VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z894/2017	
CATCHWORDS	
Review and Regulation List – Freedom of Information Act 1982 (Vic), ss 25, 25A(5), 27(2)(b), 31(1)(a), 31(1)(d), 55 – Freedom of information request relating to police surveillance of property – Existence of documents neither confirmed nor denied – Whether documents, if they exist, would be wholly exempt. 	

APPLICANT	Mr Bruce Akers	
RESPONDENT	Victoria Police	
WHERE HELD	Melbourne	
BEFORE	R. Tang AM, Member	
HEARING TYPE	Hearing via video conference	
DATE OF HEARING	22 July 2021	
DATE OF ORDER and reasons	10 September 2021	
CITATION	Akers v Victoria Police (Review and Regulation) [2021] VCAT 1060	

Order
Under section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the decision of the Public Access Deputy Commissioner dated 6 November 2017 refusing access to the documents requested by the applicant is:
(a)	set aside; and 
(b)	remitted to the respondent to reconsider,
with a direction that the respondent produce to the applicant a schedule identifying each document the subject of his request (if any), specifying its date, author and a description of the document and specifying, as to each document claimed to be exempt in part or in full, the section or sections of the Freedom of Information Act 1982 (Vic) relied upon.

R. Tang, AM
Member			
APPEARANCES:		
For Applicant 	Mr B Akers	
For Respondent	Mr T Goodwin of Counsel	

Reasons
1	Mr Bruce Akers has applied for review of a decision of the Acting Public Access Deputy Commissioner (APADC) made on 6 November 2017 (Decision) to refuse access to documents he had requested from Victoria Police (VicPol) under the Freedom of Information Act 1982 (Vic) (FOI Act).  His request was for documents concerning any surveillance conducted by VicPol on 5 December 2016 in respect to a property in Bulla occupied by Mr Akers. 
2	Mr Akers suspects that, on 5 December 2016, members of VicPol stole cash and other items from the Bulla property while Mr Akers was away, due to a hearing in another of his matters in the Tribunal.  He suggests that, if he is provided with the documents he has requested, he will know whether his suspicion is correct or, alternatively, if the theft was committed by ‘Joe Blow’. 
3	In its initial decision, made on 24 February 2017, VicPol refused to confirm or deny the existence of any documents, on the basis that any documents would be exempt under sections 31(1)(a) or 31(1)(d) of the FOI Act (relating to law enforcement documents), relying on section 27(2)(b) in this regard.  In the Decision, the APADC confirmed that the documents, if any, responsive to Mr Akers’ freedom of information (FOI) request would be exempt under section 31(1)(d), but considered that there was insufficient information to support the application of the exemption in section 31(1)(a).
4	VicPol maintains its claim that any documents, if they exist, would be exempt under either section 31(1)(a) or 31(1)(d).  VicPol relies, in this regard, on the evidence given by Detective Inspector Paul Tymms (DI Tymms), the unit manager for the State Surveillance Unit at VicPol since July 2016.  
5	As VicPol neither confirms nor denies the existence of any documents responsive to Mr Akers’ FOI request, the Tribunal does not have before it any documents to which it can refer in assessing whether the claimed exemptions are made out.  It was conceded by Mr Goodwin (counsel for VicPol) that this effectively means the Tribunal needs to be satisfied, on the balance of probabilities, that each and every document which might fall within the terms of Mr Akers’ FOI request, if it existed, would be exempt and that it would not be reasonably practicable to provide an edited copy (by analogy with section 25A).      
6	For the reasons which follow, I am not satisfied that all documents responsive to Mr Akers’ FOI request would be exempt under section 31(1)(a) or 31(1)(d).  While it follows that the Decision should be set aside, it will be necessary to remit the matter to VicPol for reconsideration (in accordance with the directions of the Tribunal), as the Tribunal is not able to direct the release of documents which may or may not exist.       
The FOI Act and its treatment of law enforcement documents
7	As is well known, the object of the FOI 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’.  
8	A general right of access to information held by the government and its agencies is established by section 13 of the FOI Act, subject to certain exemptions set out in Part IV of the Act.  The exemptions provided include those ‘necessary for the protection of essential public interests’.
9	In disputes under the FOI Act, there are invariably competing public interests in terms of:
•	providing the public with access to information held by the government and its agencies; and 
•	the preservation of other public interests, such as the public interest in law enforcement agencies being able to investigate breaches of the law effectively.  
10	Importantly, in proceedings that come before the Tribunal, the relevant agency bears the onus of establishing that its decision was justified or that VCAT should give a decision adverse to the applicant.
Exemption for law enforcement documents
11	Section 31(1) of the FOI Act exempts a range of ‘law enforcement’ documents, including documents the disclosure of which would be reasonably likely to: 
•	prejudice an investigation, or the enforcement or proper administration of the law; or
•	disclose methods or procedures for preventing, detecting, investigating or dealing with breaches or evasions of the law, which would (or would be reasonably likely to) prejudice their effectiveness. 
12	It is necessary that any prejudice claimed by an agency as arising from disclosure of the documents of concern be ‘real and not fanciful or remote’.
13	In applying the exemption in section 31(1)(d), it is important to recognise that:
•	methods or procedures which are ‘wide-spread and well-known’ will not fall within the exemption; and 
•	the age of the document may be a relevant consideration, but the evidence may nevertheless establish that the information it contains is still current.
14	The exemptions provided in section 31(1) are subject to certain exceptions, which are set out in section 31(2), including in respect of documents which reveal:
•	that the scope of a law enforcement investigation has exceeded the limits imposed by law; or 
•	the use of illegal methods or procedures,
subject to the proviso that it must still be in the public interest to grant access to such documents.
15	On review, the Tribunal has the ‘power to decide that access should be granted’ to a document which is otherwise exempt under section 31(1), where it ‘is of [the] opinion that the public interest requires’.  This is commonly referred to as the ‘public interest override’. 
16	It is also relevant to observe that, under section 31(3), there is an absolute exemption for documents created by the Intelligence and Covert Support Command of VicPol, with such documents being excluded from the scope of the public interest override.  
17	I have only been able to locate one decision of the Tribunal relating to section 31(3) of the FOI Act, being Jungwirth v Victoria Police, where the applicant had requested ‘any document held by the Agency which generally records matters relating to me’.  The Tribunal found that the exemption in section 31(3) was automatic and that issues of public interest did not arise.  Interestingly, it seems from the decision that the particular document in question (a two page report of the then Bureau of Criminal Intelligence) was produced to the Tribunal as the Deputy President identified that it concerned the personal affairs of some 12 persons (including the applicant) and described the nature of the personal information referenced in that document.
Provision of reasons for decision
18	Ordinarily, when making a decision to refuse access to a particular document requested, an agency must provide a notice setting out reasons for the decision to the FOI applicant.  However, where the document is a law enforcement document, which is claimed to be exempt under section 31(1), section 27(2)(b) provides that the agency may ‘state the decision in terms which neither confirm nor deny the existence of any document’.
19	The operation of section 27(2)(b) was considered by the Tribunal in a similar context in Thorne & Ors v Victoria Police (Thorne).  The applicants were self-described ‘political activists’ who sought documents held by VicPol ‘concerning or mentioning [them], by membership of or affiliation with any organisation or [their] connection or involvement with any activity’.  Similar to this proceeding, the reason advanced, for neither confirming nor denying the existence of documents responding to the request, was as follows:
[T]o advise an applicant that a person has never been the subject of covert interest and therefore no document subject to their application exists, would simply allow that person to submit similar applications at regular intervals in order to monitor the intelligence gathering units within the force.  Conversely, to advise that investigation files did exist with or without granting access to relevant documents, could alert the person under investigation and thereby allow steps to be taken to thwart such investigations. 
20	In that case, Deputy President Macnamara rejected, as ‘unsustainable’, any ‘universal policy’ to neither confirm nor deny the existence of surveillance activity, noting that it was ‘unrealistic’ to think that a subversive individual would make repeated freedom of information requests to identify if and when they were under surveillance, particularly as such requests would ‘have the tendency to attract Police attention’.  Further, he considered that it was also unsustainable with respect of the applicants in that case, given they were ‘public activists’ who ‘do not fit the mould of a shadowy subversive seeking to avoid Police attention’.
21	Ultimately, the respondent was ordered to produce a schedule identifying each document the subject of the request of the applicants and, for each document claimed to be exempt, the section or sections of the FOI Act relied upon.
Section 25A
22	Although not restricted to law enforcement documents, it is relevant to observe that an agency may also refuse to grant access to documents, without having to identify any or all of the documents, where it is ‘apparent from the nature of the documents as described in the [FOI] request that all of the documents … are exempt documents’ and that ‘no obligation would arise … to grant access to an edited copy of the document’.  
23	The reference to an edited copy is a reference to the process contemplated by section 25 where access to a copy of a document ‘with such deletions as to make the copy not an exempt document’ is to be provided, provided that the FOI applicant indicates that he or she wishes to have access to an edited copy and it is ‘practicable’ for the agency to do so.
24	Assessing the practicability of providing an edited copy requires consideration of both the physical ‘ease of undertaking the task’ and ‘the efficacy of the outcome’ in the sense of whether the redacted document would be a ‘meaningful document’.  For instance, the provision of an edited copy is not regarded as practicable where the removal of exempt material would ‘effectively gut the report leaving it devoid of major features such that what remained would be misleading’.
Background regarding Mr Akers and his request
25	It would seem, from his own evidence, that Mr Akers (and some of his family members) have a history of interactions with Victoria Police.  I am aware that he has also made many FOI requests of Victoria Police (and other agencies), as many are the subject of past or current applications for review by the Tribunal.  He suggests that his purpose in making FOI requests is to exercise his rights, under section 39 of the FOI Act, to correct any errors in the documents produced. 
26	To put Mr Akers’ FOI request in its proper context, in early 2016, Victoria Police and other agencies (Racing Victoria and the RSPCA) entered the Bulla property following reports that Mr Akers was intending to shoot horses kept on that property (Inspection).  Following the Inspection, Mr Akers was charged with 92 offences under the Prevention of Cruelty to Animals Act 1986 (Vic) and the Crimes Act 1958 (Vic).  Ultimately, he says he pleaded guilty to 22 counts of ‘possibly’ failing to provide the horses with proper food, drink, shelter and veterinary attention, causing or likely to cause unreasonable pain or suffering, and was convicted and imprisoned for a period of time (which partly explains the delay in this matter coming on for hearing).
27	Mr Akers believes an unmarked police car was parked outside the Bulla property, conducting surveillance, from January 2016.  He has included a photo of the car in the Consolidated Tribunal Book.
28	On 5 December 2016, when Mr Akers says he was at the Tribunal dealing with one of his other proceedings (also involving VicPol), cash of $6,000, and certain other equipment worth in the order of $24,000, was stolen from the Bulla property.  Mr Akers quickly attended the Sunbury police station to report the crime.  He says that when officers from VicPol came to the property to investigate, one of them said words to the effect that ‘that is where the biscuit tin was with the money in it’, as he stepped into the kitchen.  
29	It is these sequence of events (coupled with Mr Akers’ other interactions with VicPol) that appear to have led to:
•	Mr Akers forming the impression that he and the Bulla property have been under constant surveillance, including on the day of the alleged theft of his money and property; 
•	his suspicion that a member of VicPol was involved in the theft; and   
•	the FOI request being made (on the day following the alleged theft).  
Evidence of DI Tymms
30	The Consolidated Tribunal Book includes a witness statement made by DI Tymms on 6 March 2018.  At the hearing, DI Tymms confirmed that his statement was true and correct.  He was subject to limited cross-examination by Mr Akers, and he answered some additional questions I raised.
31	In his statement, DI Tymms explains that VicPol use ‘a number of covert methods and procedures in gathering evidence for the purposes and as part of an investigation into an alleged criminal breach of the law’, including surveillance and surveillance devices.  He says that surveillance is conducted ‘on a range of Persons of Interest’, including people who are ‘extremely violent and engage in serious criminal activity’.  He says any surveillance is ‘covert by necessity’.
32	DI Tymms goes on to state that, except where required by the law or a court, he never confirms whether a person, place or object is subject to surveillance and that VicPol ‘routinely claim public interest immunity in respect of all surveillance methods and procedures’.  
33	DI Tymms is of the view that any confirmation as to the existence of surveillance documents, or as to their absence (indicating that a person is not subject to surveillance), would ‘subvert the effectiveness of surveillance’ by allowing persons to ‘use the FOI process to determine who is or is not subject to surveillance’.  He says that ‘persons would then be aware of how the method is deployed and take evasive action’, enabling them to ‘avoid detection of crimes and further enhance their ability to engage in criminal activity’.  This would, he says, have the result that ‘serious crimes would go undetected and/or remain unsolved’, putting the safety of the public ‘at genuine risk’ and severely jeopardising the ‘safety and wellbeing of surveillance personnel’.  
34	In cross-examination, DI Tymms described the potential consequences of disclosure as ‘catastrophic’, particularly as such information was easily shared among criminal networks through encrypted social media channels. 
35	In response to questions I raised, DI Tymms:
•	indicated that the only documents he had looked at were those mentioned in paragraph [3] of his witness statement, namely the files maintained by the VicPol FOI division in respect of two of Mr Akers’ two requests (only one of which is the subject of this proceeding);
•	elaborated on how disclosure of the fact that no surveillance was taking place at a particular site would also impact on the effectiveness of surveillance (as raised at paragraph [13] of his witness statement), suggesting that this would provide ‘freedom’ for people to commit crimes; and  
•	suggested that the impact of disclosure on the effectiveness of surveillance would be the same whether the relevant surveillance was being conducted seven days ago or five years ago.  (In re-examination, he confirmed that the passage of ‘time is irrelevant’.) 
36	While the default position is that VicPol neither confirm nor deny that surveillance is being conducted, DI Tymms conceded (in response to a question from me) that it may be necessary in criminal proceedings for some surveillance activity to be revealed (eg. if a ‘snippet’ of video footage was necessary to establish the commission of a crime).  However, he says this would only occur if, and to the minimum extent, necessary, and subject to a claim of public interest immunity. 
Submissions
VicPol’s submissions
37	Relying on the evidence of DI Tymms, VicPol contends that, ‘given the sensitivity and necessarily covert nature of surveillance methods and the potential for the compromise of ongoing or future police operations by alerting persons to these methods’, the disclosure of any documents concerning surveillance would prejudice the enforcement of the law for the purposes of section 31(1)(a). 
38	Similarly, VicPol submit that any documents which may exist are exempt under section 31(1)(d) as they ‘would disclose surveillance methods which are not widespread nor well known’ and which ‘are necessarily covert’.
39	VicPol rely on the evidence of DI Tymms to demonstrate how the ‘effectiveness (and safety) of police officers in their applications of those methods or procedures’ would be prejudiced.  It says that, for these reasons:
there is a significant public interest in supporting a law enforcement agency’s ability to investigate alleged offending and enforce the law, by protecting the use of covert methods and procedures from disclosure and dissemination, to ensure the integrity and effectiveness of the investigative process and of those methods and procedures.
40	Insofar as the public interest override is concerned, VicPol contend that Mr Akers’ interest in the documents is ‘personal’ and that he ‘has not yet identified any public interest requiring release of the documents’.  It follows, in VicPol’s submission, that the Tribunal should not exercise its discretion to grant access; rather, the Decision should be affirmed.  
41	In closing submissions, Mr Goodwin contended that the present case was ‘unique’ and that surveillance ‘needs to be completely covert to be effective’.
Mr Akers’ submissions
42	While Mr Akers’ submissions are somewhat difficult to follow, as I understand it, his key contentions are that:
•	the exemptions in section 31 of the FOI Act ‘do not apply to methods and procedures that are widespread and well known’; 
•	‘it is well known that police carry out surveillance as part of investigations’ and, further, that details of such surveillance will become apparent to a person who is charged, on the basis of that surveillance, ‘through the criminal justice process’;
•	as charges were laid in his case, and the court proceedings have finished, section 31(1)(d) does not apply and VicPol ‘have no reason to withhold the document[s]’.  
43	Mr Akers relies on the Decision of the APADC for his last proposition,  noting that the APADC made its decision having regard to the potential for information about surveillance to be deployed to evade such surveillance, if released to individuals ‘prior to them being charged’.
44	Mr Akers submits that ‘[t]here is no potential compromise of ongoing and future operations dependent on intelligence gathered’, noting that the ‘horses are gone’, the Bulla property ‘has been sold’ and his health ‘is gone’.
45	In relation to the public interest override, Mr Akers suggests that his interest in the documents is ‘not only personal’, but also to allow his friends and family to understand what happened to him.  He also relies generally on the public interest arising from issues concerning police investigations, such as those raised by the Royal Commission into Police Informants.
46	In closing submissions, Mr Akers contended that DI Tymms’ evidence should be rejected given his answers showed no regard for the Tribunal (eg. VicPol would only release documents if ordered by a Court).
Analysis and conclusion
47	As a starting point, it is relevant to observe that section 27(2)(b) of the FOI Act modifies the general obligation, in section 27(1), for an agency to provide reasons for any refusal to grant access to documents, including ‘findings on any material questions of fact, referring to the material on which those findings were based’.  It does not, by its terms, operate to affect the matters which the Tribunal must consider in determining whether or not to affirm, vary or set aside any decision which has been made to refuse access to documents under section 31.
48	It is significant, in a case such as this, that the agency bears the burden of proof of establishing the requirements of any claimed exemption have been made out.  
49	The essence of VicPol’s case is that revealing the existence or otherwise of any documents concerning surveillance of Mr Akers on 5 December 2016 would prejudice: 
•	the investigation of breaches of the law or their enforcement; and/or
•	the effectiveness of methods or procedures for preventing, detecting, investigating or dealing with breaches or evasions of the law,
by reason that, if such documents show that:
•	surveillance was taking place, steps could be taken by criminals to avoid surveillance; or
•	no surveillance was being conducted, persons wishing to commit crimes would be at liberty to commit offences.  
50	VicPol necessarily relies on the opinion of DI Tymms that the ‘prejudice’ is the same whether the request relates to current surveillance activity or relates to events which are many years in the past.    
51	Taken to its extreme, VicPol’s position would effectively operate to provide a blanket exemption for any documents revealing surveillance:
•	no matter how old the documents are;
•	irrespective of whether the person to whom it relates is or is likely to be the subject of existing or future investigation; or 
•	whether there are any legitimate concerns as to the conduct of the surveillance, eg. whether it was conducted within the limits imposed by the law or involved illegal methods or procedures.  
52	That the legislature chose to enact a blanket exemption for documents created within a particular part of VicPol’s operations, ie. Intelligence and Covert Support Command, but not for other parts of the police force that may also engage in covert intelligence gathering, speaks against such as bold proposition.  
53	In my view, the position adopted by VicPol is also inconsistent with the obligation to interpret the FOI Act ‘as far as possible so as to facilitate and promote … the disclosure of information’.  
54	Consistent with the decision of Deputy President Macnamara in Thorne, I consider that approach to be ‘unsustainable as a universal policy’.  Rather, the question that I need to consider is whether, on the evidence before me, VicPol has established (on the balance of probabilities) that the potential prejudice referred to at [49] would ensue if the existence or otherwise of any documents responsive to Mr Akers’ request was revealed.  
55	An assessment of the evidence of DI Tymms is obviously critical in determining whether this is the case.  
56	I note that DI Tymms’ witness statement was prepared on 6 March 2018.  It can be observed that:
•	although it was prepared after Mr Akers was charged and convicted in respect of the offences referred to at [26] (although before Mr Akers served his sentence on those charges), it is silent on the impact that Mr Akers’ conviction had regarding the prejudice required in relation to section 31(1)(a) of the FOI Act; and
•	it has not been updated to address whether or not the additional 3½ years that has elapsed (since the statement was made) would have any impact regarding the claimed prejudice, which might arise from disclosure to Mr Akers, concerning the effectiveness of its methods of surveillance more generally (ie. in relation to section 31(1)(d)).  
57	In the absence of any evidence to suggest there was, at 5 December 2016, some other ongoing investigation being conducted in relation to Mr Akers, it is difficult to see how disclosure (now) that surveillance was (or was not) being conducted at the Bulla property on 5 December 2016 could prejudice any particular investigation or the enforcement of any particular law as necessary to engage section 31(1)(a).
58	Although it may be accepted that section 31(1)(d) has broader operation, it is still necessary for VicPol to establish that, despite Mr Akers’ conviction and imprisonment and the period of time that has elapsed since the events in question, disclosing that surveillance was (or was not) being conducted at the Bulla property on 5 December 2016 would prejudice the effectiveness of methods or procedures for investigating breaches or evasions of the law more generally.                         
59	While I have no doubt that DI Tymms is subjectively of the view that any disclosure about the existence of surveillance or otherwise is problematic, he expressed his views at such a level of generality and without reference to any specific examples of the impact that disclosure may have, that it is hard to accept his opinion in this regard.  
60	Considered objectively, there are a number of considerations suggesting that any disclosure as to the existence or otherwise of surveillance at the Bulla property on 5 December 2016 would not prejudice the effectiveness of police surveillance methods and procedures more generally.  In this regard: 
•	identifying whether any documents responsive to the request exist would only reveal whether Mr Akers was subject to surveillance in late 2016, not whether he has been subject to surveillance at any time before or after that time;
•	any surveillance that was conducted in 2016 related to a property that has apparently been sold, rather than the surveillance of any property where Mr Akers currently resides, such that the disclosure that surveillance was conducted at that time and location would not reveal any methods or procedures that remain relevant to Mr Akers now;
•	there is no suggestion, let alone evidence, that Mr Akers is involved in any current criminal activity or intends to engage in any such activity (a point Mr Goodwin was at pains to express in the hearing).  As such, there is no evidence to suggest he is a ‘subversive’ (of the kind referred to by Deputy President Macnamara in Thorne) who may be inclined to continually check on his surveillance status in order to permit him to conduct criminal activity; and
•	the processing of Mr Akers’ request does not mean that the Tribunal would necessarily reach the same view in relation to a freedom of information request made by a person with a long criminal history who might be expected to be subject to ongoing surveillance, and could therefore use knowledge of any surveillance activities to avoid detection of subsequent criminal activity.  Each case would need to be determined on its own facts, and the evidence presented.     
61	Ultimately, I am not convinced that the claimed prejudice in relation to section 31(1)(d) is real, rather than fanciful or remote. 
62	Of course, a difficulty in the present case is that the Tribunal does not know if any documents in fact exist and, as such, it is not possible for the Tribunal to order that access be provided to any particular documents in whole or in part, or to ascertain if any other exemption might apply (eg. the exemption in section 33 for personal affairs information).
63	As such, I consider the appropriate course of action is to exercise the Tribunal’s powers under section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to set aside the Decision and remit the matter to VicPol to reconsider, with a direction that it produce a schedule of documents, identifying each document and any exemptions claimed.  
64	If, as a result of this process, there are any relevant documents, and any exemption(s) are claimed which Mr Akers wishes to challenge, he can then seek review by the Victorian Information Commissioner in the usual manner. 
65	This is consistent with the position that would apply if VicPol had refused to process Mr Akers’ request under section 25A(5) of the FOI Act, and Mr Akers had been successful on review.
66	I note that, while an invitation to VicPol to reconsider its decision under section 51A might be more expeditious as it would keep the current proceedings on foot, I do not consider it to be appropriate in the present circumstances given that there is no express power to provide ‘directions or recommendations’ under that provision.  In any event, given that Mr Akers is continuing to pursue this application some 3½ years after he lodged it, it is unlikely that the elapsing of time for that process to unfold will impact on the value to him of obtaining any documents which may ultimately be released. 

R. Tang, AM
Member