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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Monash University v EBT

Details

AGLC: Monash University v EBT [2022] VSC 651
Case: [2022] VSC 651
Decision Date: 3 November 2022

CaseChat Overview and Summary

Monash University sought access to certain documents held by the Department of Health and Human Services under the Freedom of Information Act 1982. The University applied for access to the documents in a prescribed form, and the Department charged the University a fee for access. The University disputed the charges, arguing that they were not applicable because the documents were only stored electronically, and therefore the ordinary access provisions of the Act should apply rather than the provisions for use of computers. The Department disagreed and the matter was referred to VCAT for a decision. The University appealed to the Supreme Court from a decision of VCAT that found in favour of the Department.

The legal issues in this case were whether the ordinary access provisions of the Freedom of Information Act 1982 applied to documents stored electronically only, and if not, whether the provisions relating to use of computers applied instead. The court considered whether the ordinary access provisions applied to documents stored electronically, or if the provisions relating to use of computers applied instead. The court found that the ordinary access provisions applied and that the provisions relating to use of computers did not apply in this case. The court held that the term ‘document’ in the Act included documents stored electronically, and therefore the ordinary access provisions applied. The court also found that the provisions relating to use of computers did not apply because the University had not made a request for a copy of the documents in a prescribed form, and therefore the Department was not entitled to levy an access charge.

The Supreme Court dismissed the appeal and held that the ordinary access provisions of the Freedom of Information Act 1982 applied in this case. The court held that the term ‘document’ in the Act included documents stored electronically, and therefore the ordinary access provisions applied. The court also found that the provisions relating to use of computers did not apply because the University had not made a request for a copy of the documents in a prescribed form, and therefore the Department was not entitled to levy an access charge. The court noted that the ordinary access provisions provided for access to be given free of charge, while the provisions relating to use of computers provided for relatively high access charges to be levied. The court found that the Department was not entitled to levy an access charge in this case because the ordinary access provisions applied.

The Supreme Court dismissed the appeal and held that the ordinary access provisions of the Freedom of Information Act 1982 applied in this case. The court held that the Department was not entitled to levy an access charge because the ordinary access provisions applied. The court noted that the ordinary access provisions provided for access to be given free of charge, while the provisions relating to use of computers provided for relatively high access charges to be levied. The court held that the Department was not entitled to levy an access charge in this case because the ordinary access provisions applied. The court ordered that the appeal be dismissed with costs.

Orders