Bienstein and Attorney-General (Commonwealth of Australia)
[2008] AATA 490
•13 June 2008
CATCHWORDS – FREEDOM OF INFORMATION – deemed decisions refusing access – whether reasonable steps taken to find documents matching requests – whether documents exist – decisions affirmed.
Administrative Appeals Tribunal Act 1975 ss 3(1), 32 and 37
Freedom of Information Act 1982 ss 4(1), 11, 15, 16(1)(b), 23, 24A , 56(1), 59(3) and 59A(3)
Bienstein v Attorney-General (Commonwealth) and Anor (2007) 162 FCR 405; 45 AAR 530; 96 ALD 639
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560
Chu v Telstra Corporation Ltd (2005) 147 FCR 505; 42 AAR 100; 89 ALD 39
Re Andrews and Australian Research Council (2007) 44 AAR 407; [2007] AATA 1026
Re Bienstein and Attorney-General(Commonwealth of Australia) and Minister for Justice and Customs [2008] AATA 7
Re Bienstein and Attorney-General(Commonwealth of Australia) and Minister for Justice and Customs [2008] AATA 330
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Langer and Telstra Corporation Limited (2002) 68 ALD 762; [2002] AATA 341
Re Radar Investments Pty Ltd and Ors and Health Insurance Commission (2004) 80 ALD 733; [2004] AATA 166
Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283
DECISION AND REASONS FOR DECISION [2008] AATA 490
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/4895
GENERAL ADMINISTRATIVE DIVISION )Re:HELEN BIENSTEIN
Applicant
And:ATTORNEY-GENERAL (COMMONWEALTH OF AUSTRALIA)
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/4896
GENERAL ADMINISTRATIVE DIVISION )
Re:HELEN BIENSTEIN
Applicant
And:MINISTER FOR HOME AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 13 June 2008
Place: Melbourne
Decision:The Tribunal:
affirms the decisions deemed to have been made by the Attorney-General and the then Minister for Justice to refuse access to documents as requested by Mrs Bienstein.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 3 September 2003, Mrs Helen Bienstein made a request to the Attorney-General and, on 9 September 2003, another to the then Minister for Justice and Customs (Justice Minister)[1] for access to certain documents. There have been proceedings in both this Tribunal and in the Federal Court regarding her request. I have decided that all reasonable steps have been taken to find the documents sought by Mrs Bienstein and that, except for the documents that have been located and already the subject of decisions under the Freedom of Information Act 1982 (FOI Act), no other documents exist.
THE REQUESTS
[1] Responsibility for the portfolio now comes under the Minister for Home Affairs and I will refer to each where appropriate.
Mrs Bienstein’s request to the Attorney-General was for access to:
“… all records that came into existence as a result of or incidentally to my communications with the Attorney General’s Department or with any other agency, Court or Minister. You should interpret the ambit of this request very broadly and disclose the existence of all files that include even a single document that pertains to me or to my legal actions, Notices of Constitutional Matter, inquiries and complaints. Requests, notices of meetings, draft letters, briefing notes, minutes, records of meetings or discussions, deliberations, directions, advice, decisions, instructions, investigations, recommendations, conclusions, orders etc. should all be included.”[2]
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at T3
She touched on the background to her request saying:
“I am aware that your Department had various consultations regarding any matters with the AFP, the DPP and with your Office. I suspect that you, your Office and/or your Department, also contacted the Ombudsman, other Ministers and the Family Court. All records of such inter-agency contact are within the ambit of this request.”[3]
[3] T documents at T3
Mrs Bienstein’s request to the Justice Minister referred only to:
“… all documents in relation to me or that came into existence because of me or because of my dealings with any of the three arms of government, both Commonwealth or State.”[4]
Again, Mrs Bienstein gave further background material to her request. She referred to her incarceration on the order of a Judge of the Family Court and to the steps she took as a result of that order.
[4] T documents at T4
THE INITIAL PROCEEDINGS IN THE TRIBUNAL
On 9 October, 2003, Mrs Bienstein, applied for review of a decision that she stated had been deemed to have been made by the Attorney-General under the FOI Act refusing her application that he remit the application fee. Mrs Bienstein later stated that her application extended to a deemed decision to refuse access as she had requested. Her application to the Justice Minister on 13 October 2003 made clear that she was seeking review of both deemed decisions and that the deemed date of refusal was 10 October 2003. A submission was made on behalf of the Attorney-General’s Department (Department) that her request had been transferred from the Attorney-General to the Department on or about 2 October, 2003 and from the Justice Minister to the Department on or about 25 September 2003. It was submitted that a decision had then been made on those requests by the Department.
I decided that the then Attorney-General and the Justice Minister had transferred the requests to the Department under s 16(1)(b) of the FOI Act. The Federal Court decided that this part of my decision was in error as they could not have transferred the requests under that section as they had no documents that met the request and so could not consider whether the subject matter of any such document related more closely to the functions of the Department than to their functions. As the requests remained with the Attorney-General and the Justice Minister and time had passed, the Tribunal had jurisdiction as s 56(1) deemed them to have made a decision refusing the requests. Therefore, the Federal Court remitted these matters to the Tribunal to be heard and determined again according to law.
In the course of a directions hearing held on remittal, Mrs Bienstein insisted that the Attorney-General and the Justice Minister must make decisions on her requests and give reasons for their refusal to grant access to the documents she requested. She is of the view that they must also give written reasons for coming to those decisions. I decided that the effect of s 56(1) of the FOI Act is that, for the purposes of enabling an application to be made, the Attorney-General and the Justice Minister are deemed to have made decisions refusing her requests. There is no requirement that they make any further decision or that an authorised person make a decision on their behalf and the Tribunal has no power to order or direct them to do so. The Tribunal has jurisdiction to review the deemed decisions once Mrs Bienstein lodged her applications for their review. I also decided that the Attorney-General and the Justice Minister were under an obligation to comply with s 37(1) of the AAT Act in respect of the deemed decisions. I extended the time within which they had to comply with that obligation and they duly complied.[5]
[5] Re Bienstein and Attorney-General(Commonwealth of Australia) and Minister for Justice and Customs [2008] AATA 7 and see also Re Bienstein and Attorney-General(Commonwealth of Australia) and Minister for Justice and Customs [2008] AATA 330
Mrs Bienstein lodged an appeal to the Federal Court from my decision but then withdrew her appeal. When I held a further directions hearing as to the future progress of the case, Mrs Bienstein asked that the Tribunal make specific directions identifying the particular type of evidence that the Attorney-General and the Justice Minister must produce prior to the hearing. I declined to do so and gave written reasons in response to Mrs Bienstein’s request for them.
On behalf of the Attorney-General and the Justice Minister, Mr Bennett led evidence regarding the searches that had been made for documents meeting the terms of Mrs Bienstein’s request. The hearing was adjourned to enable further evidence to be given.
LEGISLATIVE BACKGROUND
The right to obtain access to a document under the FOI Act is prescribed in s 11:
“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.”[6]
Again subject to the FOI Act, that right of access is not affected by the person’s reasons for seeking access or by the agency’s or Minister’s belief as to what the person’s reasons might be.[7]
[6] s 11(1)
[7] s 11(2)
The way in which a person asks for access to a document under the FOI Act is found in s 15. Subject to an exception that does not apply in this case:
“… 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.”[8]
Section 15(2) sets out the criteria that a request must meet. Among them is that the request must be sent by post to the agency or Minister[9] and must:
“provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it …”[10]
[8] s 15(1)
[9] s 15(2)(d)
[10] s 15(2)(b)
It is apparent from these provisions that, when the request is addressed to a Minister, the right of access is given to “an official document of a Minister”. An “official document of a Minister”:
“… means a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to the document and the document is not a document of an agency.”[11]
[11] s 4(1)
There is no suggestion that the documents to which Mrs Bienstein has sought access are exempt documents within the meaning of Part IV of the FOI Act and so documents to which the right does not extend. Equally, there is no suggestion that her request is of a sort that justifies the refusal of her request on, for example, workload considerations. What is in issue is whether the Attorney-General and the Justice Minister did all that they were required to do under the FOI Act to look for the documents. That requires me to look at what they are required to do.
Their obligation is described in s 24A of the FOI Act by reference to the circumstances in which they may refuse access to a document. In referring to a Minister, that section provides that:
“… 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 … Minister is satisfied that the document:
(i)is in the … Minister’s possession but cannot be found; or
(ii)does not exist.”
When the word “document” is used in prescribing the limits of the Minister’s obligation, it must be understood in light of the right that is given to have access to it. Therefore, it must be read as a reference to the “document of a Minister”. Reading the obligation with the documents to which it relates means that the Minister must:
·take all reasonable steps;
·to find:
(a)a document in the possession of the Minister; and
(b)a document that has passed from the Minister’s possession:
(i)provided that the Minister is entitled to access to that document; and
(ii)provided that the document is not a document of an agency.
A “document of an 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.”[12] Given that an “agency” includes a Department, a request made to a Minister for access to documents does not require that Minister to look for documents that have passed from his or her possession to his or her Department. That follows from the fact that documents would now be in the possession of the Department and, as the Department is an agency, the documents would become documents of an agency. Therefore, they would be excluded from the Minister’s obligation as they would not come within the description of documents to which the right of access exists under the FOI Act in so far as it concerns official documents of a Minister. Similarly, documents that were sent by a Minister to the National Archives of Australia (Australian Archives) would be excluded from the obligation as they would be documents of an agency that is the Australian Archives.
[12] s 4(1)
A document which a Minister sends to a private storage operator for storage would not be excluded from the description of an official document of a Minister on the basis that it is a document of an agency. A private storage operator would not be an agency as defined in s 4(1). Arguably, though, the document would continue to be a document to which the Minister is entitled to access. That would bring the stored document into the compass of the documents that are official documents of a Minister as defined in s 4(1).
I would mention that, where a document is not in a Minister’s possession and has, to his or her knowledge, been transferred to his or her Department, that Minister may, with the agreement of the Department, transfer the request to the Department.[13] There is no obligation upon the Minister to do so. The nature of the transfer provisions was considered by Gray J in Bienstein v Attorney-General (Commonwealth) and Anor[14] when he set out what is required of an agency by s 16.
THE EVIDENCE
[13] s 16(1)
[14] (2007) 162 FCR 405; 45 AAR 530; 96 ALD 639
Searches in November 2007
On 31 October 2007, Ms Anna Tearne, Senior Adviser in the then Attorney-General’s Office received a request from Mr Bennett to search for and produce:
“… all records that came into existence as a result of or incidentally to (the Applicant’s) communications with the Attorney-General’s Department or with any other agency, Court or Minister.”[15]
Ms Tearne also said that Mr Bennett had advised her that the Tribunal had directed that there be a thorough search of the Attorney-General’s Department for any documents, hard copy and/or electronic, falling within the ambit of Mrs Bienstein’s request.
[15] Affirmation of Ms Tearne, 14 November 2007, [2]
Ms Tearne said that:
“3. I supervised the search for all files and/or documents that were relevant to the Applicant’s request. All shared filing cabinets were searched and no relevant documents were found. A search of shared office electronic drives was also conducted and no documents were found. Further, all staff conducted, or had conducted on their behalf by IT Support, a search of their personal electronic drives and emails on Microsoft Outlook, however, no relevant documents were found. We do not hold documents on any other electronic databases.
4. The Office of the Attorney-General does not keep documents of the kind the Applicant seeks. Having supervised the searches outlined above, I am satisfied that no documents relevant to the Applicant’s request are in the possession of the Office of the Attorney-General.”[16]
[16] Affirmation of Ms Tearne, 14 November 2007 at [4]
Ms Melanie Brocklehurst is the Departmental Liaison Officer and is based in the Office of the Minister for Home Affairs, which was formerly known as the Office of the Minister for Justice and Customs. In an affirmation dated 14 November 2007, described a request she had received from Mr Bennett advising her of the Tribunal’s direction that there be a thorough search in the Minister’s office for documents falling within the ambit of Mrs Bienstein’s request made in September 2003. Ms Brocklehurst stated that she coordinated and assisted in the search for the documents and that, as a consequence of those searches, she was satisfied that the Justice Minister’s office held no documents relevant to Mrs Bienstein’s request. She described the searches that were undertaken:
“3. I instructed officers in the Office to search for all files and/or documents that were relevant to the Applicant’s request. I personally conducted a search for relevant documents on our database known as ‘TRIM’, but I was unable to locate anything of relevance to the Applicant’s request. Although the Office does not keep general correspondence in its filing cabinets, I instructed officers within the Office to search those cabinets. No relevant documents were found. I also searched an electronic drive known as ‘Filemaker Pro’ which manages the Incoming Correspondence Register and the Submissions Register. No relevant documents were found on those drives. Staff in the Office also searched through electronic drives including their personal electronic drives and emails. However, no documents relevant to the Applicant’s request were located.”
Searches in April 2008
In an affirmation made on 24 April, 2008 Mr Pike described the searches he made in the Office of the Attorney-General at the request of Mr Bennett.
“ I supervised the search for all files and/or documents that were relevant to the Applicant’s request. All shared filing cabinets (nine in total) and all physical files held by the Office were searched and no relevant documents were found. Emails from staff who carried out those searches are at Exhibits 1A to 1J. Those emails detail the results of the searches. A search of all email, personal electronic drives and shared office electronic drives (G and S drives) was conducted by the Attorney-General’s Department IT Helpdesk. Details of the drives searched are at Exhibit 1K. A small number (seven) of relevant emails totalling 11 pages were found as a result of the search. Copies of these emails have today been forwarded to the applicant.
Having supervised the searches outlined above, I am satisfied that no other documents relevant to the Applicant’s request are in the possession of the Office of the Attorney-General.”[17]
[17] Affirmation of Mr Pike, 24 April 2008 at [3]-[4]
Mr Pike attached copies of email correspondence that he had with ten members of staff of the Attorney-General’s Office. He asked them that they search their filing cabinets for “Helen Bienstein”. Mr Pike included in the copies any follow-up enquiries that he made with each staff member.
In her affirmation, Ms Brocklehurst noted that Mr Bennett had asked her to provide details of the way the searches were carried out, the databases searched, the way they were searched, the search tools and the physical cabinets searched, details of any IT assistance that was provided and any relevant printouts of the search results.
Ms Brocklehurst said:
“3. On 27 March 2008, I instructed staff in the Office to search their personal and shared electronic drives and filing cabinets for all documents to Ms Helen Bienstein. Further on 28 March 2008, the Chief of Staff, Mr Michael Tatham, requested that the IT staff at the Department conduct the relevant searches of the electronic drives on behalf of the ministerial staff to ensure this was conducted correctly. A copy of Mr Tatham’s email is at Exhibit 1A.
4. No relevant hard copy documents were found by ministerial staff. Emails from staff who carried out those searches are at Exhibits 1B to 1J. Those emails detail the search results.
5. The Attorney-General’s Department IT Helpdesk also conducted a search of all email, personal electronic drives and shared office electronic drives, however, no relevant documents were found. Details of the IT search results are at Exhibit 1K.
6. Having co-ordinated and assisted with the above searches, I am satisfied that the Minister’s Office has no documents in its possession that are relevant to the Applicant’s request.”
The Department’s Acting IT Infrastructure Manager, Information and Knowledge Services, Mr Adam Reis, searched the electronic data management systems of the offices of both the Attorney-General and of what is now that of the Minister for Home Affairs. He was instructed by Layton Pike of the Attorney-General’s office to conduct an electronic search for documents held in that Office and by Ms Claudia Hernandez, Acting Assistant Director of the Department’s Freedom of Information Section, to do the same in respect of the Office of the Minister for Home Affairs. The documents he was instructed to seek were documents held and that were in the possession of each of the Offices and that related to Helen Bienstein. Mr Reis reported that no documents were found on the drives belonging to the Office of the Minister for Home Affairs. The only results returned originated from the Attorney-General’s Office.
Mr Reis said that he:
“[3] … conducted a search of all e-mail correspondence and file server information in both Offices by using the surname of ‘Bienstein’ as the search term. Printouts of the search results are at Exhibit 1A. Copies of all documents found at the Office of the Attorney-General were, to my knowledge, provided to the Applicant on 24 April 2008.
[4] No relevant documents were found on the entire volume used by the Office of the Minister for Home Affairs.”
Mr Reis attached six printouts to his affirmation. Each showed that a search had been made using “Advanced Find” to look for Messages in the subject field and message body. The search took place for Mrs Bienstein’s surname in four folders and with different spellings. Searches on four of the folders were for “Bienstein”, two for “Beinstein” and one for “Helen Bienstein”. The search on All Files and Folders was made in the name of “Bienstein”. The searches revealed eight different documents dated between 2000 and 2002. The screen dump of the search of files “Of type All Files and Folders” shows that the search included two files bearing names that suggest that they were archived material and two folders within other files that indicate that they contained material from staff who had previously been members of staff in the Department or in the Justice Minister’s Office.
Mr Reis’s oral evidence
Mr Reis gave oral evidence that he remained satisfied that he had carried out all searches he could to locate any documents that are held electronically and that come within Mrs Bienstein’s request. Mr Reis said that he had been asked to conduct a search on the Parliament House server for all documents that related to Mrs Bienstein and that had been created for the former government. Mr Reis said that he was involved in establishing the system for the management of information kept electronically in the Attorney-General’s Office and the Justice Minister’s Office. It is a system that permits data recovery and keeps the information of those Offices separate from that of the Department.
When staff move to Parliament House, Mr Reis said, their group membership is changed so that the information to which they may have access is changed. Their access to Departmental systems is stopped and their access is confined to information held on the server at Parliament House. Information that they store is stored on the server at Parliament House. Staff are prevented from copying data from one server to another. It is possible for information to be sent to the Department by email but, once sent, that information would be kept on a separate server serving the Department. No log of incoming hard copy mail is kept on the electronic data management system, Mr Reis said in response to a question from Mrs Bienstein.
CONSIDERATION
Making decisions under the FOI Act and the role of the advocate
Mrs Bienstein raised her concern that, at no stage, is there any indication in the evidence that either the Attorney-General or the Justice Minister has asked his staff to search for the documents. In view of her concern regarding the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), her view that the Attorney-General and the Justice Minister should have made decisions in this case and what I take to be her concern regarding Mr Bennett’s role in the matter, I have spent a moment on the provisions of the FOI Act relating to decision-making.
As I have mentioned, a request is made to an agency or to a Minister. Except in the case of certain bodies specified in Schedule 1 to the FOI Act, and Ministers are not among them, decisions have to be made by authorised persons. That is the effect of s 23(1) which provides:
“… a decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, subject to the regulations, by an officer of the agency acting within the scope of authority exercisable by him or her in accordance with arrangements approved by the responsible Minister or the principal officer of the agency.”
That section makes no reference to a decision made in respect of a request made to a Minister. In earlier reasons related to Mrs Bienstein’s application,[18] I concluded that:
“19. I have also had regard to the subject matter dealt with by the FOI Act. It is legislation intended to ensure that, within the restrictions found in the legislation itself, the public has as access to as much information in documentary form as it can. Given the complexity that can attend some requests, the time limits for decision-making set out in ss 15, 29, 30A and 31 suggest that the turn around times for requests can be quite tight. Given the demands on Ministerial time quite apart from any responsibilities under the FOI Act, there may well be occasions when a Minister simply might not be available to make a decision on a request made to him or her within the prescribed time limits. Having regard to all of these matters, it would seem that the FOI Act has not displaced the general principle that a Minister may authorise another to make a decision on his or her behalf. The decision would be made in the Minister’s name and the Minister would accept responsibility for it.”
[18] Re Bienstein and Attorney-General(Commonwealth of Australia) and Minister for Justice and Customs [2008] AATA 7 at [12]-[19]
Although this is my conclusion regarding decision-making in respect of a request made to a Minister, there are occasions on which there is no need for a Minister to make a decision at all. Those occasions occur when the FOI Act itself deems that a decision has been made for a certain purpose. An example occurs in s 56(1) when notice of a decision on a request made to an agency or Minister has not been given within the time permitted by ss 15(5) and 15(6). “[F]or the purpose of enabling an application to be made to the Tribunal under section 55 …”, the agency or Minister “… shall … be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.”[19]
[19] s 56(1)
The fact that a decision has been deemed to have been made does not prevent the agency or Minister from continuing to make decisions regarding the request. This is apparent from s 56(5). In essence, it provides that, where an application has been made to the Tribunal for review of a deemed decision, the Tribunal may treat the proceedings as extending to a review of any decision that might be made in respect of the request other than a decision to grant access as sought in the request. Since Mrs Bienstein lodged her application for review in this Tribunal, there has been no decision of the sort referred to in s 56(5). I understand that documents have been found since the proceedings were commenced but, as there is no suggestion that Mrs Bienstein was not granted access to them in their entirety, there is no basis on which I can extend the proceedings to review the decisions made to grant her access. Therefore, I have no jurisdiction to review the merits of that decision.
Mrs Bienstein has questioned Mr Bennett’s role in these proceedings. As I am reviewing only a decision deemed to have been made by the Attorney-General and another by the Justice Minister, any suggestion that Mr Bennett made the decision to refuse access cannot be countenanced in any way. The decision was deemed to have been made by the FOI Act.
That leaves Mr Bennett’s role in the proceedings. He has stated that he represents the Attorney-General and the Justice Minister. His behaviour and actions have been consistent with this statement and with the proper role of a representative in the Tribunal. His assertion is a statement that I have not questioned just as I have not questioned his authority for making it. Whether Mrs Bienstein questions it is something that I am not clear about. As I am not clear, I will mention why I accept Mr Bennett’s role in these proceedings as one of representing the Attorney-General and the Justice Minister.
A review of a decision under the FOI Act is a proceeding in the Tribunal.[20] At the hearing of a proceeding before the Tribunal, a party to the proceeding may either appear in person or may be represented by some other person.[21] No variation of that position is found in either the Administrative Appeals Tribunal Act 1975, which provides the general framework in which the Tribunal’s procedures are conducted, or the FOI Act, which authorises review of the decisions of the sort in this case. Section 23 of the FOI Act has no impact on the decision that is made in choosing a representative. It is limited to a “decision in respect of a request” and a decision regarding representation is a decision in respect of the proceedings for review of the decision. The two are different things. In this case, a decision to choose a representative is a matter for the Attorney-General and for the Justice Minister or, more recently, the Minister for Home Affairs.
[20] Administrative Appeals tribunal Act 1975 (AAT Act), s 3(1)
[21] AAT Act, s 32
It might be said that I have only Mr Bennett’s word for his being authorised to represent them. That is all that I usually have from any representative and there is usually no reason to question it. There is no reason to question it in this case. Mr Bennett is a Departmental advocate of long-standing in relation to decisions made under the FOI Act. He has represented the Department and the Attorney-General in the past. Quite apart from these matters, I note from the email correspondence exhibited to the affirmations of Mr Pike and Ms Brocklehurst that they have responded to Mr Bennett on the basis that he has authority to convey the Tribunal’s directions to them and to receive the results of their searches. Ms Tearne reflected the same approach in her affirmation. They are senior officers and I am satisfied from the nature of the positions that they hold, from the substance of the email responses that they had from their colleagues and from their responses to Mr Bennett that they are acting within the scope of the authority given by their respective Ministers. Their responses to Mr Bennett are also indicative of their regarding Mr Bennett as a person who is acting under the authority of their respective ministers and on their behalf. His authority is implicit in their actions.
In reaching this conclusion, I have had regard to the principle set out in Carltona Ltd v Commissioner of Works,[22] to which I referred in my previous reasons and which I concluded had not been displaced by the FOI Act.[23] The principle was explained by Lord Greene MR, with whom Goddard and du Parcq LL J agreed:
“It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority. …”[24]
[22] [1943] 2 All ER 560 and see generally the discussion in Administrative Law, Wade and Forsyth, 9th edition, 2004 at 316-322
[23] [2008] AATA 7 at [12]-[19]
[24] [1943] 2 All ER 560 at 563
The steps required by s 24A of the FOI Act
Section 24A requires me to start with an identification of what amount to “all reasonable steps … to find the document” rather than starting with an assessment of what steps the agency or Minister has taken to find the document and then decide whether those steps are reasonable. Having identified the steps that are reasonable, I must then decide whether all of those steps were taken by the agency or the Minister. If they have been, I must then consider whether I am satisfied either that the document is in the agency’s possession but cannot be found or that it does not exist.
Have all reasonable steps been taken to find documents?
What amounts to “all reasonable steps”? Deputy President McDonald first considered s 24A in Re Cristovao and Secretary, Department of Social Security[25] when 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.”[26]
[25] (1998) 53 ALD 138
[26] (1998) 53 ALD 138 at 145
Finn J emphasised in Chu v Telstra Corporation Ltd[27] that s 24A requires that “all” reasonable steps be taken and not simply “reasonable steps”. His Honour explained the reason for the focus on there being “all” reasonable steps:
“ It is understandable, where the decision as to the taking of all reasonable steps is left to the agency or Minister concerned (subject to Tribunal review), why this more stringent requirement has been imposed. 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 be reasonably 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.”[28]
[27] (2005) 147 FCR 505; 42 AAR 100; 89 ALD 39
[28] (2005) 147 FCR 505; 42 AAR 100; 89 ALD 39 at 514; 109; 49
In Re Langer and Telstra Corporation Limited,[29] I looked more to what is meant by “reasonable steps” and concluded:
“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.”[30]
[29] (2002) 68 ALD 762; [2002] AATA 341
[30] (2002) 68 ALD 762; [2002] AATA 341 at 763; [95]
In Re Andrews and Australian Research Council,[31] the context was not s 24A but that of ss 59(3) and 59A(3) of the FOI Act: whether the Australian Research Council had met its obligations to take, as soon as practicable, reasonable steps to notify the relevant persons when Ms Andrews applied to the Tribunal for review of a decision on her request. In submissions, my attention had been drawn to a decision of the Court of Appeal (NSW) in Royal North Shore Hospital v Henderson,[32] when considering whether the time to institute certain proceedings could be extended. Whether it could be extended depended, in part, on whether a fact was within his means of knowledge if he did not know that fact and, in so far as that fact was capable of being ascertained by him, he had taken all reasonable steps to ascertain it.
[31] (2007) 44 AAR 407; [2007] AATA 1026
[32] (1986) 7 NSWLR 283, Hope and Mahoney JJA, Samuels JA dissenting
Mahoney JA said:
“ It would, of course, have been possible for the plaintiff to take steps which would have revealed that the Hospital had not taken the necessary care. But, in considering whether a plaintiff has, within s 57(1(e)(ii), ‘taken all reasonable steps to ascertain’ a relevant fact, it is necessary to determine whether, within the provision, the steps which he could have taken but did not take were ‘reasonable steps’. The phrase ‘reasonable steps’ make have at least two significations. A particular step not taken may not fall within ‘reasonable steps’ because, in the circumstances, it was not reasonable to expect the plaintiff to take any steps at all; or it may not fall within the phrase because, though he could reasonably be expected to take some steps, the step in question could not reasonably be expected of him. The latter is, perhaps, the meaning ordinarily to be given to the phrase but it may, I think, also include the former. In the present contest, I do not think it was intended that a fact should be taken to be within the means of knowledge of a plaintiff when it would not have been reasonable to expect him to take any steps at all.
…
… it is, I think, to be noted that, in determining what is ‘reasonable’ for this purpose, the Act does not require that it be assumed that the plaintiff would have taken advice. … Whether it would have been reasonable to take advice and what steps thereafter would have reasonably been taken must be determined by reference to the particular plaintiff or, possibly, by reference to him as a reasonable person.
In my opinion, therefore, it was not until a subsequent date that the circumstances were such that it would have been reasonable for the plaintiff to take steps to ascertain that the Hospital had, in 1972, failed to take proper care. …”[33]
[33] (1986) 7 NSWLR 283 at 299
In Andrews, I also canvassed other authority that:
“ Other cases have had regard to the meaning of ‘reasonable steps’ over the years and in a variety of contexts. In Deputy Commissioner of Taxation v Pejkovic,[34] a director of a company could defend an action by the Commissioner of Taxation (Commissioner) to recover a penalty for a company’s non-compliance with certain obligations under pay-roll legislation. One of the available defences was that the person had taken ‘… all reasonable steps to ensure that the directors complied …’.[35] ‘Reasonable’ meant ‘… reasonable having regard to … when, and for how long, the person was a director and took part in the management of the company; and … all other relevant circumstances.’[36] Whealy J said that it is important ‘… to understand that the “reasonable steps” contemplated by s 222AOJ(3) are steps that ensure that the directors complied with …” the obligations.[37]
65. Whealy J was careful to emphasise the link between the steps and the obligation to which they are directed when considering whether reasonable steps have been taken. That is consistent with the authorities to which I have already referred as well as with the much earlier authority of Rolfe v Willis,[38] in which the High Court said:
‘ In our opinion the phrase ‘reasonable steps to prevent drunkenness’ means such steps as ought reasonably to be taken by way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated, and to prevent is continuance when its existence is discovered.’[39]”
[34] [2000] NSWSC 1176
[35] Income Tax Assessment Act 1936 (ITAA), s 222AOJ(3)(a)
[36] ITAA, s 222AOJ(4)
[37] [2000] NSWSC 1176 at [39]
[38] (1916) 21 CLR 152
[39] (1916) 21 CLR 152 at 155
Having regard to the authorities of the sort to which I have referred, it seems to me that the approach I adopted in Langer and in Andrews continues to be the correct approach. Whether all reasonable steps have been taken will be assessed having regard to such matters as the nature of the documents sought in the request, whether documents of that sort are usually filed in a certain category or categories and whether documents of that sort would normally be referred to a certain Division, Branch or Section or to more than one in an agency for action. Steps that are comprehensive and that are directed to locating documents in those places will be relevant. Where documents are proving elusive, discussions with persons who would be likely to have dealt with the subject matter at the relevant time may be relevant. It may be that those people are no longer in the relevant area of the agency or of the Minister’s Office but contacting them may lead to an insight into where the documents could have got to. The size of the agency or of the Minister’s Office may also be relevant as may evidence of any practices regarding the retention of documents or, in the case of a Ministerial Office, the transfer of documents to the relevant Department. Finally, there may be cases in which an examination of documents already found may reveal further areas in which relevant documents may be located. These are some of the matters that may be relevant in deciding whether a Minister or agency has taken all reasonable steps to find a document within the meaning of s 24A(a) of the FOI Act.
In the case of the Attorney-General’s Office or the Justice Minister’s Office, the evidence that I have leads me to conclude that the number of hard copy files is small when compared with those in, for example, the Department. It was feasible for the hard copy files to be searched for documents that came within Mrs Bienstein’s request. If documents were kept in no particular order, I would expect every document to be searched. If, as is to be expected, documents are kept in files under subject matters, I would not expect every document in each of those files to be checked for relevant documents. I would expect, however, that every file would be examined to ascertain whether its subject matter is such that it could be a place in which the document would be filed. If a file were described under a catch-all title such as “General Correspondence”, “Miscellaneous”, “Complaints” or “Ombudsman” I would expect that each document in that file would be examined to identify any coming within the request.
Many documents are kept and generated in the electronic medium. Searches in that forum are more easily searched for using a search engine. It is important that all drives are searched and not simply those relating to, for example, email correspondence. The search terms must also be such that they are likely to identify the document requested. That may mean that the search must be repeated using different search terms to ensure that any document coming within the request is identified.
Have all reasonable steps been taken in this case?
On the evidence that I have, I am satisfied that all paper files had to be examined and all electronic data bases searched as I have described in [48]-[50] above before it could be said that all reasonable steps have been taken to find the documents sought by Mrs Bienstein in her request. Her requests were made on 3 September 2003 and 9 September 2003 and I have previously decided that a request encompasses those documents in the possession of the agency or Minister on the date the request is received and not to those that came into its possession after that date. [40] That does not mean that an agency or Minister may not choose to consider documents that come into its possession at a later time for they may do so.
[40] Re Radar Investments Pty Ltd and Ors and Health Insurance Commission (2004) 80 ALD 733; [2004] AATA 166
In this case, the emails that I referred to in my earlier decisions are not documents that come within Mrs Bienstein’s request as they post date it. I refer to them, though, for they are email messages that were not located in the searches conducted by Mr Reis. They included emails exchanged on 2 October 2003 between Ms Kym Taylor, Adviser to the then Attorney-General and Mr Bennett. Others were exchanged on 25 September, 2003 between Ms Linda Reynolds, who was the then Chief of Staff to the Justice Minister and Ms Heidi Johnston, who was then the Departmental Liaison Officer in the Justice Minister’s office and between Ms Johnston and Mr Bennett.
It was the absence of these emails from the searches conducted in April of this year that led me to ask that the searches be done again. Having heard from Mr Reis regarding the electronic searches and having examined the information on the screen dumps, as well as the evidence of Ms Tearne and Ms Brocklehurst regarding the electronic searches conducted by staff within the office, I am satisfied that all data bases have been searched. They have been searched in three different names in various drives. I would have preferred that all of the data bases had been searched in the correct and incorrect spellings of Mrs Bienstein’s name but I think that the searches have to be considered as a whole. The current staff have checked their electronic data bases and Mr Reis has checked the databases including information of past staff members. The earlier emails were not located but, given that emails may be deleted from the system and there was a change of government on 24 November 2007 let alone a change of staff since those emails were created, I do not think that their absence from the results obtained by Mr Reis undermines the integrity of his search. I am satisfied that all reasonable steps have been taken to find documents meeting Mrs Bienstein’s request.
I reach the same conclusion in relation to the paper files. Ms Tearne, Ms Brocklehurst and Mr Pike all conducted and/or supervised the searches for them. They appear to have conducted thorough searches. The result of Mr Pike’s searches was to find seven emails totalling eleven pages but no paper files. Ms Tearne and Ms Brocklehurst found none. In the case of the Office for Home Affairs, the outcome of the searches was the same as the outcome of the searches conducted by Ms Reynolds and Ms Johnston in the then Justice Minister’s Office and, in so far as paper files are concerned, Mr Pike found none as Ms Taylor had done at a previous time. Ms Brocklehurst also checked an electronic drive known as ‘Filemaker Pro’ which manages the Incoming Correspondence Register and the Submissions Register without success. I am satisfied that the searches in the Office of the Minister for Home Affairs were comprehensive. There is no suggestion that Mr Pike searched Filemaker Pro or that it was available in the Attorney-General’s Office. Whether it is or not, I am satisfied on the basis of his evidence regarding his search of the nine filing cabinets that the physical searches in the Office of the Attorney-General were comprehensive.
Mrs Bienstein has not suggested that there are any documents that should exist. She has been given access to a “batch of documents” [41] in the past as a result of the initial transfer of the requests to the relevant Departments. I do not have access to those documents but I am confident that, had there been anything in them to suggest that there were documents in the Attorney-General’s Office or that of the Justice Minister, either Mrs Bienstein or Mr Bennett would have drawn my attention to the fact.
[41] T documents at T1.1, [7]
Having regard to all of these matters, I am satisfied that all reasonable steps were taken to find documents meeting the terms of Mrs Bienstein’s requests. I am satisfied that no documents, other than those that have already been found, exist. For these reasons, I affirm the decisions deemed to have been made by the Attorney-General and the then Minister for Justice to refuse access to documents as requested by Mrs Bienstein.
I certify that the fifty six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Jayne Haydon Associate
Dates of Hearing 5 May 2008; 6 June 2008
Date of Decision 13 June 2008
Representative for the Applicant unrepresented
Representative for the Respondents Mr M Bennett
Director, FOI Section
Attorney-General’s Department
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