Dimovski and Centrelink

[2006] AATA 1003

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1003

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/661

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEVE DIMOVSKI

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Senior Member R Hunt, Member D Connolly

Date24 November 2006

PlaceSydney

Decision The decision under review is tribunal affirmed.

[SGD]

R. Hunt
  (Senior Member)

CATCHWORDS

FREEDOM OF INFORMATION – request for access to documents – release of documents – all reasonable steps taken to find documents - no further documents held – decision affirmed

Freedom of Information Act 1982 ss 3, 4, 24A

Re Cristovao and DSS (1988) 53 ALD 138

REASONS FOR DECISION

24 November 2006	Senior Member R Hunt Member D Connolly
The application’s history

1.      Mr Dimovski  lodged a request under the Freedom of Information Act 1982 (the FOI Act) on 9 March 2006 seeking access to all files, documents and papers Centrelink held relating to his compensation claims with the State Rail Authority and the Rail Services Authority for the period covered by June 1995 to 5 March 2006.

2. On 21 March 2006, a Freedom of Information Officer from Centrelink made a decision to release 82 folios in full to Mr Dimovski under the FOI Act. A letter accompanying the release advised that folios 1 to 59 were copies of all documents held on his paper file, folios 60 to 65 were electronic records of all overpayments raised in relation to him, folios 66 to 71 were electronic records of all medical certificates held on the Centrelink database and folios 72 to 82 were printouts of all potentially relevant electronically recorded file notes.

3. Although the various Centrelink decisions read as though they were refusals to supply some documents, Centrelink claimed the officers had found no other documents beyond those produced to Mr Dimovski. The form of words involving “refusal” arises out of the terminology used in s 24A of the Act. The section reads:

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.

4.      Mr Dimovski sought review of the decision on 3 April 2005 on the basis that he believed there were more documents that he had not received. Records before us show Centrelink made a further search but found no further documents. Centrelink informed Mr Dimovski by letter dated 13 April 2005 that a search had discovered no further documents. After this investigation and correspondence, an internal review officer confirmed the original decision on 24 May 2005.  Again, although the decision read as though it was a refusal to supply some documents, in fact, further searches found there were no further documents.

The Issue

5. Mr Dimovski sought review by this tribunal of the Freedom of Information officer’s decision to refuse access to a compensation file under s 24 of the FOI Act. At the hearing Mr Dimovski represented himself and told the tribunal that he believed that he had not been provided with the whole of his file or with an accurate file. He believed that sections of his file were missing. He could point to no evidence in support of this assertion.

6.      Mr Dimovski’s concerns related to a debt raised by Centrelink against him as a result of a compensation payout but he told us he mainly wished to locate any documents about his several compensation claims. He had no argument with Centrelink’s decisions but wanted to see what had gone on behind the scenes. He gave evidence to the effect that he thought the Centrelink files would have letters and information from parties involved in his claims and litigation processes. He did not want to contest the accuracy of Centrelink’s calculation of the debt nor did he want to contest any debt decision. His application for review is simply expressed in his application form as concerning the FOI decision and he gave evidence that his only concern was that there should be more documents held.

7. The only issue for us to determine is whether Centrelink can do anything more to comply with its obligations under the FOI Act.

CONSIDERATION

8. A “document” under the FOI Act is defined to include a broad range of materials and not just papers. The term includes, among other things, any material on which there is writing, maps, copies and reproductions, and any articles from which sounds and images are capable of being reproduced and, importantly in Mr Dimovski’s case, any article on which information has been restored or recorded, either mechanically or electronically.

9. Under the Act, a member of the public is entitled to access information and in some instances to seek amendment of records. The objects of the Act are set out in s 3 of the Act as follows:

(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.

(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”

10.     We have before us letters from Centrelink to Mr Dimovski regarding his file and the efforts made to provide him with everything available. We are satisfied that officers who made the various “refusal” decisions granted Mr Dimovski access to his entire file after making fruitless searches to find other documents. Mr Dimovski tendered 3 bundles of documents from Centrelink and we also have the T. documents and annexures to Centrelink’s updated statement of facts and contentions with annexures, including 2 affidavits made by officers who searched for Mr Dimovski’s documents and correspondence that was not in the T. documents originally lodged with the tribunal.

11.     As the officers understood Mr Dimovski’s requests, according to written responses, he particularly sought a paper file. Two team leaders of Centrelink’s NSW compensation team made separate searches to try to locate such documents. These efforts turned up nothing new. The officers who made these extra searches have made sworn affidavits that they were unable to find any more documents. One of the officers also gave sworn evidence by telephone explaining what she believed had occurred to records involving Mr Dimovski.

12.     The Centrelink officer told us what various abbreviations and acronyms used on the computer printouts before us meant. This greatly assisted our understanding of the course of Mr Dimovski’s history with Centerlink and the records kept. She agreed that historical references on computer printouts to batches of documents suggested some additional documents may have existed.  She believed, however, that they had been sent to storage and later destroyed in the usual way, that is, after a period of 6 to 18 months.

13.     The officer confirmed that most of the documents released to Mr Dimovski were kept on-line. These documents recorded conversations and estimates related to his compensation claims and noted the potential effect on Mr Dimovski’s Centrelink entitlements. The officer also gave evidence that her section kept any paper records for 6 months and then sent them to the records management section. Some of the documents about which the officer gave evidence were referred to as “batches”. She explained that these batches did contain paper documents but that they were no longer held in her section and had been sent away for storage and would have been destroyed after a period. She had no personal knowledge about how long records were stored after she dispatched them for storage or archiving. She was aware that another officer had made a search of the archived material and that nothing further was now held in relation to Mr Dimovski. The second officer, who had made a search for a local paper file and batch stored documents for Mr Dimovski also furnished an affidavit setting out her efforts to locate any documents and her opinion that there were no other locations that could reasonably be expected to hold documents.

14.     Mr Dimovski said he thought that organisations were required to keep records for 5 years. Certainly, some records are required by law to be retained for a lengthy period, for instance, tax records. However, there are less onerous requirements for some government agencies who deal with large quantities of material.

15.     Counsel for Centrelink tendered a copy of a notice of the authorisation from the Records Disposal Authority (RDA) for Australian archives issued on 6 January 1998. The purpose of this notice is recited and concerns disposal of Commonwealth records. The authority covers records controlled by the Commonwealth Services Delivery Agency. It authorises disposal according to a table of retention periods for different types of records. According to this authorisation, for example, disability panel documents are destroyed 2 years after action is completed. “Batch-stored” documents of various kinds are destroyed after 2 or 3 years. Most are destroyed after 2 years as set out at paragraph 1.8 of the table.

16.     Mr Dimovski’s documents, possibly held by Centrelink in the past, have apparently been destroyed according to this authorisation. We have before us references in the T. documents to “batch” documents but they have not been discovered and retrieved by Centrelink officers who have tried to accede to Mr Dimovski’s request. While we have no details of actual destruction dates we do have the advice that no documents exist other than those produced to Mr Dimovski. There is no other reasonable explanation for documents missing, presuming such existed in the first place. Counsel for Centrelink explained that they could not keep all paper documents in storage past the authorised disposal periods because of the huge amount of paperwork that would otherwise have to be stored.

Findings

17.     We are satisfied that Centrelink has complied with its obligations under the Act.  It has made reasonable efforts to locate any documents held. We have no reason to doubt the honesty and accuracy of sworn statements made by officers of Centrelink who say the entire file available at Centrelink has been provided to Mr Dimovski and there is nothing else to provide.  The documents made available to Mr Dimovski are the only documents in the possession of Centrelink. 

18.     The Act requires the agency or Minister to whom the FOI application is made to take all reasonable steps to find the document requested before refusing access under s 24A of the Act. What are reasonable steps was considered in Re Cristovao and DSS (1988) 53 ALD 138. Deputy President McDonald suggested in that case what course would constitute reasonable steps. He considered it was necessary that the agency try to find the documents and to ascertain that they could not be found or did not exist. We agree with the Deputy President that this is what should occur. In our opinion, Centrelink has met this standard. Officers made thorough efforts to find any documents including any paper file for Mr Dimovski, have ascertained what documents can be found, and have forwarded those to him. Those officers who dealt with his case initially and on internal review decided, as a result of several searches by different experienced officers, including team leaders, that no other documents exist. This has been an eminently reasonable according to the evidence before us.

19.     We are satisfied that Centrelink has complied with its obligations under the Act, and that the entire file remaining with Centrelink has been provided to Mr Dimovski although there may have been some earlier records that have not been retained. Mr Dimovski can point to no specific inaccuracies and cannot give any clear account of what he believes to be missing. He has some expectation that there may have been more letters from his former employer or organisations involved in his compensation claims such as Medibank and insurance companies. However, Centrelink can do no more to help him. In the circumstances, we affirm the decision under review.

DECISION

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of  Senior Member Robin Hunt

Signed:   Rhonda Pietrini     Associate

Dates of Hearing: 20 November 2006
Date of Decision: 24 November 2006       
Solicitor for the Applicant: N/A – applicant self-represented
Solicitor for the Respondent: James Larcombe