Victoria Police Opposes Applicant's Request for Affidavits

Bailey v Victoria Police (Review and Regulation) [2021] VCAT 836 (28 July 2021)

The applicant sought a review of Victoria Police's decision not to release an affidavit in relation to his father-in-law's case.  The applicant is concerned that there had been a miscarriage of justice.  The Police asserts that their refusal to carry out a review is based on the Freedom of Information Act. 

Facts:

In 2005, the applicant’s now deceased father-in-law, Victor Brooks, was found guilty of drug offences.  The applicant, Mr Bailey, is concerned that a miscarriage of justice occurred in relation to the evidence gathering process and the conduct of that prosecution.  In 2018, Mr Bailey applied to the Tribunal for review of a decision by the Victoria Police not to release an affidavit made by Acting Sergeant Geoff Brown on 8 March 2005.  On 13 February 2020, Mr Bailey made a request for 15 specific documents.  The Police indicated that some documents had already been provided to Mr Bailey, some original documents had been returned to court, some could not be found, if indeed they ever existed, and others were never created. 

The Police seek that VCAT refuse to carry out the FOI review on the basis that there has been a previous Tribunal decision refusing access to ‘the same document or the same information’.  It found that exemptions in sections 31 (d) (law-enforcement), 33 (personal privacy) and 35 (information obtained in confidence) of the FOI Act applied.

Issue:

Whether application for review is an abuse of process.

Applicable law:

Freedom of Information Act 1982, s 50(6) - provides that the Tribunal may refuse to review a decision of an agency or Minister to refuse the request of a person for access to a document if the Tribunal is satisfied that it has previously reviewed a decision of the agency or Minister to refuse access to the same document or the same information.

Victorian Civil and Administrative Tribunal Act 1998, s 75 - provides that at any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process.

Analysis:

Section 50(6) is a discretionary provision with the purpose of preventing an abuse of the processes of the Tribunal of the kind which would occur if, the Tribunal having refused applicant A access to a particular document, applicant A procured applicant B to make an identical application.  In the case at bar, the document the subject of the Tribunal application (the results of certain polls of public opinion commissioned by the Department of Premier and Cabinet) was not ‘the same document or the same information’ as had been the subject of an earlier Tribunal decision. 

Conclusion:

The Court refused to conduct another review into the decision to refuse access to documents, not satisfied from the non-specific references made by Mr Bailey in his submissions to some controversies about conduct of police and others involved in law enforcement, that there is a sufficient basis to re-visit the public interest considerations which might be said to arise concerning the document sought.  In relation to the Brown affidavit, the extract from the warrants register, and most of the content of the three applications for approval to conduct a search, the application is dismissed under s 50(6) of the FOI Act, and s 75 of the VCAT Act.