Beesley and Department of Immigration and Multicultural Affairs
[2001] AATA 318
•20 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 318
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/195
GENERAL ADMINISTRATIVE DIVISION )
Re TERENCE BEESLEY
Applicant
And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date20 April 2001
PlaceSydney
Decision The decision under review is set aside and this matter remitted to the Respondent in order that further and better enquiries can be made by properly authorised officers of the Respondent to ascertain the existence of any documents held by the Respondent pertaining to the Applicant.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - Whether documents held by the Respondent or references to the Applicant in data bases maintained by the Respondent. Insufficient searches unless shown by Respondent that an officer or officers with appropriate security clearances have searched all data bases maintained by the Respondent.
Freedom of Information Act - ss3, 4, 11, 24, 24A, 61 and 66
Re Redfern and University of Canberra 38 ALD 457
REASONS FOR DECISION
20 April 2001 Senior Member M D Allen
On 29 November 1999 the Applicant lodged with the Respondent an application pursuant to the Freedom of Information Act 1982 (FOI Act) for:
"… access to my file and personal documents held by the Department of Immigration and Ethnic Affairs including those going beyond the arbitrary stated period of 1977."
After an initial dispute regarding fees payable by the Applicant, a further question was raised as to what documents the Applicant was seeking. In his initial letter of request the Applicant had stated that his request was (Exhibit R2 p2):
"incorporates but is not limited to:
Files relating to any dealings between your Department and any other Department or Authority – State, Federal, foreign. For example, the NSW Police Service, Australian Federal Police, Australian Security Intelligence Organisation, Department of Foreign Affairs;
and overseas: The United States Federal Bureau of Investigation, Immigration and Naturalisation Service, Central Intelligence Agency; the United Kingdom Department of Immigration, 'MIS' Intelligence Service;
Files relating to any dealings between your Department and private enterprise organisations such as Mayne Nickless Ltd – Cash Carrying and Security Services Divisions.
I want to avail myself of your facilities to see films, hear tape recordings, obtain copies of all documents – films, tape recordings, transcripts, expressed opinions, employment and credit checks and all inclusions in my file."
The Applicant's request was dealt with by Mr Lovell who is the Executive Officer of the Public Access Office at the Respondent's New South Wales office. In evidence to the Tribunal Mr Lovell gave evidence of the data bases which he searched, namely:
"TRIM" – which is a software programme accessed by entering a person's name and year of birth. A search of this programme revealed no entries regarding the Applicant.
"Isystem" – this system tracks applications for visas, citizenship and migration. Normally it would not record details of persons who are Australian citizens. No record was found of the Applicant which was to be expected as he is an Australian citizen.
"MO" – which tracks overseas migration applications. Again no record was found pertaining to the Applicant.
"RV System" – which refers to internal review of migration applications. As might be expected, no record was found pertaining to the Applicant.
"PA System" – which is a system used within the Department of Immigration and Multicultural Affairs to record Freedom of Information applications or requests from the Ombudsman' Office. No record was found pertaining to the Applicant.
"MOVEMENTS" – which records all international movements post 1980 using passports presented to Immigration officers. Records were found relating to the Applicant and he was advised of these.
On 20 December 1999 Mr Lovell wrote to the Applicant seeking further information. That letter stated that the Respondent Department did not hold a file in the name of the Applicant and requested further information to enable identification of documents required by him.
By letter dated 24 December 1999 the Applicant stated that he expected records would include applications for Australian passports and related comments. He also stated that he found it difficult to believe that the Department of Immigration and Multicultural Affairs did not hold a file in his name.
On 6 January 2000, Mr Lovell again wrote to the Applicant. That letter stated inter alia (T13):
"I explained in my previous letter that the Department of Immigration and Multicultural Affairs does not hold a file in your name. A search has been conducted of Departmental records but your name is only recorded in relation to electronic records of international movements. There are no other records held concerning you. Should you require access to a printed form of the international movement records, you will need to specify a search period as indexed records are held from 1973 to the present but not for earlier periods.
The Department of Immigration and Multicultural Affairs does not issue passports though I can advise you that Australian passports are issued by the Department of Foreign Affairs and Trade. You would need to approach the United States and United Kingdom authorities for access to their records relating to permanent residence applications."
No reply was received by the Respondent to Mr Lovell's letter of 6 January 2000 but on 7 January 2000 the Applicant lodged an Application for Review with the Administrative Appeals Tribunal in reliance upon s55 of the FOI Act claiming a deemed refusal.
In his Application for Review the Applicant referred to correspondence between himself and the Australian Consulate in Los Angeles and with the then Minister for Immigration in 1997. On 29 June 2000, Deputy President McMahon made a consent decision releasing the following documents to the Applicant, namely:
"(a) Record of International Movements (in and out of Australia);
(b) Letter to the Minister of Immigration dated 12 June 1997;
(c) Response to that letter dated 15 July 1997."
The Applicant still maintains that a "dossier" was held by the Respondent relating to him and on 7 March 2001 the matter came on for hearing before me at Sydney. At that hearing the following documents were taken in as exhibits, namely:
T1–T13 and : Documents p for the Tribunal pursuant to section 37
S1-S4of the Administrative Appeals Tribunal Act 1975
Exhibit A1: Applicant's Statement of Facts and Contentions
Exhibit A2: Applicant's submissions
Exhibit R1: Respondent's submissions
Exhibit R2: Respondent's Facts and Contentions
Exhibit R3: Affidavit of Peter Lovell dated 16 October 2000.
It is trite law that the following sections of the FOI Act have relevance to the Applicant's claim, namely:
"3. (1) The object of this Act 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 by:
…
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; …
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
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.
(2) In proceedings under section 58F, 59 or 59A, the party to the proceedings that opposes access being given to a document in accordance with a request has the onus of establishing that a decision refusing the request is justified or that the Tribunal should give a decision adverse to the applicant.
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.
24. (1) The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request:
(a) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations; or
(b) in the case of a Minister - would substantially and unreasonably interfere with the performance of the Minister's functions.
…
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."
Whereas s4 defines "document of an agency" as:
" 'document of an agency' or 'document of the agency' means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency;"
This matter arises, as did a previous matter heard by me, namely Re Beesley and Australian Federal Police [2000] AATA 1114, from the Applicant's belief that there are documents relating to him held by various public authorities arising out of malicious actions taken against him by police and employees of Mayne Nickless Limited. In paras 29 and 30 of his Statement of Facts and Contentions (Exhibit A1) the Applicant states:
"(29)In reply it was explained that in 1974 I was considering seeking endorsement as a political candidate & a conservative group with tentacles in the NSW Police Service was opposed to the candidature. I became the victim of a sexual entrapment in which personal relationships were filmed. Then the film & defamatory comments were distributed.
(30)During the same period I was the subject of harassment by employees of Mayne Nickless Ltd causing me to seek legal advice to restrain their behaviour. Recommencement of the harassment some 18 months ago reinforced the belief that Mayne Nickless disseminated false information regarding my involvement in major crimes, which came to be included 'on file'. No matter how erroneous the information it still 'surfaces'. This prompted the FOI requests."
At the request of the Applicant the Respondent called Mr Bernard Tierney who is the Director of Business Systems Architecture in the Respondent Department. Mr Tierney gave his evidence by telephone from Canberra.
Cross-examined by the Applicant, Mr Tierney stated that he did not know if the Department of Immigration and Multicultural Affairs had access to the programme known as the Law Enforcement Access Network. He did state, however, that:
"Everyone in the Department does not have access to every system. I personally have access to maybe about four or five systems, the personnel system and systems like that. I don't have access to any of the other systems. I don't have access to ICE. I have access to TRIM. So depending upon the function I perform within the organisation is how what systems people are allowed to access."
When it was put to Mr Tierney directly, he agreed that the various employees of Department of Immigration and Multicultural Affairs have access to a limited number of data bases directly related to their employment duties.
That not every employee of the Respondent can access every data base is understandable as a practical measure as well as restricting the flow of information on a need to know basis. I have no doubt that various data bases can only be accessed by employees having a particular security qualification.
What the evidence of Mr Tierney does reveal is that there is a very strong inference that not all data bases held by the Respondent have been accessed in the search for any material held regarding the Applicant. A department that has received a Freedom of Information request cannot limit that request by entrusting the search for information to an employee who does not have clearance to access all information.
For example, if an employee has a security classification which only allows him to access documents classified confidential or restricted, any search by him cannot be complete. Arrangements must be made for searches of documents bearing higher security markings. It may well be that there are reasons why such documents cannot be released, however, that is a different question.
In this matter, although I accept that Mr Lovell honestly and diligently searched all data bases available to him, I am not convinced that all reasonable steps have been taken to find documents. There may be other documents or other data bases to which Mr Lovell did not have access which contain some reference to the Applicant. The decision under review will therefore be set aside and this matter remitted to the Respondent in order that further and better enquiries be made by the properly authorised officers of the Respondent to ascertain the existence of any documents held by the Department pertaining to the Applicant.
In making its further and better searches, the officers of the Department of Immigration and Multicultural Affairs will no doubt have regard to the decision of Deputy President McMahon in Re Redfern and University of Canberra 38 ALD 457 where at paragraph 17 of his decision Deputy President McMahon said:
"There is of course ample authority for the proposition that an agency is not obliged to generate a document so as to provide one falling within the description of a request for access. The right of access conferred by s 11 is a right to obtain access to documents, not information. The Act does not generally require an agency to make available information which is not in its possession in a documentary form, nor does it require an agency to collect together information from a number of documents in its possession so as to create a new document."
This is not a case where the Applicant, who is self-represented, is entitled to his costs pursuant to s66 of the FOI Act.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong .....................................................................................
AssociateDate of Hearing 7 March 2001
Date of Decision 20 April 2001
Solicitor for the Applicant Applicant was self-representedSolicitor for the Respondent Mr J Fong,
Department of Immigration and Multicultural Affairs
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