Coe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 699

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2008] AATA 699

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/829

GENERAL ADMINISTRATIVE DIVISION		)
Re		EVA COE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

INTERLOCUTORY DECISION

Tribunal Ms N Isenberg, Senior Member

Date11 August 2008 

PlaceSydney

Decision The decision of the Tribunal is that the documents that are subject to the Freedom of Information request, with the exception of Documents 41, 47 and 49, are exempt from production.

...................[Sgd]...........................

Ms N Isenberg
  Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – request for access – interlocutory consideration of whether certain documents are relevant

Freedom of Information Act 1982 – sections 11 and 22

Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900

Attorney-General’s Department v Cockroft (1986) 10 FCR 180; (1986) 64 ALR 97

Bui and Department of Foreign Affairs and Trade [2005] AATA 97

Gersten and Australian Federal Police [1999] AATA 819

Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683

Re Swiss Aluminium Australia Limited and Department of Trade of the Commonwealth of Australia and ors (AAT 2487, 20 December 1985)

REASONS FOR DECISION

11 August 2008	Ms N Isenberg, Senior Member
BACKGROUND

1.             By application dated 6 May 2005, Ms Coe made a Freedom of Information (“FOI”) request to access:

All documents relating to native title concerning Ngunnawal area including funding, either direct or indirect, in relation to native title in the Australian Capital Territory.

2.             Pursuant to this request, many documents were provided to Ms Coe.  However, the Respondent claims, under the Freedom of Information Act1982 (“FOI Act”), that the remaining documents are exempt from production on various grounds.

3.             The Respondent has also acknowledged that there were other documents, but they were irrelevant to Ms Coe’s application.  As Ms Coe is presently unrepresented, it is perhaps understandable that she was perplexed that her attention had been drawn to the existence of documents which the Respondent claims not to be relevant to her application.  She is sceptical that the documents are indeed irrelevant. 

4.             Numerous conferences and telephone directions hearings have been held with a view to managing the large number of documents for consideration by the Tribunal.  There has been some success in this regard. 

5.             The telephone directions hearing that was held on 27 June 2008 resulted with Ms Coe participating only for a very short time.  At my suggestion, the Respondent agreed, as a way forward, to release to Ms Coe the irrelevant documents which were considered by the Respondent to be innocuous.  I was informed that the remaining documents that the Respondent considers to be irrelevant will not be released because they mostly contain information about the affairs of persons other than Ms Coe.  Again with a view to reducing the number of documents for ultimate consideration by the Tribunal, I directed that the Respondent provide a schedule of those remaining irrelevant documents which it is not prepared to release.  The schedule is annexed hereto.

eva coe and department of families, housing, community services and indigenous affairs (AAT matter no. N2005/829)

documents respondent maintains are not relevant to the applicant's request as at 22nd july 2008

Doc No	File	Folio	Date	Author	Addressee	Description
1	97/2947	2	undated	Dean Bell (Ngunawal Elders)	Lois O’Donohue	Letter requesting a meeting with Aboriginal and Torres Strait Islander Commission (ATSIC) on behalf of the Ngunwal Elders
5	97/2947	10-12	7 Feb 96	Aden Ridgeway NSW Aboriginal Land Council	Dean Bell	Letter in response to Mr Bell regarding the Onerwal and Ngunnawal Local Aboriginal Land Councils.
18	97/2947	64	Jul 07	Bill Miller	Peter McMahon	Note requesting Mr McMahon attend a meeting in place of Mr Miller.
21	97/2947	68	undated	Minister	Noureddine Bouhafs	Letter regarding public accountability of the Aboriginal Corporation for Sporting and Recreational Activities.
23	97/2947	70-714	undated	Minister	Patricia Turner	Letter regarding funds provided to Aboriginal corporations by ATSIC.
25	97/2947	73-76	undated	Minister	R.E Huddleston	Letter relating to Aboriginal community organisations operating in the Australian Capital Territory (ACT).
27	97/2947	78-79	26 Feb 93	Richard Trevena	File note of conversation regarding the Queanbeyan Aboriginal Corporation.
28	97/2947	80-81	Jan 93	R.E Huddleston	Regional Manager, ATSIC	Letter regarding the selection of a consultant.
29	97/2947	82-83	1 Mar 93	Richard Trevena	CEO, Canberra, cc OEA	Letter relating to Queanbeyan Aboriginal Corporation.
30	97/2947	84-85	18 Feb 93	Bill Miller	R.E Huddleston	Letter relating to selection of consultant.
31	97/2947	86-87	18 Jan 93	R.E Huddleston	Bill Miller	Letter relating to selection of consultant.
32	97/2947	88-89	24 Dec 92	Michael O’Ryan	Colin Williams	Letter relating to selection of consultant.
40	97/2947	101	28 Apr 94	Rosemary Follett	R Huddleston	Letter relating to grants made by ATSIC.
41	97/2947	102-103	Mar 94	Bob Huddleston	Chief Minister	Letter relating to Mullingarri Corporation.
42	97/2947	104-105	19 Sep 96	Gary Humphries	Bob Huddleston	Letter relating to Mullingarri Corporation.
43	97/2947	106	27 Aug 96	Kate Carnell	R.E Huddleston	Letter relating to Mullingarri Corporation.
44	97/2947	107-108	23 Aug 96	Bob Huddleston	Chief Minister, ACT	Letter relating to Mullingarri Corporation.
45	97/2947	109	N/A	N/A	N/A	Table of contents for attachments to document 47.
47	97/2947	110-116	30 Jun 97	R.E Huddleston	Minister for Aboriginal Affairs	Letter regarding several aboriginal organisations.
49	97/2947	118-123	27 Aug 97	Director of OEA	Minister	Ministerial brief on matters raised in document 47.
72	99/63	27-28	undated	Dean Bell	Brian Stacey	Letter (attached to document 73). Native title claim for Ngunawal people. Paragraphs on folio 28 deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
85	99/63	62	8 Dec 98	ATSIC	N/A	ATSIC form regarding receipt of correspondence. Contains limited information.
97	99/63	76	22 Dec 98	John Herron Minister	Glenn Rees	Letter relating to Ngunawal Elders. One paragraph referring to a third party deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
98	99/63	77-78	4 Jan 98	Brian Stacey	Don Bell	Letter, part of which relates to appointment of a lawyer. Couple of paragraphs deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
99	99/63	79-81	6 Jan 99	Brian Stacey	Dean Bell	Email discussing arranging a meeting attaching text contained in document 98(Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.).
101	99/63	83	10 Jan 99	Dean Bell Ngunawal Elders	Brian Stacey	Letter discussing issues of concern to Ngunawal Elders attached to document 102. One paragraph deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
102	99/63	84	10 Jan 99	claimant	Brian Stacey	Email attaching document 101 setting up a meeting. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
123	99/63	124-127	undated	Chief Minister’s Department	N/A	ACT Aboriginal and Torres Strait Islander Consultative Council Guidelines, attached to document 124.
124	99/63	128	21 Dec 98	Kate Carnell	Robert Blowes	Letter regarding nomination to Consultative Council by Ngun(n)awal people.
125	99/63	129	22 Jan 99	Robert Blowes	Kate Carnell	Letter regarding nomination to Consultative Council by Ngun(n)awal people.
126	99/63	130-131	14 Jan 99	N/A	N/A	Minutes of meeting discussing native title claim. Reference to a third party deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
131	99/63	136-137	4 Jan 98	Copy of document 98 (unsigned). (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
135	99/63	143	2 Feb 99	Peter Schnierer	Brian Stacey	Email discussion of meeting with Bell. Paragraphs relating to irrelevant policy matter deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
141	99/63	149	4 Feb 99	Brian Stacey	Dean Bell	Email organising meeting. Paragraphs referring to third parties deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
362	NAT2001/150	193	30 Mar 01	Peter Kilduff	ATSIC	Statement of barrister’s fees.
368	NAT2001/150	208	9 Apr 01	Wayne Denning	Kathrin Jensen	Emails discussing availability for attendance at a meeting.
371	NAT2001/150	215-216	11 Apr 01	Wayne Denning	Brian Stacey	Email attaching a brief. No information provided as to the substance of the brief.
374	NAT2001/150	221	12 Apr 01	ATSIC	N/A	Same document at 371.
379	NAT2001/248	12-13	23 Apr 01	Brian Stacey	ATSIC	Email attaching document. No information as to the substance of the document.
460	NAT2001/248	178	Record of budget for native title program. Unrelated expenses deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
461	NAT2001/248	179-189	Record of budget for native title program. Unrelated expenses deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
488	BNAT0002/0005	20	4 Jun 01	Don Bell	ATSIC	FOI Application.
489	BNAT0002/0005	21	4 Jun 01	Don Bell	Sue Bond ATSIC	Letter relating to an FOI application.
490	BNAT0002/0005	22-23	1 Aug 01	Sue Bond	Brian Stacey	Internal ATSIC letter concerning FOI application..
491	BNAT0002/0005	24	1 Aug 01	Sue Bond	Brian Stacey	Fax coversheet on FOI Application with only brief message.
492	BNAT0002/0005	25	4 Sep 01	Kathrin Jensen	Brian Stacey	Internal ATSIC fax asking for advice on FOI application
505	BNAT0002/0005	44	6 Sep 01	Kathrin Jensen	Wayne Denning	Email regarding handling of FOI request.
562	BNAT0002/0005	120	26 Oct 01	ATSIC	N/A	Coversheet for incoming correspondence. No information on substance of correspondence.
567	BNAT0002/0005	127	30 Oct 01	Consultant	Kathrin Jensen	Email providing email contact details only.
640	BNAT0002/0005	237-241	31 Jul 02	ATSIC	Minister	Draft brief of document 643. Internal department briefing to Minister containing policy discussions. Two paragraphs referring to an unrelated matter have been deleted.
645	BNAT0002/0005	249	23 Sep 02	Sue Bond	Kathrin Jensen	Email referring to an FOI request.
649	BNAT0002/0005	256	25 Sep 02	Wayne Denning	Bob Hall	Email regarding Bells’ concerns. A paragraph and references to names deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
651	BNAT0002/0005	258-259	5 Dec	Kathrin Jensen	Sue Bond	Email referring to an FOI request.
652	BNT2003/10	2	12 Dec 02	Wayne Denning	Kathrin Jensen	Email. Request for briefing for a Minister’s meeting. No information as to the subject matter of the meeting.
653	BNT2003/10	3	20 Dec02	Kathrin Jensen	Sue Bond	Email regarding an FOI request.
655(b)	BNT2003/10	20	19 Dec 02	Deanna Shiels	Bronwyn Ireland-Bell	Email. One paragraph deleted.
696 (e)	BNT2003/10	111	30 May 03	ATSIC	Authorisation form titled “Ngunawal claim in New South Wales”. No other information about what is being authorised.
704	BNT2003/10	139a	12 Jun 03	Various	Various	Email. Irrelevant few words deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
705	BNT2003/10	140-141	20 Jun 03	Paul Hayes	Brett Binstead	Letter. One paragraph referring to a third party is deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
707	BNT2003/10	143	7 Jul 03	Brian Stacey	Various	Email. Sentence referring to an unrelated matter is deleted. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)
708	BNT2003/10	144	N/A	ATSIS	N/A	Pro forma letter. Very brief.
724	BNT2003/10	168	31 Jan 06	Paul Hayes	Ruth/Don Bell	Fax cover sheet. Only has contact details on it.
728	BNT2003/10	176	20 Jan 03	Paul Hayes	Ruth/Don Bell	Fax cover sheet. Only has contact details on it
731(a)	BNT2003/10	181	5 Aug 03	Bronwyn Ireland-Bell	Bronwyn Ireland-Bell	Email attaching documents. No information as to the substance of the documents.
736	BNT2003/10	197	28 Aug 03	Ros Kenway	Brian Stacey	Email attaching meeting note. No information as to the substance of the meeting note.
737 (a)	BNT2003/10	201	28 Aug 03	Brian Stacey	Ministerials Completed	Email attaching brief. No information as to the substance of the brief.
768	BNT2003/10	280-294	29 Jul 02	ATSIS	N/A	Schedule of documents (attached to document 769).
769	BNT2003/10	295-296	various	Kathrin Jensen	Robert Goodrick	Email regarding an FOI request.
855	BNT2004/161	182	7 May 04	Alistair Sherwin	Kathrin Jensen	Cover sheet for a document
900	BNT2004/162	60-61	22 Feb 05	Rosalind Webb	Joe Kilby	Email. (Irrelevance claim applies to only highlighted portion of document, the rest of the document has been released to the applicant.)

6. With a view to addressing Ms Coe’s concerns, I decided, pursuant to the Tribunal’s broad powers under section 33 of the Administrative Appeals Tribunal Act 1975 to determine the most efficient manner in which a matter should proceed, that I would conduct an interlocutory hearing on the papers to ascertain whether the documents are irrelevant, as contended by the Respondent. The claim for exemption in respect of the remaining relevant documents will be considered when the substantive matter is heard.

LEGISLATIVE FRAMEWORK

7. Section 22(1) of the FOI Act provides that :

Where:

(a)    an agency or Minister decides:

(i)not to grant a request for access to a document on the ground that it is an exempt document; or

(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b)    it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i)would not be an exempt document; and

(ii)would not disclose such information; and

(c)    it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

8. Therefore, pursuant to section 22(1), if all irrelevant material of a document is removed such that the document is left meaningless, then it would not be reasonably practicable to do so, and the document would be considered to be an exempt document.

ISSUE

9.             The question for the Tribunal at this point is: having regard to the terms of the request and the context in which it is made, is it reasonable to regard the identified material as irrelevant to Ms Coe’s request?

10.           In formulating this question, I noted Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683, to which I was referred by the Respondent. There the Tribunal was guided, in its interpretation of the words in section 22(1)(a)(ii) of the FOI Act, “reasonably be regarded as irrelevant to (the) request”, by Federal Court decisions on the interpretation of the similar expression “reasonably be expected to” in sections 37 and 43 of the FOI Act (Attorney-General’s Department v Cockroft (1986) 10 FCR 180; (1986) 64 ALR 97 at [111]-[112]). The question under section 22(1)(a)(ii) is whether the information might “reasonably”, as opposed to “irrationally or absurdly”, be considered or looked on as irrelevant to the request.

CONSIDERATION

11.           In so far as documents fall within the ambit of an applicant's request, an applicant is entitled to access them except if the documents are to deemed to be exempt:  Re Swiss Aluminium Australia Limited and Department of Trade of the Commonwealth of Australia and ors (AAT 2487, 20 December 1985). This necessitates consideration of the request, however, Ms Coe’s reasons for seeking access or the Respondent’s belief as to what her reasons might be, are irrelevant: section 11(2) of the FOI Act.

12.           Ms Coe’s request was in broad terms.  A request is not to be read narrowly, but has to have some focus in order to determine what documents fall within its scope.  This is particularly important when an applicant alleges that documents, other than those produced, do exist and fall within the terms of the request: Gersten and Australian Federal Police [1999] AATA 819. It is not altogether clear if the request is to encompass funding to the Ngunnawal people generally or funding in respect of native title claims by the Ngunnawal people. Bearing in mind that Ms Coe is unrepresented, and in the absence of clarification by Ms Coe, I have taken the broader view.

Whole documents

13.            The Respondent claims that a number of documents are irrelevant to the request in their entirety: 1, 5, 18, 21, 23, 25, 27-32, 40-45, 47, 49, 85, 102, 123-125, 362, 368, 371, 374, 379, 488-492, 505, 562, 567, 645, 651-653, 696(e), 708, 724, 728, 731(a), 736, 737(a), 768, 769, 855.

14.           It is clear to me from reading the documents claimed to be irrelevant to the request that some relate to matters other than those falling within the scope of the request: 1, 5, 18, 21, 23, 25, 27-32, 40, 42-45, 85, 102, 123-125, 362, 368, 371, 374, 379, 488-492, 505, 562, 567, 645, 651-653, 696(e), 708, 724, 728, 731(a), 736, 737(a), 768, 769, 855.

15.           It is therefore reasonable to regard those documents as irrelevant to Ms Coe’s request and they are exempt from production.  In respect of the remaining documents:

·Document 41, while a letter primarily relating to Mullingarri Corporation, also includes reference to a grant in respect of the Ngunnawal people, and to that extent is relevant to the application.

·Document 47 is a letter regarding several aboriginal organisations, including funding to a Ngunnawal group, and to that extent is relevant. 

·Document 49 is a Ministerial brief on matters raised in document 47, and to the extent that it refers to the Ngunnawal people, is relevant.

Partial documents

16.           The Respondent also claims that a number of documents are irrelevant to the request in part only: 72, 97-99, 101, 126, 131, 135, 141, 460, 461, 640, 649, 655(b), 704, 705, 707, 900.

17.           For clarity, it should be noted that all those documents have already been provided to Ms Coe, with deletions as to portions which the Respondent considered irrelevant.  It is now for me to consider if those deleted portions are relevant or not.

18.           Having reviewed the documents I agree that the marked portions of all the documents are irrelevant to the application.  In fact, it was hard to see in respect of some of the documents how any of the documents were relevant, but the Respondent does not make a contention to that effect, only in respect of the identified portions. 

CONCLUSION

19.           Having come to the view that the majority of the documents I have considered are exempt from production because they are irrelevant to Ms Coe’s FOI request, Ms Coe may obtain some comfort from the following statement in the Tribunal’s decision in Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900:

… the mere existence of a document in a file does not necessarily permit an inference that the document is relevantly or appropriately located in that file, or is concerned with the subject of the file.  It may be, but sometimes the existence of a document in a file cannot easily be understood.  The reason for a document being placed on a file is not always transparent, and may include an honest mistake or an inadvertent error as much as a deliberate purpose, but the absence of transparency in such matters is not solid ground for an imputation of conspiracy. Ignorance and absence of care should not too readily be interpreted as intent, and the temptation to construct conspiracy on such grounds should be resisted in the absence of other evidence.

20.           I observe too, that as in Bui and Department of Foreign Affairs and Trade [2005] AATA 97, the approach that the Respondent has taken to Ms Coe’s request, indicates a desire to assist rather than restrict access to information available. As I have mentioned, the Respondent has already released many documents to Ms Coe.

21.           I am satisfied that, with 3 exceptions, the documents (or parts of documents) are exempt from production on the basis that they are not within the scope of her application.  It follows that any claim for exemption on a basis other than relevance in respect of Documents 41, 47 and 49 will be considered when the substantive matter is heard.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         ...................[Sgd].................................
  Ms R Prasad, Associate

Date of Hearing            Decided on the papers
Date of Decision                   11 August 2008
Representative for the Applicant              Self-represented

Representative for the Respondent          Mr Hyland, Australian Government Solicitors