Duncan and Chief Executive Officer, Centrelink

[2006] AATA 608

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 608

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/413

GENERAL ADMINISTRATIVE  DIVISION		)
Re		IAN DUNCAN

Applicant

And CHIEF EXECUTIVE OFFICER, CENTRELINK

Respondent

DECISION

Tribunal Senior Member Penglis

Date7 July 2006

PlacePerth

Decision The Tribunal affirms the decision under review.

.......(Sgd S Penglis)............

Senior Member

CATCHWORDS

Freedom of Information – whether the respondent failed to provide specified documents – no evidence that the documents exist – turns on its own facts.

Legislation

Freedom of Information Act, 1982 (Commonwealth) ss 11, 15 and 56(1)

REASONS FOR DECISION

7 July 2006 Senior Member Penglis     

1. By letter dated 10 September 2002, the applicant made a request pursuant to s 15 of the Freedom of Information Act, 1982 (Act) for documents referred to in numerous numbered paragraphs.

2.      By the time the application came on for hearing, the scope of the dispute had been limited to one category of documents, namely:-

“All documents in relation to the request, approval, and actual date of removal of my personnel file from Centrelink”.

3.      No notice of decision had been provided by the respondent to the applicant within the time prescribed in the Act.  Accordingly, by s 56(1) of the Act, the respondent is deemed to have made a decision refusing to grant access.

4.      It was common cause before the Tribunal that, at some date prior to May 2000, the applicant’s “personnel file” was provided by the respondent to Phillips Fox, solicitors representing Comcare in other proceedings before this Tribunal commenced by Mr Duncan.  It is that “removal” of the applicant’s personnel file from the respondent to the solicitors for Comcare to which the applicant’s request relates.

5.      In opposition to the application, Ms Evlyn Dorothy Greif gave evidence that she had

“made a thorough search of Mr Duncan’s files and have been unable to locate any document which records any ‘request, approval, and actual date of removal’ of Mr Duncan’s personnel file’”.

6.      Ms Greif was cross-examined by the applicant at the hearing of the application.  Ms Greif said she had inspected over 32 files (including “litigation files”) that related to the applicant.  Ms Greif said that, having looked through those files, she was unable to find any documents which met the request.

7.      There was no evidence before the Tribunal as to why the Tribunal ought not accept Ms Greif’s evidence, nor did the applicant suggest otherwise.

8.      During the applicant’s cross-examination of Ms Greif, it became apparent that there existed an electronic record of who within Centrelink from time to time accessed any “customer” file, including files relating to the applicant.  The applicant contended that such records may well indicate a request or approval for the removal of the applicant’s personnel file from Centrelink, or the actual date of such removal.  Ms Greif had not consulted those records for the purpose of preparing her evidence.

9.      The Tribunal therefore directed that the respondent, within 7 days, file an affidavit that the electronic record had been reviewed and stating whether that record falls within the terms of the request.  In so doing, the Tribunal made it clear to the parties that:

(a)in the absence of any further evidence, the Tribunal would confirm the decision under review, there being no evidence upon which the Tribunal could conclude that there exists documents that fall within the terms of the request;

(b)if the affidavit filed on behalf of the respondent pursuant to the Tribunal’s direction disclosed a document falling within the terms of the request, then the Tribunal would list the application for further hearing.

10.     In accordance with the Tribunal’s direction, the respondent caused to be prepared and filed an Affidavit of Mark Meacham.  Mr Meacham deposed to the fact that he is an employee of Centrelink and has held the position of Privacy Officer since October 2003.  Mr Meacham deposed that “on 26 June, 2006 I accessed Centrelink’s electronic records, known as Customer Record Access Monitoring (CRAM), in relation to the applicant, Ian Duncan, in respect of the period from 1 January 1999 to 31 December 2000.  The CRAM record … contains nothing in relation to any request, approval and actual date of removal of the applicant’s personnel file from Centrelink”.

11.     The evidence before the Tribunal therefore does not suggest (let alone establish) the existence of any document falling within the terms of the request.  It follows that the decision under review ought to be confirmed, and the Tribunal does so. 

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Penglis

Signed:         ..........(Sgd S da Motta)....................................
  Associate

Date of Hearing  26 June 12006
Date of Decision  7 July 2006
Representative for the Applicant      Self-represented

Solicitor for the Respondent              Mr P Corbould

Australian Government Solicitor