Duley and Secretary, Department of Human Services (Freedom of information)

[2015] AATA 816

Duley and Secretary, Department of Human Services (Freedom of information) [2015] AATA 816 (30 September 2015)

Division	GENERAL DIVISION
File number	2014/4633
Colin Duley
APPLICANT
And	Secretary, Department of Human Services
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	30 September 2015
Date of written reasons	21 October 2015
Place	Perth

The decision of the Secretary, Department of Human Services on 16 December 2013 is affirmed

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James Popple, Senior Member

CATCHWORDS

FREEDOM OF INFORMATION — whether all reasonable steps taken to find documents — Department discovered and disclosed documents subsequent to initial decision — any inadequacy of initial search remedied by subsequent search — decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A(c)

Freedom of Information Act 1982, ss 15, 58A, 61(1)(b)

REASONS FOR DECISION

Dr James Popple, Senior Member

21 October 2015

1. On 30 September 2015, I conducted a hearing in this matter. I gave my decision, and my reasons, orally at that hearing. On 14 October 2015, the applicant requested written reasons for my decision. These are those written reasons. They only differ in substance from the reasons given orally by the addition of this paragraph and [2]–[7] below, and of headings. My reasons have been prepared having regard to the requirement, in s 2A(c) of the Administrative Appeals Tribunal Act 1975, that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.

   Background

2. On 22 October 2013, Mr Colin Duley applied to the Department of Human Services (the Department) under s 15 of the Freedom of Information Act 1982 (the FOI Act) for access to his “complete file” with “[p]articular emphasis” on a specified period of time in 2010.  On 26 November 2013, after correspondence with the Department, Mr Duley narrowed the scope of his request to his “whole paper file, online document recordings and payments … received for the period [22 April 2010 to 31 August 2011]”.

3. On 16 December 2013, the Department granted Mr Duley access to some documents, some of which were edited by the removal of staff identification numbers, surnames and contact details. The Department says that that redacted material is exempt under s 47E(d) of the FOI Act (certain operations of agencies).

4. On 31 January 2014, Mr Duley applied to the Information Commissioner under s 54L of the FOI Act for review of the Department’s decision. On 26 August 2014, the Information Commissioner decided, under s 54W(b), not to undertake that review on the basis that the interests of the administration of the FOI Act made it desirable that the decision be considered by the Tribunal.

5. On 8 September 2014, Mr Duley applied to the Tribunal, under s 57A(1)(b) of the FOI Act, for review of that decision.

6. In December 2014 and in February and June 2015, the Department conducted further searches of its records.  It found some further documents, which it provided to Mr Duley.

7. The decision under review is the Department’s decision on 16 December 2013. Because of s 61(1)(b) of the FOI Act, the Department has the onus of establishing that its decision was justified.

   Did the Department take all reasonable steps to find the documents requested?

8. Section 24A(1) of the FOI Act provides that:

   24A  Requests may be refused if documents cannot be found, do not exist or have not been received

   Document lost or non-existent

   (1)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.

9. This means that an agency or a Minister—in this case the Department—is not obliged to provide documents in response to a request under the FOI Act if it has taken reasonable steps to find those documents and cannot find them.

10. Mr Duley says that the Department has failed to find all of the documents that it has that are within the scope of his request.  He asserts that the Department has not conducted an adequate search of its records.  He says that this is demonstrated by the fact that some documents only came to light after the Department conducted further searches, after he applied to the Tribunal for review.  In support of this argument, he took me to two documents.

11. The first document is dated 26 October 2012.  His request was for documents created from 22 April 2010 to 31 August 2011.  Although the Department has provided this document to Mr Duley, it was not required to do so because the document was not within the scope of his request.  Its discovery in a later search does not cast doubt on the adequacy of the first search.

12. The other document—actually part of a document—to which Mr Duley took me records what the Department calls an “activity”.  An activity is metadata that the Department keeps about information it stores elsewhere in its records.  Having regard to the terms of Mr Duley’s request for documents, I think there is a good argument that the Department ought to have included activities in its first search—the search it conducted before it made its decision on that request.  It did not include activities in that search.  But, it did later.  And when a record of the activity that Mr Duley now points to was found in a subsequent search, the Department provided him with a copy.

13. The failure to find the activity in the first search was due to the Department’s view that activities were not within the scope of Mr Duley’s request.  I do not need to decide whether searching activities was a reasonable step that the Department should have taken before it made its decision, because it later took that step.  The document that Mr Duley took me to had been provided to him by the Department.  So had copies of records of other activities.

14. It would not be appropriate for me to exercise the power that I have, under section 58A of the FOI Act, to require the Department to conduct further searches. I am satisfied that the documents that would have been found in the first search (if that search had included activities) have since been found and provided to Mr Duley. There is no need for further searches. The Department has now taken all reasonable steps to find the documents requested.

    Conclusion

15. The decision under review was to provide Mr Duley with some documents, some of which were edited by the removal of material that the Department says is exempt.  Mr Duley has questioned the adequacy of the Department’s searches.  He does not otherwise contest the Department’s decision.

16. It is arguable that the first search was inadequate, but subsequent searches remedied any inadequacy.  The Department—eventually—took all reasonable steps to find the documents that Mr Duley requested.  I must affirm the Department’s decision.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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Associate

Dated 21 October 2015

Date of hearing	30 September 2015
Applicant	In person
Counsel for the Respondent	Ms Dana Sutton
Solicitors for the Respondent	Legal Services Division, Department of Human Services