Bui and Department of Foreign Affairs and Trade
[2005] AATA 97
•1 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 97
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/409
GENERAL ADMINISTRATIVE DIVISION ) Re VAN XINH BUI Applicant
And
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
Respondent
DECISION
Tribunal M D Allen, Senior Member Date1 February 2005
PlaceSydney
Decision The decisions under review are affirmed. ........(Sgd)...M D ALLEN.................
Senior Member
CATCHWORDS
Freedom of Information - exemption claimed on the basis that documents could reasonably be expected to cause damage to the international relations of the Commonwealth or divulge information of matters communicated in confidence by or on behalf of a foreign government - documents - source documents used to provide third country information to the Refugee Review Tribunal - documents held to be exempt documents.
Freedom of Information Act 1982 ss 22, 24A, 33
Attorney-General's Department v Cockcroft (1986) 64 ALR 97
Searle Australia Pty Ltd v Public Interests Advocacy Centre (1992)108 ALR 163
Re Maher & Attorney-General's Department (1985) 7 ALD 731
Re Aldred v Department of Foreign Affairs and Trade (unreported AAT decision No.6539)
Re O'Donovan & Attorney-General's Department (1985) 8 ALD 528
Commonwealth v Hittich (1994) 53 FCR 152
Re: Wang v Department of Employment, Education and Training (1988) 15 ALD 497
Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445
Environment Centre (NT Inc) & Department of Environment, Sport and Territories (1994) 35 ALD 765
Re Robinson & Department of Foreign Affairs (1986) 11 ALN N48
Russell Island Development Association Inc and Department Primary Industries and Energy (1994) 33 ALD 683
Department of Industrial Relations v Burchall (1991) 105 ALR 327
Re: McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365
Re Gersten & Minister for Immigration and Multicultural Affairs [1999] AATA 527
REASONS FOR DECISION
1 February 2005 Senior Member M D Allen 1. By application made 31 March 2004, the Applicant made application to review a decision by the Respondent Department of State to refuse release pursuant to the Freedom of Information Act 1982 (“FOI Act”), documents held by it.
2. The Applicant made his initial request and this application on behalf of himself and 26 other named persons who are currently held in immigration detention after arrival by boat from Vietnam. The Applicant and the other persons have, as part of their application to the Refugee Review Tribunal, been provided with a country information report prepared by the Respondent but, broadly speaking, seek under the FOI Act the source documents upon which that report was prepared.
3. In particular, documents were sought which dealt with a body or group of persons in Vietnam known as “Resistance Force”.
4. On 3 June 2004 pursuant to paragraph 42C(1)(a) of the Administrative Appeals Tribunal Act 1975, a decision was made releasing specified documents or parts of documents to the Applicant. Thus when this matter came on for hearing before me the only documents or parts of documents in dispute were those numbered 33, 36, 37, 39, 58 and 59 in the schedule to the Respondent’s letter to the Applicant’s solicitors dated 27 February 2004 which is document “T10” in the documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
5. Subsequent to that hearing further documents were discovered which fell within the terms of the Applicant’s request. As a result the Tribunal made further orders on 30 July 2004 and 8 November 2004 pursuant to s 26 AAT Act granting access either in full or in part to certain documents.
6. Additional material being affidavits referring to the search for further documents falling within the scope of the Applicant’s request and concerning exemption claims over the additional documents discovered were filed by the Respondent on 9 October 2004. Those affidavits were by Ms Klugman, Assistant Secretary, Mainland South-East Asia and South Asia Branch of the Department of Foreign Affairs and Trade dated 28 October 2004 and Mr Starr, the FOI officer of that Department dated 5 November 2004. These affidavits were marked Exhibits R3 and R4 respectively.
7. Final submissions by the parties as to the documents in dispute were then received on 15 and 16 November 2004 and a reply by the Applicant on 29 November 2004. No request was made by the Applicant to reconvene the hearing so as to cross examine Ms Klugman or Mr Starr upon their affidavits.
8. As a result of the further searches the documents now in dispute are those numbered 33, 36, 37, 39, 58, 59, 60, 61, 62, 63, 65, 68, 70 and 71 as set out in Exhibit B of Ms Klugman’s affidavit of 28 October 2004.
9. Of the abovementioned documents exemptions pursuant to paragraph 22(1)(a)(ii) FOI Act were claimed in respect of documents numbered 39, 60, 61, 62, 63 and 65. In respect of documents numbered 33, 36, 37, 39, 62, 63, 65, 68 and 70 exemption was claimed pursuant to paragraph 33(1)(a)(iii) FOI Act and grounds for exemption were claimed pursuant to paragraph 33(1)(b) FOI Act for documents numbered 39, 58, 59, 62, 63, 65 and 71.
10. Section 22 FOI Act reads inter alia that where an agency decides that to grant a request for access to a document or documents would disclose information that would reasonably be regarded as irrelevant to that request, the said document is, or documents are, exempt from disclosure.
11. The claimed ground for exemption directs attention back to the original request by the Applicant. So far as documents numbered 39, 62, 63 and 65 are concerned as I am satisfied that they are exempt from disclosure on another substantive ground, I do not intend to consider them in relation to a claim for exemption pursuant to paragraph 22(1)(a)(ii) FOI Act.
12. The Applicant’s original request was in broad terms:
“…All documentation in your possession relating to the Members as individuals and/or relating to the political organisation/group of which they are members (being the Resistance Force) including but not limited to:
1. records of all correspondences (such as letters, file notes of telephone conversations, emails, etc.) with your ‘Posts in Hanoi and Ho Chi Minh City’ which seek ‘information regarding Vietnamese boat people on Christmas Island’; and
2. any other information/resources relied upon in your preparation of the above mentioned country information report.”
and as pointed out by the Respondent in submissions, that request had three broad limbs namely:
“(a) material relating to one or more of the Applicant and 55 other related persons as individuals;
(b) material relating to the Applicant and 55 other related persons as a group/organisation; and
(c) material relied upon by the Respondent in its preparation of the Report, including material which may not fall within the above to limbs, for instance, material on the present human right situation in Vietnam of the arrival of Vietnamese boat people in Australia.”
13. To my mind the Respondent has taken an approach to the Applicant’s request which indicates a desire to assist rather than restrict access to information available. Prior to the hearing further documents were released and subsequent to the hearing further searches were made and documents released by the Respondent. I am satisfied that the documents now claimed as exempt do not come within the terms of the Applicant’s request see Russell Island Development Association Inc and Department of Primary Industries and Energy 33 ALD 683.
14. Section 33 FOI Act reads:
“(1) A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
(i) the security of the Commonwealth;
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth;
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.”
15. The phrase “could reasonably be expected to” was discussed by the Full Court of the Federal Court in Attorney-General’s Department v Cockcroft (1986) 64 ALR 97. At p106 Bowen CJ and Beaumont J said:
“In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like…”
16. As pointed out by Shepherd J at p112 the decision-maker does not have to be satisfied on the balance of probabilities.
17. In Searle (Aust) Pty Ltd v Public Interests Advocacy Centre 108 ALR 163 the Full Court of the Federal Court reaffirmed the approach taken in Cockcroft (supra). At p176 the Court pointed out that whether there is a reasonable basis for a claim for exemption is a different question as to the effect of disclosure of the said information. They also reiterated at line 10 that in Cockcroft (supra) the court said that the words:
“could reasonably be expected meant what they said”.
18. The requirement that the disclosure cause damage includes such things as intangible damage to Australia’s reputation or relationships between government officials, see Re Maher & Attorney-General’s Department (1985)7 ALD 731 at 742 where Davies J said:
“the phrase ‘damage to international relations of the Commonwealth’ comprehends intangible damage to Australia’s reputation, though such damage may be difficult to assess. International relations have never been matters easy to define or quantify. Regards must be had, inter alia, to the relationships between particular persons in one government and persons in another. Damage to personal relationships may cause considerable harm for a time at least.”
This decision was specifically approved by Spender J, in Re Aldred v Department of Foreign Affairs and Trade (unreported Tribunal decision number 6539).
19. At page 23 of Re Aldred (supra) Spender J went on to state after discussing the definition of security:
“It is also the case that, even if a matter is the subject of widespread dissemination and speculation, official acknowledgment might cause damage to security.”
See also Re Slater and Cox v Director-General of Australian Archives 15 ALD 20 at 30.
20. In Re Aldred (supra) at p26 Spender J said:
“The term ‘international relations’ in paragraph 33(1)(a)(ii) [sic] refers to relations between Australia and another country. Damage to international relations might be found in the expectation that another country, if the documents were disclosed, would have less confidence in the government of Australia…”
21. I accept the submission by the Respondent that where damage to international relations is referred to in paragraph 33(1)(iii) FOI Act, it refers to the ability to maintain good working relations with other overseas governments and international organisations and to protect the flow of confidential information between them. There is no requirement to establish whether or not a document has or has not been released by an overseas authority in order for the exemption to apply.
22. As was pointed out in Re Maher (supra) at p742, a mere allegation to the fact that publication of the document claimed to be exempt could reasonably be expected to cause damage to the international relations of the Commonwealth is not of itself enough but Davies J went on to say:
“…but if it can reasonably be anticipated that disclosure of the document would lessen the confidence which another country would place on the Government of Australia, that is a sufficient ground for finding that the disclosure of the document could reasonably be expected to damage international relations. Trust and confidence are intangible aspects of international relations.”
As was further pointed out in Re Wang and Department of Employment, Education and Training (1988)15 ALD 497 at 499 an expected reduction in the quality and quantity of information provided by a foreign government will also satisfy the exemption.
23. The nature of the information, the circumstances in which it was communicated, the nature and extent of the relationship between the parties involved and the facts of the particular case are all relevant considerations. In Re O’Donovan & Attorney General’s Department 8 ALD 528 Deputy President Hall stated at p534 paragraph 21:
“That is not to say, however, that every claim of exemption under s 33 will be sustainable. As the President pointed out in Re Maher, a mere allegation that disclosure could reasonably be expected to cause damage to the international relations of the Commonwealth is not enough. Neither is the mere fact that another government has expressed concern about the disclosure of the communication. Whether disclosure of a particular document could: ‘reasonably’ be expected to cause damage to the international relations of the Commonwealth may well involve difficult questions of judgment and degree. The expectation that the disclosure of the document could cause such damage must be an expectation that it is reasonable in all the circumstances, having regard, in particular, to the nature of the information contained in the document, the circumstances in which that information was communicated, and the nature and extent of the relationship between Australia and the foreign country concerned.”
24. The Full Court of the Federal Court made it clear in Commonwealth v Hittich (1994) 53 FCR 152 that there is no public interest test in section 33. At p154 letter “D” the Court said:
“We agree that s33(1) does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not.”
In other words, notwithstanding the strong personal interest the Applicant has in obtaining access to the documents in question that interest is irrelevant. See also Re McKinnon v Secretary Department of Foreign Affairs and Trade [2004] AATA 1365 at paragraph 21.
25. Exhibit R1 in these proceedings is the affidavit of James Francis Batley who was then the Assistant Secretary, Mainland South-East Asia and South Asia Branch, in the Department of Foreign Affairs and Trade. In that affidavit Mr Batley deposes as follows:
“I am responsible for the overall management of Australia’s bilateral relations with Vietnam (as well as a number of other countries,) under the supervision of the head of South and South-East Asia division.”
He continued:
“Areas of the relationships for which I am responsible include the general political relationship (including high level visits) and bilateral trade relations. Areas in which my branch works closely with other parts of the department include human rights in Vietnam, multilateral trade relations with Vietnam, Australia’s regional security dialogue with Vietnam and consular relations with Vietnam.”
In other words, Mr Batley’s evidence is that he is a high level official in the relevant department of state with specific expertise in relation to Vietnam and this was not called in question in anyway by the Applicant.
26. At paragraph 19 of his affidavit he states that he has spoken to Australia’s Ambassador to Vietnam and that person also shares his (Batley’s) views about the harm that would, or could reasonably be expected to follow from the release of the material over which exemption is claimed.
27. At paragraph 21 of the affidavit he deposes:
“The material for which exemption is claimed in documents 33 and 36 concerns the operations of the Australian Embassy in Hanoi. Vietnam is one of the world’s remaining one party communist states, and the government and party play a preponderant role in the life of the nation. In these circumstances the successful pursuit of Australia’s national interests in Vietnam depends to an important degree on developing relationships of mutual respect, trust and confidence at official levels. Australia’s bilateral relationship with Vietnam could reasonably be expected to be damaged if anything were done to impair that mutual respect, trust and confidence. Disclosure of the material for which exemption is claimed would undermine the mutual respect, trust and confidence established between Vietnam and Australia. The damage to Australia’s bilateral relationship with Vietnam which could reasonably be expected as a result of such disclosure would be:
·Vietnamese officials would be less forthcoming in providing information in response to requests from Australian government officials;
·Australian officials and Embassy personnel, including the Australian Ambassador, would have less access to Vietnamese government officials; and
·Vietnamese officials would be less inclined to take Australia’s interests into account when making decisions affecting Australia.”
28. At paragraph 24 of his affidavit Mr Batley refers to a document which was taken in as “confidential Exhibit C1” pursuant to paragraph 35(2)(c) of the Administrative Appeals Tribunal Act 1975. Suffice it to say that I am satisfied having perused that “confidential Exhibit” that documents 33, 36 and 37 relate to activities of the Australian Embassy in Hanoi and the Australian Consulate-General in Saigon.
29. At paragraph 31 of his affidavit Mr Batley says inter alia, that in relation to document 39 that he expects that disclosure of the material for which exemption is claimed would lead to reduction in the quality of exchanges between the Australian and the Vietnamese governments and between the Australian and other Asian governments, as well as the flow and comprehensiveness of information. He states that at least in part this would be because the reliability of the Australian government would be undermined in the eyes of foreign governments.
30. Mr Batley was cross-examined upon his affidavit and there is nothing in the cross-examination of Mr Batley that detracted from the principle that the excised parts of the documents or the documents for which total exemption is claimed are such that the release of the said documents or part thereof would, in my opinion, most certainly be expected to cause damage to the international relations of the Commonwealth.
31. Ms Klugman now occupies the position formerly held by Mr Batley. She states at paragraph 10 of her affidavit:
“So far as the exemption claims made in relation to documents 33, 36, 37, 39, 58 and 59 are concerned, I agree with and adopt it as my own, the views expressed by Mr Batley.”
At paragraph 17 of her affidavit Ms Klugman states that her belief is that disclosure of those parts of documents 62, 63 and 65 for which exemption is claimed would cause damage to the relations of the Australian Government with the Vietnamese Government. She adds that the damage which could reasonably be expected is the damage identified by Mr Batley. She also refers to an affidavit sworn by her and lodged in Federal Court on 8 October 2004. A copy of that affidavit is at exhibit A of Ms Klugman’s affidavit in these proceedings in that affidavit she states:
“There is an established diplomatic practice and convention that certain communications between governments, particularly where such communications concern matters of continuing sensitivity, remain confidential and are not to be disclosed unless the parties to those discussions agree. That practice and convention are long-standing and are generally accepted by governments and the international community. That practice and convention are firmly entrenched, and it is not usual or necessary that there be an express agreement that such communications are made on a confidential basis and that they shall remain confidential. In my career with DFAT, I have personally operated on the basis of this practice and convention.”
She continues:
“In my opinion, maintaining the confidentiality of sensitive communications between the Australian Government and the Government of Vietnam is particularly important in protecting Australia’s bilateral relations with Vietnam. … The disclosure of sensitive communications between Australia and Vietnam in relation to the arrival in Australia by boat of Vietnamese nationals claiming refugee status on the basis that they are in need of protection from the Vietnamese Government, would damage Australia’s relations with Vietnam by undermining the preparedness of Vietnamese officials to discuss such matters with Australian officials…
If confidential communications from Vietnam are disclosed by the Australian Government, Vietnamese Ministers and officials would also be less inclined to protect the confidentiality of information provided to them by Australian officials. That would, in turn, undermine Australia’s ability to engage in frank dialogue with Vietnam.”
32. The material provided by Ms Klugman makes it clear in my opinion that release of the documents being documents 33, 36, 37, 39, 62, 63, 65, 68 and 70 in exhibit B to Ms Klugman’s affidavit at the very least could reasonably be expected to cause damage to the international relations of the Commonwealth.
33. As to documents 39, 58, 59, 62, 63, 65 and 71 an exemption from release has been claimed pursuant to subparagraph 33(1)(b) FOI Act.
34. If disclosure of a document or part thereof would divulge any information or matter communicated in confidence by or on behalf of an authority of a foreign government to an authority of the Commonwealth then the document is exempt. The equitable principles applying to breach of confidence do not need to be satisfied and there is no need for the information to be confidential in character nor for disclosure to amount to a breach of confidence. See Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445 at 448. It is necessary only that the information contained in the document be communicated in confidence by or on behalf of the relevant body. See Commonwealth v Hittich (supra) at p154. In Gersten (supra) Wilcox J said at p448 at paragraph 11:
“I do not think there is any scope for importing into s 33(1)(b) the equitable principles relating to breach of confidence. The paragraph recognises that there is a public interest in the Australian Government being seen by foreign governments, and their agencies, as a reliable recipient of confidential information; a government that will respect the status of confidential information that is supplied to it in the normal course of business. It would be neither possible nor appropriate for the Australian government to make judgments about the motives with which the information is supplied.”
35. Whether a document was communicated in confidence is a matter to be decided on the balance of probabilities. See Re Environment Centre NT Inc and Department of the Environment, Sports and Territories (1994) 35 ALD 765 at 776. In that matter referring to the equivalent provisions in section 33A FOI Act, Deputy President Forgie stated (starting at paragraph 101):
“…it is not necessary for me to find that the information communicated by the Northern Territory was in fact confidential or that it was communicated to the Commonwealth in circumstances giving rise to an obligation on the commonwealth to treat it as confidential before I can decide that it was ‘communicated in confidence. Whether or not it is confidential and the circumstances in which it was communicated will simply be two of the matters which must be taken into account and considering whether, on the balance of probabilities, it was information communicated in confidence by an authority of the Northern Territory to an authority of the Commonwealth.”
Deputy President Forgie continued at paragraph 104:
“I have also considered whether they were received in confidence. Receipt in confidence is not determinative of whether information was communicated in confidence for there may be occasions on which there are misunderstandings between the person giving information and the person receiving it. With such qualification in mind, however, it is a relevant consideration in determining whether information was communicated in confidence.”
36. It is sufficient for the communications to be part of a general understanding that communication of a particular nature will be treated in confidence, and there is no requirement for the communication to be under a specific express or implied agreement as to confidentiality: see Re Maher v Attorney-General’s Department (1985) 7 ALD 731 at 740. It is not necessary for there to be an international treaty or obligation-creating relationship to exist in order that the communications be regarded as confidential: see Re Gersten v Minister for Immigration and Multicultural Affairs [1000] AATA 527 at paragraph 18..
37. As was pointed out Deputy President Todd in Re Robinson & Department of Foreign Affairs (1986) 11 ALN N48 at N50 that even if a document or part of a document has been released by an agency be it accidentally or deliberately, does not mean that the document is still not an exempt document or that reasonable grounds do not exist for such a claim.
38. In his affidavit Mr Batley stated with regard to the section 33(1)(b) claim as follows commencing at paragraph 26:
“26. The material for which exemption is claimed comprises a report on discussions between Australian Government (DIMIA) and Vietnamese Government officials, in which the information conveyed by Vietnamese officials in those discussions is set out in detail. It is an important and generally-accepted principle in international diplomacy, recognised amongst government and the diplomatic community, that such communications are not to be disclosed. I am informed by one of the Australian officials present during the discussion that nothing occurred on that occasion that led her to believe the usual practice of confidentiality in such discussions was not being followed on this occasion.
27. Confidentiality is particularly important when communications concern sensitive matters, such as the arrival in Australia by boat of Vietnamese nationals claiming refugee status on the basis that they are in need of protection from the Vietnamese Government. Governments, in their dealings with other countries, rely heavily on the willingness of foreign governments to protect the confidentiality of such exchanges.
28.This is particularly so in the case of Vietnam, which as noted above is one of the world’s five remaining one-party communist states, and one in which the government and the party play a preponderant role in the life of the nation. In recent years there have been a number of instances where members of the party and the general population have been prepared to express dissent. However, there are limits to official tolerance of dissent, and the press remains restricted in its coverage of politics and dissent. Journalists practice self-censorship on a day-to-day basis, within guidelines issued by the party and Government. Extensive internet censorship laws have been introduced. Against this background, the maintenance of confidentiality in discussions with Vietnamese Government officials is important to ensure those discussions are frank and open.
29. I have held discussions with Vietnamese Government officials at an official to official level in relation to matters of a similar order to those referred to in document 39. It was my understanding that our discussions were on the basis that what was said, and particularly the comments made and information provided by Vietnamese officials, would remain confidential and not be disclosed. Australian and Vietnamese officials have continued to maintain confidence in relation to those discussions.”
39. In her affidavit Ms Klugman refers to similar principles and in particular refers to the fact that the language used when Australia communicates with another country has usually been carefully considered by Ministers or experienced senior public servants, who are conscious of the sensitivities that surround international relations. Whereas, and in contrast, communications within the Australian public service that are made in the course of informing other officers about developments in a foreign country and the actions of public servants in those countries, will be much less measured or circumspect.
40. I accept that both the Ambassador to Vietnam Mr Thwaites and Mr Batley and Ms Klugman as highly placed officials in the Department of Foreign Affairs are well situated to make an assessment of the confidentiality of documents passing between Australia and Vietnam.
41. The free flow of information between Australia and other countries with which it has particular relationships, whether by way of treaty, agreement or otherwise requires assurance that confidential communications will be respected. It is not suggested that all communications are in confidence however the evidence of Mr Batley and Ms Klugman is that the particular communication in question remaining in confidence and I accept this.
42. There is no need for Australian authorities to make enquiries to confirm whether or not Vietnam considered that the relevant communication took place in confidence. I draw no adverse implication from the fact this has not been done as inquiries regarding matters obviously confidential may well aggravate relations with the government of Vietnam or give the impression that information communicated in confidence may be disclosed thereby causing damage in the form of increased reluctance on the part of Vietnamese officials to disclose further information to Australian officials in relation to sensitive matters. Although not stated it is no doubt trite to say that officials of the government of Vietnam will have quite different opinions as to matters such as freedom of information than those opinions that commend themselves to an Australian government.
43. I only add for completeness that subsection 58(2) FOI Act makes it clear that the Tribunal has no power to disclose a document which is otherwise exempt. In Department of Industrial Relations v Burchall (1991) 105 ALR 327 at 329 at lines 28-30 Davies J said:
“As the Tribunal found the submission satisfied the description in s 34(1)(c), the Tribunal should have been satisfied that the submission was exempt. That should have been the end of the matter, for the Tribunal did not have power to order that an exempt document be released. Section 58(2) specifically provides…”
44. The affidavit of Mr Starr is directed to whether due inquiry and search has been made within the Respondent Department to ascertain if any further documents within the terms of the Applicant’s request exist. His conclusion on that point is a negative.
45. Section 24A FOI Act states that requests for the release of the documents may be refused if all reasonable steps has been taken to find document and the agency is satisfied that the document either cannot be find or does not exist.
46. In Chu and Telstra [2004] AATA 1127 the Tribunal said that it is not its role to conduct an inquiry into the adequacy or otherwise of an agency’s record keeping. It is sufficient that the agency has met the requirements of section 24A FOI Act within the limitations imposed by its practices in procedures relating to collection and retention.
47. As to what amounts to reasonable steps I accept the Respondent’s submissions that the following matters fall for consideration namely:
· The subject matter of the document sought
· The documents one would expect to exist given the subject matter and their expected location
· The record keeping system of an agency and the likely places where the documents would have been stored
· The steps already taken to locate the document and where the further searches would be reasonably likely to locate relevant documents
· Whether there were persons within the agency with relevant experience who had not been consulted
· The formal failing document management systems and the practice of destruction or removal of documents in accordance with proper practices and procedures
· The other commitments of the agency in dealing with FOI requests.
48. In his affidavit Mr Starr states that he does not believe further searches are warranted. Given the detailed searches deposed to by him I agree and consider that any further action would, given the work involved, substantially and unreasonably direct the resources of the agency from its other operations.
49. As I consider the documents referred to are either in total or in part exempt from release for the reasons given above, the decisions under review are affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member
Signed: (E.Pope) .....................................................................................
Associate
Date/s of Hearing 9 June 2004
Date of Decision 1 February 2005
Counsel for the Applicant Mr S Lloyd
Solicitor for the Applicant Mr F Varess - Craddock Murray Neumann
Solicitor for the Respondent Mr J Hyland - Australian Government Solicitor
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