Beesley and Commissioner of Taxation - [2001] AATA 476

DECISION AND REASONS FOR DECISION [2001] AATA 476

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/196

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TERENCE FRANCIS BEESLEY
  Applicant
           And    COMMISSIONER OF TAXATION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date4 June 2001
PlaceSydney

Decision      The Tribunal sets aside the deemed internal review decision under review and decides as follows: 1) The searches undertaken in response to the Applicant's request were appropriate and reasonable. 2) In order that s 24A(a) of the FOI Act may be satisfied and it can be said that "all reasonable steps have been taken to find the [relevant] document[s]", two additional searches need to be attempted and the Tribunal now orders that these searches be undertaken. The first of these is a search for any correspondence tracking records maintained on behalf of the Commissioner of Taxation in the period between 1978 and 1984. The second is a search of a similar kind in respect of the NSW Deputy Commissioner of Taxation for the same period. If those records exist, there is to be a reasonable search of the records for references to any correspondence from or to Mr Beesley, with a view to identifying any ATO file numbers connected to files which may contain copies of that correspondence.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – Australian Taxation Office - access to personnel records – delay in providing information – search of computer records - existence of computer databases of copies of correspondence – incomplete documentation provided
Freedom of Information Act 1982, ss 11, 14, 15(1), (2), (3), (5), 15A, 18, 24A, 26, 54(1)(a), (1A)(a), (2), 55(1)(a), (ab), (2), (3), (4)(a), (b), (5A), 58(1), 61(1)
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Luton and Child Support Registrar [1999] AATA 808

REASONS FOR DECISION

4 June 2001 M J Sassella, Senior Member

History of application

On 30 July 1999 the Applicant, Mr Terence Francis Beesley, wrote to the Respondent seeking access to his file and personal documents held by the personnel section in the Australian Taxation Office ("ATO") relating to his employment with the ATO between 1978 and 1984 (T3). The terms of the request referred to, but were not limited to a desire for access to:

performance appraisals and other assessments, including miscellaneous expressed opinions;

files relating to promotions appeals and associated correspondence;

files relating to any dealing between the ATO and any other department or authority, State or Federal, for example, the NSW Police Department, the Commonwealth Police, the Australian Security Intelligence Organisation ("ASIO") and the Federal Public Service Board;

files relating to any dealings between the ATO and private enterprise organisations such as Mayne Nickless's Cash Carrying and Security Service Divisions.

He mentioned that he had been employed in the Sydney, NSW office.
In oral evidence before the Tribunal it was explained that this was taken by the Respondent to be a request of the type described in s 15A of the Freedom of Information Act 1982 ("the FOI Act"). That section requires a requester to use the established procedures for access to personnel records, where they exist in an agency. If they prove inadequate then the requester may make a request under the FOI Act.
By 3 October 1999 the Applicant was dissatisfied as he had received no reply. He therefore sought access to the material again (T4).
On 11 October 1999 Ms Susan Thompson, a HR Consultant in the ATO, wrote to the Applicant acknowledging his two letters, apologising for the delay in responding and explaining that the delay resulted because Mr Beesley's file had to be collected from storage. Enclosed was a copy of the entire personal file. She wrote, "we have no other records in relation to your employment" (T5).
On 5 November 1999 the Applicant wrote to the ATO's manager of Freedom of Information. He disagreed that he had been given access to the entire documentary holdings of the ATO relating to the Applicant. He said that the majority of documents requested had been excluded (T6). He wrote, "Having now satisfied the established procedures of the 'ATO' of requesting personnel information, I now repeat my application for documents of 29 July 1999 made under the [FOI Act]".
On 5 November 1999 the Respondent acknowledged receipt of the request (T7).
On 12 November 1999 the Respondent wrote to the Applicant stating, amongst other things, that the Applicant's personnel file had been checked and confirming that it held no other documents meeting the terms of the request (T8). The letter also said, "No other documents relating to your employment are held by the [ATO]." He was told how he could inspect his file.
On 19 November 1999 the Applicant wrote requesting an internal review of the decision (T9). He suggested that the documents in which he was interested may have been removed from the ATO's human resources section and may have been relocated "in some area of management in Sydney or Canberra".
On 7 February 2000 the Applicant lodged with the Tribunal an application for review on the basis that at least 30 days had passed since he requested an internal review and he had received no decision (T1). He gave reasons for his application:

There is a host of material that should be available under the FOI Act.

There would be copies of communications (excluding taxation matters) he had with the ATO.

"[T]here are the dealings in relation to me with other organisations – both Public and Private Sectors, a miscellany of comments made and included on file by ATO staff, but not previously acknowledged or made available despite requests to that effect."

Documentary evidence

The Tribunal had before it the Section 37 Statement and associated documents provided by the Respondent (Exhibit TD1). In addition there were the following documents which were marked by the Tribunal as exhibits:

Exhibit A1: A letter from the Applicant to the Tribunal received on 5 May 2000.

Exhibit A2: A letter from the Applicant to the Respondent dated 4 April 2000.

Exhibit R1: A letter from the Respondent to the Tribunal received on 31 May 2000.

Exhibit R2: A letter from the Respondent to the Applicant dated 31 May 2000.

Exhibit R3: An affidavit by Ms Susan Evelyn Thompson dated 15 December 2000.

Exhibit R4: A letter from the Respondent to the Tribunal dated 15 February 2001.

Exhibit R5A: A letter from the Respondent to the Applicant dated 15 February 2001.

Exhibit R5B: A questionnaire prepared by the Applicant – undated.

Exhibit R6: A document, "BEESLEY – SEARCH SUMMARY".

Appearances

A hearing was convened by the Tribunal on 16 April 2001. The Applicant appeared on his own behalf. Messrs John Anthony Ebert and Roger Gormley of the ATO represented the Respondent.
Legislation
The relevant legislation in this matter is the Freedom of Information Act 1982 ("the FOI Act"), in particular ss 11, 14, 15(1), (2), (3), (5), 15A, 18, 24A, 26, 54(1)(a), (1A)(a), (2), 55(1)(a), (ab), (2), (3), (4)(a), (b), (5A), 58(1), 61(1):
"Section 11
11. (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.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access"
"Section 14
14. Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so."
"Section 15
15. (1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
(2) The request must:
(a) be in writing; and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c) specify an address in Australia at which notices under this Act may be sent to the applicant; and
(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and
(e) be accompanied by the fee payable under the regulations in respect of the request.
(3) Where a person:
(a) wishes to make a request to an agency; or
(b) has made to an agency a request that does not comply with this section;
it is the duty of the agency to take reasonable steps to assist the person to make the request in a manner that complies with this section.
…
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and
(b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).
…"
"Section 15A
15A. (1) In this section:
"personnel records", in relation to an employee or former employee of an agency, means those documents containing personal information about him or her that are, or have been, kept by the agency for personnel management purposes.
(2) Where:
(a) there are established procedures in an agency (apart from those provided for by this Act) in accordance with which a request may be made by an employee of the agency for access to his or her personnel records; and
(b) a person who is or was an employee of the agency wishes to obtain access to his or her personnel records;
the person must not apply under section 15 for access to such records unless the person:
(c) has made a request for access to the records in accordance with the procedures referred to in paragraph (a); and
(d) either:
    (i) is not satisfied with the outcome of the request; or
    (ii) has not been notified of the outcome within 30 days after the request was made."
"Section 18
18. (1) Subject to this Act, where:
(a) a request is made in accordance with the requirements of subsection 15 (2) by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is granted has been paid;
the person shall be given access to the document in accordance with this Act.
(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document."
"Section 24A
24A. 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."
"Section 26
26. (1) Where, in relation to a request, a decision is made relating to a refusal to grant access to a document in accordance with the request or deferring provision of access to a document, the decision-maker shall cause the applicant to be given notice in writing of the decision, and the notice shall:
(a) state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision;
(b) where the decision relates to a document of an agency, state the name and designation of the person giving the decision; and
(c) give to the applicant appropriate information concerning:
    (i) his or her rights with respect to review of the decision;
    (ii) his or her rights to make a complaint to the Ombudsman in relation to the decision; and
    (iii) the procedure for the exercise of the rights referred to in subparagraphs (i) and (ii);
including (where applicable) particulars of the manner in which an application for review under section 54 may be made.
(1A) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision referred to in subsection (1).
(2) A notice under this section is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document."
"Section 54
54. (1) Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:
(a) a decision refusing to grant access to a document in accordance with a request; or
…
(1A) The application must be made:
(a) in the case of a decision of a kind mentioned in paragraphs (1) (a), (c), (d), (e), (g) and (h) - within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
…
(2) Subject to subsection (3), where an application for a review of a decision is made to the agency under this section, it must as soon as practicable arrange for a person (not being the person who made the decision) to conduct such reviews to review the decision and make a fresh decision.
…"
Section 55
55. (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
…
(ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
…
(2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
(3) Subsection (2) does not prevent an application to the Tribunal in respect of a decision where:
(a) the person concerned has applied under section 54 for a review of the decision;
(b) a period of 30 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and
(c) he or she has not been informed of the result of the review;
and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal.
(4) Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975, the period within which (subject to any extension granted by the Tribunal) an application under subsection (1) of this section is to be made in respect of a decision is:
(a) except where paragraph (b) or (c) applies - the period commencing on the day on which notice of the decision was given to the applicant in accordance with section 26 and ending on the sixtieth day after that day;
(b) where the decision is a decision that is to be deemed by subsection 56 (1) or (3) to have been made - the period commencing on the day on which the decision is to be deemed to have been made and ending on the sixtieth day after that day; or
…"
"Section 58
58. (1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
…"
"Section 61
61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant."

Applicant's evidence

In addition to the material provided by the Applicant and summarised in the history of the application there is the Applicant's Exhibit A2. The evidence from that exhibit is as follows.
In Exhibit A2, as regards performance appraisals, correspondence, communiques between, eg the ATO and ASIO, or ATO and Mayne Nickless, and promotion appeals, he suggested possible dates when the documents were generated, what the appearance of the documents might be and roughly when they would have been created. Significantly, in view of some later discussion, he wrote:
"I worked in the Sydney Office. However, given the extensive application of computer systems and data processing notably in the ATO it is probable that the contents of the documents requested have been transferred to a data base, perhaps accessed from the Commissioner's office if not the administration centre in Canberra ACT. The establishment of the multiple purpose Tax File Number System in the mid 1980's could mean that the file number together with the prefix lettering for categorisation, is the identifier of the computer record."
In his opening statement for the Tribunal the Applicant described some of the searches carried out by the ATO as searches of peripheral areas. He also suggested that the affidavit sworn by Ms Thompson is no evidence of the thoroughness of the searches undertaken.
Mr Beesley called Mr Ebert from the ATO to give evidence.
The Applicant quizzed Mr Ebert about Exhibit R5A, which Mr Ebert had signed. In Exhibit R5A Mr Ebert provided answers to 34 questions that the Applicant had addressed to the Respondent. These answers produced the following fresh material.

There are no electronic personnel files (except as regards salary) held by the ATO. When Mr Beesley left the ATO everything was held in manual form.

Any information from the NSW police or Mayne Nickless might be available from the Merit Protection and Review Authority ("MPRA"). Such information would have been considered prior to the Applicant's permanent appointment and is not the type of material held by the ATO.

There is no electronic database except for the payroll database run by the Department of Finance.

The Applicant was not denied access under s 17 or s 20 of the FOI Act. Both sections deal with computer records.

An ATO staff member against whom a complaint has been lodged by another staff member is given details of the allegation and asked to comment.

The proposed Law Enforcement Access Network ("LEAN"), which would have made access by agencies to information on computer databases much easier, has not been implemented. The Applicant was of the view that the ATO would have access to LEAN and could get information about him from that database.

Mr Ebert admitted that he is not a computer expert, although he uses a computer in his work.
Mr Beesley queried the accuracy of the answer that suggested that the ATO does not hold electronic personnel files. Mr Ebert explained that in this, as in much else in his letter, he had relied on information provided to him by others with greater expertise.
Mr Gormley, on behalf of the Respondent, then questioned Mr Ebert. Mr Ebert reiterated that he had relied on others to conduct searches when coordinating material for the Tribunal processes and he had satisfied himself of its thoroughness. He had been unable to identify any potential search areas that others in the ATO had missed.

There was much discussion about the possible continued existence on computer databases of copies of correspondence from as far back as 1985. Mr Ebert's recollection was that word processing had not been adopted in the ATO by 1985. There was a typing pool and all retained copies of correspondence were in paper form on paper files. In the early 1980s there were some standard letters and questionnaires on computers in the ATO but that would be all there was.
Respondent's evidence
The Respondent's documentary evidence elicited the following new information.
In Exhibit R2 the Respondent stated that all copies of performance appraisals should have been contained on the Applicant's personnel file which had been given to him. As regards correspondence, a search of administrative file indexes for the Sydney office had not revealed any files relating to personal correspondence with the Deputy Commissioner. Correspondence from the Deputy Commissioner to the Applicant should have been copied onto the Applicant's personnel file which is the only place where it would be retained. This appears not to have been done. As regards communiques with external organisations, staff working for the manager of security services in the ATO undertook a further search and could find no records relating to the Applicant. Pre-employment police checks would be attached to the personnel file. Promotion appeals documents were retained at the relevant time for only one year. The Respondent had searched for the Applicant's taxation records for 1978-1986 but the files had been destroyed. The Respondent wrote that there was no other avenue to be pursued that would reveal any files about the Applicant. "Given the time period in question, it is likely that this is due to the age of the documents in question, and the probability that all files which may have existed (except for [the Applicant's] personnel file) have been destroyed."
In the affidavit (Exhibit R3) dated 15 December 2000 Ms Thompson says, relevantly, that:
She had been responsible for conducting searches for documents relating to the Applicant's request.

She had asked for a variety of searches to be done.

The ATO storage facility at Pyrmont was searched and no additional personnel file was found.

There was no personal security file held about the Applicant.

The Moonee Ponds site in Victoria had been searched. It handles national and Canberra staff. It had nothing relating to the Applicant.

The Parramatta, Penrith and National Offices had no record of any file relating to the Applicant being sent to Australian Archives.

Any promotion files about the Applicant would have been destroyed after a year in accordance with the current General Disposal Authority.

Normal practice in the ATO is for an employee to have only one personnel file. The Applicant has had access to the file the ATO had found about him.

A document in the personnel file makes reference to file AF 2731 Pt 4, "Appeals Against Promotion of Officers, Transfers of Officers, Regulation 33 Appeals". A search of the stored AF 2731 files at Pyrmont did not result in the finding of Pt 4.

Ms Susan Thompson was called by Mr Ebert to give evidence. She is an administrative service officer 6 in human resources at the ATO. She joined the Australian Public Service in 1978 and has worked in the ATO's human resources area since 1986. She handled the Applicant's FOI request. She copied the file, sent a letter and liaised with an operative from the ATO's freedom of information area. The Applicant's personnel file was copied and provided to him in its entirety.
She herself had searched the Pyrmont holdings. The files of former employees are stored there. She searched under variant spellings. Personnel files are retained until the person reaches 75 years of age. Promotion files are destroyed after a year but a reference to them occurs on the core personnel file.
She admitted to not checking "Commissioner files", of which there are thousands.
The witness was certain there were no other relevant files. This was because they would be cross-referenced on the personnel file if there were any. Likewise there was no other part of the personnel file. These mechanisms enabled her to ascertain that the Pt 4 "grievance" file materials did exist but cannot now be located. She explained that the person who took that file should have recorded it on a loan card but had not.
The witness was unaware of whether any record is kept of files that are destroyed.
In cross-examination the witness gave evidence that the personnel file provided to Mr Beesley looked comprehensive and complete.
Ms Thompson summarised the types of documentation that would likely not be on the core personnel file. These included letters of complaint, leave forms, higher duties allowance forms and promotion appeals.
As regards correspondence with the Commissioner of Taxation, that could be kept separately if sensitive. The period of retention would depend on the subject matter. It could be on an ad hoc file. There would be a reference to this on the core personnel file, although this might not be so depending on the nature of the sensitivity.
There are separate files on disciplinary action. These would be referred to on the personnel file.
There are separate medical files which may not be cross-referenced, depending on the complaint.
There was considerable discussion about the witness's choices of search locations. It was fairly clear that she had done her best to think laterally and search wherever she thought there was any hope of finding something.
Applicant's sworn evidence
This was given on oath. In the Applicant's view the records provided to him are discrepant. There are apparent omissions. It is difficult to ascertain whether other documents have been lost or destroyed. He is sceptical of the searches undertaken. He is sceptical of the evidence as to a general lack of computer databases containing much rich information. He sees a probability that some documents have been retained on an electronic database. There would be a central index. He admitted he has no evidence of this. It is his belief. These electronic databases should have been accessed. He has a reasonable expectation that there are documents in existence and that they should be made available. The Applicant in cross-examination later gave as his reasons for believing that there had been a general migration of current and historical documents to electronic databases as the convenience and security afforded by electronic storage. He expects that particularly sensitive or controversial material would be stored in this fashion.
The Applicant asserted that as individual staff members in the ATO are rotated between areas within the office fresh security clearances would be required. That sort of information would not be placed on the worker's personnel file. It would be elsewhere and would be accessed using a code number. However, Mr Ebert advised the Tribunal that such security checks are performed only at the commencement of employment and are not customarily repeated as a staff member.
Mr Ebert was then invited to cross-examine Mr Beesley. The following information emerged in that process.
The Applicant had considered approaching the other entities with whom he believes the Respondent exchanged information about him. He had approached ASIO but ASIO is exempt under the FOI Act. He has approached the NSW police service and that matter is currently running.
Mr Beesley explained that he is at base interested in seeing any intelligence and law enforcement agency papers pertaining to him. Those in the form of pre-employment and employment personal assessments are of greatest interest to him. He also wants the Mayne Nickless assessments. Mr Beesley insisted that the Respondent would have copies of these.
Mr Ebert suggested that Mr Beesley would need to suggest where the Respondent might search for documents if the Respondent is to go any further.
The Applicant considers that he was reassessed for security clearances several times when he worked in the ATO. He worked in assessing, default and investigations areas at various times and understands that assessments were done for some of these.
The Applicant was vague in explaining how he was assessed or how he knows he was assessed. Sometimes a promotion or rotation would be obstructed. His appeals against promotions for which he had applied unsuccessfully were unsuccessful. He thinks these things were the results of adverse security assessments.
The Applicant mentioned having written to the Commissioner of Taxation about the general circumstances in the ATO, including promotions.
In the following general discussion it was suggested that, if Mr Beesley could produce some of the letters in reply from the Commissioner, they might carry file numbers. These files could then be searched for and may contain the material sought by the Applicant. Unfortunately Mr Beesley has lost a suitcase full of such material and cannot provide the necessary information.
Final submissions
In final submissions Mr Ebert argued that the Applicant's request had resulted in searches being undertaken. The Respondent relies on both limbs of s 24A of the FOI Act. Any documents that might exist cannot be found despite reasonable searches. Alternatively, reasonable searches have led to the result that the documents thought by the Applicant to exist do not in fact exist. Mr Ebert cited a number of decisions. However, only two were of general utility. The others were very much reflective of their particular facts.
In Re Luton and Child Support Registrar [1999] AATA 808 Deputy President Burns at paragraphs 13 and 14 commented that all reasonable steps had been taken to find a missing file. The Tribunal was impressed by the level of search undertaken but also by the respondent's willingness to undertake further searches as necessary in response to concerns and suggestions raised by the applicant during the Tribunal hearing. Deputy President Burns also held that it was not for the Tribunal to inquire into the fate of the missing file.
In Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, 144-145 Deputy President McDonald spoke in useful terms about the meaning and application of s 24A of the FOI Act.
"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', of 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.
"20. The Tribunal recognises that DSS handles thousands of documents and makes thousands of computer entries daily. Given the volumes involved, however regrettable it may be, it is inevitable that some of those documents/computer transactions will be misplaced or mis-keyed. Mr Randall said that, given the number of SU19 forms, there was usually some trouble in locating every completed form when a search was instigated. The diligent researches of Mr Cristovao have, in this case, unveiled the intermingling of a document on his file with that of his son and vice versa. Care needs to be taken in recognising that some social security recipients will have the same Christian as well as surnames to ensure that their documents do not become intermingled. However, for purposes of s 24A of the FOI Act, the Tribunal is satisfied that in this case all reasonable steps with respect to the SU19 documents to batches, and in the case of the record of interview, the applicant's hard copy file and computer records, have been taken to find the documents. In the case of the former documents (i.e. the SU19 documents) the Tribunal is satisfied that they were in the Department's possession but now do not exist. In relation to the latter (i.e. the record of interview) the Tribunal is satisfied that the document, which includes any computer record, does not exist. It follows that under the provisions of s 24A of the FOI Act the Agency can refuse the request for access to the documents. Accordingly, with respect to the FOI claim the decision under review is affirmed."

Mr Ebert emphasised that the Respondent had conducted all reasonable searches. He relied strongly on Ms Thompson's evidence. Mr Beesley had suggested that Ms Thompson had "concocted" her affidavit (Exhibit R3) to provide material to reinforce the Section 37 Statement. Mr Ebert pointed out that the Section 37 Statement predated the affidavit by some 10 months.
Mr Ebert suggested that to require a further search would involve an unreasonable diversion of resources. At the same time he reiterated that the Respondent would be happy at any time to conduct further searches if Mr Beesley can provide file numbers.
Mr Beesley in his final submissions was critical of Ms Thompson's affidavit. He considered that her description of the searches undertaken was not detailed.
As regards the decision in Re Cristovao (supra) Mr Beesley noted that Mr Cristovao had been supplied with 95% of the documents he sought. That was not the case here.
He submitted that Mr Ebert had not demonstrated that there would be an unreasonable diversion of resources if further searches were required.
In his written outline of evidence the Applicant advances several arguments:

There is no explanation why the documents that have been provided exist but the great bulk have been destroyed. What has been provided is a token of what was requested.

The search areas were only peripherally relevant to the request.

There is an absence of evidence as to relevant search areas.

There appears to have been a mechanical decision dependent on a number of statements "of evidence" regardless of weight.

The Applicant's reasonable expectation as to the existence of documents relating to dealings between the ATO and the NSW police service and Mayne Nickless was based information conveyed predominantly by innuendo. He wrote:

"Around 1974 I was considering seeking endorsement as a political candidate and a group of conservatives with tentacles in the NSW [police service] was opposed to the candidature. I became the victim of a sexual entrapment in which my private relationships were filmed. The film was made available to a cross section of people and this was associated with defamatory comment. Around the same time I became the subject of harassment and comment about my involvement in major crimes, by Mayne Nickless employees. I was forced to seek legal advice to restrain their behaviour. Recommencement of the harassment a year or so ago prompted the FOI requests."
"Given the nature of the documents requested, it is unlikely that they would be retained in the normal storage area of personnel records either in the ATO or in archives. Further, they are not the sort of records that would be destroyed. There is an expectation that they would be subject to a Public Service Security classification restricting general access and located accordingly. Amongst the 'bulk' of the documents are matters relating to 'Administration'. Consequently, it is reasonable to assume that these would be filed in an Administration Section."
"The fact that a select number of documents were supplied raises the question why these would be retained and the rest destroyed or lost. The ATO has been unable to offer any explanation for this. As there is no record of the documents being sent to archives or being destroyed, the conclusion must be drawn that they are still in existence and as yet to be located or found."
Mr Beesley suggested that searches of the offices of the Commissioner of Taxation and the Deputy Commissioner of Taxation should be carried out.

The Applicant finished by submitting that the Respondent had not met the onus of proof placed on it in s 61 of the FOI Act.
Findings of material questions of fact with reference to the evidence and other material on which the findings are based.
The Tribunal has not had the benefit of access to the transcript in preparing these reasons.
Based on the description of the evidence above the Tribunal makes the following findings.
After being provided on 11 October 1999 with a copy of a personnel file relating to him, held by the Respondent, the Applicant was dissatisfied with the range of material provided to him and lodged a formal request under the FOI Act (T6).
This request was acknowledged on 5 November 1999 (T7) and substantively responded to on 12 November 1999 (T8). The Applicant was still dissatisfied and sought internal review on 19 November 1999. That review yielded no result. On 7 February 2000 the Applicant sought a review by the Tribunal under s 55(3) of the FOI Act.
The Tribunal accepts the advice given to the Tribunal and the Applicant by the Ms Thompson as to the personnel records held by the Respondent on electronic databases and held on paper files. In summary this information was that all holdings are paper based except for salary records. The Tribunal accepted that Ms Thompson was a witness of truth who was competent to provide evidence on these matters.
The Tribunal accepts Ms Thompson's evidence as to what would be held on a core paper based personnel file and what would be held on other paper files, and her evidence that the core file would cross-refer to the other files. Material not held on the core file would be letters of complaint, leave forms, higher duties allowance forms, disciplinary matters, medical matters and promotion appeals documentation.
The Tribunal accepts Mr Ebert's evidence about the fate of the LEAN project. The LEAN project did in fact never eventuate and so Mr Beesley's suggestion that the ATO could access databases available through LEAN to see what they contain about him was ill-founded. The Tribunal informed itself about LEAN to check on the advice conveyed by Mr Ebert. Ms M Jackson in the Attorney-General's Department confirmed the advice provided by Mr Ebert.
The Tribunal accepts the evidence advanced by Mr Ebert to the effect that advice from the NSW police or Mayne Nickless would be held by MPRA rather than by the ATO. As Mr Ebert said, this would be material emerging in the course of pre-employment checking and the raw data would be held by the MPRA with digested advice going to the ATO. The digested advice would appear on the core personnel file which had been provided to Mr Beesley.
The Tribunal accepts the evidence of witnesses from the ATO to the effect that there has not been a general program in the ATO of migration of historical paper file records to an electronic database. There is no evidence that the ATO has engaged in such a program. The Applicant could adduce no evidence to support his belief that this would have occurred.
The Tribunal finds that it is highly unlikely that there are copies of performance appraisals relating to the Applicant on any file other than his personnel file. This was the evidence given for the Respondent in Exhibit R2. While it appears that there are few appraisal documents on the personnel file it is difficult to ascertain whether there may have been others, and where they may have been placed, after such a long lapse of time.

The Tribunal finds that Ms Thompson conducted appropriate searches and conducted them in a reasonable fashion, with the exception that the Tribunal considers that there are two areas within the ATO where searches remain to be conducted. This will be revisited later. So far as the searches that were conducted are concerned, the Tribunal rejects the Applicant's argument that there was some concentration on peripheral areas within the ATO at the expense of other potentially more fruitful areas. The Tribunal was impressed by Ms Thompson's capacity to explain her thought processes in deciding where to search and her description of how the searches were pursued.
The Tribunal finds that, although the searches conducted were appropriate and reasonable, it cannot be certain that there are not other documents held by the Respondent concerning the Applicant. In evidence it was disclosed that Part four of a promotion appeals file concerning the Applicant has gone missing. Human error or negligence has resulted in the file being removed from storage and the borrower not leaving a loan form identifying him- or her-self. This demonstrates that reasonable searches can at times be frustrated within an agency because of human error. The Tribunal refers to the remarks of the learned Deputy President in Cristovao (supra) to emphasise that such human or even a systems error does not bring about the consequence that absolutely every inch of ATO premises, or every item on electronic databases, must be searched if s 24A of the FOI 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.
The Tribunal finds that there are two areas within the ATO where the searches did not reach and where, in the Tribunal's view, they should have. The Applicant's evidence is that he wrote a number of letters of complaint to the Commissioner of Taxation in Canberra and the Deputy Commissioner of Taxation in Sydney. Ms Thompson advised the Tribunal that there had been no attempt to search the correspondence records maintained by staff in the offices of these two senior taxation officials. The Tribunal considers that at least an attempt should be made in this regard. The purpose would be to examine the correspondence tracking records to ascertain whether there are any references to correspondence from or to Mr Beesley. If there are records it is likely that they will refer to file numbers. This would result in the identification of additional files pertaining to the Applicant. There is, of course, no guarantee that, even if such file numbers are unearthed, the files will still be in existence. The decision of the Tribunal, and the orders contained within that decision, will clarify what the Tribunal expects.
The Tribunal accepts the evidence of Mr Ebert that fresh security clearances are not necessarily required whenever an officer in the ATO rotates into a new area within the office. The Tribunal finds that Mr Ebert, like Ms Thompson, is a witness of truth who has done his best to inform himself as regards the issues likely to arise in the current matter. His evidence is consistent with that of Ms Thompson. If such fresh clearances were required there would be some reference to them on the personnel file in any event.
Conclusion
With the exception of the searches relating to the correspondence records of the two tax commissioners, the Tribunal finds that the Respondent has met the standard of proof in s 61 of the FOI Act in that the searches conducted were reasonable in the circumstances of this case.
Decision
The Tribunal sets aside the deemed internal review decision under review and decides as follows:
The searches undertaken in response to the Applicant's request were appropriate and reasonable.
In order that s 24A(a) of the FOI Act may be satisfied and it can be said that "all reasonable steps have been taken to find the [relevant] document[s]", two additional searches need to be attempted and the Tribunal now orders that these searches be undertaken. The first of these is a search for any correspondence tracking records maintained on behalf of the Commissioner of Taxation in the period between 1978 and 1984. The second is a search of a similar kind in respect of the NSW Deputy Commissioner of Taxation for the same period. If those records exist, there is to be a reasonable search of the records for references to any correspondence from or to Mr Beesley, with a view to identifying any ATO file numbers connected to files which may contain copies of that correspondence.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  10 April 2001
Date of Decision  4 June 2001
Representative for the Applicant              Self-represented
Representative for the Respondent        Mr Ebert, Mr Gormley