VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z584/2020	
CATCHWORDS	
Review and Regulation List – Freedom of Information Act 1982 (Vic), s 50(3D) – Preliminary issue as to scope of review where agency applies for review of decision of the Information Commissioner – Whether review limited to those documents (or parts thereof) which Information Commissioner decided should be released (contrary to the decision of the agency) or may extend to review of those documents (or parts thereof) to which access has been refused. 	

APPLICANT	Monash City Council	
RESPONDENT	Vanessa Drake	
WHERE HELD	Melbourne	
BEFORE	R. Tang AM, Member	
HEARING TYPE	Preliminary Hearing (video conference)	
DATE OF HEARING	4 November 2022	
DATE OF ORDER and reasons	11 November 2022	
CITATION	Monash City Council v Drake (Review and Regulation) [2022] VCAT 1293	

Orders

1	Under section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal declares that the scope of this proceeding is limited to a review of the decision of the Information Commissioner insofar as it was decided to grant access to documents (or part thereof) contrary to the decision of the respondent.
2	The Tribunal has scheduled an administrative mention on 25 November 2022 for the parties to advise, preferably jointly, as to the future conduct of the proceeding.
Note:  Reference should be made to [10] of the Reasons for the factors which may impact on the next steps in this proceeding.

R. Tang, AM
Member			

APPEARANCES:		
For Applicant 	Mr M. Batskos, solicitor	
For Respondent	Ms H. Wellington, representative	

Reasons
1	By application dated 15 July 2020 (VCAT Application), the Monash City Council (Council) applied to VCAT, under section 50(3D) of the Freedom of Information Act 1982 (Vic) (FOI Act), for review of a decision of the Public Access Deputy Commissioner (Commissioner).  
2	In the VCAT Application, the Council identified the decision in respect of which review was sought as a decision of the Commissioner made on 29 June 2020 concerning a freedom of information (FOI) request made by Ms Vanessa Drake (for documents regarding the Council’s decision to construct coaching boxes for football games on a reserve next to her home).  In the section of the VCAT Application headed ‘Reasons for Application’, the Council indicated that it sought review ‘to the extent that the decision was to release documents or parts of documents, contrary to the decision of the Council’.  
3	Relevantly, the Commissioner’s Notice of Decision dated 29 June 2020 (Decision Notice) indicated that the Commissioner’s: 
decision on [Ms Vanessa Drake’s freedom of information] request differs from [the Council’s] decision in that [the Commissioner has] decided to release additional information in the documents, with certain documents released in full and others released in part. 
4	Attached to the Decision Notice was a schedule of documents, identifying some 180 documents, although the Commissioner indicated that a considerable number of those documents were ‘not subject to review’, generally because they had already been released by the Council to Ms Drake in full.  
5	Subsequently, in a schedule to the ‘Statement in Lieu of Statement under Section 49 of the Victorian Civil and Administrative Tribunal Act 1998’ (Section 49 Material) filed by the Council on 17 August 2020, the Council observed that, of the documents identified by the Commissioner, 86 documents were ‘in dispute’.  
6	However, following a compulsory conference held on 25 November 2020 (and further negotiations between the parties), the number of documents in respect of which the Council sought review was reduced to 10 documents (Council Disputed Documents).
7	While the Commissioner decided that each of the Council Disputed Documents should be released to Ms Drake in full or in part, contrary to the Council’s original decision, some of the documents also contained other material which the Council decided, and the Commissioner agreed, was exempt from disclosure under the FOI Act.
8	The Council’s application was listed for hearing before me on 15 June 2022.  At the start of the listed hearing, I sought to clarify the scope of the review.  I was particularly concerned to establish if the Tribunal’s review was limited to those aspects of the 10 disputed documents that the Commissioner had determined ought to be released to Ms Drake, or if the review extended to the entirety of the Council Disputed Documents (ie. including those parts the Commissioner determined to be exempt consistently with the Council’s original decision).
9	While Mr Batskos (solicitor for the Council) contended that the review was limited, he was unable to point me to any authority on the subject.  As Ms Drake did not agree, and neither party was in a position to properly address the matter, I provided directions for the filing of submissions regarding, and listed a preliminary hearing to consider, a ‘Preliminary Issue’ which I identified as being: 
whether or not the scope of the Tribunal’s review is limited to those aspects of the decision of the [Commissioner] dated 29 June 2020 which are contested by the [Council] or extends to any of the exemptions claimed in respect of the ten remaining documents in dispute.
10	For the reasons which follow, I have ultimately determined (and will declare) that the scope of the Tribunal’s review is limited to the decision of the Commissioner to grant access to those parts of the Council’s Disputed Documents that the Council had decided ought not be released.  I have scheduled an administrative mention in two week’s time for the parties to advise as to future conduct of the proceeding.  The next steps may depend on whether Ms Drake now files her own application for review and seeks an extension of time to do so (as possibly foreshadowed in her submissions), in which case it may be necessary to list a hearing to deal with that application (assuming the Council does not consent).  Alternatively, the parties may seek that the matter progress to a final hearing of the existing application on the earliest available date (which is unlikely to be until sometime between March to June 2023).
Outline of the FOI Act and the proper approach to its interpretation
11	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 for certain public purposes.
12	Relevantly to Ms Drake’s FOI Request, the object is sought to be achieved by:
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.
13	Part III of the FOI Act deals with access to documents, including the making of requests for documents, the time in which agencies must make a decision on a request, relevant charges and the form in which access is to be provided.  Section 25 of the FOI Act provides for the deletion of exempt matter or irrelevant material where doing so is practicable and the person applying for access has indicated that they wish to access a redacted copy of the document(s) sought.
14	Part IV deals with the exemptions from access.  A number of these will, in due course, be the subject of the final hearing of the Council’s application.
15	Part VI addresses review of agency decisions on FOI requests, with Division 1 dealing with review by the Information Commissioner (or the Commissioner) and Division 3 dealing with review by VCAT.  
16	An applicant (ie. the person who made an original FOI request) may apply to the Information Commissioner for review of a decision of an agency ‘refusing to grant access to a document in accordance with a request’.  The Information Commissioner must: 
•	generally, ‘make a fresh decision on the original application’, which ‘has the same effect as a decision of the agency’; and
•	provide a notice in writing of the decision which provides reasons for the decision and ‘the rights of the parties to apply to the Tribunal for review under section 50’.
17	Under section 50(1)(b) of the FOI Act, an applicant (ie. again the person who made an original FOI request) may apply to VCAT for review of a decision of the Information Commissioner ‘refusing to grant access to a document in accordance with a request’.  Generally, an applicant cannot apply directly to the Tribunal, although there are exceptions where the agency fails to deal with the FOI request in the relevant time period, the Information Commissioner fails to deal with the review in the relevant review time period or the Information Commissioner determines not to deal with the application for review. 
18	Applications for review may also be made to VCAT by certain third parties affected by a decision of (either) an agency or the Information Commissioner to release documents.  This applies to persons whose personal or business or confidential information is included in such documents.
19	Separately, an agency is given a right to apply for review of a decision of the Information Commissioner made under section 49P.  Unlike section 50(1)(b), section 50(3D) does not specify which aspects of the Information Commissioner’s decision may be reviewed.  Further, neither party was able to point to (and nor could I find) any Court or VCAT decision which has considered this issue.
20	As recently confirmed in Monash University v EBT (EBT), the ‘tenor of s 3 as whole’ supports that the proper approach to construction of the FOI Act is to ‘further, rather than hinder, free access to information’.  Further, in EBT, Cavanough J accepted and applied the observation of Professor Pearce that:
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.
The Council’s submissions
21	The Council submits that the ‘decision under review needs to be identified with precision because it marks the boundaries of the review’.  It says that two types of reviewable decisions ‘sprung out’ of the Commissioner’s Decision Notice being:
(a)	a decision to refuse access to documents [reviewable] under s 50(1)(b) of the FOI Act; and
(b)	a decision to grant access to documents where the Council’s earlier decision was to refuse access [reviewable under] s 50(3D) [of the] FOI Act.
22	The Council submits that the reviewable decision in the latter case ‘must necessarily mean a decision by the Commissioner to grant access to a document (or documents) where the agency’s earlier decision was to refuse access’.  It contends this is so because:
•	an application to review a decision of the Information Commissioner to refuse access to a document (or part thereof) ‘can only be applied for by an “applicant”  … in this case … the Respondent’, which involves ‘a different type of reviewable decision which could have been the subject of a separate application for review [ie. under section 50(1)(b)]’.  The Council notes that that decision ‘was not’ the subject of such an application, despite Ms Drake ‘having had ample time (since 29 June 2020) to do so’;
•	where a decision is reviewable, but no application for review is made, it follows ‘as a logical and ineluctable conclusion’ that review ‘cannot be achieved by some indirect means’;
•	unlike other regimes where it has been confirmed that any review by an ‘affected person’ relates to the whole of the decision, and is not limited to the particular aspect(s) that the applicant identifies in their application, the FOI Act ‘delineates with specificity which particular persons may seek review of which particular decisions’.  In this regard, the Council observe that a single ‘decision-making exercise’ by the Commissioner may give rise to a number of ‘separately reviewable decisions’, including a decision to refuse access to documents, a decision to grant access to documents of a third party and a decision to grant access where the agency is of the view access should be refused;
•	the FOI Act ‘treats different potential applicants for review differently’.  For example, unlike the situation applicable to a review initiated by a FOI applicant under section 50(1)(b), the agency ‘does not bear the onus of proof that otherwise exists’ in respect of an application under section 50(3D).  Also, while an original FOI applicant has 60 days from the date of a decision of the Information Commissioner to make application under section 50(1)(b), an agency ‘only has 14 days to seek review’; and
•	if the position were otherwise, an agency could challenge the Commissioner’s decision to grant access to documents even though it failed to make its own application within 14 days (ie. by taking the point in proceedings brought by the original FOI applicant) which ‘would potentially render nugatory the time limits imposed by Parliament’, a ‘non-sensical position’ which would inappropriately provide agencies with a ‘second chance’.
23	In oral submissions, Mr Batskos (solicitor for the Council) observed that if the FOI Act, and particularly section 50, is read from start to finish, it is apparent that the only decision left with which section 50(3D) is concerned is a decision to grant access to a document, contrary to the agency’s decision.
24	In response to Ms Drake’s submission that the review in this proceeding ought extend to an additional 16 documents (as well as the material in the Council Disputed Documents which the Commissioner accepted as being exempt), Mr Batskos observed that: 
•	the preliminary issue, as identified by the Tribunal, was limited to the exempt material included in the Council’s Disputed Documents, and did not extend to consideration of additional documents to which access has been refused by the Information Commissioner, or which had been accepted as being not relevant to the request; 
•	Ms Drake had been aware of the limited scope of review in respect of the Council’s application, at least from 17 August 2020 (when she received the section 49 material produced by the Council identifying the documents in dispute) and, therefore, could have made her own application for review within the 60 day period if she had wished to add further documents; and
•	Ms Drake still failed to lodge her own application after the Tribunal sent her an email on 23 February 2021 advising that she would need to do so (and seek an extension of time) if she wished to have additional documents (ie. beyond the Council Disputed Documents) reviewed.
Ms Drake’s submissions
25	Ms Drake was represented, with leave of the Tribunal, by her friend, Ms Heather Wellington.  Ms Wellington has a law degree (although is not a practising lawyer), was formerly a councillor (with a different council) and has some experience with FOI matters.
26	In her submissions, Ms Drake explains that – as she is unfamiliar with the FOI Act – she ‘initially expected the Tribunal’s review to be a de novo review of the Commissioner’s decision on all elements of her original application’ and, as she ‘did not understand the potential impact of [the Council’s] attempt to delimit the review’s scope’, did not lodge her own application for review.  Further, when she became aware of the limitations ‘a considerable time after expiry of the relevant statutory period’, she ‘assumed the [Council]’s approach was correct’ and did not appreciate that she could seek the Tribunal’s consent to submit a late request for review.
27	Ms Drake indicates that, in addition to the 10 Council Disputed Documents, there are further documents which have ‘never been resolved to [Ms Drake’s] satisfaction’ being: 
•	seven documents to which access was refused in full by the Council (and where such refusal was confirmed by the Commissioner); and
•	nine documents to which access was refused on the basis they were irrelevant (which the Commissioner excluded from her review).
28	Ms Drake submits that the review extends to the whole of the Commissioner’s decision on the basis that:
•	section 50(3D) provides for ‘review of a decision of the Information Commissioner under section 49P’, which is a ‘single, fresh decision on the applicant’s complete original application’.  In this regard, while that decision ‘may lead to a number of separate outcomes’, she contends that these different outcomes do not ‘establish the right for the agency to apply for review of some but not all of these outcomes’ as they are each ‘an element of the larger, single decision’;  
•	there is nothing ‘implicit or explicit’ in the FOI Act that ‘empowers the Council to delimit the scope of the Tribunal’s review by specifying that it applies only to those parts of the Commissioner’s decision that are against the Council’s interest’; and
•	the role of the Tribunal in undertaking its review is ‘to stand in the shoes of the Commissioner, whose role in turn … was to make a fresh decision on [her] original application’.  In this regard, she submits the Tribunal is ‘required to make a fresh assessment on [her] original application’ and ‘address the question of access to every document identified as a result of [her] original request’.
29	Ms Drake accepts that, as this is a review of the decision of the Commissioner rather than a decision of the Council, the Council ‘does not bear the onus of establishing that a decision given in respect of the request for review was justified’.
30	Ms Drake further submits that:
•	the principle that, when a decision is under review, then ‘the whole decision is under review’ is supported by previous decisions, although none address the FOI Act;
•	from a practical perspective, it ‘may be difficult’ for the Tribunal to consider ‘one document in isolation from the remainder of the decision about related documents’;
•	the different timelines for making an application ‘have no bearing on the scope of review’, noting that the reduction in the period for an agency to apply (from 60 to 14 days) were designed to ‘make it quicker and easier for Victorians to access information’ rather than to limit the scope of review. 
31	In oral submissions, Ms Wellington observed that the FOI Act was ‘intended to be a simple process to get information’ (unless there was a good reason not to provide it), rather than to be as complex as suggested by the Council’s submissions.  She described the complexity in this proceeding as ‘mind boggling’, as was the apparent secrecy surrounding the documents ‘concerning Ms Drake’s home’.
32	In response to a question from me, Ms Wellington accepted that Ms Drake could make an application for review (and seek leave to file that late) or submit a new freedom of information request, but suggested that this would be a ‘bizarre and inefficient use of resources’.
Analysis and conclusion
33	For the reasons which follow, I have decided that the scope of the application for review in the present proceeding is limited to the decision of the Commissioner to grant access to those parts of the Council’s Disputed Documents that the Council had decided ought not be released.  I will make a declaration to this effect.
34	It is axiomatic that, in interpreting a piece of legislation (including the FOI Act), proper regard should be had to its text, context and purpose.  Further, it must be ‘construed on the prima facie basis that its provisions are intended to give effect to harmonious goals’, with any conflict in its provisions to be alleviated by ‘adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions’.
35	It is unfortunate that, unlike section 50(1)(b), section 50(3D) is somewhat ambiguous as to the scope of the Tribunal’s review once an application is brought before it.
36	On the one hand, the reference in that section to review of the Information Commissioner’s decision under section 49P is suggestive of an expansive review of a single decision.  Further, I accept that such an interpretation would also tend to further, rather than hinder, access to information. 
37	On the other hand, such an interpretation does not sit well with: 
•	the different time periods for applications for review by an agency (14 days) as compared to the original FOI applicant (60 days) and, if interpreted in the manner contended for by Ms Drake, would effectively allow an agency to side step the time limits set by Parliament;
•	the onus of proof that is placed on an agency where an original FOI applicant seeks review of the exemptions claimed, which Ms Drake concedes is inapplicable in a situation such as this (ie. where an original FOI applicant seeks to add documents to a review instigated by an agency);
•	the structure of section 50 which, when read from start to finish:
-	clearly seems to envisage separate applications for review being lodged in respect of different ‘decisions’, despite those decisions inevitably being part of a wider decision by the Information Commissioner (or Commissioner); and
-	appears to leave a decision by the Commissioner to grant access to a document (or part thereof) as the necessary focus of section 50(3D) (although noting that there may still be overlap between an agency application and an application by a third party); and
•	the implication that any review, should it extend to all aspects of the original decision, would conceivably allow an agency to re-open its own decision to grant access to documents (assuming, of course, they have not been released to the original FOI applicant in the meantime).
38	It is noted that, while there does not appear to have been any decision on the preliminary issue in the past, the interpretation put forward by the Council may well represent an accepted view, as evidenced by the email that the Tribunal sent to Ms Drake in February 2021 which stated (emphasis added):
It appears Ms Drake seeks to have the Tribunal review the decision of the Information Commissioner of 29 June 2020 that 7 documents not be released to her.  The current matter, Z584/2020, is an application for review by the Monash City Council of the Commissioner’s decision that certain documents should be released.  Accordingly, those 7 documents do not form [part] of matter Z584/2020.
To pursue her intended application, Ms Drake will need to apply [to] the Tribunal, (and pay the applicable fee) and seek an extension of time within which to do so.
39	Caution ought to be exercised before disturbing such views.
40	Furthermore, although venturing beyond interpretation of the FOI Act itself, requiring a separate application to be made by an original FOI applicant is arguably consistent with the structure of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in that: 
•	a prescribed fee must ordinarily be paid for each application, intended as partial cost-recovery mechanism, whereas this is by-passed if no separate application need be lodged; and
•	it would not (normally or necessarily) promote the conduct of the proceeding with ‘as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit’, to allow additional matters to become the subject of an existing proceeding, without leave of or approval from the Tribunal.  This is particularly so where, as in this case, the dispute was narrowed following a compulsory conference and the additional matters are sought to be re-agitated only after the evidence and submissions have been lodged, and the proceeding has already been listed for final hearing.
41	Conversely, if a separate application is required and filed late, VCAT can ensure procedural fairness by granting an extension of time where it is appropriate to do so.  This may well be the case where there is genuine confusion and misunderstanding on the part of an original FOI applicant and they acted promptly to assert their rights (ie. by filing an application within a short period of time after becoming aware of the limitations on the scope of an existing proceeding).
42	Moreover, even if an extension of time were not granted, this is not a case where any rights are entirely lost.  There is no impediment to the original FOI applicant re-agitating the issue of access to the relevant documents by submitting a new FOI request and, if the decisions of the agency and Commissioner remained unchanged, then seeking review by VCAT.  While it would inevitably take a considerable period of time to move through all of those stages, that would be a consequence of the FOI applicant’s own actions (ie. in failing to act on their rights promptly).

R. Tang, AM
Member