Substantial and unreasonable diversion of resources

Justice Emerton of the Supreme Court in Chief Commissioner of Police v McIntosh [2010] VSC 429  found the Victorian Civil and Administrative Tribunal erred in law in interpreting  s 25A of the Freedom of Information Act, a provision that permits an agency to refuse access to documents if satisfied the work involved in processing a request "would substantially and unreasonably divert the resources of the agency from its other operations."

The application by Opposition front bencher Andrew McIntosh, sought access to staff rosters produced in each police station in Victoria for last pay period in July 2009. The Tribunal decision was that the time taken by the freedom of information section of the agency should not be calculated in deciding whether s 25A(1)(a) applies, because the section had no functions other than dealing with FOI applications.

"This is unlike where a police station has a request by a staff officer for documents. In that circumstance, clearly the officer would, if not searching for documents, be performing other functions. It is a diversion of those functions that the section is referring to. It cannot be that a person from the respondent’s FOI department when working on an FOI request is being diverted from other functions... To interpret the section otherwise would be to deny the word “other” plays any part in interpreting the section. That is, the word “other” would be given no meaning."

 Justice Emerton said

23 In my view, the questions of law raised in this appeal can be resolved by reference to the words in s 25A(1) and (2) of the Act. The meaning of the words ’other operations’ in sub-s (1) is to be ascertained by reference to the words at the beginning of the sub-section, which concern ‘a request’, and permit the agency (or Minister) to refuse to grant access to documents in accordance with ’the request’ without having caused the processing of ’the request’ to have been undertaken, if the agency (or Minister) is satisfied of the matters that follow. Those words refer to a particular request. Dealing with or processing ’the request’ is one of the operations of the agency. Its ’other operations’ are all of the other things that it does, including dealing with and processing other FOI requests. Such a construction is supported by sub-s (2), which in my view makes plain that the performance of the relevant tasks by any of the resources of the agency, including by FOI officers or specialists, are to be taken into account.

24 The obligation to comply with the Act is an important obligation of an agency. If, by reason of the voluminous nature of a particular request, an agency’s ability to process other FOI requests is impaired, there is no reason why that should be ignored in applying s 25A(1).

25 Accordingly, the Tribunal ought to have taken into account the time that would have to be spent by the FOI unit to process the Request when deciding whether processing the Request would substantially and unreasonably divert the resources of Victoria Police from its other operations.

In evidence before the Tribunal Victoria Police had estimated it would take at least 640 hours to process the approximately 450 pages of rosters involved. The Tribunal found that it would take 25 hours, incorrectly in light of the Court's finding, allowing a discount of 30 hours of time spent by the FOI section. Justice Emerton remitted the matter to the Tribunal to be determined again, noting:

32 The requirements of s 25A(1) are not easily satisfied. In Secretary, Department of Treasury and Finance v Kelly,[7] Ormiston JA held that s 25A(1) should only be applied to a “clear case” of substantial and unreasonable diversion.[8] The Court was referred to a decision of the New South Wales Administrative Decisions Tribunal, Chapman v Commissioner of Police,[9] which conveniently summarised some of the Tribunal decisions in which s 25A(1) had been successfully invoked. The three matters referred to involved thousands of pages of documents and a commitment of the available officers’ time in the order of “years”, “15 – 16 months” and “between 15 and 30 weeks”.[10]

33 Victoria Police has processed two requests from Mr McIntosh for police rosters in the recent past. In relation to one of those requests, in McIntosh v Victoria Police,[11] Judge Harbison concluded that Victoria Police could not avail itself of s 25A(1)(a), notwithstanding that the request was for police rosters for two pay periods rather than one.

34 On its face, it seems unlikely that a commitment of 55 hours to process the Request would involve a diversion of Victoria Police resources sufficient to satisfy the requirements of s 25A(1)(a). However, without the benefit of the evidence before the Tribunal, including as to the competing demands on the time of the persons who will necessarily be involved in processing the Request, it is nonetheless difficult to conclude that the decision would not have been different had it been based on an estimated commitment of resources of 55 hours rather than 25 hours.