Chu and Telstra Corporation Limited
[2007] AATA 1748
•10 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1748
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600021
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD CHU Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date10 September 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. E.A. Shanahan
Member
FREEDOM OF INFORMATION – application for personal information – delayed response – searches made – all reasonable steps taken – files lost – files do not exist
Freedom of Information Act 1982 s 3(1)(b), s 11(1), s 24A, s 54(1)ba
Administrative Appeals Tribunal Act 1975
Re Beesley and Federal Commissioner of Taxation [2001] AATA 476
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Hawk and Telstra Corporation Limited [1998] AATA 709
Re Langer and Telstra Corporation Limited [2002] AATA 341
Re Meschino and Cenrelink [2002] AATA 611
Re Mester and Centrelink [2004] AATA 354
Re Simmons and Department of Defence [2000] AATA 491
Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301
Re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025
Re Chu and Telstra Corporation Limited [2004] AATA 1127.
Chu v Telstra Corporation Limited (2005) 147 FCR 505
Khoh and Telstra Corporation Limited [1998] AATA 45
REASONS FOR DECISION
10 September 2007 Miss E.A. Shanahan, Member 1. The Honourable Justice Finn remitted this matter (Chu v Telstra Corporation Ltd (2005) 147 FCR 505) to the Tribunal for re-hearing in accordance with the law.
2. The Tribunal as presently constituted had affirmed the decision under review on 28 October 2004. Mr Chu appealed that decision to the Federal Court of Australia citing several errors of law. His Honour did not uphold the pleaded errors of law but identified the Tribunal’s failure to appreciate the significance of the word all in the phrase all reasonable steps as contained in s 24A of the Freedom of Information Act 1982 (the FOI Act); and that the Tribunal had adopted a tempered and erroneous view of what it needs to do for s 24A purposes (Chu at paragraph 36).
3. The re-hearing of this matter was conducted over two days, 14 August 2006 and 7 March 2007 with three intervening Directions Hearing by telephone (for which Mr Chu was available on two occasions) and one Directions Hearing in person.
BACKGROUND TO THE APPLICATION
4. Mr Chu was employed by Telstra and its predecessor Telecom from 16 January 1989 until he was involuntarily retrenched on 8 September 1997. On 1 August 1997 he had requested a copy of all records in his personal file. The Tribunal infers that he required those records for a hearing before the Involuntary Redundancy Review Board (IRRB) which was to be conducted on 26 August 1997. Following this hearing, the IRRB requested provision of Mr Chu’s files and was subsequently advised that these could not be accessed except for those relating to Mr Chu’s retrenchment. A resumed hearing before the IRRB took place on the 5 September 1997 and on the 8 September 1997 Mr Chu was retrenched. Mr Chu was retrenched on three occasions between 1993 and 1997 (Exhibit A3) and had either appealed these decisions or availed himself of Telstra’s retrenchment option of continuing employment while a search was undertaken for an alternative position within the company. Prior to Mr Chu’s retrenchment in 1997 he was employed in a lesser position; but as a result of workplace agreements he was payed at the higher level of salary he had attracted before 1993. On the occasion of each of these retrenchments all files relating to Mr Chu would be reviewed. Thus a search for all relevant files was commenced in August 1997 with respect to his retrenchment and appeal to the IRRB and his subsequent appeal to the Australian Industrial Relations Commission (IRC) for unfair dismissal. The IRC application was withdrawn on 20 November 1997. Mr Chu was legally represented in this latter application.
5. Mr Chu, through his then solicitors (Nevett Ford), lodged a request for release of his personal/personnel file by letter dated 13 November 1997. This letter described the records sought as (T3):
…
All files held by [Telstra] containing personal information concerning [the applicant] including documents relating to [the applicant’s] work performance, education, background, promotions, achievements, health, training records, job applications, performance records and any other documents [it holds] in relation to [the applicant].
6. Action on the request was delayed until 18 February 1998. Mr Chu had failed to pay the application fee. On 20 April 1998 Telstra made a decision to release Mr Chu’s file relating to his redundancy, the legal file relating to the unfair dismissal claim and the list of data bases it had reviewed in response to the request. On 24 March 2003, after a delay of nearly five years, Mr Chu requested an internal review of the decision. The request was directed to the Managing Director of Telstra. This application was acknowledged by Mr Bill Scales, AO Group Managing Director, Regulatory, Corporate and Human Relations. Mr Scales advised that he had referred the request to Mr Chris Jones, General Counsel, Legal Directorate of Human Resources for consideration (T14, 3 March 2006). Telstra did not contact Mr Chu again until some 6 months had passed, despite the fact that he made numerous contacts to access his personal file.
7. Mr Chu contacted Mr George W. Sutton, the Manager Information Access Unit, on 13 October 2003. On 14 October 2003 Mr Sutton received a copy of Mr Scales’ letter and the enquiry commenced on 15 October 2003 with the request that Mr Chu provide further information including his date of birth and Australian Government Service Number (AGS).
8. Telstra released Mr Chu’s occupational health medical file on 9 June 2004, along with a Telstra Training Records and Management System (TRAMS) record of the training Mr Chu had undertaken.
9. On 26 November 2003 Mr Sutton wrote to Mr Chu (T21) confirming the decision on 20 April 1998 to release the records located at that time. Mr Sutton advised that he had undertaken a fresh search for any documents relating to your employment with this company. He had decided to release all the documents he had found as a result of these searches (with one minor exception). However, he acknowledged that while it was likely that an individual personal file (sometimes called the blue file) had existed, it could not be found. He concluded that all reasonable steps had been taken to locate the personal file. Therefore, pursuant to s 24A of the FOI Act, he had decided to refuse access to this file as it could not be found or did not exist.
10. Mr Chu was self-represented and had the services of a Mandarin speaking interpreter supplied by the Tribunal. Mr Mick Batskos, solicitor with FOI Solutions, appeared for Telstra. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) as provided in 2004 and 2006, and the reports and affidavits of Mr Sutton and Mr Paul Boland as provided in 2004. The Federal Court decision of 1 December 2005 was also before the Tribunal. Mr Sutton’s affidavits were marked Exhibit R1 and R2. Mr Boland’s affidavit was marked as Exhibit R3.
11. Mr Chu tendered:
· The affidavit of Mr Kent Phelps ‑ Exhibit A1.
· The affidavits of service of summonses on Robert Maslen; Brian Hayes; and Colwyn Simpson – Exhibit A2.
· Statement dated 5 March 2007 from Mr Chu about the evidence to be sought from Robert Maslen; Brian Hayes and Colwyn Simpson – Exhibit A3.
Mr Chu had provided further documentation following a directions hearing before Deputy President Forgie, held on 27 February 2006. These documents were received at the Tribunal on 10 March 2006 and should have been included in the T‑documents but were not. For ease of reference this bundle of documents were marked as Exhibit A4.
EVIDENCE BEFORE THE TRIBUNAL
12. As Telstra had not discovered any new evidence, it relied on the evidence before the Tribunal at the hearing of 25 August 2004, namely the affidavits (Exhibits R1 and R2) and evidence of Mr Sutton and the affidavit (Exhibit R3) and evidence of Mr Boland. Mr Sutton and Mr Boland were available for cross‑examination by Mr Chu.
13. Mr Boland is the Group Manager of Telstra’s Payroll Services. He affirmed his affidavit as being true and correct (Exhibit R3). He said that by law Telstra was required to keep all employment records for 75 years from the employee’s date of birth. A new system of record keeping had been introduced by Telstra on 4 August 2004.
14. In cross‑examination on 26 August 2004, Mr Boland had agreed with Mr Chu that the individual employee’s file follows him in his placement within Telstra’s corporation. In Mr Chu’s case it would have been standard practice for his file to follow him from Telecom to the National Skills Service Centre (NSSC) and then to the Corporate Catalogue Service (CCS). Following Mr Chu’s retrenchment, his file should have then gone to Employee Relations to be archived. Mr Boland pointed out that the CCS and the Employees Relations Section were on the same site. Mr Boland said that he could not guarantee that Mr Chu’s file had been transferred as it ought to have been. Likewise, while there was a method of checking such transfers in place, he could not guarantee that such checking was always done. He had no knowledge of how many files were lost in the transfer process. Mr Boland said that Mr Chu’s retrenchment file and occupational health file had been found. Salary records were kept on microfiche and all paperwork was supposed to be archived. Mr Boland agreed with Mr Chu that some of his files could have been destroyed in 1993. At that time Mr Boland worked in New South Wales and was unaware of Telstra’s procedures in Victoria. In New South Wales, he estimated that there would have been 100 personnel departments, each with their own methods of record-keeping.
15. Under re‑examination, Mr Boland said that he had spoken with the National Manager regarding procedures in Melbourne and had been advised of the use of files with different coloured covers. Mr Boland had also made enquiries of the State Manager and the Human Relations Manager and believed that he had exhausted all areas in the search for Mr Chu’s personal file.
16. The Tribunal asked if Telstra kept warehouses for the storage of archived materials. Mr Boland said he was aware of two such warehouses. All archived material was held by a private company, Recall Management (Recall), and a computer system, known as TRIMS (Telstra Records and Information Management Systems) contained the data as to what documents were held and where. This centralisation of data had commenced in approximately 1998, and with respect to pay and leave records had taken two years to effect.
17. Mr Chu cross-examined Mr Boland again on 14 August 2006. Mr Chu was however disadvantaged by having left all his documentation at home and thus had to seek the assistance of Mr Batskos and the Tribunal with respect to this data. At the hearing on 14 August 2006 and also at the last Telephone Directions’ Hearing, Mr Chu had advised that he had difficulty in hearing. This resulted in the repetition of questions, answers and comments.
18. Mr Chu asked Mr Boland if he had searched for his file in areas other than Telstra’s storage facilities. Mr Boland replied that when he took over Mr Chu’s request for his files in late 2003 he had delegated his assistant to arrange for searches in the company storage areas and had consulted with a Mr Ken Sharpe, National Manager of Service Operations, Mr Ian Wheatley, Human Relations Manager of the Engineering Department and Mr Ian Cartwright, his immediate superior, who was familiar with the Victorian Human Resources practices (Transcript p16, 14 August 2006). Mr Boland had not spoken with Ms Desma Curtis who was the Human Resources Manager to whom Mr Chu’s original request for his file was directed. Mr Boland had not been the National Human Resources Manager when Mr Chu’s application under the FOI Act was activated on 13 February 1998.
19. Mr Batskos provided the information that Ms Curtis had received Mr Chu’s request and forwarded it to a Ms Tanya McEvitt. Ms McEvitt had provided the information to Mr Sutton regarding the searches undertaken.
MR GEORGE W. SUTTON
(For convenience the Tribunal sets out paragraphs 5, 6, 7, 8 & 9 of its original decision, with minor changes, below)
20. Mr Sutton had sworn two affidavits (Exhibit R1 and R2 with 65 exhibits) outlining the attempts made to find and provide Mr Chu’s personal file. In evidence before the Tribunal he affirmed the content of these affidavits as being true and correct. The exhibits detailed all contacts with Mr Chu and addressed the delay in activating the enquiry due to Mr Chu’s failure to pay the required fee. Searches had been made in numerous departments of Telstra, their data-bases (11 in all), in Telstra’ archives and document warehouses; all to no avail. Mr Sutton acknowledged the past existence of a so‑called blue folder which was in effect the personnel file of Telecom, Australia Post and perhaps some Telstra employees. Personal records were held within individual sections as opposed to a central registry until centralisation progressively occurred from 1994 onwards.
21. Mr Sutton had been cross‑examined by Mr Chu on 25 August 2004. Mr Sutton said that he had worked with Telstra’s Freedom of Information (FOI) unit since 1996 and in the ensuing years would have dealt with between 50 and100 requests for personal files. Of these requests, 3 or 4 had been unsuccessful in that no data had been found. Mr Sutton said that he was aware of the term blue folder and this dated from the time of the Post Master General, a precursor of Telstra. He believed that these files had contained leave forms, commencement of employment data, pay information, sick leave details and correspondence between employer and the employee. Files were colour-coded, for example medical records were yellow. Mr Sutton agreed with Mr Chu that there would be more than one file relating to his employment. The only file that Mr Sutton had found was a white file relating to Mr Chu’s occupational health and safety medical data.
22. Mr Sutton had contacted many Telstra officers, including those contacted in 1998 by Mr Simpson, in the search for Mr Chu’s file. Some Telstra officers could not be contacted as they were no longer in Telstra’s employ.
23. Mr Sutton confirmed that the initial delay in instituting the formal search for Mr Chu’s personal file had been due to the application being invalid for want of payment of the necessary fee.
24. The Tribunal questioned Mr Sutton as to the staffing levels in Telstra’s FOI section. He replied that there were three persons who dealt with between 400 to 500 FOI requests per annum.
25. Further cross-examination of Mr Sutton took place on 14 August 2006. Mr Sutton pointed out that he had not made the primary decision in response to Mr Chu’s request. This had been delegated to Mr Simpson in the FOI division of Telstra. There was a delay of five years between the primary decision and Mr Chu’s request of 26 March 2003 for internal review. The internal review process was not dealt with within the 30 day time-frame required. In fact the period was some six months. Mr Sutton was asked what was going on in that nine months (Transcript p 42, 14 August 2006). Mr Sutton said he had no knowledge of the six or more month-period, nor could he recollect speaking with any other member of the FOI unit or staff outside the unit about Mr Chu’s application. Mr Sutton was unable to answer most of the further questions posed by Mr Chu, as Mr Sutton had no recollection of any discussions or matters such as overhearing Mr Simpson’s telephone calls.
26. Mr Batskos told the Tribunal that while Mr Simpson had found Mr Chu’s medical file he had inexplicably not released it to Mr Chu (Transcript p45, 14 August 2006). Mr Sutton had discovered this when he conducted the internal review and promptly arranged the release of this file (Transcript p46, 14 August 2006).
27. Mr Chu suggested to Mr Sutton that, if in response to an email or telephone request for information regarding Mr Chu, where Telstra’s delegates found such information did not or could not be found, shouldn’t Mr Sutton have checked again with the individual to confirm there was no record relating to Mr Chu (Transcript p53, 14 August 2006). Mr Sutton said his searches for information were conducted in parallel – several officers of Telstra being asked the same questions enabling a cross-referencing of their answers.
28. In the course of his cross-examination of Mr Sutton, Mr Chu advised the Tribunal that he wished to call 18 witnesses. He had listed these 18 individuals at a Directions’ Hearing on 27 February 2006 conducted by another Tribunal Member and asked that Telstra call the witnesses or provide him with their contact details. Mr Chu intended to question each as to what they knew of his personnel file (Transcript p59, 14 August 2006). Mr Chu had constructed this list of 18 persons from the content of Mr Sutton’s and Mr Boland’s affidavits. They had been Telstra employees from whom information had been sought in 1997, 1998 and 2003/2004. Mr Chu regarded the references to these individuals in the affidavits as hearsay and submitted that for the sake of procedural fairness he should be allowed to question them.
29. Having left all his documentation at home, Mr Chu relied on his memory and was quite certain that there was evidence already before the Tribunal that a Mr Brian Hayes had had his personnel file in his possession and had handed it to someone else (Transcript p 65, 14 August 2006). Neither the Tribunal nor Mr Batskos could find such evidence already before the Tribunal, although an exhibit to Mr Sutton’s affidavit (GWS 20) contained an email from Mr Hayes, dated 4 September 1997 (GSW 24), to the effect that blue personal files existed and that prior to Mr Chu joining Telstra Corporate Cataloguing from Telecom Industries, blue files were passed down the line of management for custody (GWS 20, Transcript p 65). Mr Hayes had stated categorically that Mr Chu’s blue file had never been in his possession. (Tribunal note ‑ there is a hand-written file note of a telephone conversation recorded by Mr Sutton (Exhibit R1,GWS 5, dated 27 November 1997), wherein Mr Sutton says Mr Hayes had handed Mr Chu’s blue file to ER (Employees Relations). As Mr Hayes has repeatedly denied having Mr Chu’s blue file, this telephone communication appears to have been misinterpreted by Mr Sutton and as a result by Mr Chu).
30. Mr Sutton’s cross-examination resumed after lengthy discussion regarding the witnesses Mr Chu wished to call or, if necessary, summons. Mr Batskos reserved his right to be provided with a proof of evidence from each witness before they were summonsed or gave evidence.
31. Mr Sutton provided information that personnel files were held in locations in Dubbo and Parramatta, New South Wales and in Victoria by Recall. Prior to Mr Chu’s FOI request, the archived files were held in Springvale and TNT was the archivist. There was a registry database known as TRIM containing the content of the Springvale and other archives. This database was searched and there was no entry for, or reference to, Mr Chu. The archives held literally hundreds of thousands of boxes of files (Transcript p 71, 14 August 2006) prohibiting a manual search of the whole system.
32. Mr Sutton denied having made any further communications or enquiries other than those disclosed in his affidavits. Mr Sutton specifically answered no to Mr Chu’s three questions have you withheld any documents; have you selectively released any documents and have you conducted a further search for additional documents (Transcript p 90, 14 August 2006).
33. Mr Chu’s questions as to how often Mr Sutton spoke with Mr Boland and whether Mr Boland or his assistant had ever helped Mr Sutton locate a file was considered by the Tribunal to be irrelevant given that Mr Sutton could not recall any detail of Mr Chu’s internal review request (Transcript p 90, 14 August 2006).
INTERLOCUTORY PROCEDURES
34. Between 14 August 2006 and the resumed hearing of 7 March 2007 three Directions Hearings were held and a fourth was cancelled when Mr Chu was not contactable. These Directions Hearings were intended to identify the witnesses Mr Chu wished to call and the nature of the evidence they could provide. Mr Chu eventually provided the names of five persons, one of whom was prepared to attend on a voluntary basis. Mr Batskos requested that he be provided with a synopsis of the evidence that would be forthcoming from these witnesses. Mr Chu was unavailable at the Directions Hearings on 25 January 2007 and at the next Directions Hearing informed Telstra and the Tribunal that he had already served the summons on all five nominated witnesses. On 5 March 2007 Mr Chu lodged a statement outlining the positions held by the witnesses when employed by Telstra and postulating the evidence that they might give.
RESUMED HEARING
35. The hearing resumed on 7 March 2007. Mr Batskos had no objection to the acceptance into evidence of the affidavit of Mr Phelps (Exhibit A1). Mr Batskos submitted that the notice of summons sent to the other four persons, Mr Hayes, Mr Simpson, Mr Maslen and Mr Daryl Atkins, should be revoked or set aside as any evidence they could give was irrelevant to the question before the Tribunal or was already contained in Mr Sutton’s affidavit. All the nominated witnesses had left the employ of Telstra. Mr Batskos’ submissions were detailed and to the point and he made a persuasive case for rescinding the summons.
36. However, the Tribunal decided not to rescind the summonses when all successfully summonsed witnesses were present in the Tribunal hearing room.
EVIDENCE BEFORE THE TRIBUNAL On 7 March 2007
Mr Kent Phelps
37. In his affidavit Mr Phelps had stated that he had worked with Mr Chu at Telecom Industries from 1989 until 1993; when he, Mr Phelps, was transferred to Cataloguing. Mr Chu transferred to Cataloguing in 1994. Mr Phelps remembered an episode where Mr Chu became ill at work and was taken to hospital by ambulance. He also recalled other times when Mr Chu was unwell at work. Mr Phelps had been contacted by telephone at the time of Mr Chu’s FOI application and had provided the names of Brian Hayes, Terry Mew, Andrew Brockwell and Tanya McEvitt. Mr Phelps informed the Tribunal that he had retired from work with Telstra on 4 July 2003 (Transcript p 14, 7 March 2007). Mr Chu asked him about the telephone calls enquiring about his FOI application. Mr Phelps said he had no memory of these events until Mr Chu had shown him the relevant entry in Mr Sutton’s affidavits. The names he had given to Mr Sutton had probably been accessed from Telstra letters or lists of employees in various areas but he could not recall any detail.
Mr Robert Maslen
38. Mr Maslen retired from Telstra on 31 January 2003. Mr Maslen said he was the Victorian Manager of Administration and Human Relations from March 1992 to December 1992, and from January 1993 to May 1994 he was the National Manager of Personnel and Industrial Relations (Transcript p 22, 7 March 2007). Mr Maslen then became the Employee Relations Manager. In 1994 Telecom Industries changed its title to Electronic Products and Services (EPS). In both roles Mr Maslen was based in East Bentleigh until that site was vacated by Telstra on 30 June 1997. After a few shifts Mr Maslen was permanently located at Telstra Headquarters in Melbourne and remained there from 1999 to 2003. From 1992 until his retirement Mr Maslen had worked in the Human Resources area. In 1999 he had been made redundant by EPS but was re-deployed to International Human Resources.
39. Mr Chu asked Mr Maslen what was the frame of mind of people working at East Bentleigh including Mr Maslen’s frame of mind given the doubts about their future employment (Transcript p 25, 7 March 2007). This question was asked in light of Mr Boland’s comment that if a bad frame of mind existed, staff may have destroyed the files (Transcript p 25, 7 March 2007 and GWS 64A). Mr Maslen informed the Tribunal that in late 1993 or early 1994 all files were centralised, that is removed from the East Bentleigh site. Only three or four employees were retrenched and had either accepted a redundancy package or were re-deployed within Telstra. While the East Bentleigh site continued to function until 30 June 1997, the payroll and other files were long since gone (Transcript p26, 7 March 2007). Mr Maslen had never heard of Mr Boland, let alone met him or contacted him. Mr Maslen stated that the majority of the centralised files from East Bentleigh went to Pirrie Street, Adelaide as this had become the Payroll Section for some 200 previous Telstra payroll units.
40. Mr Maslen said he was aware of Mr Ian Wheatley by name but had never met him or spoken with him.
41. Mr Maslen said he had been involved with Mr Chu’s retrenchment in late 1993 or 1994 but not in 1997. In 1993‑1994 he said he would have ensured that Mr Chu was registered with the NSSC after which he, Mr Maslen, had no ongoing responsibility.
42. Mr Maslen confirmed that no one had asked him about Mr Chu’s personnel file. Given that any responsibility he held with respect to Mr Chu ceased in 1994 such an enquiry would have been fruitless.
Mr Brian Hayes
43. Mr Hayes had been Mr Chu’s Line Manager in 1997 and was involved in Mr Chu’s retrenchment process, but said he had not been involved in any search for Mr Chu’s personnel or other files. To Mr Hayes’ knowledge or recall, the only personnel file was a blue covered file. Initially it had been termed the Personnel and Industrial Relations File (P&IR) and from December 1991 it was termed the Human Relations (HR) File. He said the file had the employee’s name and AGS number on it and held information regarding promotions, transfers and similar data. Mr Hayes thought that for each redundancy a separate file may have been raised. Mr Hayes had never had these files in his custody, as they were held by HR or P&IR. Mr Hayes said that in the mid‑1990’s the CCS pay section was moved to Hobart and the files would have also been moved to Hobart (Transcript p 34-35, 7 March 2007).
44. Mr Hayes agreed that, in the company of Mr Peter Ferris, he had attended the IRC Conciliation Conference regarding Mr Chu’s claim for unfair dismissal in August 1997. After Mr Chu withdrew his application to the IRC (Mr Chu thought this to be late September 1997 but Mr Sutton’s affidavit states it was 20 November 1997), Mr Hayes said he was never contacted by anyone at Telstra regarding Mr Chu’s personnel file. Of this he was absolutely positive. Mr Chu wished to put some seven file notes to Mr Hayes. These had been exhibits to Mr Sutton’s affidavit. Mr Hayes had no recollection of the first of these, recording a conversation between Mr Sutton and himself on 27 November 1997. Not only could Mr Hayes not recall the conversation, he could not recall Mr Sutton’s name. Mr Hayes reiterated that he had no memory of anyone contacting him regarding Mr Chu after late September or early October 1997. The Tribunal ruled that there was no point in asking Mr Hayes questions regarding even later file notes contained in Mr Sutton’s report. Mr Hayes did not recall the name Colwyn Simpson, nor had he ever kept a personal file on any employee. He did construct working notes in relation to persons being interviewed for a position in his area but once the promotion was determined, and the appeal process concluded, these notes were destroyed (Transcript p 69, 7 March 2007). Mr Hayes said that any record related to disciplinary action regarding an employee was sent to the relevant staff section for inclusion in the individual’s file.
Mr Colwyn Simpson
45. Mr Simpson was the primary decision maker responsible for the decision of 20 April 1998. Mr Simpson said he left the FOI Section in late 1999, transferring to the Learning and Development area and left Telstra in November 2001. Mr Simpson said I remembered nothing about your application (Transcript p 75, 7 March 2007). Mr Simpson agreed with Mr Chu that he had worked in the same small office as Mr Sutton but said he could not recall ever discussing Mr Chu’s application with Mr Sutton. Mr Chu posed several other questions but Mr Simpson could not recall any details of Mr Chu’s FOI application or the searches undertaken.
46. Mr Chu submitted that Mr Atkins should give evidence. The summons to appear had not been served on Mr Atkins. Mr Chu had, prior to the issue of the summons, spoken to Mr Atkins by telephone. Mr Chu reported that in this conversation Mr Atkins said he had never been asked where Mr Chu’s files were (Transcript p 81, 7 March 2007).
47. None of the above oral evidence before the Tribunal was relevant to the question as to whether the Tribunal had appreciated the significance of ALL in the s 24A requirement that all reasonable steps had been taken. The evidence did however assist the Tribunal in its understanding of Telstra processes, procedures and the provision of NSSC efforts to re-deploy retrenched employees within the company. As Mr Chu had been involuntarily retrenched on three occasions in four years, the need for Telstra to access his personnel/personal records and to do so frequently is clear but is not a factor impacting on the Tribunal’s decision.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Mr George W. Sutton (Exhibits R1 and R2)
48. Mr Sutton of Telstra’s FOI office undertook the internal review of the primary decision of 20 April 1998. He began this process in October 2003 and handed down his decision on 26 November 2003. The latter was to the effect that all reasonable steps had been taken to locate the personnel or personal file, or other files, and the file/s could not be found or did not exist.
49. Mr Sutton’s affidavits of 2 June 2004 and 28 June 2004 contained 65 exhibits covering the new searches he had undertaken and his investigation of the primary decision. This included searches of, enquiries to and responses from the Corporate Distribution Services area, the Employment Relations area throughout the organisation, the Payroll Service, Telstra’s Legal Office and officers, those staff members dealing with Mr Chu’s unfair dismissal claim, Telstra’s internal and external archival areas and the files of Mr Chu’s last manager and nine former supervisors (50 files). These are referred to in the oral evidence and the Tribunal’s decision where appropriate.
Mr Paul Boland (Exhibit R3)
50. Mr Boland is the current Group Manager of Telstra Payroll Services and has held this position since 2000. In his undated affidavit covered by a letter dated 1 July 2004, Mr Boland outlined Telstra’s record keeping processes, archival practice and the movement of files between Telstra departments. As his personal knowledge of these matters was limited to the year 2000 and onwards, he had consulted the Victorian Personnel Managers, Employment Relation groups and past managers of Payroll Services. As the organisation progressed from the PMG to Telstra Industries and then to Telstra, procedures had changed.
RELEVANT LEGISLATION
51.Section 14, of the FOI Act provides that:
14 Access to documents apart from Act
Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.
Section 3 provides that:
3 Object
(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:
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(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; and
(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
Section 11 provides that:
11 Right of access
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
(2)Subject to this Act, a person’s right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
Section 54 provides that:
54 Internal review
(1) Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:
(a)a decision refusing to grant access to a document in accordance with a request; or
(b)a decision granting access to a document but not granting, in accordance with the request, access to all documents to which the request relates; or
(ba)a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
(c)a decision to defer the provision of access to a document; or
(d)a decision under section 29 relating to imposition of a charge or the amount of a charge; or
(e)a decision under section 30A relating to remission of an application fee; or
(f)a decision to grant access to a document only to a qualified person under subsection 41(3); or
(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48;
the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.
(1A)The application must be made:
(a)in the case of a decision of a kind mentioned in paragraphs (1)(a), (c), (d), (e), (g) and (h)—within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
(b)in the case of a decision of a kind mentioned in paragraph (1)(b), (ba) or (f):
(i)within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
(ii)within 15 days after the day on which the access referred to in that paragraph was granted;
whichever period is longer.
(1B)A decision by an agency to allow a further period for making an application may be made whether or not the time for making such an application has already expired.
(1C) Subject to subsection (1F), where:
(a)arrangements of the kind mentioned in section 26A have been entered into between the Commonwealth and a State; and
(b)an agency has decided, in relation to a request to the agency for access to a document that relates to the State in a way mentioned in paragraph 26A(1)(a), that the document, or an edited copy of the document, is not an exempt document under section 33A; and
(c)the decision was not made by the responsible Minister or principal officer of the agency;
the State may, by application in writing to the agency, request a review of the decision.
(1D) Subject to subsection (1F), where:
(a)on a request of a kind mentioned in subsection 27(1) being made to an agency, the agency has decided that the document to which the request relates, or an edited copy of the document, being a document or edited copy that contains information concerning a person, organisation or proprietor of an undertaking, is not an exempt document under section 43 by virtue of containing that information; and
(b)the decision was not made by the responsible Minister or principal officer of the agency;
the person, organisation or proprietor may, by application in writing to the agency, request a review of the decision.
(1E) Subject to subsection (1F), where:
(a)on a request of a kind mentioned in subsection 27A(1AA) being made to an agency, the agency has decided that the document to which the request relates, or an edited copy of the document, being a document or edited copy that contains personal information about a person, is not an exempt document under section 41 by virtue of containing that information; and
(b)the decision was not made by the responsible Minister or principal officer of the agency;
the person may, by application in writing to the agency, request a review of the decision.
(1F) An application under subsection (1C), (1D) or (1E) must be made within 30 days, or such further period as the agency allows, after the day on which notice of the decision was given to the applicant.
(1G) An agency’s power under subsection (1A) or (1F) to allow a further period for making an application may be exercised by an officer of the agency acting within the scope of authority exercisable by him or her in accordance with the arrangements approved by the responsible Minister or principal officer of the agency.
(2) Subject to subsection (3), where an application for a review of a decision is made to the agency under this section, it must as soon as practicable arrange for a person (not being the person who made the decision) to conduct such reviews to review the decision and make a fresh decision.
(3) Subsections (1), (1C), (1D) and (1E) do not apply in relation to:
(a) a decision made on a review under this section; or
(b)a decision in relation to the provision of access to a document upon a request that is, under subsection 56(1) or (3), to be deemed to have been given.
(4) The provisions of section 26 extend to a decision made under this section.
Section 24A provides that:
24A Requests may be refused if documents cannot be found or do not exist
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.
SUBMISSIONS
52. At the completion of the hearing Mr Chu requested that he be allowed to provide written submissions after he had reviewed all the documentation and accessed the transcript of the hearings. The Tribunal was asked to provide Mr Chu with the transcript of both days of hearing. Given the contractual relationships with Auscript Australia Pty Ltd, the Tribunal decided to charge a fee for such transcript. Mr Chu was not prepared to pay this amount and therefore the Tribunal arranged for him to read the transcript on the Tribunal’s premises and under the supervision of Tribunal staff. Mr Chu provided a final submission dated 11 April 2007 numbering 43 pages.
53. Telstra provided a written submission dated 7 March 2007 and replied to Mr Chu’s submissions on 26 April 2007.
APPLICANT’S written SUBMISSION
54. Mr Chu dealt first with his interpretation of Justice Finn’s decision of 1 December 2005.
55. Paragraphs 4 to 23 of the submission addressed the hearing of 25 August 2004 and should have been made at that time. At paragraph 6 of his submission Mr Chu pointed out that the Tribunal was in error in stating that his Occupational Health and Safety Medical File was released to him on 20 April 1998 as he did not receive this file until 9 June 2004. He claimed that only his retrenchment file had been released on 20 April 1998.
56. Mr Chu contended that Telstra had lied to his then solicitors by advising that the existence of any other personal documents could not be established (Exhibit R2, GWS 34 and reproduced in paragraph 9 of the submission). Mr Chu perceived it to be the Tribunal’s duty to seek an explanation for what Telstra stated to be Mr Simpson’s inexplicable delay and failure to release Mr Chu’s Occupational Health and Safety file.
57. Mr Chu submitted that the primary decision maker, Mr Simpson, had failed to direct his searches toward Telecom Industries, the NSSC, the Promotion Appeal Board (PAB) and CATV (Tribunal Note – the Tribunal has assumed CATV refers to Cable Television and the limited contract that employed Mr Chu from April until 22 August 1997) and that Mr Sutton in his internal review of the primary decision had neglected to search these areas. (The Tribunal, perhaps erroneously, was under the impression that Telecom Industries ceased to exist in approximately 1993 and the CATV in mid‑1997).
58. Mr Chu contended that Telstra had refused him access to the so-‑called blue file (paragraph 18 of the submission). Telstra had stated pursuant to s 24A of the Act I have therefore decided to refuse access to this file as it cannot be found or does not exist. Mr Chu argued that Telstra cannot resort to s 24A of the FOI Act to deny access to the blue file given the contrary evidence that unreasonable steps had been taken by Telstra.
59. In paragraph 19 Mr Chu outlined what he termed the unreasonable steps… taken by the Respondent to find the so called blue file. These included the statement that a blue covered personnel file of the Applicant was handed by Mr Brian Hayes to ER (Employment Relations). The unreasonable steps taken by Telstra were listed in paragraph 47, of Mr Chu’s submission:
…
The Applicant submits that the unreasonable steps taken by the Respondent are many and include:
1. taking more than two months to make a purported Primary Decision which does not even comply with s26(1)(a) of the Act was in itself an unreasonable step.
2. the lying of the Respondent’s Primary Decision maker to the then solicitors for the Applicant is in itself an unreasonable step.
3. not bothering to find out why the Respondent’s Primary Decision has lied is in itself an unreasonable step.
4. a six month delay by the Respondent to take up the Applicant’s Internal Review request is by itself an unreasonable step
5. the so called Internal Review was not a review on the purported Primary Decision per se as there was nothing in terms of the Act in the Primary Decision to be reviewed.
60. Mr Chu submitted that the Tribunal’s use of the term exhaustive searches in its decision dated 28 October 2004 could be traced to the use of this term in Mr Batskos’ submission dated 25 August 2004. In relation to the hearings of 14 August 2006 and 7 March 2007, Mr Chu submitted that the Tribunal had stated that the effect of the Federal Court decision of Finn J would only require the Tribunal to reword the previous decision. (Tribunal Note ‑ This is Mr Chu’s interpretation of the exchange recorded in the transcript). Mr Chu also referred to a letter sent by the District Registrar dated 15 February 2007 wherein the term exhaustive measures was used as opposed to exhaustive searches. Mr Chu submitted that the Tribunal had introduced a new terminology.
61. Mr Chu addressed at length the question as to when Telstra should have commenced its investigation into his FOI application, payment of the $30 fee having been received by Telstra on 18 February 1998, although the request from his then solicitors had been sent by letter dated 13 February 1998 i.e. a matter of 5 days. Mr Chu contended that his blue file existed in 1997 or 1998 (paragraph 35 of the submission) although Telstra could not find it.
62. Mr Chu responded to Telstra’s written submission lodged on 7 March 2007, stating that this submission does not differ substantially from their submission at the first AAT proceeding (paragraph 37 of Mr Chu’s submission) and that Telstra’s interpretation was convoluted in concluding that an exhaustive search, with no stone left unturned, could mean Telstra had exceeded all reasonable steps or gone beyond what is reasonable in searching for documents (paragraph 37 of the submission). Mr Chu regarded Telstra’s evidence as not much more than hearsay and that Telstra had not gone beyond what is reasonable in searching for documents (paragraph 39 of Mr Chu’s submission).
63. Mr Chu addressed the evidence of those former Telstra personnel he had summonsed, with respect to the question of whether they had gone beyond what is reasonable in searching for his documents. He also addressed the documentary evidence of Ms Curtis, Ms McEvitt, Mr Graham Steele and Mr Hayes. Mr Chu claimed that Mr Hayes was aware that a blue covered file did exist earlier and that he handed that over to Employee Relations. (Tribunal Note ‑ This was not Mr Hayes sworn evidence before the Tribunal).
64. Throughout these submissions Mr Chu’s query was whether Telstra and its agents had gone beyond what is reasonable in searching for documents.
65. Mr Chu submitted at paragraph 40.1 that Mr Simpson, the primary decision maker (20 April 1998), had taken two months to supply two files; had failed to make enquiries of all the required business units and persons; withheld Mr Chu’s medical file and lied to Mr Chu’s solicitors about its existence. It was also submitted that Mr Simpson may have lied in saying that he had not received Mr Chu’s solicitor’s letter dated 6 July 1998.
66. Mr Chu stated that Mr Sutton took six months to advise himself as the internal reviewer and given that Mr Sutton was not legally qualified he did not posses a great deal of knowledge or understanding of s 24A of the FOI Act. Mr Chu challenged Mr Sutton’s evidence that he had not discussed the facts of the matter with any other member of Telstra’s FOI section. In Mr Chu’s opinion, Mr Sutton’s perusal of the file constructed by Mr Simpson amounted to talking about the facts of the case. (Tribunal Note ‑ Mr Simpson left the employ of Telstra in November 2001).
67. Mr Chu (at paragraph 42 of his submission) expressed his concern at Telstra’s attempt to explain the process of internal review and the need for the independence of the primary decision maker and the subsequent internal review officer. He also submitted, having quoted page 100 of the Transcript of 14 August 2006, that such interjections from Mr Batskos and Ms Shanahan were unwarranted and it appears a great number of words were put into the mouth of Mr Sutton when he was floundering. (Tribunal Note ‑ The Tribunal will address this complaint in its deliberations).
68. Having referred to the primary decision of 20 April 1998 as not meeting the requirements of s 26(1)(a) of the Act, Mr Chu submitted there is really nothing in the primary decision to be reviewed (paragraph 43 of the submission) and concluded that even if just one unreasonable step was taken by the Respondent, the internal review decision must be set aside (paragraph 44 of Mr Chu’s submission).
69. Mr Chu submitted that there was evidence already before the Tribunal that his blue folder/personnel file had been in the possession of Mr Hayes and Mr Hayes had handed it to someone else. In the course of the hearing, the Tribunal had asked him to check this and produce the evidence after a luncheon adjournment. Mr Chu commented that the Tribunal did not pick up this unfinished business after lunch or since. (Tribunal comment: Mr Chu did not volunteer any further information or evidence after the luncheon adjournment. The documentary evidence relating to this submission is considered under Background).
70. Mr Chu referred to documentation that he had provided to the Tribunal on 10 March 2006, following a directions hearing conducted by Deputy President Forgie. He contended that these documents should have been included in his personal file and that these documents had addressed among other things:
(a)His service as a Union Shop Steward wherein he had been involved in industrial actions at Telstra;
(b)issues raised regarding Telstra’s redundancy process; and
(c)the Respondent having enticed the Applicant to trade off salary maintenance for a lower paid permanent position (an AO3 permanent position) in contravention of the existing redundancy agreement.
Mr Chu believed that the fact that these documents were not released indicated that the Respondent may have selectively released, deliberately mislaid or even destroyed such documents in their possession.
71. In concluding his submission Mr Chu again summarised the unreasonable steps taken, in his opinion, by Telstra. In his initial Statement of Facts and Contentions dated 30 April 2004, and not thereafter up-dated, Mr Chu had concluded (at paragraph 9 in the submission) that To refuse access to such a file on the pretext that it cannot be found or does not exist may be legally right but professionally and morally wrong.
RESPONDENT’S SUBMISSION
72. Telstra submitted that the decision under review, being that of Mr Sutton dated 26 November 2003, should be affirmed as Telstra had taken all reasonable steps to find the personal documents of Mr Chu.
73. Telstra addressed the relevant sections of the FOI Act, and in particular s 24A and its two limbs:
·First, there is the critical evaluation for the Tribunal to determine whether all reasonable steps have been taken by Telstra to find documents falling within the Applicant’s request.
·If it has done that, the second requires consideration of whether the documents are in the Department’s possession but cannot be found or whether they exist: (Re Langer and Telstra Corporation Limited [2002] AATA 341 at paragraph 94 cited).
74. Telstra relied on the Tribunal decision of Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, wherein Deputy President McDonald considered the meaning of all reasonable steps and the definitions provided for the term reasonable in the Macquarie and the Oxford English Dictionary. In Re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025, at paragraph 51, the Tribunal had referred to the search conducted in that case as exhaustive and included all reasonable steps. Telstra submitted that this suggested that something less than exhaustive would have constituted all reasonable steps in the circumstances of the case; and that this also applied in the present case ie exhaustive steps which go beyond all reasonable steps had been taken to locate the documents sought by the Applicant.
75. Telstra submitted that in determining whether all reasonable steps had been taken in any particular case there are a number of factors or circumstances which may be relevant:
·The subject matter of the documents sought;
·The documents one would expect to exist given that subject matter and their expected location. This requires consideration of the “informal” record keeping systems of an agency – officers’ memories of whether documents of that type sought were prepared or received and, if so, the likely places they would have been filed or stored;
·The steps already taken to locate documents within the terms of the request. This is not a case where further searches would be appropriate;
·Whether there were persons within the agency more familiar with relevant areas who had not been consulted in relation to possible existence of further documents;
·The age of the documents;
·Formal file management systems and any practice of destruction or removal of documents of the kind sought in accordance with normal practices and procedures;
·The willingness or otherwise of the applicant to provide further information to facilitate a more targeted search for documents;
·The willingness of the respondent agency to conduct further searches;
·The purpose for which the request for documents was made. An applicant’s stated reason for seeking access to a document might add to an agency’s appreciation of the efforts it ought properly take to find the documents;
·The other commitments of the agency in dealing with freedom of information requests or more generally; and
·The fact that the Tribunal’s role, in assessing what is reasonable, is not to conduct an enquiry into the adequacy or otherwise of Telstra’s record keeping practices of between 7 and 15 years ago.
76. Telstra agreed that, in the earlier periods wherein Mr Chu was employed in Telecom Industries, a personnel file ought to have existed. But it was clear on the evidence that such a file did not contain all the information about an individual whilst employed by Telstra or its predecessor.
77. Telstra contended that it had searched in all areas of the organisation in which it would be reasonable to expect the requested documents to be retained. This had even included the personnel files of Mr Chu’s former managers (GWS 70).
78. Telstra listed the searches that had been conducted as follows:
(a)His immediately preceding manager and over 50 files relating to his 9 former supervisors;
(b)Corporate Distribution Services area;
(c)The employee Relations area in centres throughout the organisation;
(d)Payroll services in various locations including Dubbo, Queensland, Hobart, Sydney and Melbourne;
(e)The legal area and personnel dealing with the applicant’s unfair dismissal claim; and
(f)Telstra’s archival areas (both internal and external).
(Tribunal Note ‑ The Tribunal after the hearing requested that Telstra, based on Mr Maslen’s evidence, check that the Adelaide centre had been requested to review all its data and was advised by letter that this had been done).
79. With respect to the second limb of s 24A of the FOI Act, Telstra contended that apart from the documents already released to Mr Chu no other documents existed which fell within the request and in particular none which fell within the description of a personnel file. In the alternative, Telstra contended that if any other documents do exist they cannot be found or have been destroyed.
80. Telstra provided a further submission dated 26 April 2007, in response to Mr Chu’s submission dated 11 April 2007.
81. Telstra submitted that Mr Chu’s submissions, contained in paragraphs 4 to 23 of his submission, were irrelevant as they related to the proceedings of the Tribunal of 25 August 2004 and the decision of 28 October 2004.
82. Telstra contended that the evidence provided by the witnesses summonsed or appearing voluntarily on behalf of Mr Chu, had supported perfectly Telstra’s evidence before the Tribunal as to the nature and extent of the searches undertaken in an effort to identify the documents sought by Mr Chu. Telstra submitted that while it, in accordance with s 15 of the FOI Act, was only required to act in response to Mr Chu’s request after the request became valid on the payment of the application fee, Telstra had in fact commenced searches for Mr Chu’s documents upon receipt of the invalid request dated 18 November 1997.
83. With respect to Mr Chu’s assertion that Telstra’s evidence was hearsay evidence, Telstra referred to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 which states that the Tribunal is not bound by the rules of evidence but may inform itself as it thinks appropriate.
84. Telstra submitted that it had taken exhaustive steps to find the requested documents and had exceeded or gone beyond the requirement of s 24A of all reasonable steps. Telstra concluded that Mr Chu’s allegation that Telstra had taken unreasonable steps in relation to the search for documents and other procedural matters were irrelevant to the matters before the Tribunal on this occasion.
TRIBUNAL’S DELIBERATIONS
The Evidence
85. The evidence before the Tribunal indicates that the Post Master General (PMG) and Telecom Industries (at least in the early 1990’s) maintained colour-coded folders regarding its employees. A blue covered file was initially termed the Personnel or Personal File and later the P&IR (Personnel and Industrial Relations) file (evidence of Mr Hayes, Transcript p 34-35, 7 March 2007). This was confirmed by the finding of some 50 files relating to Mr Chu’s past managers and supervisors as nominated by Mr Chu. Of the nine supervisors nominated only the records of six could be found. These six individual’s files had been archived via the Melbourne Central Office to the privately owned data protection services company Recall. Four of the six managers/supervisors had blue-covered files.
86. Mr Chu first requested access to his PAB File on 24 December 1996 (Exhibit A4, p 15) and at the same time his personal file … at a future time to be nominated. On 1 August 1997 Mr Chu activated this request by fax to Ms Curtis (Mr Chu’s Statement of Facts and Contentions dated 30 April 2004, Ref. RC-1) and on 5 September 1997 wrote to the Chairman of the PAB. This letter commenced with the sentence that one month has passed without a response to this request. On 5 September 1997 Mr Rob Cartwright informed Mr Chu by email that there was no one personnel file (Exhibit A4, p 19) and that information on him was held in different areas and in the nature of pay data, leave taken, compensation, medical records, occupational health and safety records and the like (Exhibit A4, p19).
87. Mr Chu’s letter to PAB of 5 September 1997 was made in relation to his IRRB application; which was followed shortly thereafter by an application to the IRC, with regard to an unfair dismissal claim. In the latter application Mr Chu contended that he had been discriminated against on the basis of age and that the NSSC had not taken all reasonable steps to find him another position within Telstra.
88. Telstra commenced a search for relevant documentary records on the basis of these two applications, prior to the receipt of Mr Chu’s FOI application lodged by his solicitors Nevett and Ford on 13 November 1997. In accordance with s 11 of the FOI Act this application was not valid until 13 February 1998, when Mr Chu paid the requisite fee.
89. Mr Simpson was the FOI officer who undertook the search for Mr Chu’s files and made the primary decision dated 20 April 1998. This decision at GWS 29 of Exhibit R1 states:
I refer to your letter dated 5 January 1998 in which you made it clear that your client sought documents under the Freedom of Information Act (Cmth) 1982 (“the Act”), with any information relating to personal files, system reports or any workplace files that contained personal information or information of any kind concerning Mr. Chu.
The following documentation has been collated:
*a complete copy of the legal file compiled in anticipation of an unfair dismissal case concerning Mr.Chu, including all available documents from Mr.Chu’s Managers and all available personnel documents
*a copy of all paperwork dealing with the payout of Mr. Chu’s redundancy
*a copy of all standard system reports dealing primarily with leave and pay history details; as previously discussed such standard reports include any information generally considered to be of use to a non-systems person and they are released free of charge.
All documents found in relation to your request have been released.
The letter also contained information regarding appeal rights and the appropriate sections of the FOI Act.
90. On 24 March 2003 Mr Chu sought an internal review of the decision of 20 April 1998. Although this was almost five years after the decision and well outside the legislative requirement that applications for internal review be lodged within 30 days of the primary decision, Telstra accepted Mr Chu’s request and waived the necessary fee. Mr Chu’s request for internal review was sent to the Managing Director of Telstra and not to the FOI Section of Telstra. Mr Scales, Managing Director of Corporate and Human Relations, was deputized to reply to Mr Chu’s request and delegated further investigation to the legal department of Telstra (Exhibit R2, GWS 37). There was a six month delay before this request was eventually received in the FOI Office and Mr Sutton commenced the internal review process. On 10 November 2003 Mr Chu confirmed that what he was seeking was his personnel folder/file (Exhibit R2, GWS 47). As previously stated, Mr Chu had been informed on 5 September 1997 that Telstra did not keep a personnel file on its employees (advice of Mr Rob Cartwright).
91. Given the lapse of time since the original decision, Mr Sutton not only reviewed the original decision but undertook new searches. Mr Sutton contacted those of the 18 officers who had dealt with Mr Chu’s requests and were still employed by Telstra. Searches were made via the Telstra Records and Information Management System (TRIMS) and the PERKIN Systems (in total some 9 data bases) involving Victoria, New South Wales, South Australia, Queensland, Western Australia and Tasmania warehoused archives. In 1998 Mr Chu was offered, via his solicitors, the option of a more detailed search of the data system of the national archives, but refused on the basis of cost (GWS 22, File note of Mr Simpson dated 12 March 1998).
92. These searches as documented in Exhibits R1 and R2 did not locate a personnel file/personal file. Mr Chu’s redundancy file, occupational health medical file, pay records, income tax files, sickness and recreational leave files, personal data with respect to place of birth, languages spoken, home address, his qualifications and his training within Telstra and its predecessor Telecom Industries were located and it was ascertained that his legal file had been water damaged beyond repair while archived in a warehouse. Mr Chu gave evidence that he already has possession of a copy of his legal file.
93. Mr Chu had complained that an episode of ill-health suffered at work on 2 September 1994 was not documented in his medical record (Exhibit A4, p20). Mr Chu said he had been taken by ambulance from his workplace to the Monash Medical Centre. His efforts to obtain information from Monash Medical Centre were unsuccessful as the data relating to this event of 2 September 1994 had been destroyed by the medical centre in the year 2001.
94. Much of Mr Chu’s evidence and his contentions related to events prior to the lodging of his valid FOI application of 13 February 1998. This evidence and the contentions are not directly relevant to the Tribunal’s decision‑making process; but they do document several episodes of conflict between Mr Chu and Telstra from late 1993 including appeals against Mr Chu’s involuntary retrenchment of 1993, 1996 and 1997, Mr Chu’s activities as a union representative and the imposition of work bans and his litigation in late 1997 for unfair dismissal; the latter being based on age discrimination and the NSSC’s failure to take all reasonable steps to place him in a permanent position within Telstra.
95. The former Telstra employees summonsed by Mr Chu either could not recall any dealings with Mr Chu and his FOI application or confirmed Telstra’s contentions. In particular, Mr Hayes stated under oath that he had never had or dealt with Mr Chu’s so-called blue file.
96. When Telecom Industries became Telstra and commenced restructuring in 1993, its personal/personnel record holding and handling appears to have changed. Mr Marslen believed all records held at Springvale went to the Melbourne office in 1993 or to Pirrie St, Adelaide. Mr Hayes believed they went to Hobart. It seems more likely than not (conversation between Mr Chu and Mr Atkins) that any personal/personnel file relating to Mr Chu (the blue folder) was transferred to the Melbourne office. No individual Telstra employee has reported seeing or handling this file.
97. The Tribunal acknowledges that Mr Chu is not legally qualified and was unrepresented in this application. However, he has had first hand and repeated experience of appeal processes.
98. The Tribunal also acknowledges that English is not Mr Chu’s first language and that he has a problem with deafness. It was necessary for the Tribunal and Telstra to render more than the usual assistance provided to an unrepresented applicant, as Mr Chu, on both hearing days, had neglected to bring all or some of his copies of the T-Documents, Federal Court Book, earlier Tribunal decision and the Federal Court decision and he made few notes during the hearing. In addition, the phrasing of some of Mr Chu’s questions necessitated the intervention of the Tribunal to clarify their content.
99. Mr Chu was quite correct in stating that the Tribunal was in error in its decision of 28 October 2004 with respect to his Occupational Health Medical file. This was not released to him in 1998 but was received in June 2004. The Tribunal apologises for this error.
100. As Mr Sutton, in his affidavit, had described as inexplicable Mr Simpson’s failure to release this document in 1998 and Mr Simpson, in his evidence, had no recollection of any aspect of Mr Chu’s application of 13 February 1998, the Tribunal cannot see how it could enquire further.
101. There is no record of the receipt by Telstra of Mr Chu’s then solicitor’s request of 6 July 1998 for a further search for Mr Chu’s personal file until a copy of this letter was sent again on 3 March 1999 (T10 and T11).
102. On 28 October 2004 the Tribunal had affirmed the decision under review finding that Telstra had conducted an exhaustive search. The Tribunal was remiss in not expanding its reasons for the decision.
103. The Tribunal had based its decision or more correctly the use of the term exhaustive search on the Modern Oxford Dictionary’s definitions of all and reasonable and did not adopt the term exhaustive enquiries or searches from either past Administrative Appeals Tribunal decisions or Telstra’s submissions. The Modern Oxford Dictionary states that all followed by a comparative (in this instance reasonable) is to be interpreted as to the extent. Reasonable, as an adjective, is defined as moderate; not absurd; not greatly less or more than might be expected. The Tribunal concluded that in a FOI enquiry the noun steps was qualified by the predeterminer all – to the extent of- and the adjective reasonable – not greatly less or more than might be expected. Whether this was the intention of the Commonwealth in the drafting of the FOI legislation is not known to the Tribunal
104. In Chu, Finn J considered both the Senate Standing Committee on Legal and Constitutional Affairs’ Report on the Operation and Administration of The Freedom of Information Legislation of 1987 and the Explanatory Memorandum to the Freedom of Information Bill 1991 which lead to the enactment of s 24A. His considerations are reported at paragraphs 7 to 12 which state:
7 Section 24A had its genesis in the Senate Standing Committee on Legal and Constitutional Affairs' Report on the Operation and Administration of The Freedom of Information Legislation of 1987 (the Senate Report). The FOI Act, as it stood at that time, made no specific provision for the way in which an agency should respond to an access request for a document which the agency may have had good reason to believe that it possessed, but which could not be located. As was said of this situation in a submission from the Department of Health (the Department) to the Senate Standing Committee on Legal and Constitutional Affairs (the Committee):
The current framework in which the FOI Act operates makes it difficult to explain the situation to members of the public. The Department considers that it would be preferable to all concerned, and far more practical, to include a provision in the Act allowing an agency, after reasonable steps have been taken to locate the document, to find that the particular document cannot be located, giving reasons for that finding. The finding could then be subject to review by the AAT.
(Emphasis added.)
8 Accepting the burden of this submission, the Committee recommended that (at 7.87):
the Act be amended to provide that an agency may formally respond to a request for access by stating that it has reason to believe it possesses the requested document, but is unable to locate the document having taken all reasonable steps to do so. The Committee further recommends that the decision to respond in this manner be able to be reviewed in the same ways as are decisions to refuse access.
(Emphasis added.)
9 I would note the important difference in the two formulations highlighted above: the Committee's recommendation, but not the Department's proposal, contains the emphatic requirement all.
10 The Explanatory Memorandum to the Freedom of Information Bill 1991 which led to the enactment of s 24A is in turn instructive. It stated (at cl 15, para 35) that the Bill:
inserts a new section 24A to implement a Senate committee recommendation that an agency be able to respond to a request by stating that it is unable to locate the documents requested by the applicant having taken all reasonable steps to do so. New section 24A provides that an agency may refuse a request if the agency, having taken all reasonable steps to find the document, is satisfied that the document cannot be found or that the document does not exist. The agency's decision is subject to internal review (s 54(1)(a)), and review by the Administrative Appeals Tribunal (s 55(1)(a)). The AAT has the power to require the agency to conduct further searches for the document (s 55(5)).
I note in passing, that s 55 of the FOI Act was amended in the same amending legislation to give the Tribunal the power referred to in the last quoted sentence. I return to it below.
11 Turning to the scheme of the FOI Act more generally, it is fair to say that at many places it requires evaluative judgments to be made and interests to be balanced (particularly in the exemption provisions): see eg, ss 36, 39, 43 and 44; and on occasion it employs "reasonableness" as a judgmental yardstick of action taken or to be taken or of anticipated consequences of action: see eg, ss 24, 27, 33, 41. Nonetheless, it is equally fair to say that the Act is somewhat indiscriminate in its use of formulae such as "is satisfied" to indicate explicitly that the particular evaluation or judgment required to be made is that of the Minister or agency and that it is not one ultimately for a court: cf, ss 24, 33, 39, 40 and 41; but see also s 58.
12 However, what the scheme of the Act does suggest in general terms is that in a matter: (i) in which the Minister or agency is expected to balance the general right of access to documents against another designated public interest; and (ii) in respect of which that Minister or agency is to be taken by virtue of function or responsibility to possess the necessary particular knowledge or experience to make the required judgment, then (whether or not the judgment to be made is circumscribed by other requirements, eg, designated relevant considerations) the judgment will be that of the Minister or agency and not of the Court. Given the inquiry posed by s 24A's "all reasonable steps" requirement this provides some ‑ albeit slight ‑ support for the view that the requirement being one tied to intra departmental or agency structures, practices and record keeping policies and practices, its fulfilment is one of which the Minister or agency is to be the judge.
The Tribunal’s use of the phrases exhaustive enquiry/ies, measures or searches was also based on the Modern Oxford Dictionary definition of exhaustive i.e. defined as thorough or comprehensive without limitation of what might be expected.
105. The Tribunal, standing in the shoes of the decision maker, is required by s 24A of the FOI Act to first determine if, on the facts before it, the Minister or agency has taken all reasonable steps to find the requested document (the first limb of s 24A); before deciding whether to refuse the request on the grounds that the document is in the agency’s or the Minister’s possession but cannot be found or does not exist (the second limb of s 24A.
106. Mr Chu had, prior to his valid FOI application of February 1998, been provided with his three retrenchment files and his legal file, the latter essentially relating to his IRC unfair dismissal claim. The FOI application was a request for his personal/personnel file as broadly referred to by Mr Chu’s then solicitors, containing personal information as defined by the Privacy Act 1988 (the Privacy Act).
107. The Privacy Act defines personal information as:
personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
and the term employee record as:
employee record, in relation to an employee, means a record of personal information relating to the employment of the employee. Examples of personal information relating to the employment of the employee are health information about the employee and personal information about all or any of the following:
(a) the engagement, training, disciplining or resignation of the employee;
(b) the termination of the employment of the employee;
(c) the terms and conditions of employment of the employee;
(d) the employee’s personal and emergency contact details;
(e) the employee’s performance or conduct;
(f) the employee’s hours of employment;
(g) the employee’s salary or wages;
(h) the employee’s membership of a professional or trade association;
(i) the employee’s trade union membership;
(j)the employee’s recreation, long service, sick, personal, maternity, paternity or other leave;
(k) the employee’s taxation, banking or superannuation affairs.
108. In particular, Mr Chu’s solicitors nominated Telstra’s HRMIS (Human Resources Information System) and SMS (Skills Management System) data on the advice of Mr Chu (GWS 9). The SMS information and the Perkins were released on 19 March 1998. Of the examples of personal information listed under the definition of employee records in the Privacy Act only the initial terms and conditions of Mr Chu’s employment (1989) and his performance and conduct have not, to date, been released to him.
109. Mr Sutton undertook the internal review of the primary decision of 20 April 1998 by Mr Simpson. Mr Sutton retraced Mr Simpson’s steps where possible. He was not able to contact all the persons to whom Mr Simpson had directed his enquiries, as several including Mr Simpson were no longer employed by Telstra. Mr Sutton’s efforts in this area resulted in the finding of two red-covered files one inside the other, relating to Mr Chu’s retrenchment of 9 September 1997 (GWS 8, 28 November 1997). Mr Chu in his evidence stated he had all three of his retrenchment files, including that related to his final retrenchment and his legal file.
110. Given the elapse of time Mr Sutton instituted new searches. Some 11 databases holding records regarding employees were searched for information relating to Mr Chu. Mr Chu was offered a more detailed search of some of these databases, but declined on the basis of cost.
111. Telstra’s warehouses containing archival material, those operated by Telstra itself and those provided by private documents storage companies TNT and Recall, were checked in all states of the Commonwealth. The Tribunal, based on the evidence of Mr Maslen, had Telstra confirm that the South Australian warehousing database had been checked. A manual search of hardcopy stored information was said to entail the checking of hundreds of thousands of archive boxes. The latter would not, in the Tribunal’s opinion be a reasonable step to pursue as the resources required to be deployed would be massive.
112. Telstra, at Mr Chu’s suggestion, searched for the personal/personnel files of his nine former supervisors and located six such files, all in the Melbourne Human Relations database. These files were inspected by Mr Sutton and no reference to Mr Chu by name was found. This search was conducted despite Telstra’s employees concerns regarding the privacy criteria relating to these files.
113. It appears to the Tribunal that the only employee records not found have been Mr Chu’s job descriptions and his work performance assessments, assuming that formal work performance assessments were undertaken. Mr Chu did not advise the Tribunal as to whether, and if so when, such work performance assessments took place. Mr Chu’s documents lodged on 10 March 2006 (Exhibit A4) contain an undated Job Specification Review for the position of P1 Production Engineer. While undated, the content indicates that it was provided prior to the 1991/92 financial year. While in possession of this document and those others contained in Exhibit A4, Mr Chu believed that all of these documents should have formed part of his personnel file.
114. Telstra has not been able to find a single file entitled personal/personnel file or identified as such by the blue coloured folder containing it. Such blue-covered files have been found for four of six of Mr Chu’s supervisors, and derive from the PMG, Telecom Industries and from Telstra.
115. I find that Telstra has taken all reasonable steps to find Mr Chu’s personal/personnel file, albeit that such searches have been based essentially on electronic data. This decision applies to both individual area searches/steps and the totality of Telstra’s efforts to locate Mr Chu’s personal/personnel file.
116. The Tribunal has revisited the Administrative Appeals Tribunal’s decisions considered in the decision of 28 October 2004, particularly in the light of Justice Finn’s comments that s 24A of the FOI Act is not meant to be a refuge for the disordered or disorganised.
117. In Re Langer and Telstra Corporation Limited [2002] AATA 341, Deputy President Forgie addressed the 1992 Telstra record management system stating at paragraph 100:
Returning to Telstra’s record management, it seems in 1992 to have been piecemeal at best. The evidence consistently supports my finding and I do find, that there was no one file management system maintained across the whole of Telstra in the period covered by the request. Furthermore, I find that there was no consistent policy for the maintenance of files or for their destruction and no evidence of any person or persons having responsibility for the record management of Telstra…
and at paragraph 102:
… I have concluded that Telstra did not have a homogenous system of record maintenance and retention. I have reached that conclusion after concluding that each of the witnesses was a person of integrity who had tried his or her best to find the documents sought by Mr Langer. They have made many efforts over the years to locate them and not all are recorded in these reasons. In the course of their searches, there has been no indication of any such homogenous system… I am satisfied that they would have followed its lead in their search for the documents.
118. The evidence before this Tribunal indicates that Telstra commenced centralisation of record management in late 1993 or early 1994; but by 1999 only payroll and leave records were centralised in the Human Relations Pay database. A further centralised database was commenced in August 2004 and expected to take some years to complete.
119. With the exception of Re Khoh and Telstra Corporation Limited [1998] AATA 45, none of the cited cases relate to a FOI request for a personal or personnel file for a Telstra employee. In Re Khoh Senior Member Allen was satisfied that all reasonable steps had been taken and that such documents either do not exist or if existing cannot be found. Further documents that were discovered in the search, though not in the form of a personal file, were released to the Applicant.
120. Similarly, in the search for Mr Chu’s personal file various documents were discovered not in a folder termed personal file but in various other areas of Telstra’s records. These have subsequently been released to Mr Chu.
121. The initial request placed by Mr Chu’s solicitors were for his personal or personnel file. In his Statement of Facts and Contentions Mr Chu listed the documents that he believed were still missing. These were:
· annual performance reports;
·an entry in his occupational health or medical file regarding him being taken by ambulance to Monash Medical Centre on 2 September 1994 at an unknown time. Monash Medical Centre advised that their records regarding this attendance had been destroyed in the year 2001;
·a job offer at an ASO3 level at a reduced level of pay; and
·his ERSOPS and MIR (Management Initiated Redundancy) files.
122. Discussion regarding whether he was prepared to accept an ASO3 permanent position is documented by email in Mr Sutton’s affidavit; as is Mr Chu’s subsequent interview for such a position and appeal documented by the PAB in Mr Sutton’s affidavit which has also been provided to Mr Chu. With regard to the ERSOPS and MIR files said to be missing, Mr Steele on 26 August 1997 (GWS 30) ordered that these files be taken to Mr Chu’s home and that he be allowed to make copies of whatever he wanted. Thus the only items that are missing according to Mr Chu’s list are the annual performance reports and any entry in his occupation health medical file of the events of 2 September 1994.
123. Searches conducted in 1997, 1998 and 2003 involving these record management systems within Telstra have failed to find a personal file previously described as being a blue folder/file. Various documentation regarding Mr Chu has been found in the 11 electronic databases searched. These have all been released. Having determined that all reasonable steps have been taken, within the confines of the non-centralized record management system of Telstra prior to 1998, to amass all data held by Telstra with respect to Mr Chu, the Tribunal is satisfied that further documents may be in the agency’s possession but cannot be found or do not exist.
DECISION
124.The Tribunal affirms the decision under review.
I certify that the one hundred and twenty‑four [124] preceding paragraphs are a true copy of the reasons for the decision of:
Miss E.A. Shanahan, Member
(sgd) Dianne Eva
Clerk
Dates of hearing: 14 August 2006 and 7 March 2007
Date of decision: 10 September 2007
Solicitor for applicant: Nil – Self‑represented
Solicitor for respondent: Mr M. Batskos, FOI Solutions
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