Carpenter and Bureau of Meteorology (Freedom of information)

[2018] AATA 2506

Carpenter and Bureau of Meteorology (Freedom of information) [2018] AATA 2506 (27 July 2018)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2017/1729

Re:Geoffrey Carpenter

APPLICANT

Bureau of MeteorologyAnd  

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:27 July 2018

Place:Adelaide

The Tribunal affirms the decision under review.

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Senior Member N A Manetta

CATCHWORDS

FREEDOM OF INFORMATION – employment records – applicant claiming records show unlawful or improper departmental conduct and records should be altered accordingly – held Tribunal not intended in its review to decide illegality of departmental action – decision affirmed

LEGISLATION

Freedom of Information Act,1982 s 50

CASES

Re Williams and the Australian Electoral Commission and the Greens (1995) 38 ALD 366

Re Francis and Department of Defence [2009] AATA 549

REASONS FOR DECISION

Senior Member N A Manetta

27 July 2018

1. This is an application by Mr Geoffrey Carpenter seeking a review of a decision of the Australian Information Commissioner, who has refused to make amendments or notations under s 50 of the Freedom of Information Act 1982 (the Act) to certain documents relating to Mr Carpenter’s former employment with the respondent, the  Bureau of Meteorology.  At the hearing before me, Mr Carpenter represented himself; Mr Masters appeared for the respondent.

2. I have decided to affirm the decision under review. I set out below the essential background facts and the reasons for my decision. As Mr Carpenter represented himself, I shall express myself as plainly and succinctly as possible without quotation from legislation.

   BACKGROUND FACTS

3. Mr Carpenter joined the Bureau in 1975 in Melbourne as a trainee “observer”. In his time with the Bureau, he was transferred a number of times among various cities and regional towns, and it would appear that on many occasions it was at short notice.  Beginning in 1976, for example, he gave evidence that he was moved to Sydney for further on-the-job training, and from there he moved to Williamtown (near Newcastle) and then on to Richmond in New South Wales, then to Tamworth and subsequently back to Williamtown. The stays varied in length.  If Mr Carpenter’s evidence to me is accurate, the Bureau treated the employees it moved, including Mr Carpenter, with scant respect and scant regard for their convenience.

4. The transfers were recorded in documents called “staff movement notices”. According to the notices, each of these transfers was processed as a “term transfer”.  Mr Carpenter did not dispute the fact that the Bureau intended to effect his transfers as “term transfers” nor did he dispute that the Bureau deliberately documented his transfers as “term transfers”.  

5. As a matter of fact - and I emphasise the word fact - the staff movement notices are accurate in so far as they accurately record what the Bureau intended to do.  They may (or may not) record improper or unlawful conduct but they do not reflect inaccurately the Bureau’s intention.  

6. Mr Carpenter’s submission to me is that the Bureau, in so acting, acted unlawfully towards him and, in so acting, denied him certain higher allowances to which he was entitled in law. His essential submission was that his transfers should have been effected and documented as “temporary transfers” had the Bureau followed correct procedures.  

7. Mr Carpenter submits that the documents are incomplete, inaccurate or misleading in their present state. He submits that the Bureau’s jurisdiction under section 50 of the Act is enlivened either to alter the documents or to make a note on them recording the appropriate legal classification of his transfers.

8. When I asked Mr Carpenter in the course of the hearing why it was important to him that the documents be amended now since they are many decades old and can be of no interest to anyone, he did not point to any practical consequence that would flow if his application before me were successful.  He denied specifically that his purpose in seeking the amendment was to bolster a claim for back payment of the higher allowances that were payable to staff who undertook “temporary” transfers.

9. I must say that had I accepted this evidence in an unqualified way, I believe Mr Carpenter’s proceedings in this Tribunal could well have been “frivolous or vexatious” for the purposes of section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 and warranted dismissal on that account.  I note that in the decision of Re Williams and the Australian Electoral Commission and the Greens (1995) 38 ALD 366, the Tribunal (comprising a bench of three Federal Court justices) held that a proceeding in the Tribunal can be “vexatious” where a successful application would be “devoid of any practical effect” (see at [39]).

10. I make this observation, but I have decided not to act under s 42B. I say this because it would appear that before the Information Commissioner, Mr Carpenter did raise quite clearly his concern to be back paid what he says are significant sums of money owing to him. 

    REASONS

11. I would reject Mr Carpenter’s application for review for the simple reason that I do not believe this Tribunal was intended to rule on the appropriateness, or otherwise, of the “term transfers” as recorded in the staff movement notices.  I would accept that if a Court of competent jurisdiction had ruled that Mr Carpenter’s transfers were improperly documented and effected by the Bureau as “term transfers”, and that they ought to have been documented and effected as “temporary transfers”, that fact could appear as a note to each relevant document to ensure that it was a complete record, that is, recording both the fact of what had happened and the subsequent ruling on its legal impropriety.  

12. However, I do not think that the proceedings before this Tribunal can be used to have a ruling of that type made.  It may be that if the Respondent Bureau had conceded that the staff movement notices were issued improperly, a note could be made to this effect, but the Bureau does not concede that the notices were improper or unlawful.  

13. This Tribunal has held in the case of Re Francis and Department of Defence [2009] AATA 549 at [48] that “the amendment regime under Part V of the Act is not intended to be a re-examination of the decisions that have been taken in the past”. I would agree with that proposition in so far as it applies to Mr Carpenter’s application to the Tribunal in these proceedings. In my opinion, the Tribunal was not intended as part of its review function to receive extensive evidence and determine for itself whether or not particular Mr Carpenter’s transfers as recorded in the documents under review were lawful, or unlawful, in accordance with the regulatory regime of the time (which I note goes back many decades in this case). If I am right in my assessment of the limitations in respect of the exercise of the Tribunal’s review function, it must follow that I have no power to amend the documents in the manner that Mr Carpenter would wish (at least in the absence of the Bureau’s consent).

    FORMAL DECISION

14. In my opinion, Mr Carpenter’s application misconceives the nature of the Tribunal’s review function.  The Tribunal will affirm the decision under review.