Beesley and Australian Federal Police
[2000] AATA 1114
•20 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1114
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/156
GENERAL ADMINISTRATIVE DIVISION )
Re terence F beesley
Applicant
And AUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal Senior Member M D Allen
Date20 November 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/156
)
GENERAL ADMINISTRATIVE DIVISION )
Re: TERENCE F BEESLEY
Applicant
And: AUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 20 November 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - Whether documents do exist. Unreasonable diversion of the resources of an agency. Whether a document in the "possession" of an agency.
Freedom of Information Act 1982 – ss4(1), s24A, ss24(1), s16 and s17
Treelectric Pty Ltd and Energy Research & Development Corporation (AAT 11890, 15 May 1997)
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 20 November 2000
Date of Decision 20 November 2000Representative for Applicant Mr Beesley was self-represented
Advocate for Respondent Mr M Williams,Australian Federal Police
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N00/156
By Mr M.D. Allen, Senior Member
BEESLEY v AUSTRALIAN FEDERAL POLICE
SYDNEY, 20 november 2000MR ALLEN: Pursuant to an application called by the Tribunal on 2 February 2000 the applicant sought a review of a decision by authorised officers of the respondent refusing to release to him documents requested pursuant to the Freedom of Information Act on the bases that the said documents could not be found. At this stage I would refer to section 24A of the Freedom of Information Act which reads inter alia:
An agency will reasonably refuse a request for access to a document if:
a)all reasonable steps have been taken to find the document, and
b)the agency is satisfied that the document is in the agency's possession but cannot be found or does not exist.
Section 24 subsection (1) of the Act is also pertinent in these proceedings. That subsection reads:
The agency dealing with the request may 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 is satisfied that the work involved in processing the request would substantially and unreasonably direct the resources of the agency from its other operations.
The applicant's request to the respondent is in document T3 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. It reads inter alia:
… access to"my files and personal documents which includes but is not limited to:
Files relating to any dealings between your Department and other Department or Authority – state, federal, for example, N.S.W. Police Department, Australian Taxation Office, (Personnel Section), Australian Security Intelligence
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©Auscript Pty Ltd 2000Organisation, state and/or federal Public Service Boards;
Files relating to any dealings between your Department and any private enterprise organisations such as Mayne Nickless Ltd – Cash Carrying and Security Services Divisions.
The bases of the applicant's request are set forth in once again paragraph 16 and 17 of the outline of submissions tendered by him although I have not taken that document in as an exhibit. Paragraph 16 reads:
It is believed that an ultra conservative political group with tentacles in the NSW Police Force, was opposed to my candidature.
Paragraph 17:
… between 1974-78, I was the victim of certain harassment by employees of the Mayne Nickless organisation forcing me to seek legal advice to restrain their behaviour.
Paragraph 18:
Recommencement of the harassment in early 1999 when I was visiting Melbourne, reinforced my suspicions that documents existed …
The applicant also raised an incident in 1988 when he was accosted by officers of the ACT Police Force in the vicinity of the Australian National University. The applicant believes that as a result of activities referred to above there are documents held by the Australian Federal Police which relate to him.
Evidence was given by two members of the Australian Federal Police. They are Agents Druitt and Beck. The affidavit of Agent Druitt was R3 in these proceedings and after setting out his experience in the Australian Federal Police, his experience commenced in 1969, Agent Druitt sets out the AFP record keeping system both electronic and hard copy. He refers to the master names indexing facility and also a system known as PROMIS, Police Real Time Online Management Information System. As I understand from the evidence of Agent Druitt the PROMIS system and its precursor which was the MNIFTY system enables references to be made if an officer has the name of a suspected person.
It is a preferable course that if you have both name and date of birth. If I understand it correctly if the name is typed in then the system
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©Auscript Pty Ltd 2000should throw up any file reference wherein there is a reference to that particular person. Searches were made of those systems and nothing was revealed regarding the applicant. Agent Druitt also caused searches to be made of the Regional Operations Coordination Centre Eastern Region and the National Operations Coordination Centre. Searches by those ….. bodies again were nil so far as relates to any documentation or information relating to the applicant. Consequently Agent Druitt advised the applicant that no documents in his name were held by the AFP.
Following requests for internal review by the applicant further inquiries were made with National Operation Coordinating Centre and with Central Intelligence and Diplomatic Liaison Internal Investigation and Internal Security and Audit areas of the Australian Federal Police requesting they search their internal restricted databases for any reference to the applicant. Again there was a nil response. There was an electronic mail message formulated to request all members and staff of the AFP to make a search of notebooks, diaries, files or other documents in their possession for any mention of the applicant. Again there was a nil return.
I also understand that if any of the officers who spoke to the applicant at the Australian National University had made notes in their notebook, their notebooks would have been now archived, and in any event at this time have been destroyed by the Australian Archives. Even if they had not been, the number of notebooks archived would number in the thousands and that quite properly would have been an inestimable deviation of the agency's resources to flick through those notebooks on the off chance that the applicant's name may appear in one of them. I might state that the applicant has been unable, as I understand it, to provide any further and better details of these police officers who may have spoken to him.
Agent Beck also gave evidence. She spoke of other searches and particularly she caused searches to be made to the criminal collation records unit and a system called Intel II which is a system no longer in use and again there was no information relating to the applicant. Both agents were cross-examined by the applicant by means of telephone and I might say that I was impressed with the way Agent Beck gave her evidence and the details to which she has had regard.
Agent Druitt on his cross-examination was asked particularly with regard to two systems, the first of those is one called NEPI, standing for National Exchange of Police Information, as I
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©Auscript Pty Ltd 2000understand Agent Druitt's evidence the NEPI system is such that if a name is typed in there will be an indication if any of the other state police forces in Australia has an entry regarding that person. What is important to note, however, is that if there is a positive response to the inquiry, members of the Australian Federal Police are not able to access the information directly but a request must then be made to the state police force.
Agent Druitt was also asked about a system called LEAN, Law Enforcement Access Network. He stated that he knew nothing about that system although Agent Beck did know of the system as she said it was a joint access computer system shared by all law enforcement agencies. She herself did not know how to access it.
I might say that the applicant has himself a knowledge of the particular sstems as he says in his submissions the NEPI was established under the auspices of the Australian Police Ministers Council it oversees the functions of the national crime records amongst its functions, it has a similar management structure to the Australian Bureau of Criminal Intelligence. He also states the manager of LEAN is the Federal Justice Office [sic] it is overseen by a panel of five agencies: Australian Tax Office; Australian Federal Police; Department of Social Security; Department of Defence; Department of Education and Training. It is administered by the Attorney-General's Department which drew up a memorandum of understanding rather than any formal agreement between data providers and user agencies. I have already said that Agent Druitt said that the applicant's name was not on the NEPI system.
The questions then arise whether if the Australian Federal Police having access to the LEAN system, any information held by that system becomes a document of the Australian Federal Police as it can access it. I deal now with the LEAN system because as there is direct evidence by Agent Druitt that the applicant's name is not in the NEPI system that is the end of the matter.
As to what constitutes a document I refer to subsection (1) of section 4 of the Freedom of Information Act where document is defined as including any of or any part of any of the following things:
1. Any paper or other material on which there is writing.
2. A map, plan, drawing or photograph.
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©Auscript Pty Ltd 20003.Any paper or other material on which there are marks, figures, symbols or perforations, having a meaning for persons qualified to interpret them.
4.Any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device.
5.Any article on which information has been stored or recorded, either mechanically or electronically.
6.a) any other record of information, or
b)any copy, reproduction or duplicate of such a thing, or
c)any part of such copy, reproduction or duplicate.
Section 17 then goes on to state:
Where a request has been made and it appears that the information is not available in discrete form but the agency could produce a written document containing the information in discrete form by use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information. The agency shall deal with the request as if it were a request or access to a written document so produced in containing that information.
In other words as I interpret that section that if information appears on a computer screen being material that can be downloaded then there is a duty to do so. However, to be a document in terms of subsection (1) of section 4 the document must be a document of an agency which in turn is defined as a document in the possession of an agency whether created in the agency or received.
The applicant has cited several cases from property law as to what may be regarded as in the possession of an agency but those cases are not apposite in Freedom of Information matters. What constitutes possession for the purposes of the Freedom of Information Act was discussed by Senior Member Bain in the case of Re Sullivan v Department of Industry, Science & Technology and Another 23 AAR 59. Senior Member Bain's comments in that case were approved and followed by Deputy President McMahon in Treeectric Pty Ltd and Energy Research & Development
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©Auscript Pty Ltd 2000Corporation, Unreported AAT decision number 11890 on 15 May 1997. At page 67 of the report of Sullivan, Senior member Bain said:
I would thus find that the meaning to be given to the definition of "document of an agency" should be one which would occur to the ordinary Australian. On this basis the word "possession" means physical possession. An agency is in possession of a document if it holds that document. The Macquarie Dictionary gives its meaning of the word "possession", "actual holding or occupancy either with or without rights of ownership". Whether this is how lawyers would indeed approach the matter is less to the point than the dictionary reflects the view that a non lawyer would hold. To pursue further the Macquarie Dictionary understandings there there are two definitions of the word "hold" which seem appropriate in this context. The first definition offered is "to have or to keep in the hand, keep fast grasp", the fifth definition of it is "to keep in custody, detain". Thus, I conclude that the document is in the possession of an agency if the agency has physical possession of those documents.
In my opinion, therefore, the fact that the Australian Federal Police can access the LEAN system does not result in it being in possession of a document. It is only if the information on the computer screen is reduced to printed form or transferred into the computerised data base held by the Australian Federal Police that the Australian Federal Police can be said to be in possession.
The applicant also referred to section 16 of the FOI Act. So far as is relevant that section says:
Where a request is made to an agency for access to a document and (a) the document is not in the possession of that agency but is to the knowledge of that agency in the possession of another agency.
I will state at the outset that there is no evidence before me that the respondent in this matter has any knowledge of any documents being in possession. As was pointed out by the respondent's solicitor, Mr Williams, in his submissions, in this case the checks conducted by agents of the Australian Federal Police failed to identify any document that may relate to the applicant. Accordingly the respondent was not required to seek to transfer the applicant's request. In other words, if
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©Auscript Pty Ltd 2000there is no evidence that a document exists it cannot be said that it is, to the knowledge of the agents, in the possession of another agency.
Similar comments of course apply to subparagraph B(1) of section 16. That is to say if the subject matter of the document is more closely connected with the functions of another agency it should be transferred, but how can that be said in the absence of any identifiable document that the subject matter of the said document is more closely connected with the functions of another agency.
I have previously stated that having regard to evidence of Agents Druitt and Beck I am affirmatively satisfied that to require the respondent to undertake any more searches in regard to documents which may or may not exist regarding the applicant would substantially and unreasonably divert the resources of the agency from its other operations. Further, I am affirmatively satisfied that all reasonable steps have been taken to find the documents requested by the applicant. Consequently, the decision under review in this matter will be affirmed.
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©Auscript Pty Ltd 2000
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