Chu and Telstra Corporation Limited
[2004] AATA 1127
•28 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1127
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/78
GENERAL ADMINISTRATIVE DIVISION
Re: RICHARD CHU
Applicant
And: TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 28 October 2004
Place: Melbourne
Decision: The Tribunal affirms the decision under review.
(sgd) E. A. Shanahan
Member
FREEDOM OF INFORMATION – application for personal information – delayed response – files lost – files do not exist
Freedom of Information Act 1982 s 3(1)(b), s 11(1), s 54(1)(ba), s 24A
Re Langer and Telstra Corporation Limited [2002] AATA 341
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Simmons and Department of Defence [2000] AATA 491
Re Meschino and Centrelink [2002] AATA 611
Re Beesley and Federal Commissioner of Taxation [2001] AATA 476
Re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025
Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301
Re Hawke and Telstra Corporation Limited [1998] AATA 709
Re Mester and Centrelink [2004] AATA 354
REASONS FOR DECISION
28 October 2004 Miss E.A. Shanahan, Member
1. This is an application for review of the decision of the respondent, Telstra Corporation, that as all reasonable steps had been taken to locate the applicant’s personal file (referred to as the blue file) access was refused as the file could not been found or did not exist. (s 24a of the Freedom of Information Act 1982 (the Act)). The applicant applied for review of the decision by the Administrative Appeals Tribunal on 28 January 2004.
2. The applicant was self‑represented and assisted by an interpreter, Mr Pei Ling Zheng, fluent in Mandarin. The applicant’s English was excellent. The respondent was represented by Mr M. Batskos, a solicitor with FOI Solutions. The Tribunal had before it the documents lodged pursuant to s 37(a) of the Administrative Appeals Tribunal Act 1975 (the T-documents) (T1-T22). The respondent tendered the affidavits of Mr G. W. Sutton, dated 2 June 2004 (Exhibit R1) and 28 June 2004 (Exhibit R2). These exhibits also contained the applicant’s discovered employment records, retrenchment documents, copies of correspondence between the respondent and the applicant and the affidavit of Mr P. A. Boland, dated 1 July 2004 (Exhibit R3). Exhibits R1 and R2 are an amalgamation of affidavits sworn by Mr G. W. Sutton and number 70 in all.
background to the application
3. The applicant was employed by Telstra and its predecessor Telecom from approximately 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, which the Tribunal infers he required 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 the applicant’s files and was subsequently advised that these could not be accessed except for those relating to the applicant’s retrenchment. A resumed hearing before the IRRB took place on the 5 September 1997 and on the 8 September 1997 the applicant was retrenched.
4. The applicant through his then solicitors (Nevett Ford) pursued the request for release of the applicant’s personal file. Action was delayed by the failure of the applicant to pay the application fee. On 20 April 1998, the respondent released the applicant’s file relating to his redundancy and a second file relating to an unfair dismissal case he was bringing against the respondent. On 24 March 2003, after a delay of nearly five years, the applicant requested an internal review of a decision of 9 March 1999. His application was acknowledged but he was not contacted again until some 6 months had passed. Numerous contacts were made by the applicant to access his personal file. After release of the AIS occupational health and safety medical record, the respondent determined on 26 November 2003 that all reasonable attempts had been made to locate the file or other files and that it could not be found or did not exist.
evidence before the tribunal
5. Mr G. Sutton had provided numerous affidavits (Exhibit R1 and R2) outlining the attempts made to find and provide the applicant’s personal file. In evidence before the Tribunal he attested to the content of these affidavits as being true and correct. These exhibits detailed all contacts with the applicant, the delay in activating enquiry due to the applicant’s failure to pay the required fee. Searches had been made in various departments of Telstra, in their archives and documents warehouse 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 Telstra employees. With the expansion and diversification of the respondent’s corporation, personal records were held within individual sections as opposed to the central registry.
6. Mr Sutton was cross‑examined by the applicant. 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 50‑100 requests for personal files. Of these, 3 to 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 PMG, the 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 the applicant 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 the applicant’s occupational health and safety medical data.
7. Mr Sutton had made contact with other Telstra officers in the search for the applicant’s file including one employee in Tasmania. In addition, some members of Telstra contacted had left the respondents employment without responding to the applicant’s request.
8. The initial delay in instituting the search for the applicant’s personal file had been due to the application being invalid for want of payment of the necessary fee.
9. The Tribunal asked Mr Sutton what were the staffing levels in the respondent’s FOI section. He replied that there were 3 persons who dealt with between 400-500 FOI requests per annum.
10. Mr P. Boland is the Group Manager of the respondent’s Payroll Services. He affirmed his affidavit as being true and correct (Exhibit R3). He said that by law, the respondent 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 the respondent on 4 August 2004.
11. In cross‑examination, Mr Boland agreed with the applicant that the individual’s file follows him in his placement within the respondent’s corporation. In the applicant’s case it would have been standard practice for his file to follow him from Telecom to the National Skills Service Centre and then to the Corporate Catalogue Service. Following the applicant’s retrenchment, his file should have then gone to Employee Relations to be archived. Mr Boland pointed out that the Corporate Catalogue Service and the Employees Relations Section were on the same site. While this was normal practice, Mr Boland said that he could not guarantee that the applicant’s file had been transferred as required. Likewise, while there was method of checking such transfers in place, he could not guarantee that such checking was always done. He said that he had no knowledge of how many files were lost in the process. Mr Boland said that the applicant’s retrenchment file and occupational health and safety file had been found but salary records were kept on microfiche and all paperwork was supposed to be archived. Mr Boland agreed with the applicant that some of his files could have been destroyed in 1993. At that time, Mr Boland worked in New South Wales and is unaware of the respondent’s procedures in Victoria. In New South Wales, he estimated that there would have been 100 personnel departments, each with their own practice methods.
12. In 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 different coloured files or different coloured records being kept. Mr Boland said that he had also made enquires with the State Manager and the Human Relations Manager and that he had felt that he had exhausted all areas in the search for the applicant’s file.
13. The Tribunal asked if the respondent 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 division called Recall and a computer system, known as TRIMS contained the data as to what documents were held and where they were held. This centralisation of data holding had commenced in approximately 1998 and with respect to pay and leave records had taken two years to effect.
relevant legislation
14. The Freedom of Information Act 1982 (the FOI Act) provides that:
Section 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:
…
(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;
…
Section 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.
Section 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:
…
(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;
…
Section 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
15. The applicant submitted that it was reasonable to assume a business entity as large as the respondents would maintain personal files of each employee, given such record keeping is both a State and Commonwealth requirement, good business practice and the ongoing need to provide information regarding work performance and work history of individual employees. The applicant submitted that despite his multiple requests, these were not taken seriously or not handled in a professional manner and were not dealt within the 37‑day timeframe provided in the FOI Act.
16. The applicant submitted that the released redundancy file was deficient in its content as he had compared it to the original file in his possession. This raised, in his mind, the question of whether the respondent had made selective choices in releasing other areas of his personal documentation.
17. The applicant submitted that the decision under review should be set aside or alternatively, the Tribunal’s decision should be postponed until conflicting statements regarding his personal file were resolved.
18. The respondent submitted that “all reasonable steps” had been taken within the respondents system to find the applicant’s personal file and even if the file had been mislaid, destroyed or selectively released, this did not impact on the reasonableness of the respondent’s efforts (re Langer and Telstra Corporation Limited (2002) AATA 341). The respondent relied on several decisions of the Administrative Appeals Tribunal that had addressed the question of what constituted “all reasonable steps”.
19. In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, Deputy President McDonald stated at paragraph 19:
(19) The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the agency but cannot be found or, alternatively, does not exist. … The Shorter Oxford English Dictionary provides five meanings for the word “reasonable”, of which the following is, in the opinion of the tribunal, most “appropriately applied”:
… 4. Not going beyond the limit as signed by reason; not extravagant or excessive; moderate.
20. Deputy President Forgie has considered this question in several cases and concluded that the first limb in s 24A requires that the agency take such steps as to discover the requested documents as are appropriate in these circumstances (re Simmons and Secretary, Department of Defence (2000) AATA 491, paragraph 48; re Langer and Telstra Corporation Limited (2002) AATA 341, paragraph 95; re Meschino and Centrelink (2002) AATA 611, paragraph 22).
21. The respondent submitted that the steps required to be taken generally do not have to be exhaustive (re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025; re Beesley and Federal Commissioner of Taxation (2001) AATA 476, paragraph 69).
22. The respondent submitted that, in assessing whether a search has been reasonable in any particular case, several considerations must be made including:
·the subject matter of the documents sought (re Langer and Telstra Corporation Limited (2002) AATA 341);
·the documents one would expect to exist given the subject matter and their expected location (Re Hawke and Telstra Corporation Limited unreported AAT 27 August 1998). Including the consideration of the record keeping system of an agency and the likely places that file would have been stored (re Toomer and Department of Agriculture, Fisheries and Forestry (2003) AATA 1301);
·the steps already taken to locate the document and whether further searches would be appropriate (re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025);
·whether there were persons within the agency with relevant experience who had not been consulted (re Mester and Centrelink (2004) AATA 354);
·the age of the documents;
·formal file management systems and new practice of destruction or removal of documents in accordance with normal practice and procedures sought (re Langer and Telstra Corporation Limited (2002) AATA 341);
·the willingness or otherwise of the applicant to provide further information to facilitate the search for the documents (re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025);
·the purpose for which the request for documents was made (re Mester and Centrelink (2004) AATA 354, where Senior Member Dwyer stated “… under s 24A of that Act, the reasons for requesting documents provides information relevant to a consideration of the reasonableness of further steps which may be proposed to find further documents”);
·the other commitments of the agency in dealing with FOI requests (re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025); and
·that the Tribunal’s role in assessing what is reasonable is not to conduct an inquiry into the adequacy or otherwise of Telstra’s record keeping practices (re Meschino and Centrelink (2002) AATA 611).
23. The respondent submitted that based on the evidence of Mr Sutton and Mr Boland, the fact that the applicant could not suggest any further areas that may be searched and that the applicant has not indicated the reasons for seeking access to his personnel file, all reasonable steps, had been conducted. The respondent concluded that while it was expected that a personnel file ought to have existed, it was clear on the evidence that at no time would a file contain all the information regarding the applicant during his employment with Telstra and its predecessor.
24. The respondent submitted that different areas of Telstra possessed different information about the applicant and each of these areas has been searched and all documents relevant to the applicant had been provided to him. The respondent further submitted that the searches had been exhaustive and made extensive demands on the respondent’s resources.
25. The respondent submitted that despite the requests on their part as to the reasons the applicant was seeking these documents, this has not been provided. The applicant’s first request for information was made in 1997 and dealt with in 1998, following which there no further communication until March 2003. No documents falling in the description of a “personnel file” had been found. While such a personnel file may have existed, it may have also been destroyed.
documentary evidence before the tribunal
26. Both the respondent and the applicant provided detailed documentary evidence regarding the applicant’s FOI request, his employment with the respondent, his retrenchment and his in‑house training. The Tribunal has elected not to include this vast amount of information in its decision but has referred to it in its reasons for decision and particularly its final deliberation.
application of the legislation to the facts before the tribunal
27. The applicant’s FOI request for all personal data on file with the respondent regarding his employment with its predecessor, Telecom, has been afoot since August 1997, although a formal application was not made until 13 November 1997 and the application fee was not paid until 13 February 1998. On 20 April 1998, the applicant’s occupational health and safety and retrenchment files were released to him. On 6 July 1998, the applicant again requested the release of his personnel file and as no reply was received from the respondent the request was repeated. The respondent, by letter of 9 March 1999, advised that the letter of 6 July 1998 had not reached their office and stated that the existence of any other personnel documents could not be established.
28. On 21 October 2003, the applicant sought an internal review by the respondent of the reported decision of 9 March 1999. Mr Sutton, the manager of the respondent’s Information Access Unit, conducted a fresh search for any further documents relating to the applicant’s employment with the respondent and examined the search notes relating to the decision of 20 April 1998. The latter revealed that on 23 February 1998, the Manager of Corporate District Services, Mr P. Ferris had commented that:
The “personnel file” that was created by Telecom/Telstra when Richard joined the company has never been provided to me of my staff by the HR Unit and I believe this is what Richard is after. … The file would either be with EPS or more likely have been archived by HR.
Mr Sutton had attempted to retrieve the respondent’s legal file relating to the application but had been advised that this file had been destroyed as a result of water damage to the archives. Mr Sutton advised the applicant, by letter of 26 November 2003, of the results of his search and concluded that all reasonable steps had been taken to find any documentation. He also opined that given the applicants period of employment with the organisation, it was very likely that there would have been an individual personal file relating to him. He was also aware that this file was sometimes called the blue file.
29. The Tribunal is satisfied that personnel files in a blue folder were kept by the respondent and its predecessors. The affidavit sworn by Mr Sutton (GWS70) on the 28 June 2004, relates to files searches of employees of the respondent referred to by the applicant in a letter of 21 May 2004. This document refers to 14 coloured files, 7 which were blue, out of a total of 40 files. Its also indicates that redundancy files were pink, retrenchment files were manila and that blue files were personnel files. An email, dated 27 May 2004, from Mr Sutton to an officer in Records Management states that the applicant had been made redundant on 3 occasions during his employment, with the first episode being in late 1992 or early 1993. Mr Boland had commented to Mr Sutton that the procedures then followed by Telecom were not known and personnel “were probably not in the best frame of mind”. He thought it feasible that “all Telecom Industries’ files, including personnel files were boxed and archived or may have been simply destroyed” (GWS63).
30. The Tribunal notes that the applicant has not stated the reasons why he requires access to his personnel file.
31. The Tribunal is satisfied that the respondent has conducted an exhaustive search for the applicants personal and personnel files, both during 1998, 1999 and from October 2003 until May 2004, and has been unable to find any files other than those already released to the applicant. The respondent has met the requirements of s 24A of the FOI Act within the limitations imposed by its practises and procedures relating to its collection and retention of employee data. The Tribunal takes note of Deputy President Forgie’s findings that “it is not it’s role to conduct an inquiry into the adequacy or otherwise of (in this case, Centrelink) investigatory process or record keeping” (re Meschino and Centrelink (2002) AATA 611, paragraph 28). The Tribunal welcomes the respondent’s introduction, as of 4 August 2004, of a centralised computer database dealing with employee’s employment records and the site at which these are held.
32. For the reasons given above, the Tribunal affirms the decision under review.
I certify that the thirty‑two [32] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Lake
ClerkDates of Hearing: 25 August 2004
Date of Decision: 28 October 2004
Counsel for the applicant: self‑represented
Counsel for the respondent: Mr M. BatskosSolicitors for the respondent: FOI Solutions
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