Ford and Child Support Registrar
[2007] AATA 1242
•23 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1242
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/16
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN PATRICK FORD Applicant
And
CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date23 April 2007
PlaceMelbourne
Decision 1. The decisions made by the respondent as contained in its letters of 2 February 2006 and 29 March 2006 are affirmed.
2. The email of 6 September 2005 which was committed to paper and which was located during the currency of these proceedings is an exempt document and is not be disclosed pursuant to s 37(1)(c) and s 41(1) of the Freedom of Information Act1982.
3. These proceedings are declared frivolous or vexatious pursuant to s 42B of the Administrative Appeals Tribunal Act 1975, the application should be dismissed and IT IS DIRECTED that the applicant must not, without leave of the Tribunal, make any subsequent freedom of information applications to the Tribunal of a kind which concerns H and / or Mr Epstein.
(Sgd) John Handley
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. V2006/16
GENERAL ADMINISTRATIVE DIVISION )Re :JOHN FORD
Applicant
And :CHILD SUPPORT REGISTRAR
Respondent
C O R R I G E N D U M
Tribunal :Mr John Handley, Senior Member
Date :23 April 2007
Place :Melbourne
Pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 I DIRECT BY ORDER –
- The name of the female person (‘the person’) referred to in paragraph 3 of the decision and paragraph 1 of the reasons for decision be prohibited from publication.
- The name of the person wherever it appears within the decision and the reasons for decision shall be deleted – whether identifying her by her first or last name or both – and in substitution the code ‘H’ shall be inserted.
- The decision and reasons for decision in the form delivered on 19 April 2007 shall be:
(i)prohibited from publication; and
(ii)be known only to the legal advisers of the respondent, the applicant and members and staff of the Tribunal and employees of Auscript.
- Parts of the reasons for decision published on 19 April 2007 shall be deleted as follows:
(a)paragraph 15 – the second last sentence commencing with the word ‘The’ and concluding with the name of the person;
(b)paragraph 107 – the first sentence commencing with the word ‘The’ and concluding with the name of the person;
(c)paragraph 111 – part of the second sentence commencing with the word ‘who’ and concluding with the word ‘guilty’.
In lieu of the above words deleted from the reasons for decision there shall be substituted the words ‘deleted by Direction made on 23 April 2007’.
- The evidence before the Tribunal, both oral and documented (including the recording of the oral evidence upon transcript) where the name of the person was spoken or written, shall be prohibited from disclosure except to the persons referred to in paragraph 3(ii) above.
(Sgd) John Handley
Senior Member
FREEDOM OF INFORMATION – request for documents – reasonable steps had been taken to find the documents and they do not exist – work involved in meeting applicant’s request would unreasonably and substantially divert agency resources from its other operations – one document found during currency of these proceedings – in paper form – document is exempt – disclosure could reasonably be expected to endanger the life or physical safety of the author
application for documents for a defined period from two named persons – 12 similar applications lodged previously for different periods – applicant convicted of serious criminal offences against one of the named persons – both persons in fear of the applicant – application has intention to annoy, is obviously untenable or groundless – application found to be vexatious or frivolous – applicant must not without leave make subsequent freedom of information request concerning the two named persons
Freedom of Information Act 1982 (Cth) s 24A and s 24(1) and s 37(1)(c) and s 41(1)
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Attorney-General (Vic) v Wentworth (1998) 14 NSWLR 481
Beesley v Australian Federal Police [2001] FCA 836
Centrelink v Dykstra [2002] FCA 1442
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Duncan v Fayle [2004] FCA 723
Radicic v Australian Postal Corporation (2000) 59 ALD 157
Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138
Re Toomer and Department of Agriculture, Fisheries and Forestry and Others (2003) 78 ALD 645
Theo v Secretary, Department of Family and Community Services [2006] FCA 279
REASONS FOR DECISION
23 April 2007 Mr John Handley, Senior Member 1. On 2 November 2005, the applicant requested documents from the respondent pursuant to the Freedom of Information Act 1982 (the FOI Act). The request for documents was pleaded in the following terms.
My request for access to documents is for all emails and any other correspondence to, from, or between, H (AKA Jenkins/Epstein) and Shaun Epstein, from or to any other person or entity, according to that which I may have access under the Freedom of Information Act. This includes anything deleted or recoverable and for the period 30 August 2005 to 30 November 2005 inclusively.
2. On 12 January 2006, an officer of the respondent wrote to the applicant and advised that his request had been interpreted as being for documents wherein you or your circumstances are mentioned in any way, either explicitly or by reference.
3. The applicant responded to that letter in the following terms:
I concur with your interpretation of my request, and add that it extends to documents that might be read in the context of me or my circumstances, i.e. that which has relevance. The context includes and is not limited to the criminal proceedings, relationships, the workplace, civil debt proceedings, FOI matters and so on. Documents include emails, texted documents or attachments to emails.
4. Additionally, the applicant also expanded or clarified the extent of his initial request for documents by his letter in the following terms:
The qualification of to, from or between also includes to or from any other person or institution, and does not restrict the scope to Epstein and H.
5. The respondent decided by letter of 2 February 2006 to refuse the request under s 24(1) of the FOI Act because meeting the request for documents would substantially and unreasonably divert the resources of the CSA from its other operations.
6. The applicant was also asked to restrict the scope of his request but he refused insisting that his request is intended to seek those documents which have been deleted or recoverable.
7. On 21 March 2006 the respondent again re‑affirmed its intention to refuse the request pursuant to s 24(1) but added that even if the documents sought did exist their retrieval from backup tapes would be a substantial and unreasonable diversion of the CSA’s resources.
8. Additionally, the respondent by its decision of 21 March 2006 refused the request pursuant to s 24A of the FOI Act on the basis that the documents either cannot be found or do not exist. That decision was made after enquiries were made of H and Epstein who advised that they were not holding any documents within the terms of the applicant’s request.
9. In a Statement of Facts and Contentions lodged prior to the commencement of the hearing, a solicitor in the employ of the Australian Government Solicitor, submitted that the application was futile because the documents being sought by the applicant do not exist.
10. At the hearing the applicant was also put on notice by the respondent that it was intended to seek a decision under s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that the current application be dismissed and a Direction that the applicant must not without leave of the Tribunal, make any subsequent application of a kind specified in the Direction because the Tribunal should be satisfied that this application is frivolous or vexatious.
11. In making that application, the respondent was mindful of the previous applications made by the applicant upon the respondent pursuant to the FOI Act.
12. At the date of the hearing of this application, the applicant had made 22 applications upon the respondent for documents. Those applications had resulted in the applicant lodging 18 applications in the Melbourne Registry of this Tribunal between 2004 and 2006. At least 12 of those applications concern documents alleged to be emails either to or from or between the persons H and Epstein or other emails held by them. Additionally, the requests for documents as described, are confined to specific periods which are defined by date or specified for a period of time with a commencing date but without a concluding date.
13. The hearing of this application occurred on 18 December 2006. The applicant was then serving a term of imprisonment and he appeared by video link. The respondent was represented by Ms Campbell of Counsel. At the conclusion of the hearing I indicated to the applicant that I would allow him and the respondent to provide written submissions after each had had access to the Transcript and, insofar as the applicant was concerned, had been provided with a copy of the authorities upon which the respondent relied. I also indicated that the period of time which I would allow for the filing of written submissions would hopefully give him the opportunity to specifically consider the application made by the respondent pursuant to s 42B of the AAT Act.
14. Written submissions have subsequently been lodged by both parties. The following reasons take account of the evidence heard at the hearing, the Statement of Facts and Contentions lodged prior to the hearing, the documents received as evidence (which included sworn affidavits by Jason Butterworth an Information, Communications and Technology Manager employed by the respondent and Lauren Fahey, an Executive Officer also employed by the respondent).
the applicant
15. In recent years the applicant has been a resident of either the Port Philip Prison or the Ararat Prison in Victoria. His incarceration arises out of convictions imposed by the County Court of Victoria following a trial in December 2005 where he was found guilty of a number of very serious criminal offences including rape, threat to kill, stalking, aggravated burglary, false imprisonment, intentionally causing injury and threatening to inflict serious injury. [deleted by Direction made on 23 April 2007]. In May 2006, the applicant was sentenced to a period of imprisonment for eight years and is to serve a minimum of five years.
16. The finding of guilt made by the County Court Jury, the nature of the charges and the sentence are contained within two affidavits lodged prior to the commencement of the hearing by Ms Fahey. In a Statement of Facts and Contentions lodged by the applicant prior to the commencement of the hearing he did not dispute the summary of his history as outlined above but disputed the relevance of that history to these proceedings. I am of the view that that history is relevant and I will return to this later in this decision.
jason butterworth
17. Mr Butterworth affirmed two affidavits on 26 May 2006 and 27 November 2006. Whilst he was aware that this application concerned a request for documents confined to the period 30 August to 30 November 2005, he had previously provided information to Ms Schneider, the authorised FOI officer of the respondent, in relation to three previous applications made for similar documents but for a different period of time (which became the subject of proceedings in this Tribunal by Application V2006/172). The information then provided by Ms Schneider was as a result of information given to her by Mr Butterworth and concerned the cost to which the respondent would be exposed if it was required to process the requests previously made for documents. Whilst the respondent in those applications also maintained its resistance by reliance upon s 24(1) of the FOI Act, it indicated that the technology, infrastructure and hardware – if obtained – would cost $502,012. Additionally, it would require three staff persons at CSO 5 level being occupied full time for six months in examination of individual documents.
18. Mr Butterworth deposed that such a process would initially require collection and collation of 77 backup tapes from the Melbourne and Perth Registries of the respondent which contained 8,250GB of information. That process alone would cost more than $10,000.
19. Whilst the above could be implemented with respect to the current application, Mr Butterworth deposed that the costs and the engagement of staff for the period deposed above would be no different. Accordingly he deposed that the request made by the applicant would substantially and unreasonably divert the resources of the respondent from its other operations.
20. Additionally, Mr Butterworth deposed that in the week prior to 11 October 2005, Mr John Hayden, the Assistant Director of the Forensics and Investigations Unit of the Australian Tax Office, completed searches of electronic data held by the respondent. Mr Butterworth was advised that Mr Hayden searched for documents and emails held in the personal drives of the computers of H and Epstein using the keywords John, Ford and John Patrick Ford. Mr Butterworth was advised by Mr Hayden that no documents using those keywords were located.
21. In evidence, Mr Butterworth adopted the contents of the two affidavits that he lodged. He explained that the provision of three persons to examine the documents if the exercise described earlier were undertaken would be staff of the respondent. It was his understanding that the staff persons would be seconded from the FOI Unit within the respondent agency.
22. Mr Butterworth also said that he was made aware on the morning of the hearing (a Monday) that an email document was located on the previous Friday. He confirmed that the search that had previously been undertaken by Mr Hayden did not locate this particular document. When it was explained to him by Ms Campbell that the document was found in paper format, it was his opinion that at the time the email document had been received, it had been printed and then deleted and then probably by the person who received it.
23. In cross‑examination, Mr Butterworth confirmed that as at the date of the hearing, the backup tapes for both Perth and Melbourne – which were the 77 tapes referred to in the letter of Ms Schneider and his affidavit ‑ would not be relevant to the present application and at the date of the hearing, there were no backup tapes then available which would be relevant to the current request for documents. He said that at the date that the request was made, that is, in November 2005, the tapes then would have been in existence and would have been relevant. He also agreed that by reason of H and Epstein being located in the respondent’s registry in Perth, it was unlikely that backup tapes from Melbourne would be relevant.
24. In relation to the electronic searches undertaken by Mr Hayden, Mr Butterworth said that his enquiries would have been made in the week prior to 11 October 2005. He said those searches would have been conducted on the live infrastructure servers and would have covered the period of September up until 11 October. In those circumstances he agreed that it would not have been possible to search for or locate any documents which might have existed or come into existence after that date. In relation to the document located on the Friday before this hearing commenced, and having learnt that it was dated 6 September 2005, Mr Butterworth said that that document would not necessarily have been located by Mr Hayden if it had been deleted shortly after it was received because it would not have been in the email server long enough to be transferred onto the backup tape. Mr Butterworth explained that when a document is deleted it is then placed in the deleted items folder where it remains until it is then deleted from that folder but once the operator has logged out of the computer the document is removed from the system. Accordingly, the only way that the document of 6 September 2005 could have been identified electronically is for it to have been found in the deleted documents folder on the day that it was placed into that folder and then before the operator logged out from the computer. In the event that a document was captured by a backup tape it would have been retained on that tape for four weeks. Those tapes become monthly tapes and are then archived for a period of three months when they are then erased and re‑used. When the tapes have been erased any data that was on them is no longer recoverable.
25. In summary therefore, if a document did exist but it had been deleted it will no longer exist on the operator’s server after the operator has logged off. It will then be found on a backup tape but only for a period up to three months when the backup tapes are erased.
lauren fahey
26. Ms Fahey is an Executive Officer with the respondent. She affirmed two affidavits dated 26 May 2006 and 28 November 2006 both of which were received into evidence.
27. Ms Fahey deposed that the applicant was employed by the respondent between 23 August 1999 and 7 July 2004. During that time the applicant had a personal relationship with H who was also during that time an employee of the respondent. The applicant’s employment was terminated by the respondent on 7 July 2004 following a code of conduct investigation under the Australian Public Service Regulations. On 23 July 2004, the applicant instituted unfair dismissal proceedings in the Australian Industrial Relations Commission. At the date of the second affidavit, Ms Fahey was of the belief that those proceedings were continuing.
28. With respect to the ambit of the applicant’s request for documents by this application, Ms Fahey deposed that an approach was made to the applicant by Mr Hannemann, an FOI officer on 2 February 2006. The approach was to request Mr Ford reduce the scope of his application to make searching easier and to reduce costs. The suggestion made was that a snapshot be made of the data, if any, contained within the computers of H and Epstein at a given date. It was alleged that the applicant did not reduce the scope of his request.
29. Ms Fahey deposed that emails are stored in an electronic format in an employee’s Outlook application or H drive or may be printed and stored in paper form. Searches for such documents were initiated by Mr Hannemann, because of the requests made by the applicant, by an email directed to H and Epstein on 20 January 2006. The email from Mr Hannemann (excluding formal parts) asked whether . . . you are in possession of any documents including, but not limited to stored emails, in which Mr Ford or his circumstances are mentioned in any way either explicitly or by inference. . . . This request is limited to any documents that are held in the workplace or stored on your work computer. By return email of the same date, H and Epstein advised that they did not hold any such documents. (Copies of the emails from Mr Hannemann and the responses from H and Epstein are annexed to the second affidavit of Ms Fahey).
30. In her second affidavit, Ms Fahey acknowledged that the request made by Mr Hannemann did not specify a timeframe but it was her belief that the request was implicit that H and Epstein should search for all documents held at the time of the request by Mr Hannemann which would of necessity cover the period of the applicant’s request. I believe that it is clear from H and Mr Epstein’s responses as at attachment C that they did not have any relevant documents at all.
31. Ms Fahey also deposed that by reason of further applications made by the applicant in February and March 2006, another officer of the respondent approached H and Epstein and enquired whether they held any documents as described previously. By email response of 2 May 2006, both H and Epstein replied that they did not hold any such documents. The requests made of them and their responses are found at annexure D to the second affidavit of Ms Fahey. An email written by H to another person where the applicant’s name is mentioned, but in the context of civil proceedings was identified and made available to the respondent’s officers. That document is also at annexure D. The emails to and from H and Epstein referred to in these reasons and found at annexure C and D of the second affidavit of Ms Fahey have been released to the applicant.
32. In her second affidavit, Ms Fahey referred to the searches previously made by Mr Hayden. She deposed that any electronic search between 11 October 2005 and 30 November 2005 would be most unlikely to find any relevant documents. She adopted the advice given to and offered by Mr Butterworth in his previous affidavits that back up tapes relevant to this request cannot be recovered, that quarantined tapes from the Perth server were not relevant to this request because they were outside the date range specified and quarantined tapes from the Melbourne server would only be relevant if they contained documents sent by email by H or Epstein from the respondent’s office in Perth to the respondent’s office in Melbourne or emails sent by other persons in the Melbourne office of the respondent to H and Epstein in the Perth office of the respondent. It was her belief that by reason of the responses given by H and Epstein to the emails referred to earlier (annexures C and D to the second affidavit) that it was unlikely that the quarantined tapes for the Melbourne office would contain any relevant documents.
33. Additionally, Ms Fahey deposed in her second affidavit that the respondent has adopted a policy published by the Australian Taxation Office (the ATO) with respect to the use of its email network. The policy is described as Practice Statement PS CM 2000/04 – Corporate Management; Proper Use of ICT Facilities. (The policy statement is annexure A to the second affidavit). Ms Fahey deposed that the respondent was previously part of the ATO and continues to use its information and communication technology infrastructure. The policy permits employees to use the respondent’s email system for limited personal use and the respondent agrees that any printed email becomes the property of the employee and the employer (the respondent) makes no claim to possess the document when printed.
34. The conclusion of Ms Fahey’s second affidavit referred to the history of the applicant’s claims upon the respondent pursuant to the FOI legislation. She identified each application by date and by AAT file number. She also referred to the limited financial and personnel resources available to the CSA, particularly in its FOI office. This material will be referred to later in these reasons.
35. In evidence, Ms Fahey said that there were approximately 600 persons employed in the Melbourne office of the respondent but there was one FOI officer only. She agreed with the evidence of Mr Butterworth that any inspection of back up tapes quarantined by the IT section would occupy three persons for up to six months and that those persons would need to be employees of the respondent drawn from other areas and funded by the FOI resources. By reason of the FOI officer also being engaged in any such inspection, another person would need to be recruited to undertake her work.
36. Ms Fahey said that in March 2006 she had a discussion with H and Epstein with respect to searches for emails. She said that discussion was with respect to other applications made by the applicant. She said that H and Epstein indicated that they did not hold any documents and that they had made enquiries within their Outlook facility and in the deleted section of that facility and confirmed that no such documents existed, that they had not referred to Ford at all in any emails for quite some time. Ms Fahey agreed that the enquiries that she made of H and Epstein and their responses to her did not concern the particular period in issue in these proceedings but to a number of periods up to 26 August 2005. Additionally at the time she made the enquiry of H and Epsten she was also aware of an application which was made on 16 August 2005 requesting documents of a similar nature to those documents sought by these proceedings but which was not confined to any particular period and then in relation to Epstein’s computer facility only.
37. Ms Fahey said that she was aware that H had given evidence in previous proceedings in this Tribunal (heard by Senior Member Friedman in March 2006) where she relied on an affidavit that was then filed and which recorded that she did not keep or hold any emails in relation to the applicant.
38. Ms Fahey said that H and Epstein were at all relevant times employed as Customer Service Officers and had not ever worked in the Human Resources Division of the respondent. Accordingly, they had not ever been involved in the management or administration of the unfair dismissal proceedings. Nonetheless, Ms Fahey said that she did decide – in preparation for this hearing – to make enquiries of the Manager of the Personnel Unit of the respondent and who, on checking through his files, found a printed copy of an email where the applicant, H and Epstein are mentioned by name. She said the paper copy of the email does not refer to the unfair dismissal proceedings, any clients of the respondent. Its contents are not in relation to any matter concerning the respondent or its statutory responsibilities. She agreed that the email does contain information about the applicant and other persons but the information does not concern the work of the other persons with the respondent. That is, she was of the opinion that the content of the email concerned information personal to those persons. She said that Mr Honner, the Personnel Officer concerned, did have a practice of printing emails sent to him and places paper copies of those emails on applicable files. She said that the email in issue by this discussion was dated 6 September 2005 and was not located by any of the searches referred to by Mr Butterworth in his evidence.
39. In cross-examination, Ms Fahey agreed that the recently discovered email of 6 September 2005 did fall within the period of the request by these proceedings but it fell outside the enquiry made of Epstein in January and March 2006 because it was an email which had been printed to paper and which was in the possession of another person.
40. Ms Fahey was asked whether she held an opinion about the credibility of H and Epstein because it was suggested to her that they were prejudiced and biased. The applicant drew attention to one particular word in an email of 20 January 2006 as supporting his contention. (This email was annexed to Ms Fahey’s affidavit of 28 November 2006 and had been previously released to the applicant). Ms Fahey agreed that the use of that word was not professional but she nonetheless was of the opinion that both Epstein and H were persons of honesty and the opinions held by them were not linked to their credibility. She was of the belief that Epstein was capable of giving an unbiased answer to questions asked of him. She also dismissed a suggestion put to her by the applicant that H was a significant element in the unfair dismissal application because she had no involvement in it.
41. With respect to the policy concerning possession of printed emails, Ms Fahey said that she was not aware within the policy where such a statement was recorded, that it was her opinion that possession of emails by staff members was CSA policy, but she could not presently identify within the policy where that was stated. She did not agree with the proposition put that printed emails would remain the property of the Agency.
42. In re‑examination on this issue, Ms Fahey said that she was present during the hearing of an earlier application when Mr Cummins of the Fraud Prevention Team within CSA gave evidence and who then said that staff members who printed personal emails to paper were entitled to take possession of that paper and CSA would not resist possession by that staff member. Additionally, she said that by reason of the position that she held as an Executive Officer, being legally qualified and having worked for the respondent for 11 years, she understood the policy to operate in the terms as expressed by Mr Cummins in the previous proceedings.
43. Mr Ford asked Ms Fahey questions concerning the delay between the making of the application in November and the decision under review in these proceedings being made in March. Ms Fahey agreed that there was a delay of more than 30 days but said that could be explained in part because it was not until December that a deemed decision was made and then there was enquiry made by the Ombudsman following a complaint made by Mr Ford. She also noted that Christmas intervened and she was absent on leave for most of January. She rejected the suggestion put to her by Mr Ford that the delay was contrived in order to resist inspection of back up tapes from Perth and Melbourne which, if they had been inspected at November, would have been within the three month period of storage consistent with the evidence earlier of Mr Butterworth.
44. At the conclusion of re‑examination and in response to some questions from me, Ms Fahey said that Mr Butterworth had not ever been given back up tapes for the period of the request. She said that the practice of the Agency is that electronic information is not sourced in FOI requests but rather enquiries are made of staff members who may or may not hold the documents requested. In this case, consistent with previous practice, enquiries were made both orally and in writing of H and Epstein. Further, if the Agency had undertaken the electronic retrieval suggested by back up tapes, the delay and cost associated with enquiries of that type would have unreasonably diverted resources and would have been an unreasonable undertaking on the part of the Agency.
exempt document
45. At the conclusion of the evidence of Ms Fahey, the applicant indicated that he did not intend to give evidence or call witnesses. It was then thought that the case of both parties had closed but the issue of whether the document discovered on the Friday prior to the commencement of the hearing had a status as exempt was raised and it was thought in those circumstances that Epstein, the author of the document, should be called. He had been put on notice that he may be called and his evidence was given by telephone from his office in Perth.
sean epstein
46. Mr Epstein is currently in the employ of the respondent in its Perth office. He confirmed that he had been notified that an email sent by him on 6 September 2005 had been found as a printed copy on the file of Mr Honner. Mr Epstein said that he had a vague description of the contents of the email but could not recall it with any precision.
47. Mr Epstein confirmed that he had been asked on many occasions whether he held any emails relating to the applicant and said that no such emails were held. He said that he prefers to avoid the subject as much as I can. Further, and by way of description of his reluctance to discuss the applicant, he said its an uncomfortable chapter in my life and its something I avoid – determined to discuss in any manner. When asked to expand on that comment he said that if the applicant was discussed by email, he would be putting himself in jeopardy which he described as being of a physical and mental nature. He said:
It’s a confronting issue to have to deal with for – that seems to drag on forever in a number of different avenues and I am aware that John is going to be released at some stage and he knows full well particulars of my whereabouts and employment and he’s incarcerated for serious criminal things. So yes it’s something that’s on my mind.
48. He agreed with the suggestion put to him that he did have an apprehension of physical danger.
49. In cross‑examination, Mr Epstein said I don’t discuss you. Well, as much ‑ at least as I possibly can. He agreed that he had sent an email to the Office of Public Prosecutions with respect to other allegations that had been made by H but said that he did not retain copies of those emails nor did he have a copy of the email of 6 September 2005. He said that he had an apprehension of his physical safety because he could recall that the email of 6 September 2005 contained a judgement which wasn’t a pleasant judgement and I think there’s a reason to think that you might find that personally offensive and that concerns me when you are released. Additionally, Mr Epstein said that the email of 6 September 2005 – so far as he could recall – raised something that I – from what I understand hasn’t been raised in any other forum. And I would not be happy about you having access to it. Additionally he said that if I’ve made a comment or judgement about you that is anything less than pleasant, and, let’s face it, its not, then I would be crazy to consider that it would not lead me to danger. When the applicant put to him that he could not possibly be in danger because he was expected to serve another four years of imprisonment and would not be able to leave the State of Victoria for five or six years, Mr Epstein said well I’m privy to a lot of information about you, John, and anyone in my position would be fearful.
50. In re‑examination, Mr Epstein confirmed that he had sent emails to the Office of Public Prosecutions but irrespective of whether those emails were sent in the period in issue in these proceedings he said they were not related to work matters associated with the respondent. Additionally, he said that whilst he was aware that the applicant had alleged that he was unfairly dismissed there had not ever been an email sent by him where the unfair dismissal proceedings had been mentioned.
submissions
51. Each party, at the conclusion of the hearing, lodged comprehensive written submissions.
52. Ms Campbell on behalf of the respondent submitted that the substantive application should be dismissed, the document discovered a few days prior to the hearing should be declared exempt and an Order should be made under s 42B of the AAT Act that by reason of the application being frivolous or vexatious, the applicant should not be permitted to file further FOI applications concerning H and Epstein without leave of the Tribunal.
53. In the respondent’s interpretation of the applicant’s request for documents in this application, it was understood that the applicant was seeking documents which were deleted or recoverable. It was also of the belief that any documents, if existing, in electronic form would be in the constructive possession of the respondent but it was submitted any emails which had been committed to paper form prior to deletion and retained by an employee would be the property of the employee and would not be subject to any FOI request.
54. Exemption with respect to the document of 6 September 2005 was sought under s 37(1)(c) of the FOI Act because if disclosed it could reasonably be expected to endanger the life or physical safety of the author. Additionally, pursuant to s 41 of the FOI Act, the disclosure of personal information contained in the document would be exempt if that disclosure would be unreasonable. It was submitted that Epstein, the author of the document of 6 September 2005, was well aware of the risk that he faced of physical violence and in evidence expressed his belief that he was at such a risk. Additionally, it was submitted that the content of the email had no relevance to the functions of the respondent, that it was personal in nature and was therefore not work related.
55. The application to affirm the decision with respect to the substantive application was submitted pursuant to s 24A of the FOI Act by reason that all reasonable steps had been taken to find the documents and they do not exist. It was submitted that a combination of the electronic search undertaken on 11 October 2005 (where no such documents were found), the responses of H and Epstein when asked whether they held documents, the absence of a back up tape for Perth and the likelihood that the back up tape for Melbourne would not contain such documents pointed to the likelihood that no such documents existed in the possession of the respondent. Accordingly it could reasonably be assumed that the documents do not exist. Additionally, it was submitted that it would be unreasonable to expect the FOI officer of the respondent to physically search the possessions of H and Epstein and any paper documents would not, pursuant to a policy existing (within the respondent) be regarded as within the possession of the respondent. It was acknowledged that the electronic search was undertaken on 11 October 2005 which was mid way during the period of time during which documents were sought by the applicant. However in the first six weeks of that period no such documents were electronically discovered. The denial by H and Epstein that they did not hold documents at all, should be of sufficient weight to establish the respondent’s case that all reasonable steps had been undertaken and the documents sought do not exist.
56. With respect to the provision of s 24 of the FOI Act, it was submitted that undertaking a search of quarantined back up tapes at a cost of more than $500,000 and involving three full time staff for a period of six months, would substantially and unreasonably divert the resources of the Agency from its other operations. It was submitted that by reference to the evidence heard in these proceedings from Ms Fahey and from Epstein it should be found that it is highly unlikely that any documents sought by the applicant would exist on the quarantined back up tapes.
57. The application to have the current application dismissed and future applications declared frivolous and vexatious was made by reason of the applicant having made many previous requests for documents of a similar nature against the persons H and Epstein but differing only with respect to the range of dates for which documents were sought. It was submitted that no such documents in the present application exist as they did not exist substantially in the previous proceedings. It was submitted that by reason of the respondent making no application for physical or constructive possession of any documents committed to paper, there would not be in the circumstances of this case – having regard to the evidence heard – any documents which could be the subject of release pursuant to the FOI legislation. Additionally, the evidence of Mr Epstein that he has no involvement in the unfair dismissal proceedings clearly point to the absence of any correspondence which would be work related and which could be the subject of the release. In concluding this part it was submitted that the applicant was engaged in the form of stalking and harassing H and Epstein.
58. The applicant by his written submissions contended that the respondent did not conduct searches relevant to his request and its submission of an unreasonable diversion of resources was irrelevant and had no application. He submitted that the documents sought need not mention my name to fit the description of those requested. It was submitted that the documents sought were those in the physical or constructive possession of the respondent including documents printed to paper and retained by an employee. He interpreted the ATO policy with respect to electronic documentation as indicating that printed copies remained the property of the Agency and the opinion of Ms Fahey should not override the express language of the policy.
59. The applicant submitted that there were many outstanding issues between himself and the respondent including unfair dismissal proceedings, formal investigations concerning the Office of the Privacy Commissioner, matters involving the Commonwealth Ombudsman, a claim by him for compensation for detriment by deficient administration, a claim against the respondent for loss or theft of his personal property and for civil proceedings. It was also contended that the respondent will also have involvement in my appeal against criminal conviction, that H and Epstein are aware of imminent damages claims, that H was a defendant in a civil claim during the period in issue by these proceedings, that H and Epstein were primary witnesses in the criminal case against me and H had made statements which formed a substantial part of his dismissal. Accordingly it was submitted that the respondent should not assume that correspondence within the ambit of his request was not related to its operations or statutory function and his request was not restricted to personal emails. Further, it was submitted that there was no evidence that H and Epstein did not communicate at all in the period relevant to the request – only that they did not communicate about me. The email of 6 September 2005 was submitted as pointing to the evidence of communication between Epstein and H and emails between them and others of a work and non-work related matter in the physical or constructive possession of the respondent Agency should be regarded as being within the scope of the request for documents.
60. With respect to the document of 6 September 2005, it was submitted that it raised significant public interest grounds in favour of disclosure. The public interest was submitted as being the fair and open administration of justice. It was submitted that s 37(1) of the FOI Act had no application because this document had no connection with the criminal law and the processes of upholding and enforcing civil law and the claim for exemption under s 37 was not valid. Additionally, it was submitted that there was no evidence of apprehended danger, there was no evidence of risk assessment and nor was there any evidence that H objected to disclosure of the document. Nonetheless it was acknowledged by the applicant that the contents of the email of 6 September 2005 had not been observed by him and it was open to the Tribunal to find that it may be subject to the provision of s 37 of the FOI Act.
61. With respect to s 41, it was submitted that the FOI Act does not presume that personal information is necessarily exempt and that Epstein as the author of the email gave no objection to the release of the document on the grounds that it may be an unreasonable disclosure of personal information. It was submitted that the email was extremely relevant to matters likely to arise in the process of my criminal appeal against conviction and the public interest in the fair and open administration of justice supported the contention that the document should be disclosed.
62. With respect to the objection to release by the respondent pursuant to s 24 and s 24A of the FOI Act, it was submitted that the only search of relevance was that conducted by Mr Hayden in the week prior to 11 October 2005 and then using the keywords only of John and Ford. It was noted that that search was in relation to a previous request and the use of those keywords were not relevant to the scope of the request made by this proceeding. It was submitted that the request for documents was not limited to those containing the applicant’s name only. Additionally, it was submitted that the responses to enquiries made of H and Epstein did not disclose whether the period in issue by these proceedings was notified to them and accordingly it cannot be assumed that their responses were relevant to the request made by these proceedings. It was also submitted that it was not ever necessary, nor ever expected by the applicant, that back up tapes be inspected. It was accepted that there were no back up tapes from the Perth server and it was unlikely and practically impossible that any relevant documents would be located on back up tapes from the Melbourne server.
63. In concluding this part it was submitted that the respondent is unable to demonstrate that the request made would involve a substantial and unreasonable diversion of its resources. The contentions made by the respondent with respect to the back up tapes were submitted as being irrelevant and other reasonable means were available to the respondent to locate the documents which were the subject of this application.
64. With respect to the application made by the respondent to declare these and future proceedings frivolous and vexatious, the applicant submitted that false allegations had been made by Epstein to the Office of Public Prosecutions at or about the time of his trial. It was submitted that those allegations were based on information received by Epstein from H which the applicant said were false. Additionally, it was submitted that the applicant and H had been engaged in civil proceedings where documents were lodged relevant to the criminal proceedings and the unfair dismissal application. Accordingly it was submitted by the applicant that he had a very valid interest in anything either H or Mr Epstein commit to print and especially around specific events in the progress of other legal matters. Accordingly the documents sought were of clear and definite benefit.
65. The applicant also submitted that he would wish to register the strongest possible objection to the allegation of stalking as submitted by the respondent. He submitted that the pursuit of information to achieve justice could not be found to be harassment.
conclusion and reasons for decision
scope of request
66. The ambit of the request for documents was broad and in the absence of clarification which was achieved at the hearing there was a risk that uncertainty or ambiguity would have prevailed.
67. A combination of the initial request of 2 November 2005, acceptance by a letter of 14 January 2006 of a suggestion made by Mr Hannemann in his letter of 12 January 2006 as to the confines of the request, a further expansion by the applicant’s letter of 14 January 2006 of the ambit, the evidence at the hearing and the comments found at paragraph 6 of the applicant’s written submissions satisfies me that the application for documents includes emails, texted documents, attachment to emails and emails printed to paper in the physical or constructive possession of the respondent such emails being correspondence to, from or between H and Epstein from either of them or to any other person or entity in the period 30 August 2005 to 30 November 2005 (including documents which had been deleted or are recoverable) where the applicant’s circumstances are mentioned explicitly or by inference. I interpret the combined effect of the various request for documents to be those as described earlier which originated either with H or Epstein or were received by H or Mr Epstein.
68. For the purposes of this decision I am also satisfied that physical possession extends to documents physically existing and physically possessed by the respondent. Documents constructively possessed as I understand the judgement of Beaumont J in Beesley v Australian Federal Police [2001] FCA 836 are those documents in electronic form which can be found stored in (for example) a computer or other electronic facility.
69. During the hearing it emerged that a policy existed within the respondent Agency with respect to personal emails that were printed to paper by an employee of the respondent and held by that employee. Ms Fahey gave evidence that she interpreted the policy as permitting printed copies of personal emails to be the property of the Agency employee over which the Agency would not claim retrieval or ownership. She said that Mr Cummins, an officer of the respondent responsible for fraud prevention and control, held a similar view with respect to the manner in which the policy should be interpreted. She said that he had expressed that opinion in previous proceedings in this Tribunal involving the applicant and the respondent.
70. It was the case of the applicant as evident by his written submissions that the evidence of Ms Fahey should be treated as no more than her opinion as to the manner in which the policy should be interpreted.
71. It is my view that a policy, when implemented, involves not only its interpretation but also its application in practice. Ms Fahey is a senior officer within the respondent Agency who not only expressed her opinion but spoke with considerable experience and at length about the practice of the respondent permitting its employees printing private or personal emails, using respondent facilities and permitting those printed documents to become the property of the employee. I am satisfied that Ms Fahey is a witness of truth and her evidence with respect to the manner in which the policy has been practised should be accepted. It therefore follows that I am not satisfied that the scope or ambit of the request made by the applicant for documents by these proceedings extends to printed copies (if any) of emails of a personal or private nature which have been printed to paper by employees of the respondent using the respondent’s computer and printing facilities.
whether documents exist or cannot be found
72. Three days before the hearing of this application commenced, a document was found in paper form of which Epstein was the author. Until that time the case of the respondent had been that all reasonable steps had been taken to find documents which were the subject of the application and the respondent was satisfied that it either held no such documents or that they could not be found. The document of which Epstein was the author was dated 6 September 2005. That will be the subject of separate discussion later in these reasons.
73. Section 24A of the FOI Act is reproduced as follows:
24A Requests may be refused if documents cannot be found or do not exist
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.
74. That section was the subject of analysis by Deputy President McDonald in Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138. At p145 it was decided that the section had a twofold operation namely, that reasonable steps must be taken to find the document and, if it is in the possession of the Agency it cannot be found, or in the alternative, it does not exist. The Deputy President decided that the word find (using a Dictionary interpretation) meant to discover or attain by search or effort. Additionally, Dictionary interpretation of the word reasonable was applied and it was decided that the word should mean either not going beyond the limit assigned by reason or not extravagant or excessive; moderate or judged to be appropriate or suitable to the circumstances or purpose. (Re Cristovao was followed in Re Toomer and Department of Agriculture, Fisheries and Forestry and Others (2003) 78 ALD 645).
75. But for the document of 6 September 2005 the case of the respondent was that all reasonable steps had been taken to find the documents sought by the applicant and it was satisfied that documents of the type sought were not in the possession of the Agency or the documents sought do not exist.
76. There was evidence that a number of enquiries were made of H and Epstein who both denied possession – both physically or constructively – of any document with respect to the applicant. The responses of H and Epstein were both verbal and by email each on 20 January 2006 and 2 May 2006 (those emails having been released to the applicant under a previous FOI application). The request made of them was not specific to the period in issue in these proceedings but I am satisfied that it is apparent from their responses that no such documents were held physically or constructively by them during the period in issue or at all. I am satisfied having read the emails of each of H and Epstein and having read other emails released to the applicant which were appended to the second affidavit of Ms Fahey that the regard held by H and Epstein of the applicant would be such that it would be most unlikely that there would be emails to or from them where he is mentioned in any way either explicitly or by inference (refer applicant’s letter of 14 January 2006). The view that I have expressed I think is reinforced by the email of H of 2 May 2006 where she disclosed an email that she sent on 1 May 2006 concerning civil proceedings with the applicant and where she recorded that that email is the only correspondence I have that refers to him or mentions him in any way, shape or form.
77. Additionally the respondent by its officer, Mr Hayden, conducted an electronic search on 11 October 2005 and did not locate any documents relevant to the applicant’s request. The respondent acknowledges that that search covered half of the period in issue only but that search, plus the subsequent responses to enquiries made of H and Epstein permit a conclusion to be drawn that no documents sought by the applicant exist.
78. On balance I am satisfied that reasonable steps have been taken to find the documents the subject of this request and in making that finding I adopt the findings made by Deputy President McDonald in Re Cristovao.
79. I acknowledge that the search made by Mr Hayden was in respect of a previous application but this of itself is of no consequence. It was a search undertaken for six weeks of the 12 week period in issue in these proceedings. That is, the respondent would not be required to repeat searches and enquiries made in previous requests for documents. But it would have been preferable for Mr Hayden to have been asked to undertake a search for the remaining six weeks. Why this was not done was not explained. I am satisfied also that it was reasonable in the circumstances to make enquiries on a number of occasions from both H and Epstein. Equally I am satisfied that it was reasonable to rely on their responses. I am also satisfied that H and Epstein gave truthful answers to the enquiries made of them. It would not in the circumstances be reasonable for the respondent by its employees or others on its behalf to make physical searches of the written or documented possessions of H or Epstein nor would it have been reasonable to have undertaken any other type of electronic searching to find documents which have been sought by this application. I am also satisfied, upon the evidence given by Mr Butterworth, that if documents in electronic form did previously exist during the period in issue and they had been deleted by H or Epstein they would only have been recoverable – if at all – by inspection of back up tapes which for reasons I will expand upon later would not in the circumstances amount to a reasonable step in the attempt to find the documents. Despite the limited search undertaken by Mr Hayden I am satisfied that in the remaining six week period it can be reasonably decided that the documents sought did not exist. I make this particular finding by reference to the verbal and email responses of H and Epstein to the enquiries made of them (refer paragraph 76).
80. Additionally in reaching the above conclusions I am satisfied that the search made by Mr Hayden using the keywords John and Ford were – despite the submissions of the applicant – appropriate (refer paragraphs 36 and 37 of written submissions). I can think of no other or appropriate way to search for documents referrable to the applicant than by the use of his name. The applicant protested that the use of those keywords were not relevant to the scope of the request subject to this proceeding. But his application is also for documents where his circumstances are mentioned in any way… by inference (refer letter of Mr Hannemann 12 January 2006 and applicant’s response 14 January 2006). I cannot conceive any way that documents referrable to the applicant can in fact be found by inference. To my knowledge, nothing was provided by the applicant to the respondent to permit it to draw or act upon any inference. The ambit of this part of the request is so unreasonable ‑ and vague – that enquiry would be either impossible or, prohibiting reasonable steps being undertaken.
whether attempts to locate documents would substantially and unreasonably divert the resources of the agency
81. The issue of back up tapes from the Perth and Melbourne servers featured prominently in this review. Despite that, I remain unsure whether the applicant contends that those inspections should have been undertaken.
82. In his Statement of Facts and Contentions lodged prior to the commencement of the hearing, the applicant contended (last page, second dot point) that he was seeking an Order that the Tribunal finds the respondent delayed processing the request and making a decision until such time as relevant data and documents became irrecoverable.
83. In a Statement of Facts and Contentions lodged on 16 June 2006, the applicant submitted (last page, last dot point) that the respondent should conduct enquiries and searches to satisfy his request and those enquiries and searches must now of necessity incorporate recovery of backed up data.
84. In his written submissions lodged after the hearing concluded (paragraph 41), the applicant submitted:
It has never been necessary or any part of my request an expectation that the agency access email back up tapes. In any event the evidence is and I agree with the submission of the respondent in respect of this point that there are no tapes available for the Perth servers for the relevant period. There are some tapes available for the Melbourne servers to October 2005 and it is highly unlikely and practically impossible that the relevant documents could be located on them.
85. Evidence was given by Mr Butterworth concerning the process of back up tapes and the documents stored on such facilities (refer earlier). It was clear from the evidence that the applicant has made a concession that back up tapes from the Perth server no longer exist and did not exist at relevant times. A back up tape from the Melbourne server existed for part of the period in issue but on the evidence it was thought unlikely that any documents would exist on it or be retrieved from it unless email documents were sent from Melbourne to H and Epstein or from H and Epstein to Melbourne. On that issue there was no evidence.
86. The back up tapes featured in the evidence because if the respondent had been required to conduct an examination by use of them in order to respond to the applicant’s request, it would– on the evidence of Mr Butterworth and Ms Fahey – have exposed the respondent to a cost in excess of $500,000 and the commitment by three full time officers for a period of six months. In those circumstances – having regard to the primary function of the respondent and to its limited resources and staffing – such enquiries would have substantially and unreasonably diverted the resources of the Agency from its other operations within the meaning of s 24 of which relevant parts are reproduced as follows:
24 Requests may be refused in certain cases
(1)The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request:
(a)in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or
(b). . .
(2)Subject to subsection (3) but without limiting the matters to which the agency or Minister may have regard in deciding whether to refuse under subsection (1) to grant access to the documents to which the request relates, the agency or Minister is to have regard to the resources that would have to be used:
(a)in identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or
(b)in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used:
(i)in examining the documents; or
(ii)in consulting with any person or body in relation to the request; or
(c). . .
(d). . .
87. At the conclusion of the evidence of Ms Fahey it became apparent that the principle case advanced by the respondent was its reliance on the oral and written representations made to it by Epstein and H. The issue of electronic retrieval from back up tapes was only relevant to the extent that if it was required to undertake the exercise contemplated by expenditure of funds on electronic equipment and the dedication of three staff members for six months that such undertakings would substantially and unreasonably divert its resources.
88. As a fact I am satisfied on the evidence heard that the back up tapes from the Perth server do not exist. I am satisfied by the absence of evidence of any connection between Melbourne and H and Epstein that the Melbourne back up tapes if searched would not disclose any documents in electronic form which would satisfy the request made by the applicant. I acknowledge the concessions made by the applicant after the hearing concluded found at paragraph 41 of his written submissions (refer earlier) and I would find – although this in the circumstances is largely hypothetical – that enquiries of the type contemplated of back up tapes would be a substantial and an unreasonable diversion of the Agency’s resources. Additionally such enquiries – of the Melbourne back up tape (because the Perth tape does no longer exist) would be a substantial and unreasonable diversion because for the reasons found above I am not satisfied that such documents would be located. In those circumstances such an inspection would be a waste of time, effort and of resources.
89. In reaching the above conclusions I have had regard to the decision of Branson J in Radicic v Australian Postal Corporation (2000) 59 ALD 157 where at 159 Her Honour referred to the findings made by Senior Member Allen at first instance in the Tribunal where he decided that there was nothing to warrant a government department to expend its funds in obtaining additional equipment in order to satisfy a freedom of information request.
the email of 6 september 2005
90. This document was located a few days before the commencement of the hearing. It was in paper form and was found on a file held by Mr Honner in the Human Resources Branch of the respondent. Mr Honner has responsibility for the application of the unfair dismissal proceedings that have been instituted by the applicant. It was an email sent by Epstein. It was also addressed to other officers of the respondent namely, H and Mr Cummins of the fraud unit.
91. On the evidence I am satisfied that it was an email which had been deleted from the computer of Epstein and H consistent with the evidence referred to earlier. That is to say it was not an email which had been retained or held by them either electronically or in paper form. In those circumstances it would have been impossible for Mr Hayden to have located it during his electronic search on 11 October 2005. But it was an email which originated with Epstein within the period for which the applicant seeks documents. By reason of the content of that email, the respondent seeks to have it declared exempt from disclosure.
92. A document is an exempt document by virtue of the provisions of Part IV of the FOI Act (refer s 4). Section 37 is within Part IV and it provides that a document is exempt if its disclosure would or could reasonably be expected to endanger the life or physical safety of any person (s 37(1)(c)). The respondent relies on that section in its submission that the email in printed form of 6 September 2005 is exempt from disclosure because disclosure would, or could reasonably be expected, to endanger the life or the physical safety of Epstein.
93. The document was given to me and I have read it. In my view there is nothing by its content which concerns the operations at all of the respondent. Despite it being addressed to Mr Honner and Mr Cummins there is nothing in the document which points to, or is referrable either explicitly or by implication to any matter concerning the unfair dismissal proceedings or any other feature of the respondent’s operations.
94. Epstein expressed his fear that if the content of the document was known to the applicant, he was at risk of violence. I am satisfied that that belief is reasonably held. The applicant does have a history of violent activity for which he has been convicted. The applicant submitted that Epstein said in evidence that he had not ever witnessed any act of alleged violence (paragraph 22 of written submissions). I assume that submission was made in support of the contention that the applicant was not a violent person. That submission may be grounded in the applicant’s contention (paragraph 15) of the alleged crimes against H.
95. A County Court jury did not witness acts of violence alleged against the applicant but they were satisfied on the evidence that he was guilty and he was later sentenced by a County Court Judge to a lengthy period of imprisonment. I am satisfied that Epstein is at risk of violence and therefore his life or physical safety is endangered if the email was disclosed. I acknowledge that the applicant is presently serving a period of imprisonment and is likely to be incarcerated for some years. He will one day be released. As was alluded to in evidence, the applicant knows of Epstein’s current whereabouts. There is nothing by the submissions of the applicant which would satisfy me that he would not act to endanger the life or physical safety of Epstein. It is unfortunate that the applicant submitted (paragraph 25) that the respondent produces no evidence of risk assessment. That contention does not improve the applicant’s case. In my view he would have been better served by pleading, or at least giving some undertaking, that he would not act in a violent manner towards Epstein if the email was disclosed to him.
96. Having heard the evidence from Epstein, having read the email of 6 September 2005 and having been impressed by the repeated concerns expressed by Epstein as to the fear that he has for his personal safety, I am satisfied that the document is exempt and I make that finding pursuant to the provisions of s 37(1)(c) of the FOI Act.
97. I would acknowledge that the applicant remains in gaol and it appears that he will be there for some years. It appears also from his evidence that he is prohibited from leaving the State of Victoria for a further period of time. Despite Epstein being a resident of the State of Western Australia I was moved by his answer to a proposition put to him where despite acknowledging the applicant’s incarceration he said I’m privy to a lot of information about you, John, and anyone in my position would be fearful.
98. Having regard to the above, I am satisfied that the email of 6 September 2005, if released, would create a reasonable expectation, which was not irrational, absurd or ridiculous that objectively, Epstein was at risk (refer Centrelink v Dykstra [2002] FCA 1442.
99. I am also satisfied that the document is exempt pursuant to s 41(1) of the FOI Act because if it was disclosed it would involve the unreasonable disclosure of personal information about any person. The respondent acknowledges (paragraph 19 of written submissions) that the email does contain personal information about the applicant. I am satisfied by my reading of the document that its content – and specifically that part concerning personal information – has nothing to do with the operations of the respondent. I certainly do not hold any opinion that the personal information as recorded is true and in my view it is inconceivable that the email of 6 September 2005 or any part of it could be used by the respondent in any proceedings. I am satisfied that the opinion expressed is of a personal nature and is not work related. Whilst balancing these aspects against public interests in the right otherwise existing of the applicant to have access to information about himself, I am not satisfied on balance that the document should be released under s 41 of the FOI Act.
100. In reaching these conclusions I am aware of the Full Federal Court decision in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429. That is s 41(1) of the FOI Act is concerned with giving open public access to members of the public of the information of government. As referred to above, the information contained within the email of 6 September 2005 does not fall within such a class of document or information. I do not find that the particular opinion expressed within the email is in truth correct and it is also apparent from the document that its content has nothing to do with the operation of the respondent or of government.
whether application is frivolous or vexatious
101. Section 42B of the AAT Act is reproduced as follows:
42B Power of Tribunal where a proceeding is frivolous or vexatious
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction.
102. The respondent submits that the decision of the New South Wales Supreme Court in Attorney-General (Vic) v Wentworth (1998) 14 NSWLR 481 at 491 is relevant in so far as it decided that:
(i)Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
(ii)They are vexatious if they are brought for collateral purposes and not for the purposes of having the Court adjudicate on the issues to which they give rise;
(iii)They are also properly to be regarded as vexatious if irrespective of the motive of the litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless.
103. It is impossible to consider this part of the respondent’s application without consideration of the history of applications lodged by the applicant seeking documents from the respondent. A more intense inquiry should also be made of the nature of the documents sought, the persons who were the authors or recipients of documents, the defined periods over which documents were sought and the outcome of the proceedings to date.
104. In her first affidavit, Ms Fahey swore that the applicant had made 14 FOI applications to the respondent since June 2004. In her second affidavit she swore that the applicant had made a further four FOI requests. The second affidavit was sworn on 28 November 2006. An examination of the AAT records indicates that 12 applications had been lodged with this Tribunal until 25 October 2006 (V2004/1184; V2005/220, 800, 1140; V2006/16, 172, 173, 174, 282, 323, 964, 1015). Additionally, in the week immediately prior to the hearing of this application, the applicant lodged a further three applications for review (V2006/1182, 1183, 1184).
105. A feature of the applications to date has been the request by the applicant for documents sent to or from H and / or Epstein and then for defined periods of time. In some applications the period of time ends on a stated date and in another application the period of time commences on the date following. For example, in application V2006/16 – the current proceedings – the period of time was confined until 30 November 2005. In application V2006/173 the period of time commences on 1 December 2005. In some applications there has been a duplication. In application V2006/173 the documents sought concerning H are requested for the period from 1 December 2005. In application V2006/323 documents are sought concerning H for the period 1 December 2005 to 15 March 2006. In application V2006/282 documents are sought with respect to other proceedings in the Tribunal namely; applications V2004/1184, V2005/220 and V2005/800. An examination of the outcomes of applications to this Tribunal also indicate that many applications were withdrawn after they were lodged. On 29 March 2006, Senior Member Friedman delivered a decision with respect to applications V2004/1184, V2005/220, 800, 740, 741. The applicant lodged an appeal against the decision in the Federal Court but later withdrew it.
106. H and Epstein wrote emails on 2 May 2006 to Mr Hannemann confirming that they did not have any emails concerning the applicant (save that H acknowledged an email of 1 May 2006 concerning an unrelated matter). The applicant had previously been given copies of those emails. The period of time within which the applicant seeks documents by these proceedings preceded May 2006. Despite having those emails the applicant persisted with this application. He has in the past persisted with repeated applications for documents sent to or by H and Epstein. In my view his conduct has been with the intention of annoying the Agency and particularly H and Epstein. The Agency has one FOI officer who has a statutory responsibility to process his requests. She in turn must make enquiries of other persons. Those enquiries are time consuming and distract other officers from their primary responsibilities.
107. He continues to protest his innocence and shows no remorse despite being manifestly aware that both H and Epstein are acutely in fear of him [deleted by Direction made on 23 April 2007]. He chose not to give evidence in his criminal trial and he did not give evidence in these proceedings. I agree with the submissions of the respondent that the applicant’s behaviour can be characterised as stalking and as harassment. I think that it also borders on being predatory. His behaviour as evident by these multiple applications is to annoy H and Epstein (refer Wentworth).
108. By these proceedings the applicant has sought documents from the respondent in relation to other proceedings or complaints that he has made. Paragraph 7 of his written submission refers to the agencies or authorities to whom those complaints or claims have been made. His request for documents in relation to those matters by these proceedings is in my view manifestly groundless as to be utterly hopeless (refer Wentworth). H and Epstein do not work in the Personnel Office and would not have sent or received correspondence with respect to the unfair dismissal proceedings. There is no evidence which points to H or Epstein having any involvement in the formal investigations with the Office of the Privacy Commissioner, the Commonwealth Ombudsman or a claim for detriment caused by deficient administration. Equally there is no evidence of H or Epstein having any involvement in any claim or application made by the applicant upon the respondent agency for loss / theft of my personal property and civil proceedings. The assertion by the applicant that the CSA will have involvement in my appeal against criminal conviction is absurd. H and Epstein may be aware of imminent damages claims as asserted but to the extent that they may be sited as defendants there is nothing which points to the respondent or the administration of the respondent’s statutory function as having any involvement in the proposed proceedings. That the applicant asserts that H and Epstein are primary witnesses in the criminal case against me is equally difficult to comprehend when the criminal proceedings have concluded and in the event that there is an appeal against conviction, it would proceed upon an issue of law and not fact and witnesses would not be called to give evidence.
109. In the circumstances I am satisfied that this application is frivolous or vexatious. It should therefore be dismissed. For the reasons given above I am satisfied that having reviewed the merits of the application I am satisfied that it cannot succeed (refer Duncan v Fayle [2004] FCA 723; Theo v Secretary, Department of Family and Community Services [2006] FCA 279).
110. I am also satisfied, upon an application made by the respondent being a party to these proceedings, that it should be directed that the applicant must not without leave of the Tribunal make any subsequent FOI applications to the Tribunal concerning H or Epstein without leave.
111. Litigation initiated by the applicant involving H and Epstein must surely either end, or at the least, be scrutinised by a leave application. They have both been subject to very unpleasant and disgraceful behaviour on the part of the applicant, especially H [deleted by Direction made on 23 April 2007]. The persisting applications lodged by the applicant have had the effect of not permitting H and Epstein to have their lives restored without the reminder of past events which must surely occur by the repeated applications made by the applicant. Despite them being transferred to Western Australia, the applicant continues to have an ongoing presence by the applications that he has made and the litigation which frequently follows. They should be entitled to the confidence of knowing that a restraint should be placed on him by eliminating or at least restricting potential applications which on past experience have largely been found to be futile or without merit, indeed on many occasions applications initiated by him have been withdrawn.
112. Similarly the respondent who has been the recipient of requests made by the applicant should have the confidence of knowing that its primary responsibility for administration of the child support scheme should not be hampered by having to respond to the applicant’s frequent requests. In reaching this latter conclusion I re‑affirm the findings made earlier that the Agency has one FOI officer only and its statutory responsibilities and the work of its officers should not be the subject of interference or impediment by future applications of the type which have been made in the past.
decision
113. For all of the above reasons I am satisfied that the decision made by the respondent as contained in its letter of 2 February 2006 should be affirmed. I am also satisfied that the email of 6 September 2005 which was committed to paper and which was located during the currency of these proceedings is an exempt document and should not be disclosed pursuant to the revision of s 37(1)(c) and s 41(1) of the FOI Act. Additionally these proceedings should be declared frivolous or vexatious pursuant to s 42B of the AAT Act, the application should be dismissed and IT IS DIRECTED that the applicant must not without leave of the Tribunal make any subsequent FOI applications to the Tribunal of a kind which concerns H and / or Epstein.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Grace Carney
Personal AssistantDates of Hearing 18 and 19 December 2006
Date of Decision 23 April 2007
Solicitor for the Applicant Self Represented
Counsel for the Respondent Ms Campbell
Solicitor for the Respondent Australian Government Solicitor
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