not just available, but available in a [sic] discrete form’.[52] By reference to dictionary definitions, Monash submits that, to be available in discrete form, the information must be in a discrete ‘configuration’, ‘arrangement of parts’, ‘shape’ or ‘manifestation’ and must be ‘able to be used or obtained’, ‘at someone’s disposal’, ‘suitable or ready for use’, ‘at hand’, or ‘of use or service’. According to Monash, VCAT misconstrued and misapplied s 19(1)(b) of the FOI Act in this regard.[53] Monash submits that, although VCAT made no finding of fact in this respect, it is a matter of common knowledge that software, operated through the graphical interface of a computer or similar device, would be required to ‘collate’ the ‘information’ from the various discs by using search terms (eg date, sender, recipient, author etc), and, once it was collated, to decode it into English and produce it in a written document. Monash refers to evidence to this effect given at VCAT by Mr Messina.[54] Monash further submits that VCAT’s ‘fundamental error’ was to conflate the availability of the discontinuously stored ‘information’ with the capacity to turn that into a written document once retrieved.[55]
[52]Monash’s original outline, [23].
[53]Ibid [20] and [21].
[54]Ibid [23(a)].
[55]Ibid [24].

Similar comments may be made about the following passages from the concurring judgment of Chadwick LJ in Victor Chandler:[100]
[100]Ibid 1307–1308 [41]–[42]; 1309 [45]–[46].

[41]The reason why the claimant does not dispute that the physical distribution of, for example, a compact disc or floppy diskette would be within the prohibited conduct is because it accepts – as, in my view, it has to accept – that a disc on which information is stored in electronic form must, in the age in which we now live, be treated by the law as a document. If authority be needed for that proposition it can be found in the judgment of Vinelott J in Derby & Co Ltd v Weldon (No 9) [1991] 1 WLR 652, 657–658. His analysis is, I think, instructive in the present context. After referring to the decision of Walton J in Grant v Southwestern & County Properties Ltd [1975] Ch 185, in which it had been held that a tape recording of a telephone conversation was a document within the meaning of RSC, Ord 24, Vinelott J went on, at p 658:
There can be no distinction in principle between the tape used to record a telephone conversation in Grant v Southwestern & County Properties Ltd, which was an ordinary analogue tape on which the shape of sound waves is, as it were, mimicked by the pattern of chemical deposit on the tape, and a compact disc or digital tape on which sound, speech as well as music is mapped by coordinates and recorded in the form of groups of binary numbers. And no clear dividing line can be drawn between digital tape recording messages and the database of a computer, on which information which has been fed into the computer is analysed and recorded in a variety of media in binary language.

[42]In Alliance & Leicester Building Society v Ghahremani (1992) 32 RVR 198, 199 Hoffmann J rejected a submission that Vinelott J’s view as to the scope of the word ‘document’ was restricted to questions of discovery under the rules of court. He applied the extended meaning to the question whether the deliberate deletion of information stored on the disc of an office computer was a contemptuous breach of an order restraining a solicitor from destroying or altering any documents relating to a conveyancing transaction. In Rollo v H.M. Advocate, 1997 J.C. 23 the High Court of Justiciary took the same view in relation to the meaning of the word in the context of the seizure of an electronic notebook under the powers conferred by section 23(3)(b) of the Misuse of Drugs Act 1971.
…

[45]In my view, the judge [below] reached the wrong conclusion. The error in his reasoning, as it seems to me, was to regard the transmission of electronic impulses from one electronic data base to another as the transmission of ‘information’ as if that was something distinct from the transmission of a ‘document’. The true analysis is that the transmission of electronic impulses is simply that: it is nothing more nor less than the transmission of electronic impulses. It is the combination of those impulses within coordinates and groups that may convey information. If the impulses are transmitted to a system which is capable of receiving and storing them in the same, or some derivative, combination, so that they can be analysed or ‘read’, then it may be said that a document is created in or on the recipient data base. It is as apt to describe the process as the transmission of a document as it is to describe it as the transmission of information. Indeed, it is now a matter of common parlance to talk of ‘sending a document’ from one computer to another. But what is really happening is that, by the transmission of electronic impulses in a combination, or ‘language’, which the recipient system can read, the sender is creating a document on the recipient data base.
[46]I do not, myself, find it of assistance to ask whether the process which I have described is more closely analogous, on the one hand, to the sending of a computer disc, or, on the other hand, to the transcription of an oral message by a shorthand writer. Both supposed analogies seem to me to be some distance away from what, on a true analysis, is actually happening when material is transmitted in electronic form from one database to another. The right question is to ask whether the process which I have described falls within the conduct prohibited by section 9(1)(b) of the Act of 1981, that is to say, whether, having regard to the true intention of Parliament when that section and its predecessors were enacted, that process can aptly be described as the issue, circulation or distribution of any advertisement or other document. I have no doubt that the answer to that question is ‘yes’.

Having regard to the emphasis in Victor Chandler on statutory purpose, and having regard to the usual need to apply a purposive construction to Victorian legislation, it seems to me that, if they were sitting in this proceeding, Sir Richard Scott VC and Chadwick LJ would have no hesitation in deciding that a record of information stored electronically or digitally by or on behalf of a Victorian government agency is a ‘document of an agency’ for all the purposes of the FOI Act. I will return briefly to [45] of the judgment of Chadwick LJ when I come to the matter of s 19 of the FOI Act.

Even more significant for present purposes – indeed, virtually conclusive of the fate of this proposed appeal, in my view – are certain passages in judgments of members of the High Court of Australia delivered in 2002 in Muin v Refugee Review Tribunal,[101] especially the remarks of McHugh J to which I will soon refer.
[101](2002) 190 ALR 601.

In Muin, a Ministerial delegate had refused to grant refugee visas to the applicants, who were Indonesian nationals. The delegates had relied on 31 items of country information that were listed in the delegate’s statement of reasons. Each item contained information about relevant conditions in Indonesia. Each item was part of a large reference library. The Secretary identified this material for the benefit of the Tribunal, and the Tribunal had electronic access to it, but the Tribunal did not receive hard copies from the Secretary. The applicants applied to the Refugee Review Tribunal for review of the delegate’s decisions. An issue in the case was whether the Secretary of the relevant department had complied with the Secretary’s obligation under s 418(3) of the Migration Act 1958 (Cth) to ‘give’ to the Tribunal each relevant ‘document’ in the Secretary’s power or control. There was a definition of ‘document’ in s 25 of the Acts Interpretation Act 1901 (Cth), but apparently none of the Justices of the High Court considered that that definition threw any light on the problem.

McHugh J said:[102]

[104]Unless the contents or purpose of a statute suggests otherwise, the words of its sections are to be given their natural and ordinary meaning. The ordinary dictionary meaning of ‘document’ is a printed or written paper containing information. That definition of ‘document’ is not apt to cover the sequence of electronic impulses in the electronic circuits of a computer disc that store information. But it is more than 50 years since Learned Hand J assured us that ‘it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary’. The object of s 418(2) and (3) is to ensure that the tribunal obtains all information in the department’s possession that is relevant to the review of the decision. No violence is done to the object or language of s 418(3) by holding that ‘document’ includes information that is stored in a computer or a fax machine and which can be printed out by pressing one or more keys or buttons. No reason appears for thinking that parliament intended to distinguish between information stored on paper and information stored in the electronic impulses of a computer that can be printed on paper by pressing a key or keys on the computer’s keyboard. Statutes are always speaking to the present. If we can, we should give the words of a statute – which after all are only the means of conveying ideas and information to the public – a meaning that covers contemporary processes and accords with the object of the enactment. As Justice Holmes once said, ‘it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before’.
[105]I do not think that s 25 of the Acts Interpretation Act 1901 (Cth) – which has an inclusive definition of ‘document’ – throws light on the problem. In Australian Federation of Air Pilots v Australian Airlines Ltd, Gray J held that the definition of ‘document’ in s 25(c) is ‘apt to cover computers, or computers coupled with printers’. But accepting, as I do, the correctness of that statement, it does not assist in construing s 418(3). It is hardly to be supposed that s 418(3) requires the Secretary to give the computers or their silicone chips to the tribunal. The better view is to give ‘document’ in s 418(3) a purposive construction and to hold that it covers any information that is stored or recorded on paper or electronically.

[102]Ibid 626–627 [104]–[105] (citations omitted).

Likewise, Gleeson CJ said:[103]

[18]… the purpose of the requirement is to enable the person reviewing the decision to know, and have access to, the material upon which the delegate relied, so as to be able to conduct the review. If the material is in the nature of general reference material, stored for convenience in a library, or on an electronic data base, then provided the library, or the data base, is accessible to the tribunal, I see no reason to interpret the requirement literally so as to require physical delivery of paper by the secretary to the registrar of the tribunal.
[19]… having regard to the nature of that material, and the form in which it was available to the delegate when she made her decision, I would regard it as sufficient compliance with a requirement to give the material to the tribunal for the purpose of reviewing the delegate’s decision if the material was identified, and made available to the tribunal in the same manner and form as it was available to the delegate. The statutory provision is concerned with access to information, not with possession of paper. The object is to make available to the tribunal member who reviews the delegate’s decision the ‘evidence’ (in the broadest sense) that was before the delegate. In the case of the Part B Documents, the Act did not require that they be gathered together in hard copy form and delivered to the tribunal. No legislative purpose would have been served by such a requirement, and the statutory language does not compel such a conclusion.
[20]The contention that there was a failure to comply with s 418 has not been sustained.

[103]Ibid 608–609 [18]–[20].

At [42] Gaudron J said:[104]

It was argued on behalf of the second and third defendants that s 418(3) of the Act does not require that documents be made available by the secretary to the registrar by any particular means. If s 418(3) of the Act refers to documents in electronic form (and I see no reason why it should not), there seems no reason why such documents should not be given to the registrar electronically, including by making them available on the data base to which he or she has access. At least that is so if the registrar is informed that they have been so transmitted.

[104]Ibid 614 [42].

Kirby J said:[105]

[213]It is in this context that that part of the ‘material’ forwarded by the secretary to the registrar which includes ‘each other document, or part of a document’ falls to be construed. It is an error of statutory construction to construe words in isolation, as if their meaning can be assigned by reference to nothing more than the words used together with the dictionary, whether of the general or statutory variety. In recent years, that approach to statutory interpretation has been rejected by this court in favour of the ‘purposive’ approach. The latter seeks out the meaning of words in the context in which they appear and to achieve the purpose revealed by that context.
[214]In the present cases, the context and purpose involved the reconsideration by an independent, expert tribunal of the primary decision of a delegate of the minister but based on the materials (‘papers’) including relevant ‘documents’, that were before the primary decision-maker.
[215]‘Documents’ may include electronic documents: What, then, does the word ‘document’ mean in such a context? Today, in ordinary speech, one can readily refer to a ‘document’ in a data base, although such a document may never have been reduced to tangible form. Typically, a data base will yield information that appears in paginated format, as did the country reports in the CISNET computer system of the Department of Immigration and Multicultural Affairs. Certainly, each of the primary decision-makers determining the applications of Mr Muin and Ms Lie, viewed the Part B materials as ‘documents’. They so described them. As the agreed facts state, they were ‘documents relevant to the position in Indonesia of Indonesian nationals of ethnic Chinese background and, also, to the ability and willingness of the Indonesian authorities to provide for their protection.
[216]It is agreed that such ‘documents’ were in the possession and control of the secretary. They were no less so because they were in electronic format.

[105]Ibid 650 [213]–[216] (citations omitted).

These observations of the members of the High Court are obviously applicable to the present issues.

Coming back to the terms of the FOI Act itself, it has never really been doubted, so far as I am aware, that distinct or discrete records of information stored electronically or digitally are ‘documents’ for all the purposes of the FOI Act.

For example, in Re Schubert v Department of Premier & Cabinet,[106] which was an FOI case decided by VCAT in 2001 and in which both sides were represented by experienced counsel, there was an issue about whether the computerised diary of the then Premier of Victoria was in the possession of the Department of Premier and Cabinet for the purposes of s 13(a) of the FOI Act. It was common ground that the computerised diary was a ‘document’ for those purposes. This was noted without query by the experienced VCAT member who heard the matter (Senior Member Megay).
[106](2001) 19 VAR 35.

About 12 years later a comparable dispute arose at VCAT. It was ultimately resolved by the judgment of the Court of Appeal given in 2013 in Office of the Premier v Herald & Weekly Times.[107] One issue was whether the electronic diary of the then Premier’s Chief of Staff was an ‘official document of a Minister’ for the purposes of s 13(b) of the FOI Act. Another question was whether the electronic diary should be regarded as a single document or as a series of documents consisting of separate diary entries. But, again, there was no dispute that the electronic diary, or else each relevant entry in it, was a ‘document’ for the purposes of s 13(b). Again, there was no query about this at VCAT. Nor was there any query about it in the Court of Appeal. And, once again, the parties were represented by highly experienced counsel. Further, Tate JA considered the definition of ‘document’ in s 5 of the FOI Act and observed that the definition ‘assumes that at least the original document is to be treated as an integrated whole.’[108]
[107][2013] VSCA 79.
[108]Ibid [54].

Related legislation

The notion, embedded in Monash’s submissions, that a document of an agency stored only electronically is not a document of the agency at all for FOI purposes is not only out of harmony with the text, context and purpose of the FOI Act itself (as I have sought to demonstrate), it is also out of harmony with three other statutes that deal with related matters. Correspondingly, it is out of touch with the realities of modern life as affected by those three statutes, and, in that sense, Monash’s case is unacceptably artificial. Whether or not the FOI Act and any one or more of those other statutes constitute a legislative scheme, in my view it is legitimate for the Court to have regard to considerations such as this in determining Monash’s challenge to VCAT’s decision. I note that in Commissioner of Stamp Duty v Permanent Trustee Co Ltd,[109] Kirby P said that, if there is a rational integration of the legislation of one parliament, it is proper for courts to endeavour to construe interrelated statutes so as to produce a sensible, efficient and just operation of them, in preference to an inefficient, conflicting or unjust operation.[110]

The Public Records Act 1973 (Vic)

[109](1987) 9 NSWLR 719, 722, 723–4.

[110]See also the comments of Professor Pearce on these observations of Kirby J in D Pearce, op cit, [3.45].

I turn first to the Public Records Act 1973 (Vic). I have already identified certain references to that Act, or to the Public Record Office of Victoria (which is established under that Act), that may be found in the FOI Act.

From those various references to the Public Records Act 1973, it is apparent that that Act and the FOI Act should be construed, as far as reasonably practicable, so that they operate in harmony. Both Acts deal mainly with records kept, or required to be kept, by the State government and its agencies. Section 2 of the Public Records Act 1973 defines ‘public record’ to mean, relevantly, ‘any record made or received by a public officer in the course of his duties’. The expression ‘public office’ is defined to mean, among other things, any department, branch or office of the Government of Victoria and any public statutory body corporate or unincorporate. The expression ‘public officer’ is defined to mean any person employed in a public office. The word ‘record’ is defined to mean any document within the meaning of the Evidence Act 2008. The definition of ‘document’ in the Evidence Act 2008 is similar to the definition in the FOI Act. Section 13 of the Public Records Act 1973 provides, so far as relevant, that the officer in charge of a public office shall cause to be made and kept full and accurate records of the business of the office and shall be responsible, with the advice and assistance of the Keeper of Public Records, for the carrying out within the office of a programme of records management in accordance with the standards established under s 12 (of the Public Records Act 1973) by the Keeper of Public Records.

These provisions of the Public Records Act 1973 (Vic) have co-existed with the principally relevant provisions of the FOI Act for decades. The website of the Public Records Office reveals that the Keeper does indeed issue standards for the management of public records and, further, that, over recent years, those standards have been closely related to a major project of the Public Records Office entitled ‘The Victorian Electronic Records Strategy: Digital Forever: 2018–2021’. This is fully consistent with evidence that was before VCAT to the effect that Monash strives to operate on a paperless basis as far as practicable. It is also fully consistent with the reference in paragraph 50(a) of VCAT’s decision to the ‘move by government and agencies to electronic record keeping’.

If Monash did not keep ‘full and accurate records’ of its business, the officer in charge of Monash would be in breach of s 13(a) of the Public Records Act 1973. Presumably, Monash adheres to the requirements of the Public Records Act 1973. Indeed, presumably, all or most Victorian agencies do so. In these circumstances, it is entirely artificial, and unpersuasive, for Monash to contend that the documents that it stores in electronic form are not ‘documents of an agency’ for the purposes of the Freedom of Information Act.[111]

Relationship with the Health Records Act 2001 (Vic)

[111]See also M Patterson, op cit, 63 [1.51], 76 [1.171] and 81 [1.176].

In the recitation above of the relevant provisions of the FOI legislation, various cross-references in the FOI Act to the Health Records Act 2001 (Vic) are noted. Monash’s contention that records of information stored electronically or digitally are not ‘documents’ for FOI purposes is quite incongruous with those cross-references which, in turn, recognise the electronic or digital storage of documents containing ‘health information’ as defined in the Health Records Act 2001 (Vic).

A good example is s 23(1)(e) of the FOI Act. It provides, so far as relevant, that access to a document may be given to a person, in the case of a document containing health information relating to the person, by a way referred to in section 28(1), (2) or (3) of the Health Records Act 2001 in the manner provided in section 29(1) of that Act. I note that section 5 of the Health Records Act 2001 provides, so far as relevant, that, for the purposes of that Act, an organisation holds health information if the information is contained in a document that is in the possession or under the control of the organisation. The Health Records Act picks up the definition of ‘document’ in s 38 of the Interpretation of Legislation Act 1984. Importantly, s 28(1) of the Health Records Act 2001 provides that a right of access under that Act may be exercised in any one or more of certain specified ways, including ‘by inspecting the health information or, if the health information is stored in electronic form, a print-out of the health information, and having the opportunity to take notes of its contents.’ In other words, the FOI Act and the Health Records Act 2001 (Vic), read together, envisage that a record of health information stored electronically is a ‘document’.

FOI and the Electronic Transactions (Victoria) Act 2000

As at the date of the VCAT proceeding, the FOI Act did not contain any express reference to the Electronic Transactions (Victoria) Act 2000. Nevertheless, the existence of the latter Act provides relevant context, in my opinion.

The stated purposes of the Electronic Transactions (Victoria) Act 2000 include ‘To provide for the meeting of certain legal requirements as to writing and signatures by electronic communication’ and ‘to permit documents to be produced to another person by electronic communication’ and ‘to permit the recording and retention of information and documents in electronic form’. Section 5 provides an ‘outline’ of the Act. The outline states, in part, that certain requirements imposed under a law of Victoria can generally be met in electronic form, including ‘a requirement to give information in writing’, ‘a requirement to produce a document’, ‘a requirement to record information’ and ‘a requirement to retain a document’. Section 11(1) provides, in part, that if under a Victorian law a person is required to record information in writing, that requirement is taken to have been met if the person records the information in electronic form, where at the time of the recording of the information, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference. Correspondingly, s 11(2) provides that if, under Victorian law, a person is required to retain a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person retains, or causes another person to retain, an electronic form of the document. Plainly, s 11 authorises the ‘digital strategy’ of the Public Record Office of Victoria, including the publication of standards for electronic record keeping. This in turn renders quite artificial the submission by Monash in this case that the FOI Act does not recognise an electronically stored record of information as a document.

Section 19 of the FOI Act

For the reasons given above, the ordinary access provisions of the FOI Act were applicable to EBT’s request. Therefore, necessarily, s 19 was not applicable.

Correspondingly, EBT’s request did not give rise to an appearance that his desire was ‘for information that [was] not available in discrete form in documents of the agency’. Rather, it appeared from EBT’s request, very plainly, that EBT’s desire was for the very thing he expressly requested, namely, access to certain specified documents. EBT’s request did not betray any desire for ‘information’ as distinct from ‘documents’, except insofar as the ‘documents’ that he sought may have contained ‘information’.

For reasons that reflect what was said by Chadwick LJ in [45] of his abovementioned judgment in Victor Chandler, the ‘mixed up’ electronic or digital material scattered around the world in the relevant computers or computer discs did not, in itself, constitute ‘information’ within the meaning of s 19 of the FOI Act.

Further, as the delegate of the Victorian Information Commissioner ruled in the present matter, s 19 is limited to cases where the agency does not have in its possession the document or documents to which access has been sought in a valid request, but does have an ability to ‘produce’ (in the sense of ‘create’), by certain specified means, a (new) document that will contain information of a kind that the requestor appears to desire to have. In my experience, s 19 has always been understood in that way.[112] Contrary to Monash’s submissions, there is nothing different in any of the court or tribunal decisions to which Monash referred me, or in any other court or tribunal decision of which I am aware (putting aside the present case).
[112]For a similar view of the corresponding provisions of the Freedom of Information Act 1982 (Cth), see Collection Point Pty Ltd v Federal Commissioner of Taxation (2013) 212 FCR 184, 191 [37].

Monash relied mostly on Re Halliday v Corporate Affairs,[113] a decision of the Victorian Administrative Tribunal constituted by Mrs J Rosen (Member) and given in 1991. As the headnote of that decision reports, Mr Halliday was a director of companies incorporated under the Companies (Victoria) Code 1981. The companies were wound up between 1981 and 1984. In 1989 Mr Halliday was prohibited from being a director or promoter of a corporation for a period of two years under s 562A of the Code. This decision was set aside on appeal in 1990. Mr Halliday requested access to the documents relating to his prohibition. More pertinently, he also requested access to documents which recorded the number of persons who may have been subject to s 562A of the Code and the general enforcement of that section of the Code. Before the Tribunal the evidence was that information as to the enforcement of s 562A of the Code was either not held by respondent at all or could only be retrieved from its computer records by creation of a special computer program. The Tribunal held that, while there could be circumstances where an existing computer program could be easily modified to satisfy sub-paragraph 19(1)(c), the evidence revealed that a wholly new program would have to be written to provide the information. The information could thus not be achieved by ‘the use of a computer or other equipment that is ordinarily available’ and the application would be refused. The relevant part of Mr Halliday’s request was, in substance, for access to statistics relating to the Code. It was framed in terms of ‘documents’ that recorded certain statistics of that kind.[114] However, it was common ground that the statistical information sought was not held by the respondent as a document in writing. The issue in dispute was whether Mr Halliday was nonetheless entitled to access under the Act by virtue of the fact that the information could be retrieved from a computer tape or disc where it had been stored.
[113](1991) 4 VAR 327.
[114](1991) 4 VAR 327, 355.

The Tribunal turned first to the definition of ‘document’ in s 5(1) of the FOI Act and to ss 20 and 23 of the FOI Act as they then stood. As to those provisions, the Tribunal said:

The effect of these sections so far as they relate to electronically stored information is that a person seeking access to such information is entitled to view the visual images, namely the computer print out. The application of these sections is somewhat limited, in my view, in that they apply only in situations where the information sought is the whole of the information on the disc, which is not the case before this Tribunal. If the information sought is only part of the information stored or if part of the information stored is exempt and in either case the agency is required to produce a new disc containing the information sought by the applicant, access may not be available under s 23.

The Tribunal in Halliday then turned to s 19 of the FOI Act. It described s 19 as ‘broader in its scope’. However, the Tribunal held that the respondent agency was not required to provide the statistics sought by Mr Halliday. The Tribunal so held on the basis that the agency would have to write a wholly new program in order to provide the statistics. This case is in no way inconsistent with the traditional understanding of s 19 of the FOI Act. It does not assist Monash in the present matter at all.

VCAT should have held that s 19 did not even have prima facie application to EBT’s request. However, VCAT came to a decision that was plainly correct in its effect. In other words, VCAT made no material error of law. Its decision must stand.

Conclusion and orders

For these reasons, leave to appeal will be granted but the appeal will be dismissed.

I was told at the hearing that neither the parties nor the Attorney-General would seek costs. Accordingly, I will order that there be no order as to costs.

Item No.	Service charged for	Charge
1.	Charge for search time If the request relates to a document other than a document in relation to which a charge is applicable under item 7 – a charge in respect of the search time.	1.5 fee units per hour or part of an hour
…
7.	Charge for providing written document If the request is in respect of information that is not available in discrete form in documents in documents of the agency and the agency could produce a written document by– (a) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or (b) making a transcript from a sound recording held in the agency– a charge in respect of providing a written document.	The reasonable costs incurred by the agency in providing the written document.

[2022] VSC 651

3 November 2022