Arthur Nicholls and Commissioner of Taxation
[2012] AATA 328
•31 May 2012
[2012] AATA 328
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/4745
Re
Arthur Nicholls
APPLICANT
And
Commissioner of Taxation
RESPONDENT
DECISION
Tribunal Senior Member R Dunne
Date 31 May 2012 Place Adelaide The Tribunal affirms the decision under review.
......[signed]......
Senior Member R Dunne
CATCHWORDS
FREEDOM OF INFORMATION – access to documents – extensive history of relationship between applicant and respondent’s officers – applicant’s reasons for wanting access not relevant to FOI application – exempt documents – documents to which secrecy provisions apply – documents concerning certain conduct of industrial relations of an agency – documents affecting personal privacy – whether all reasonable steps taken to find documents – whether documents exist or cannot be found – decision under review affirmed.
LEGISLATION
Freedom of Information Act 1982 (Cth) ss 4(1), 11(1), 22, 24A, 38(1), 40(1)(c) and (2), 41, 55(1) and (5)
Taxation Administration Act 1953 (Cth) ss 355-25, 355-30
CASES
Radar Investments Pty Ltd and Health Insurance Commission (2004) 80 ALD 733
Re Redfern and University of Canberra (1995) 38 ALD 457
Shergold and Tanner (2000) 62 ALD 584
Re LJXW and Australian Federal Police and Another (2011) 120 ALD 516
Re Pratt Consolidated Holdings Pty Ltd v Commissioner of Taxation [2011] AATA 907
Johns v Connor (1992) 35 FCR1
Corrs Chambers Westgarth and Commissioner of Taxation [1998] AAT 756
Re Collie and Deputy Commissioner of Taxation (1997) 45 ALD 556
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union & Ors (1979) 27 ALR 367
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Langer and Telstra [2002] 68 ALD 762
Re Beesley and Federal Commissioner of Taxation (2001) 47 ATR 1219
Chu v Telstra Corporation (2005) 147 FCR 505Re Chu and Telstra [2007] AATA 1748
REASONS FOR DECISION
Senior Member R Dunne
31 May 2012
INTRODUCTION
This is an application for review by Mr Arthur Nicholls (“applicant”) under s 55(1) of the Freedom of Information Act 1982 (“Act”). In a request dated 19 March 2010 (“FOI Request”) Mr Nicholls sought access under s 11(1) of the Act to certain documents and records of the respondent. The FOI Request related to ten different classes of documents and records (referred to as “Points”) and followed eleven previous FOI requests of the respondent by Mr Nicholls. The previous FOI requests related to some or all of the documents and records sought in the FOI Request. Following the release of certain of the documents and records by the respondent, there are now only three documents that remain in dispute in these proceedings. Two documents have been released in part to the applicant and the respondent claims that the third document is fully exempt. It is the respondent’s decision in relation to these three documents that is the subject of review by the Tribunal.
At the hearing, the applicant appeared in person. Ms E Arduca, from the office of the Australian Government Solicitor, appeared for the respondent. The respondent called Ms C Dowling and Mr B Tiernan, FOI advisors from the respondent’s legal services branch, to give oral evidence. Ms Dowling gave evidence by telephone and Mr Tiernan appeared personally. The T documents (Exhibit R1), lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were tendered before me, along with the following exhibits:
·affidavit (with one minor amendment) of Ms C Dowling dated 21 June 2011 (Exhibit R2);
·further affidavit of Ms C Dowling dated 14 October 2011 (Exhibit R3);
·Corporate Management Practice Statement PS CM 2005/05 issued by the respondent (Exhibit R4);
·affidavit of Mr B Tiernan dated 27 June 2011 (Exhibit R5); and
·further affidavit of Mr B Tiernan dated 29 September 2011 (Exhibit R6).
ISSUES BEFORE THE TRIBUNAL
The issues for determination by the Tribunal are as follows:
(a)Are the three documents that remain in dispute exempt under s 38, s 40(1)(c) and/or s 41 of the Act?
(b)Does s 22 of the Act properly apply to the information in the documents in dispute which was deleted by the respondent?
(c)Have all reasonable steps been taken by the respondent to find the documents sought by the applicant which cannot be found or do not exist, pursuant to s 24A of the Act.
LEGISLATION
The legislative provisions that relevantly apply to this application for review are contained in ss 4, 22, 24A, 38, 40, 41 and 55 of the Act.
To the extent that it applies, s 4(1) of the Act provides:
“4 Interpretation
(1)In this Act, unless the contrary intention appears:
…
"exempt document" means:(a) a document which, by virtue of a provision of Part IV, is an exempt document;
(b) a document in respect of which, by virtue of section 7, an agency, person or body is exempt from the operation of this Act; or
(c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.
"personal information" means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
…
The object of the Act, expressed in s 3(1), is “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth”. In achieving this object, s 11(1) of the Act provides a general right of access, and reads:
“11 Right of access
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
…
Section 11(1) is explicit in its terms that the right of access is not to every document of an agency. It is only to every document in the possession of the agency that is not an “exempt document”. Where an agency is concerned, an “exempt document” is a document that is exempt by virtue of a provision of Part IV of the Act. Section 11(1) contains a further qualification as its opening words are expressed as “Subject to this Act”. These words encompass s 24A of the Act, which reads:
“24A Requests may be refused if documents cannot be found or do not exist
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.”
In some cases, only part of a document may contain exempt matter. Deletions may be made to the document so that it will no longer be an exempt document. In this regard, s 22 of the Act relevantly reads:
“22 Deletion of exempt matter or irrelevant material
(1) Where:
(a) an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt document; or
(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
(2)Where access is granted to a copy of a document in accordance with subsection (1):
(a) the applicant must be informed:
(i) that it is such a copy; and
(ii) of the ground for the deletions; and
(iii) if any matter deleted is exempt matter because of a provision of this Act – that the matter deleted is exempt matter because of that provision; and
(b) section 26 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish to him or her a notice in writing in accordance with that section.”
As mentioned above, under Part IV of the Act a person has no right to obtain access to an exempt document. Section 38 of the Act deals with documents to which secrecy provisions of other laws apply. Section 38 relevantly provides:
“38 Documents to which secrecy provisions of enactments apply
(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.
(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.
(2) Subject to subsection (3), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.”
…”
Section 38 of the Act exempts information if its disclosure is prohibited under a provision of an enactment specified in Schedule 3 of the Act. Section 355-25 in Schedule 1 of the Taxation Administration Act 1953 (“TA Act”) is a provision specified in Schedule 3 of the Act and provides:
“355-25 Offence – disclosure of protected information by taxation officers
(1)An entity commits an offence if:
(a) the entity is or was a *taxation officer; and
(b) the entity:
(i) makes a record of information; or
(ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and
(c) the information is *protected information; and
(d) the information was acquired by the first-mentioned entity as a taxation officer.
Penalty: Imprisonment for 2 years.
(2)An entity (the covered entity) is covered by this subsection in relation to *protected information that related to another entity (the primary entity) if:
(a) the covered entity is the primary entity’s *registered tax agent or BAS agent; or
(b) the covered entity is a *legal practitioner representing the primary entity in relation to the primary entity’s *tax affairs; or
(c) the primary entity is an *incapacitated entity and the covered entity is a *representative of the incapacitated entity; or
(d) the covered entity is the primary entity’s *legal personal representative; or
(e) the covered entity is the primary entity’s guardian where the primary entity is a minor or suffers from mental incapacity; or
(f) the covered entity and the primary entity are members of the same *consolidated group or *MEC group; or
(g) the covered entity is a representative of the primary entity who has been nominated by the primary entity in the *approved form to act on that entity’s behalf with respect to protected information.”
“Protected information” is defined in s 355-30 of Schedule 1 as follows:
“(1) Protected information means information that:
(a) was disclosed or obtained under or for the purposes of a law that was a taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and
(b) relates to the affairs of an entity; and
(c) identifies, or is reasonably capable of being used to identify, the entity.”
Under s 40 of the Act, a document is an exempt document if it concerns certain operations of Commonwealth agencies. Section 40 relevantly reads:
“40 Documents concerning certain operations of agencies
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b)prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c)have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
(e)have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.”
Under s 41 of the Act, a document is an exempt document if its disclosure would involve the unreasonable disclosure of personal information about a person. Section 41 relevantly provides:
“41 Documents affecting personal privacy
(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
…”
Part VI of the Act relates to the review of freedom of information decisions. In Part VI, s 55 relevantly reads:
“55 Applications to Administrative Appeals Tribunal
(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a)a decision refusing to grant access to a document in accordance with a request; or
(aa)a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
…
(5) The Tribunal’s power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.
…”
BACKGROUND
Following his FOI Request, Ms Dowling wrote to the applicant on 22 June 2010. She advised him of the decision to release certain documents and not to grant access to other documents in full or in part on the ground that disclosure was exempt under the Act. In a letter dated 28 July 2010, the applicant requested an internal review of the respondent’s decision. On 15 September 2010, a senior FOI officer within the respondent’s office advised the applicant of the decision made on internal review to uphold the original decision. On 12 January 2011, the Tribunal directed the respondent to give to the applicant documents that the respondent proposed to release pursuant to the FOI Request. These documents were released on 9 February 2011. On 30 March 2011, the respondent was directed to give to the applicant any further documents that the respondent proposed to release pursuant to the FOI Request. These documents were released to the applicant on 18 April 2011.
It appears that, prior to the making of the FOI Request on 19 March 2010, an audit was carried out by the respondent of four companies controlled by the applicant. During the course of the audit, the respondent conducted an investigation into the affairs of the applicant. Two court actions were taken by the applicant against the respondent relating to the investigation. These court actions have been concluded. The substantial investigation is ongoing. On 6 May 2008, as part of the investigation, the Australian Federal Police (“AFP”) executed a search warrant at the applicant’s home address. Moreover, during the course of the investigation, the applicant made the eleven FOI requests to the respondent prior to the request made on 19 March 2010. On 11 September 2009, apparently arising out of the investigation, the applicant lodged a complaint against an officer of the respondent (Mr A Heinjus) who was involved in, or conducted, the investigation.
The applicant and the respondent have agreed that, following the release of the documents on 9 February 2011 and 18 April 2011, there are only three documents that remain in dispute. Two documents, Document 7[61] and Document 16[111-118] have been released in part to the applicant. The respondent claims that Document 17[119] is fully exempt. The documents remaining in dispute are more fully described in the Schedule below:
SCHEDULE OF DOCUMENTS REMAINING IN DISPUTE
Number
[Folio]
Description of Document
Exemption Claimed
7[61]
SA/NT RCAF minutes 10 August 2007
Released in part on 22 June 2010. Exemption from disclosure claimed on grounds of s 38, 40(1)(c) and s 41 of the Act. Information about third parties acquired by ATO officer and names of ATO officers working in sensitive areas deleted.
Respondent consents to partial additional release of this document. Section 38 exemption remains.
16[111-118]
Email dated 14 September 2009 from A Heinjus to SNC officer forwarding email string re communication from legal adviser and attachment.
Exemption from disclosure claimed on grounds of s 40(1)(c), s 41 and s 42. The document contains legal information which is subject to legal professional privilege and personal information about ATO officers.
Respondent consents to partial additional release of this document. Sections 40(1)(c) and 41 exemptions remain.
17[119]
Email dated 28 September 2009 from A Heinjus to P Anderson with email string.
Exemption from disclosure claimed on grounds of s 38, s 40(1)(c) and s 41. The document contains information acquired by an ATO officer in course of employment for purposes of tax acts and personal information about ATO officer.
Exempt in full. Section 38, s 40(1)(c) and s 41 exemptions remains.
EVIDENCE
Evidence of Ms C Dowling
Ms Dowling’s evidence is largely contained in her two affidavits made on 20 June 2011 and 14 October 2011. She also gave oral evidence and was cross-examined by Mr Nicholls during the course of the hearing. In her affidavit dated 20 June 2011, she listed a variety of systems and databases used by the respondent to store records. Although she acknowledged never having seen a complete and comprehensive list, she detailed nineteen of the systems and databases currently being used by the respondent. She conducted searches of the online systems (TDMS and Siebel) as she considered those systems might reasonably contain documents within the scope of the FOI Request. She searched MyM (Mind your Matters) for any previous FOI applications that might overlap with the FOI Request and she searched AIS (ATO Integrated System). In searching MyM, she identified eleven previous FOI applications made by the applicant that overlapped with the FOI Request. She sent a letter to the applicant requesting him to clarify the scope of his FOI Request. In the absence of a response, she assumed that, as with his previous applications, the applicant would wish to exclude documents already released in previous FOI requests. She did not search systems such RMS, IPS, STAC, ADD, NTS and FLOCS because, based on her knowledge and experience, she did not believe these systems would contain anything relevant to the FOI Request.
Ms Dowling outlined in detail the outcomes arising from her searches of the Points comprised in the FOI Request. In outlining the outcomes which are set out below in summary, her evidence was that the documents and records in each Point, either:
(a)had been released to the applicant as part of a previous FOI request;
(b)were considered to be outside the scope of the FOI Request;
(c)could not be identified or found by Ms Dowling;
(d)had been retrieved for a previous FOI application and were considered to be outside the scope of that application. As such, they were considered to be outside the scope of the FOI Request;
(e)had been identified, but could not be found or did not exist; or
(f)had been processed under previous FOI applications (including documents regarding court proceedings and the search warrant executed on 6 May 2008) and had mostly been exempted in full or in part.
In analysing the evidence in her affidavit of 20 June 2011, Ms Dowling said (at paragraph 60 of the affidavit):
“I believe that the searches undertaken by me were appropriate and reasonable for documents coming within the terms of the FOI request. I believe that the searches were extensive and conducted on the relevant databases and systems. I believe that I made enquiries with the appropriate individuals concerning the FOI request.”
On 15 September 2011, the Tribunal issued summonses to Ms Dowling and Mr Tiernan to undertake additional searches of the respondent’s data bases for documents within the scope of the FOI Request. As the Tribunal directed that only one person was required to undertake the additional searches, Mr Tiernan elected to undertake the searches and provide the results to the Tribunal. Accordingly, Ms Dowling did not undertake any additional searches.
Cross-Examination of Ms Dowling by Mr Nicholls
Mr Nicholls referred Ms Dowling to paragraph 9 of the Corporate Management Practice Statement PS CM 2005/05 (Exhibit R4), which reads:
“9. Business Line officers have a responsibility to assist FOI decision-makers processing FOI requests by:
· identifying and providing a list and copy of all documents relevant to the request, and
· advising whether the information contained in particular documents is sensitive in any way, eg. whether a document was obtained in confidence.”
He asked Ms Dowling whether she had discussed with Mr Heinjus an ongoing criminal investigation he had been involved with. In answering that she had, Ms Dowling said she was confident she had received all relevant documents relating to the criminal investigation and there was no reason to suspect that there were further documents that had not been provided, which fell within the scope of the FOI Request. She said that where no response was received from a business line officer of the respondent, she would keep trying and, where necessary, escalate the matter to her manager and to an appropriate business line team leader. She would obtain all relevant documents from the business line officers and then determine whether the documents were exempt documents. She said it was necessary for her to have copies of all documents, whether the documents were seen by business line officers as exempt documents or not.
Mr Nicholls then questioned Ms Dowling about the involvement by Mr Heinjus in a complaint Mr Nicholls had made to the respondent. In response to his questioning, Ms Dowling said that she believed there was no conflict of interest in the case of Mr Heinjus because she had already received documents from him under previous FOI requests. Had she suspected that any relevant documents were being withheld, she would have escalated the matter to an appropriate senior officer of the respondent. When asked about documents within shared drives used by specific business lines of the respondent, Ms Dowling said that she had relied on information supplied by the business lines that all relevant documents relating to the FOI Request had been provided to her.
Mr Nicholls asked Ms Dowling about Point 6 of the FOI Request. This related to the “creation of false property ownership records contained in the Complex Audit Risk Assessment Report” (“RAR”) involving the applicant’s private residence. In her response, Ms Dowling said that the RAR was unsigned and she had been unable to identify who had been responsible for the creation of the property ownership records contained in it. As to Point 7 in the FOI Request, which related to the imaging of two email hard drives by the respondent’s officers that were removed from the applicant’s premises during the execution of the search warrant on 6 May 2008, Ms Dowling said that a copy of the entire FOI Request had been sent to the relevant officers who might have been able to deal with all or part of the documents referred to in the FOI Request.
When Mr Nicholls suggested to Ms Dowling that it was open to business line officers to selectively withhold documents that were within the FOI Request because they were in a position to do so, she said that, as far as she was concerned, any direction in PS CM 2005/05 constituted a direction for the purposes of the Public Service Act 1999. And as she had access to some 3,000 “Serious Non Compliance” documents, there was no reason for her to believe that there were documents within the scope of the FOI Request that had not been supplied to her.
Evidence of Mr B Tiernan
Mr Tiernan’s evidence is largely contained in his two affidavits made on 27 June 2011 and 29 September 2011. He also gave oral evidence and was cross-examined by Mr Nicholls. In his affidavit dated 27 June 2011, like Ms Dowling in her affidavit of 20 June 2011, Mr Tiernan referred to the ten Points comprised in the applicant’s FOI Request. In paragraph 5 of the affidavit, he said:
“I am familiar with the documents considered for the FOI request and the schedule attached to letter from Ms Caroline Dowling dated 22 June 2010 setting out the documents and the claims of exemption. References below to documents in this my affidavit are references to documents as numbered in that schedule …”
Mr Tiernan referred to the twelve FOI requests made by the applicant to the respondent prior to the FOI Request. He said he was responsible for processing nine of the previous requests, but not two of the requests that related to internal reviews. He also said that a request made on 15 September 2009 was withdrawn by the applicant on 25 February 2010.
In his affidavit dated 27 June 2011 (paragraphs 25-35), Mr Tiernan made particular reference to the documents and records referred to in Point 7 of the FOI Request. As mentioned in paragraph 23 above, Point 7 involved the documents and records relating to the imaging of two of the applicant’s email hard drives. In his affidavit, Mr Tiernan said that he believed the two hard drives were imaged on to one hard drive which had been transported to Canberra. The imaged hard drive had not been accessed by any officers of the respondent. He said he could not identify or find any documentation which indicated that information had been provided to the respondent and AFP officers arising out of the imaging process. On the basis of the information provided to him that the imaging had never been accessed, and the searches undertaken by him, Mr Tiernan said he believed that no such documents existed.
Following the direction made by the Tribunal on 15 September 2011 and pursuant to the summonses issued on that day, Mr Tiernan undertook additional searches of the respondent’s data bases and record keeping systems for documents within the scope of the FOI Request. The outcomes of the additional searches are contained in Mr Tiernan’s affidavit of 29 September 2011. He analysed the same (or much the same) systems and data bases discussed by Ms Dowling in her affidavit of 20 June 2011. In relation to the systems and data bases which are identified below, Mr Tiernan said:
(a)it is highly unlikely that any information within the scope of the FOI Request is contained on RMS;
(b)given its scope, the information held in IPS, AIS-ATO Integrated System, STAC, FLOCS, TRIM, SPR and Lucy is outside the scope of the FOI Request;
(c)the applicant would already have relevant copies of the information in ADD;
(d)any information, within the scope of the FOI Request, would have been retrieved from RMS, SVOC, ICP and NTS when Ms Dowling undertook a search of Siebel in 2010;
(e)no documents or records within the scope of the FOI Request were found in PIES, ATO Concern and CVC; and
(f)as share drives, personal email folders and hard copy files and working papers are not directly accessible by FOI staff, the email requests and telephone calls made by Ms Dowling referred to in her affidavit dated 20 June 2011, and the email requests made by him and referred to in his affidavit dated 27 June 2011, confirm that there are no documents and records, other than exempt documents, that have not been released to the applicant pursuant to the FOI Request.
Cross examination of Mr Tiernan by Mr Nicholls
When questioned by Mr Nicholls about the authorship of the property ownership records in the RAR relating to his residence, Mr Tiernan said that the person involved was Ms Bozena Baraitar, who was an employee of the respondent. The author was not Mr Heinjus and no document existed that drove the search action. In relation to Document 16[111-118], which was an email from Mr Heinjus to Mr Anderson and Mr Jones in Serious Non Compliance, Mr Tiernan said that he had discussed the matter with Mr Heinjus who was concerned about the ongoing nature of matters he had been asked to justify, and he was seeking support from the officers who he worked with. Mr Heinjus’ involvement had been investigated and he had been exonerated by his own department.
When asked about Point 3 of the FOI Request, Mr Tiernan said that there were no additional records that had been referred to “Integrity Assurance” relating to the applicant’s complaint involving Mr Heinjus. When referred by Mr Nicholls to Point 4 of the FOI Request, which related to alleged breaches of the Privacy Act 1998 by Mr Heinjus, Mr Nicholls took Mr Tiernan to the email from Mr Leo Walter in Exhibit R1 at pages 66-67. Mr Tiernan said that, at the time of the FOI Request, he was satisfied that there had been no referral of documents to Integrity Assurance. However, there had been a referral on 28 July 2010, but this was outside the scope of the FOI Request. As to whether Mr Heinjus had requested that some documents not be released under the terms of the FOI Request, Mr Tiernan said that he had made an independent judgment as to which documents could be released under the terms of the Act. He said that Mr Heinjus would have expressed preference as to which documents should be released, but ultimately the decision on that question had been made by him as the responsible FOI officer.
Mr Nicholls questioned Mr Tiernan about paragraph 19 of his affidavit dated 29 September 2011 and any further searches he had undertaken in relation to share drives, personal email folders and hard copy files. Mr Tiernan said that he had made no additional searches in relation to these documents and records.
CONSIDERATION
Are the three documents that remain in dispute exempt under s 38, s 40(1)(c) and/or s 41 of the Act?
I note that the Act was amended by the Freedom of Information Amendment (Reform) Act 2010 (“Reform Act”), and the amendments took effect in relation to requests received on or after 1 November 2010. As the FOI Request was made on 19 March 2010, the amendments made by the Reform Act do not apply in the present case. Accordingly, I have applied the version of the Act in force immediately before 1 November 2010.
The access provisions in the Act do not extend to records that are excluded from the definition of a “document” in s 4(1), to “exempt documents” and to documents which are otherwise accessible and certain documents created more than five years before the commencement of the Act. The Act also contains further provisions which are designed to ensure that the freedom of information mechanism is not used in place of other available mechanisms for making documents available to the public.
The rights of access provided in the Act apply to documents in the possession of agencies and Ministers. It follows that the right of access only applies to documents that exist (or are in existence) at the time of the making of a freedom of information request. Documents that come into existence after the making of a request will be outside the scope of the request. In the applicant’s case, his FOI Request was dated and received by the respondent on 19 March 2010 and any documents created after this time, such as the email string dated 25 May 2010 which he refers to repeatedly in his Outline of Submissions, are not within the scope of the FOI Request. As was commented by Deputy President Forgie in Re Radar Investments Pty Ltd and Health Insurance Commission (2004) 80 ALD 733, the Tribunal’s jurisdiction was limited to those documents in the possession of the agency on the day it received the request. Moreover, s 11 of the Act confers the right to access to documents, not information, and it does not generally require an agency to make available information which is not in its possession in a documentary form (see Re Redfern and University of Canberra (1995) 38 ALD 457).
I note that in his original Statement of Facts, Issues and Contentions, in relation to the FOI Request, the applicant has stated (in paragraphs 4-6):
“4. The APPLICANT says that the RESPONDENT has been engaged in unlawful and fraudulent conduct pertaining to investigations into the APPLICANT’s personal and business taxation affairs.
5. The APPLICANT is seeking full disclosure of all relevant documents relating to the APPLICANT’s personal and business activities pursuant to the FOI Act for the purposes of claiming compensation and damages against the RESPONDENT.
6. The APPLICANT is seeking the said FOI documentation to enable the APPLICANT to refer the fraudulent conduct of the RESPONDENT to the appropriate authorities for investigation and to commence civil action against persons associated with the RESPONDENT responsible for committing the fraudulent activities.”
In my view, the applicant’s reasons for wanting access to the documents in the FOI Request are not relevant, unless there is a particular provision in the Act that requires me to have regard to the applicant’s reasons (see Shergold v Tanner (2000) 62 ALD 584 at [20]; Re LJXW and Australian Federal Police and Another (2011) 120 ALD 516 at [50]). The right of access given to every person is a right that does not change its nature according to the person who seeks to exercise that right. As was said by Deputy President Forgie in Re LJXW at [160]:
“…The right remains constant and the way in which the provisions of the FOI Act that delineate that right must be interpreted and applied consistently. Consistent application means that what is unreasonable disclosure in terms of s 41(1) must be judged by reference to an objective standard and not by reference to the interests, knowledge or reasons of the person requesting access or by reference to the identity of that person....”
In his Outline of Submissions (at paragraphs 11-66) the applicant has provided an extensive history of the relationship he has had with the respondent and officers of the respondent (in particular, Mr Heinjus). Like the reasons that have been referred to by the applicant in his original Statement of Facts, Issues and Contentions, the reasons he refers to in his Outline of Submissions are not relevant to the FOI Request unless there is a provision of the Act that requires me to have regard to those reasons. In my view, there is no provision in the Act that requires me to do so in the present case. The applicant also refers to “A Sham Investigation into SNC Business Service Line Officer HEINJUS”. In my view, the matters detailed in in paragraphs 79-88 of his Outline of Submissions are not relevant for the purpose of the present proceedings.
It therefore becomes a matter of analysing the documents that remain in dispute, to the applicant’s contentions for disclosure and to the exemptions from disclosure that the respondent has claimed.
Document 7[61] and Document 16[111-118]
Document 7[61] and Document 16[111-118] both have information deleted from them in accordance with s 22 of the Act. It is the respondent’s contention that the information deleted in Document 7[61] is deleted on the ground that it is exempt under s 38 of the Act, namely Division 355 in Schedule 1 of the TA Act and s 355-25 in Schedule 3 of the Act. These new provisions took effect as a result of amendments made to the Income Tax Assessment Act 1936 (“ITAA 1936”) and the TA Act. The amendments apply to exempt documents on or after 17 December 2010, whether the documents came into existence before, on or after that date. Section 38(1) of the Act exempts information if its disclosure is prohibited under a provision of an enactment specified in Schedule 3 of the Act. Section 355-25 in Schedule 1 of the TA Act is a provision specified in Schedule 3. The information in Document 7[61] was obtained during the course of investigations by the respondent’s officers by virtue of their powers under the TA Act and the ITAA 1936. In paragraph 40 of his affidavit dated 27 June 2011, Mr Tiernan states:
“The deleted information contained in document 7[61] and the whole of the information contained in document 17[119] relates to the affairs of an entity that was related to the applicant but is since in liquidation and is no longer represented by the applicant. The information was acquired by officers of the ATO as part of their duties concerning the investigation of the applicant’s activities described in paragraph 24. The documents are protected sources in that they were acquired an [sic] ATO officers in the course of their employment for the purposes of the tax acts. I believe that the information is subject to the prohibition against disclosure in the Taxation Administration Act 1953 (the TAA) – Division 355 in Schedule 1 to the TAA.”
The information contained in Document 7[61] relates to the affairs of an entity other than the applicant. As was said by Mr Tiernan in giving his oral evidence, the information identifies, or is reasonably capable of being used to identify, the entities to whose affairs it relates as the information concerns the taxation affairs of a third party. It is not relevant that the third party is a de-registered company that no longer exists. The information in Document 7[61] is “protected information” as defined in s 355-30 of Schedule 1 of the TA Act and is prohibited from disclosure under s 355-25 of Schedule 1 of the TA Act (see Re Pratt Consolidated Holdings v Commissioner of Taxation [2011] AATA 907 at [101], [133] and [135]). Information respecting the affairs of another person does not cease to bear that character because it also bears the character of information respecting the affairs of the person to whom it may be disclosed. The applicant claims that Document 7[61] also concerns information that is about him. In my view, any information that may also be about the applicant does not change the character of the Document. The Document was created and concerns the activities of third party entities. Moreover, even though third party entity names were disclosed in the Document, the information “respecting the affairs” of those third party entities was exempt from disclosure. The third party entity names were disclosed because it is also information about the applicant, that is, he is (or was) a director of the entities (see Corrs Chambers Westgarth and Commissioner of Taxation [1998] AAT 756 and Re Collie and Deputy Commissioner of Taxation (1997) 45 ALD 556).
The respondent has submitted that the part of Document 7[61] that has not been released to the applicant is prohibited from disclosure by s 355-25 in Schedule 1 of the TA Act and is an exempt document pursuant to s 38(1) of the Act. I agree with this submission and I so find.
Document 16[111-118]
Document 16[111-118] contains information relating to the investigation into the affairs of the applicant and the complaint lodged by the applicant against Mr Heinjus (see paragraph 14 above). The respondent has submitted that part of this Document is exempt from disclosure under s 40(1)(c) of the Act, as disclosure would have a substantial adverse effect on the management of personnel by the respondent. Subject to subsection (2), the exemption in s 40(1) speaks in terms of whether disclosure under the Act “…would, or could reasonably be expected to … have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency”. In analysing the word “substantial” in s 45D of the Trade Practices Act 1974, Bowen CJ in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Ors (1979) 27 ALR 367 said at 374-375.
“The word ‘substantial’ would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the work the loss or damage would have to be considerable (see Palser v Grinling [1948] 1 All ER 1; [1948] AC 291 at 316-7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.”
In Re LJWX v Australian Federal Police and Anor (2011) 120 ALD 516 when analysing s 40(1)(c) of the Act, Deputy President Forgie spoke about the relationship of trust between the Australian Federal Police and its employees. At paragraph [248], she said:
…Their relationship is one of trust. Maintenance of that relationship is an essential element in maintaining the integrity of individual AFP appointees and the integrity and operational effectiveness of the AFP as a whole. Without the commitment given by the AFP regarding confidentiality, I accept that the relationship would be damaged and, with it, the disclosure of personal information compromised. That in turn would, or could reasonably be expected to, adversely affect the ability of the AFP as an organisation to assess its AFP appointees and, in turn, its ability to be operationally effective.”
In relation to public interest, Deputy President Forgie (in Re LJWX) said that the maintenance of the integrity and effectiveness of the agency is in the public interest. In the present case, the applicant has sought to complain about the conduct of an investigator. Those complaints were not substantiated and no evidence has been provided by the applicant to support the complaints. The respondent has submitted that there is no public interest argument available to the applicant to support releasing Document 16[111-118]. The respondent has also submitted that disclosure could hamper investigations into complaints against other employees, as employees would be reluctant to provide information in relation to the investigations. In paragraph 44 of his affidavit dated 27 June 2001, Mr Tiernan states:
“The ATO employs people that, as part of their duties, carry out investigations into the tax affairs of the community. Those officers are sometimes the subjects of complaints by members of the public, which may be bona fide or spurious. It is my belief that internal communications such as documents 13[90-108] and 16[111-118] are understood within the ATO to be handled on a confidential basis. On the basis of my knowledge of the policies and procedures of the ATO, and on the basis of my own experience, investigations, such as the investigation conducted pursuant to the complaint referred to in paragraph 43, are an internal and confidential process, and dependent on the ready cooperation and provision of often sensitive information from a range of sources including the subject of the complaint. There is an understanding within the ATO that the subject of a complaint should be able to express his or her side of the story in the knowledge that the information will not be disclosed to the person who made the complaint.”
Furthermore, on the question of whether disclosure of Document 16[111-118] is in the public interest, it is noted that the complaint by the applicant has been concluded. The applicant has been provided with a copy of the investigation report. Mr Tiernan’s evidence was that it was important to the respondent to maintain the confidentiality of employee concerns and that disclosure would have an adverse effect on the ability of the respondent to manage its employees. In this regard, the respondent submitted that it is not in the public interest to disclose to the public at large the response of an employee to senior management regarding a complaint in circumstances where the particular complaint was found not to be substantiated. In my view, the potential adverse effect on the respondent’s operations and their proper and efficient conduct is not outweighed by the public interest in the applicant wanting documents for the purpose of unsubstantiated allegations of fraud and misconduct.
The same information in Document 16[111-118] is claimed by the respondent to be exempt under s 41(1) of the Act, as disclosure of such information would involve the unreasonable disclosure of personal information about any person. I note that s 4(1) of the Act defines “personal information” to mean information or an opinion about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, Deputy President Hall said (at N259):
“Whether a disclosure is ‘unreasonable’ requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.”
In relation to the provisions of s 41(1) of the Act, I have mentioned above that the applicant lodged a complaint against Mr Heinjus on 11 September 2009. The respondent has submitted (which submission I accept) that the evidence shows that the respondent’s practice is to maintain confidential communications with its employees when they are the subject of a complaint by a member of the public. On the evidence before me, Mr Heinjus has objected to the disclosure of information that is sensitive and personal to him. It is not relevant to the workings of the respondent, nor does it shed any light on the conduct of the substantive investigation regarding the applicant. In these circumstances, I am satisfied that disclosure of the part of Document 16[111-118] that has not been released would be unreasonable and I so find.
Document 17[119]
Like Document 7[61], Document 17[119] was obtained during the course of investigations by the respondent’s officers of the applicant’s affairs. The information contained in Document 17[119] relates to the affairs of an entity other than the applicant. The information is “protected information” as defined in s 355-30 of Schedule 1 of the TA Act. The information would identify the entity and relates to the affairs of that entity. It is not relevant that the third party entity is a de-registered company that no longer exists (Re Pratt Consolidated Holdings (supra)). The respondent submits (and I am satisfied) that the whole of Document 17[119] is prohibited from disclosure by s 355-25 in Schedule 1 of the TA Act and is exempt pursuant to s 38 of the Act.
Again, like Document 16[111-118], Document 17[119] contains information relating to the complaint by the applicant and the investigation of his affairs by Mr Heinjus. The respondent has submitted that part of this Document is exempt from disclosure under s 40(1)(c) of the Act as disclosure would have a substantial adverse effect on the management of personnel by the respondent. Again, I agree with this submission (see Re Tillmanns Butcheries (supra) and Re LJWX (supra)) and I so find.
Does s 22 of the Act properly apply to the information in the documents remaining in dispute which was deleted by the respondent?
The information deleted in Document 7[61] is deleted on the ground that it is exempt under s 38 of the Act. The information deleted in Document 16 [111-118] is deleted on the ground that it is exempt under s 40(1)(c) of the Act. Section 22(1)(a)(ii) allows for the deletion of information that would be exempt or reasonably regarded as irrelevant to the FOI Request. In my view, on the evidence before me, s 22 of the Act properly applies to the information in Document 16[111-118] and Document 17[119] remaining in dispute which was deleted by the respondent.
Have all reasonable steps been taken by the respondent to find the documents sought by the applicant which cannot be found or do not exist, pursuant to s 24A of the Act?
The applicant contends that there are documents in existence which have not been retrieved, collated and dealt with by the respondent as part of his request. This contention relates to the application of s 24A of the Act, and in making it he has not been able to identify documents that should, but do not, exist. In this regard, s 55(5) of the Act provides:
“The Tribunal’s power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.”
A leading decision in this area is Re Langer and Telstra Corporation [2002] 68 ALD 762, where Deputy President Forgie (at paragraphs (94) and (95) held:
“(94) Section 24A of the FOI Act requires the consideration of two matters. The first requires a consideration of whether the Department has taken all reasonable steps to find the documents. If it has done that, the second requires a consideration of whether the documents are in the Department's possession but cannot be found or whether they exist. The first limb has been considered and applied in several cases but only Deputy President McDonald considered the elements of the first limb in any detail (Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138). He said:
‘(19) The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the Agency but cannot be found or, alternatively, does not exist. The Shorter Oxford English Dictionary provides a number of meanings for the verb to 'find', the most apt of which for present purposes is 'to discover or attain by search or effort'. The Macquarie Dictionary similarly provides amongst the meanings given to the verb 'to learn, attain or obtain by search or effort'. The Shorter Oxford English Dictionary provides five meanings for the word 'reasonable', or which the following is, in the opinion of the tribunal, most appropriately applied:
“... 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate. ME. b. Moderate in price; inexpensive 1667. 5. Of such an amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose. late ME. (b. Of a fair, average, or considerable amount, size, etc - 1726."
The Macquarie Dictionary provides four meanings, including 'moderate; or moderate in price ...'. The tribunal notes the requirement in s 24A that 'all reasonable steps' (emphasis added) are to be taken to find any requested document.’
95. It seems to me that the first limb of s. 24A requires that the Department take such steps to discover the requested documents as are appropriate in the circumstances. The circumstances that are relevant in determining the steps that are appropriate include the subject matter of the documents sought, the file management systems, any destruction schedules followed in Telstra and the steps that have already been taken to locate documents within the terms of the request.”
It is clear that it is not necessary that absolutely every inch of the respondent’s premises, or every item on electronic databases, must be searched if s 24A of the Act is to be satisfied. There is no strict liability imposed on an agency to leave absolutely no stone unturned in attempting to locate a document. It is sufficient that the search has been reasonable in all of the circumstances (see Re Beesley and Federal Commissioner of Taxation (2001) 47 ATR 1219 at paragraph [69]).
Furthermore, the requirement in section 24A(a) to take “all reasonable steps” is not a requirement to examine all documents in the possession of an agency. What is required is that the agency be satisfied that it has done all that could reasonably be done to locate the documents (see Chu v Telstra Corporation (2005) 147 FCR 505 at paragraph 35). The reference to “reasonable” or “reasonably” in this context means “moderate - not absurd – not greatly less or more than might be expected” (Chu and Telstra [2007] AATA 1748 at paragraph [103]). When Ms Dowling gave evidence regarding the respondent’s Corporate Management Practice Statement PS CM 2005/05, which was current at the time of the processing of the applicant’s request, she made it clear that any direction in PS CM 2005/05 constituted a direction for the purposes of the Public Service Act 1999. I am prepared to accept that this analysis is accurate and that it must be followed by the respondent’s employees. It requires employees to assist FOI decision-makers processing FOI requests to identify and provide copies of all documents in their possession that are relevant to the requests. The applicant contended that business line officers (particularly, Mr Heinjus) might not, perhaps for personal reasons, comply with PS CM 2005/05. In the absence of any evidence in support of this contention, I am not prepared to accept it.
More recently, in Chu v Telstra Corporation Limited (supra), Finn J emphasised the need (in s 24A(a)) for an agency or Minister (and this Tribunal, upon review) to be satisfied that all reasonable steps have been taken to find the documents being sought. At paragraphs 14 and 35, he said:
“14. I have already indicated what, in the language of s 24A itself, could be taken as suggesting that the requirement of all reasonable steps having been taken is itself jurisdictional in character. Nonetheless, I am satisfied, that in the context both of the Act and its purposes and of the known provenance of the section itself, the judgment to be made is for the agency in question and, upon review, for the Tribunal and not ultimately for the Court.
…
35. … A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised.”
To interpolate, the question is not, “Were the searches that were done reasonable, in a general sense?” Rather, the question is, “Is there a reasonable step that has not been taken?” As was succinctly put by Finn J, is the Tribunal, upon review, properly satisfied that the respondent has done all that could reasonably be required of it to find the documents in question?
Both Ms Dowling and Mr Tiernan have analysed in detail the formal and informal record keeping systems of the respondent and the likely places where the remaining documents in dispute would have been stored. On the evidence, which I have no reason to doubt, they are both experienced FOI officers. Ms Dowling undertook searches of areas of the respondent’s office that she believed would contain relevant documents. Later searches by Mr Tiernan, as described in his affidavit dated 29 September 2011, did not find any relevant documents. The applicant has made serious allegations as to the integrity of Ms Dowling and Mr Tiernan in his Outline of Submissions. He submitted that Ms Dowling and Mr Tiernan were compromised or influenced by Mr Heinjus, and were therefore biased against him. As already mentioned, the applicant has failed to provide any evidence to support his allegations and, in the absence of such evidence, I am not prepared to accept the allegations. In any event, both Ms Dowling and Mr Tiernan have provided evidence to the effect that it was they who made the ultimate decision about what documents were released, and not Mr Heinjus.
In paragraph 152 of his Outline of Submissions, the applicant contends that Mr Tiernan had not undertaken a further search of the respondent’s databases as required by the summons that issued on 15 September 2011 and that he relied on the previous searches conducted by Ms Dowling, as referred to in her affidavit dated 20 June 2011. I have examined Mr Tiernan’s evidence (see paragraph 28(f) above) and it appears that he did not undertake a further search of the respondent’s share drives, personal email folders and hard copy files and working papers. On the face of it, he did not search these documents because they were not directly accessible by FOI staff. In her affidavit dated 20 June 2011 (at paragraph 6.q), Ms Dowling also acknowledged that share drives used by various specific business lines and sections for storage of emails and documents were not directly accessible by FOI staff. In these circumstances, should Mr Tiernan have undertaken a further search of the databases and information referred to in paragraph 19 of his affidavit dated 29 September 2011? In my view, such a further search was not necessary. Because both Ms Dowling and Mr Tiernan had already given evidence about direct accessibility by FOI staff, the question is, “Is there a reasonable step that has not been taken?” In my view, there was no reasonable step that had not been taken (per Finn J in Chu (supra)).
During the course of giving their evidence, Ms Dowling and Mr Tiernan explained that they had notes and communications relating to the searches they undertook in response to the FOI Request. These notes and communications were provided to the Tribunal at the close of the hearing. I note that the notes and communications post-date 19 March 2010 and accordingly do not come within the scope of the FOI Request.
Ms Dowling and Mr Tiernan were questioned at length by the applicant regarding the referral of records to Integrity Assurance. They both reiterated their belief that the complaint against Mr Heinjus was never referred to Integrity Assurance at the time or prior to the applicant’s FOI Request. The applicant seemed intent on showing that such a referral had been made, although in a letter to the respondent on 5 April 2010 (Exhibit R1, T10 at paragraph 2(j)), he states that “from the evidence provided to date under the FOI Act 1986 [sic] integrity assurance was not involved in the investigation of the complaint…”. On the evidence before me, I am satisfied that a search of the Integrity Assurance database, at the time of the applicant’s FOI Request, would have been an unnecessary exercise.
In all the circumstances, I am satisfied that all reasonable steps have been taken by the respondent to find the documents sought by the applicant which cannot be found or do not exist, pursuant to s 24A of the Act, and I so find.
CONCLUSION
For the reasons outlined above, the exemptions in s 38(1), s 40(1)(c) and s 41(1) of the Act that relate to Document 7[61], Document 16[111-118] and/or Document 17[119] have been properly applied.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Dunne ......[signed]......
Administrative Assistant
Dated 31 May 2012
Date(s) of hearing 19 and 20 January 2012 Date final submissions received 2 March 2012 Applicant In person Counsel for the Respondent Ms E Arduca Advocate for the Respondent Ms C Shepherd Solicitors for the Respondent Australian Government Solicitor
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