Clelland and Centrelink

[2003] AATA 1353

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1353

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/604

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARIAN RUTH CLELLAND

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date18 December 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

...........…....(Sgd).......................

J Cowdroy
  Member

CATCHWORDS

FREEDOM OF INFORMATION – access to documents and information – documents either do not exist or cannot be located – Department has made reasonable efforts to locate the sought documents – decision affirmed

Freedom of Information Act 1982, s 24A

WRITTEN REASONS FOR ORAL DECISION

13 January 2004 Ms J Cowdroy, Member    

1. The Tribunal heard Ms Clelland’s application for review in this matter on 18 December 2003. Ms Clelland appeared at the hearing and gave evidence, and Ms Wallis-Dunn appeared for the respondent. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), and the following documentary evidence:

§  Extract from the applicant’s diary (Exhibit 2);

§  Extract from the applicant’s telephone bill (Exhibit 3);

§  Document entitled “Telstra Statement of Call Details” (Exhibit 4); and

§  Brochure entitled “Job Seekers: Your Guide to the Job Network” (Exhibit 5).

2. At the conclusion of the hearing, the Tribunal gave oral reasons for its decision to affirm the decision under review. On 24 December 2003, the applicant wrote to the Tribunal and requested it provide written reasons for its decision, in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975.   The following are the Tribunal’s reasons for its decision.

Reasons for Decision

3.      Essentially, the applicant sought information from Centrelink regarding her contacts with that organisation over a period.  She is dissatisfied with the respondent's response to three of her requests.  Turning to those requests, the first relates to a record of conversation, on which the applicant gave evidence, that she had with an officer of Fortitude Valley Centrelink on 22 November 2001.  The applicant produced a diary entry that records that she visited that office on that day.  Her evidence was that she had a conversation about mail coming to her in the name of Joseph Marsh, and that she wanted it to cease.

4.      Her evidence was that the officer at Centrelink took details from her which was reduced to writing, and the applicant signed it.  I have no reason to doubt that this incident did occur.  However, the respondent says that there is no record of any conversation nor is there in existence any document which has been signed by the applicant.  I am satisfied that reasonable steps have been taken to find the document or documents, and that it was either in the agency's possession but cannot be found or it had never existed.

5. I have made this finding on the basis of section 24A of the Freedom of Information Act 1982 (“the Act”), which states that:

“An agency or Minister may refuse a request for access to a document if all reasonable steps have been taken to find the document, and the agency or the Minister is satisfied that the document either is in the agency or Minister's possession, but cannot be found, or it does not exist.”

6.      In respect to the second issue, this relates to a request for a transcript of a telephone conversation between the applicant and Centrelink on 16 November 2001.  The respondent's case is that there was no record of any such conversation occurring.  However, it is significant that the telephone account of the applicant reveals that she rang Centrelink on that day, and that she has been charged for a call.  On that day, the applicant says she had a conversation with the operator about mail for Joseph Marsh.  She was told to open the mail, which she did, and upon giving the details for Mr Marsh, was told that "Joseph Marsh is not on the computers in Centrelink”.

7.      Centrelink records show that the applicant contacted Centrelink only once in November 2001, and that was on 13 November 2001, and that the applicant has been provided with the text of that conversation.  The applicant states that while she attempted to ring Centrelink on that day, she rang the wrong number.  She rang again on the 16th.

8.      The conversation on 13 November, which is the one recorded by Centrelink, is generally the same subject matter as the one which is alleged to have occurred on 16 November, however, it does not record the full text of the conversation.  In any event, there is no record of any conversation on 16 November 2001.

9. I have been provided with the applicant's historical documents list, which shows all the contacts which Centrelink have recorded with the applicant. There is no reasonable explanation, as far as I can see, that Centrelink ought not to have a record of contact on that day, but it is simply not there, and I cannot speculate why this has occurred. I am satisfied that appropriate efforts have been made to locate any document relating to a conversation on 16 November, but that it does not exist, and therefore the preclusion under section 24A applies.

10.     Ms Clelland also sought a copy of a document generated following contact on 17 December 2002.  Her evidence was that only part of the document has been provided at T16-38, and that there was other conversation which is not recorded.  She stated that there was a conversation at that time, when an officer indicated that a letter from Reverse Garbage had been received.  The applicant's evidence was that she contacted Centrelink on 17 December to query why she had been placed on intensive support following receipt of a letter dated 11 December 2002, and she was told that there had been a letter from Reverse Garbage. She believed that the letter that the officer referred to was instrumental in her being taken off her volunteer program and placed on intensive support.

11.     Centrelink searches have failed to locate any such letter from Reverse Garbage.  The applicant points out that there is a letter with which she has been provided from Reverse Garbage, however it could not be the letter that the officer was referring to on 17 December 2002.  This tends to be supported by the fact that, according to Ms Wallis-Dunn, that letter was not received by Centrelink until the 19th.  In any event, Centrelink have done extensive searches and have failed to locate any letter from Reverse Garbage, other than the one which has been provided.

12. Again I am satisfied that all reasonable steps have been taken and the document was either in the agency's possession and cannot be located, or that it simply did not exist. I have reached that conclusion by examining the notations in all the section 37 documents, which set out the steps that have been taken to try and provide the information which Ms Clelland has requested.

13. I accept that this is a frustrating result for the applicant. However, on the evidence before me, I am satisfied that the respondent's decision was correct in its utilisation of section 24A of the Act, and accordingly, I affirm the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         .......................................................................................
  Associate

Date of Hearing  18 December 2003
Date of Oral Decision                18 December 2003
Date of Written Reasons          13 January 2004

The Applicant appeared in person
For the Respondent                  Ms Wallis-Dunn, Departmental Advocate