Donald Cameron and Secretary, Department of Human Services
[2015] AATA 62
•2 February 2015
[2015] AATA 62
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3364
Re
Donald Cameron
APPLICANT
And
Secretary, Department of Human Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date of decision
Date of reasons2 February 2015
5 February 2015Place Sydney Mr Cameron’s application for review is dismissed under s 42B of the Administrative Appeals Tribunal Act 1975.
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Senior Member J F Toohey
CATCHWORDS – PRACTICE AND PROCEDURE - Freedom of Information – request for information outside the scope of FOI legislation – whether application for review frivolous – whether application should be dismissed –– no utility in application proceeding – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 ss 26, 42B(1)
Freedom of Information Act 1982 ss 4, 11, 15AC, 47E(d), 54W(b)
Cases
Re Filsell and Comcare [2009] AATA 90
Soames and Secretary, Department of Services 2013 [AATA] 945
Soames v Secretary, Department of Social Services [2014] FCA 295
REASONS FOR DECISION
Senior Member J F Toohey
Background
The respondent seeks an order that an application by Mr Donald Cameron for review of a decision by the Department of Human Services (the respondent) be dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 42B (1) provides that the Tribunal may, at any stage of the proceeding, dismiss an application for review if satisfied that it is frivolous or vexatious.
The background to the respondent’s application is as follows.
On 19 November 2013, Mr Cameron sought access under the Freedom of Information Act 1982 (the FOI Act) to documents held by the respondent. He stated he sought:
1.For a clear, concise and comprehensive rationale for the decision made by Centrelink doctors to bypass an authoritative diagnosis of [chronic fatigue syndrome];
2.For an explanation of the letter signed by Glenda Lee and dated 19 September 2012;
3.For a response to the request made by Rob for a One Main Contact Person to be assigned by me;
4.For a written answer to this question: is there a process/mechanism within Centrelink to review a decision made by a doctor from the Health Professionals Advisory Unit and appraise the quality of that decision from a medical perspective? If yes, what is that process/mechanism and how do I contact the people who execute it?
5.For my entire Centrelink file since lodgement of my [disability support pension] application.
It is readily apparent that the first four matters listed by Mr Cameron did not refer to documents already in existence but were requests for explanations or responses to certain matters. The fifth matter was plainly a request for access to documents already in existence.
On 20 January 2014, the time for responding to Mr Cameron’s request (the initial decision period) expired. By s 15AC of the FOI Act, when the respondent had not responded by that date, Mr Cameron’s request was deemed to have been refused.
By letter dated 22 January 2014, an officer of the respondent’s Freedom of Information and Information Release Branch advised Mr Cameron that “as discussed, the FOI Act enables access to records and I will not be addressing the issues raised in points 1-4”. The officer stated that the respondent had identified 733 documents as falling “within the scope of your FOI request” and it was proposed to release all documents subject to the redaction on certain pages of material considered to be exempt under s 47E(d) of the FOI Act. That information comprised the names, telephone numbers and logon IDs of certain members of the respondent’s staff.
Mr Cameron sought review of the respondent’s decision by the Information Commissioner who, exercising the discretion in s 54W(b) of the FOI Act, referred the matter to the Tribunal.
The decision under review
Strictly speaking, the decision reviewable by the Tribunal is the deemed refusal of Mr Cameron’s request on 20 January 2014. That deemed refusal was overtaken in effect by the decision on 22 January 2014 to release Mr Cameron’s file in its entirety save only for the redacted material.
Ordinarily, a decision may not be altered after an application for review is made. However, s 26 of the AAT Act permits such alteration if expressly permitted by the enabling legislation or if the parties to the proceeding and the Tribunal consent.
I am satisfied that all involved in these proceedings consent to the decision under review being set aside and the decision to release documents as set out above substituted for it.
Mr Cameron’s application for review
Mr Cameron filed his application for review on 2 July 2014. He stated his reasons for the application as:
The information is required to resolve the 3 1/2 year issue between Centrelink and me that commenced when a Centrelink doctor overrode an authoritative diagnosis. I was on course to resolve the issue 2 years ago while it was at the AAT until I had to go to London for medical investigations. Multiple, serious systemic problems of Commonwealth government entities are evident in my case and it is in both the public interest and mine that they are addressed, especially Centrelink’s steadfast withholding of crucial information.
Mr Cameron’s grievance is with the respondent’s failure to provide the information he requested in points 1 to 4 in paragraph [3] above. I understand that underlying his request is his grievance with a decision by Centrelink to grant him disability support pension on the basis of a particular medical condition and not his chronic fatigue syndrome.
In the course of the conference process at the Tribunal, it appears that the conference registrar understood Mr Cameron’s application to concern the information redacted from the documents provided to him. If so, it was clear by the directions hearing on 1 December 2014 that was not the case. Mr Cameron stated repeatedly at that hearing that he has no argument with the decision to redact information that might identify the respondent’s staff.
The directions hearing on 1 December 2014
At a directions hearing on 1 December 2014, the following exchange occurred:
SENIOR MEMBER: … what you’re saying, Mr Cameron, is actually you don’t really have a difficulty with the fact that they’ve blocked that information out. Is that right?
MR CAMERON: That’s right, and in fact, technically it’s just been lurking in the background and not even a disagreement because, in order for a disagreement to come into being you have to have tension, you have to say one party says yes and the other party says no. Okay? There was no tension, there was no disagreement.
….
MR CAMERON: Okay? So on a technical about the paper (sic), you know, the actual going through and redacting names and things from documents, I don’t care about that. Okay?
At a later point in the hearing, there were the following exchanges (among others):
SENIOR MEMBER: [Your application] is for review of a decision which you are now telling me you, in fact, you don’t disagree with.
MR CAMERON: Correct … That statement is 100 per cent correct.
and:
SENIOR MEMBER: Because if any person is saying to me they are here before the tribunal to dispute a decision that they no longer dispute there’s no purpose in the matter going on.
MR CAMERON: I can agree with that.
…
… I completely agree with your statement. Okay? And the technicalities of what you said are spot on.
The transcript also shows:
MR CAMERON: I made a number of extremely serious assertions about Centrelink and they have been ignored. This is why we’re here today.
At the conclusion of the directions hearing, counsel for the respondent advised that, given Mr Cameron’s stated position, if he did not wish to withdraw his application, the respondent would seek an order under s 42B(1) dismissing his application as frivolous.
At a hearing on 2 February 2015 to consider the present application, Mr Cameron confirmed again that he has no argument with the decision to redact the information concerning the respondent’s staff. However, he believes, firstly, that the respondent has not disclosed all the documents on his file and, secondly, that he is entitled to documents setting out the respondent’s response to the first four matters in his original request. He describes these as “the outstanding documents”.
Should an order be made under s 42B(1)?
The respondent does not suggest that Mr Cameron’s application for review is vexatious in the sense that word is commonly understood, that is, for the purpose of causing annoyance or aggravation. Rather, the respondent says, it is “frivolous” within the meaning of s 42B because there is no longer a dispute of any substance between the parties, and proceeding to determine the matter would be futile.
In Re Filsell and Comcare [2009] AATA 90, Deputy President Jarvis summarised the principles to be applied when considering an application under s 42B. In relation to a dismissal on the ground that an application is frivolous, he said:
[33]… I think that applications for dismissal under s 42B should be approached according to the following principles.
(a)The word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings …
(b)The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney General and Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success” …
(c)The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparagraphs (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing …
(d)However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
These principles have been applied in Tribunal decisions including Soames and Secretary, Department of Services [2013] AATA 945 and were cited with approval by Justice Flick in Soames v Secretary, Department of Social Services [2014] FCA 295.
The FOI Act creates an enforceable right of access in accordance with the Act to a document of an agency, other than an exempt document: s 11. A document is a document of an agency if it is in the possession of the agency, whether created in the agency or received in the agency, or in certain other cases which do not apply here : s 4. The Act does not create a right to information unless it is in a document of the agency already in existence. There is no obligation on an agency to bring a document into existence in order to meet a request for information.
I am satisfied that Mr Cameron’s application falls within the meaning of frivolous described in Filsell. To allow his application to proceed would serve no purpose. I am satisfied that he has been provided with all the documents in the respondent’s possession which meet the description in his original request. He has no argument with any redactions from those documents. Allowing the matter to proceed will not oblige the respondent to provide what Mr Cameron calls “the outstanding documents”.
It would be open to find that Mr Cameron’s application is vexatious in that, by his own statements, it is for the purpose of agitating grievances with Centrelink which lie well beyond the scope of his FOI application and beyond the power of the Tribunal to adjudicate on. However, I accept that he is well-intentioned and there appears, from the letter referred to below, to be some basis for at least some of his complaints about Centrelink. It is sufficient to find his application frivolous for the purposes of s 42B.
In a letter dated 28 January 2015, Ms Craig, a manager at the Department of Human Services wrote to Mr Cameron in response to a number of letters and telephone calls from him in late 2014 and January 2015. She identified his complaints as: the handling of your complaints; DSP claim and job capacity assessments; review processes; compensation claim; request for one main contact; correspondence sent while overseas; request for meeting; and FOI request. The manager apologised to Mr Cameron for several oversights or lapses in procedures including “the failure to provide you with a response to issues 1 to 4”. Otherwise, she stated, she considered his complaints had now been dealt with, although she acknowledged he might not consider her response satisfactory. Mr Cameron is plainly not satisfied with this response but, other than the FOI request, none are matters that the Tribunal can deal with.
Conclusion
I am satisfied that no purpose can be served by allowing Mr Cameron’s application to proceed. It would be futile to do so. I consider his application to be frivolous, in the legal sense of that word, and dismiss it under s 42B of the AAT Act.
27. I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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AssociateDated 5 January 2015
Date(s) of hearing
2 February 2015
Representatives for the Applicant
Self-represented
Representatives for the Respondent
Ms Alice Linacre, General Counsel, Department of Human Services
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