Ford and Child Support Registrar
[2006] AATA 283
•29 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 283
ADMINISTRATIVE APPEALS TRIBUNAL NºV2004/1184,V2005/220, V2005/800,V2005/740, V2005/741
GENERAL ADMINISTRATIVE DIVISION
Re: JOHN PATRICK FORD
Applicant
And:CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 29 March 2006
Place: Melbourne
Decision:(1) In application numbers V2004/1184, V2005/220 and V2005/800: The Tribunal varies each decision under review and grants access to documents released to the applicant in full or in part by the respondent during the proceedings.
(2) In application numbers V2005/740 and V2005/741: The Tribunal affirms each decision under review.
(3) The Tribunal is satisfied that under s 24A of the Freedom of Information Act 1982 all reasonable steps have been taken to find relevant documents, in addition to the exempt documents sought by the applicant, and that further relevant documents do not exist. Therefore, the Tribunal refuses the request for access to these documents.
(sgd) G.D. Friedman
Senior Member
FREEDOM OF INFORMATION - documents relating to the applicant ‑ whether documents exempt from disclosure - irrelevant material - threat to personal safety - personal privacy - documents obtained in confidence - adequacy of searches - whether other documents exist - amendment of personal records
Freedom of Information Act 1982 ss 4, 11(1), 22, 24A, 37(1)(c), 41(1), 45(1), 48, 50(1)
Beesley v Australian Federal Police (2001) FCA 836
Centrelink v Dykstra (2002) FCA 1442
Chu v Telstra Corporation Limited (2005) FCA 1730
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Corrs Pavey Whiting & Byrne v Collector of Customs(Vic) (1987) 14 FCR 434
Re Caldow and Secretary, Department of Social Security. D95/10, AAT No. 10946
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257Re Close and Australian National University (1993) 31 ALD 597
Re Cox and Department of Defence (1990) 20 ALD 499
Re Jacobs and Department of Defence (1988) 15 ALD 645
Re Kamminga and Australian National University (1992) 15 AAR 297
Re Langer and Telstra Corporation Ltd (2002) AATA 341
Re Page and Director-General of Social Security (1984) 6 ALN N171
Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683Re Viewcross Services Pty Ltd and Telstra Corporation Limited (2003) AATA 1025
REASONS FOR DECISION
29 March 2006 G.D. Friedman, Senior Member
1. John Ford was dismissed as an officer of the Child Support Agency after an investigation under the Code of Conduct of the Australian Public Service for misuse of information technology. This followed allegations against him by another officer with whom he had a personal relationship, resulting in criminal charges. Mr Ford sought access under the Freedom of Information Act 1982 (the FOI Act) to documents relating to the investigation, including email and electronic files about himself and other officers held by the respondent (applications V2004/1184, V2005/220 and V2005/800). In addition he claimed that the respondent had failed to make adequate searches for relevant documents.
2. Mr Ford also sought to amend personal records held by the respondent about him (applications V2005/740 and V2005/741).
3. During the proceedings the respondent released a number of documents to Mr Ford, and he decided not to pursue a number of other documents for which exemption had been claimed. At the date of the hearing 16 documents, or parts of documents, were claimed to be exempt (the exempt documents). Exemption was claimed on the grounds of irrelevant material (s 22 of the FOI Act), enforcement of law and protection of public safety (s 37(1)(c) of the FOI Act), personal privacy (s 41(1) of the FOI Act), and material obtained in confidence (s 45 of the FOI Act).
4. The issues before the Tribunal are whether the documents to which access has been refused should be released; whether adequate searches were made by the respondent; and whether the personal records should be amended.
SHOULD THE EXEMPT DOCUMENTS BE RELEASED?
5. The exempt documents are as follows:
Doc Folio Pg Author Addressee Date Description of Document Decision Exemption Claimed Parts over which Exemption claimed 18. Schedule 3, folios 59-60 2 Lappin, Janice Honner, Mick 18 Feb 2004 Email re FW: John Ford Release in Part s37(1)(c) s41 Sentence btwn “action” and “We” on page 2, line 10. Words btwn “copy” and “and then” on page 2 line 11. 26. Schedule 3, folios 99-100 2 3rd party Williams, Jarryd 9 Mar 2004 Email trail headed RE:Hey Exempt S41 Whole Document 42. Schedule 3, folios 102-103 2 3rd party Cummins, Chris 18 May 2004 Email trail headed RE: Phone Message Exempt s22
S41Whole Document 46. FPC.001.120 1 Hoskin, Natalie Cummins, Chris 21 May 2004 Email headed RE: John Ford Exempt s37(1)(c) s41, s45 Whole Document 51. Schedule 3, folio 106 1 3rd party 3rd party 10 Jun 2004 11:58 Email trail headed FW: Letter at counters (original message from Williams, and 3rd parties) Release in part s22
s41Name of Sender-message 10 Jun 11:58
Name of Recipient- message of 11:58
Name of Recipient- originating message 10 Jun 11:48
Name after “Hey” in salutation
Name of 3rd party in line 1 par1
Name of another 3rd party in line 1 par2 Words btwn “site” and “obviously” line 3 par3
Name of 3rd party line 1 par452. Schedule 3, folio 107 1 3rd party 3rd party 10 Jun 2004 12:06 Email trail headed FW: Letter at counters Release in part s22
s41Name of Sender -message 10 Jun 12:06
Name of Recipient -message of 12:06
All words after “to” in message of 12:06 Name of Sender- message of 12:00 Name of Recipient- message of 12:00 Deletions as per doc 56 which attached to email trail53. Schedule 3, folios 108-109 2 3rd party 3rd party 10 Jun 2004 12:11 Email trail headed RE: Letter at counters Release in Part s41
s22Name of Sender- message 10 Jun 12:11
Name of Recipient- message of 12:11
Name of 3rd party in line 2 of message of 12:11
Name of 3rd party in line 3 of message of 12:11
Name of Sender- message of 12:08 Name of Recipient- message of 12:08 Deletions as per doc 56, 57 & 58 which is attached to email trail54. Schedule 3, folios 110-111 2 3rd party 3rd party 10 Jun 2004 12:16 Email trail headed RE: Letter at Counters (subsequent to Doc 56,57 & 58) Release in Part s41
s22Name of Sender- message 10 Jun 12:16
Name of Recipient- message of 12:16 Name of Sender message of 12:12 Name of Recipient- message 12:12 Name of 3rd party after “is” in message of 12:12
Names of 3rd parties after “Jarryd” in message of 12:12
Deletions as per doc 56, 57 & 58 which is attached to email trail55. Schedule 3, folios 112-113 2 3rd party 3rd party 10 Jun 2004 12:23 Email trail headed RE: Letter at counters Release in Part s41
s22Name of Sender- message 10 Jun 12:23
Name of Recipient message of 12:23 Whole message- message of 12:23 Name of Sender- message of 12:19 Name of Recipient- message of 12:19 Whole of message – message of 12:19 Deletions as per doc 56, 57, 58 & 59 attached to email trail56. Schedule 3 , folios 114-116 3 3rd party 3rd party 10 Jun 2004 12:30 Email trail headed RE letter at counters (subsequent to Docs 56, 57, 58, 59 & 60) Release in Part s41
s22Name of Sender- message 10 Jun 12:30
Name of Recipient- message of 12:30 Phone Number in message of 12:30 Name of Sender- message of 12:25 Name of Recipient- message of 12:25
Whole of message- message of 12:25 Deletions as per doc 56, 57, 58, 59 & 60 attached to email trail57. Schedule 3, folios 117-118 2 3rd party 3rd party 10 June 2004 12:36 Email trail headed FW: Letter at counters Release in Part s41
s22Name of Sender- message 10 Jun 12:36
Name of Recipient- message of 12:36 Name of Sender- 2nd message of 12:36 Name is salutation – 2nd message of 12:36
Name of 3rd party in line 3- 2nd message of 12:36
Name of Sender- 2nd message of 12:36 Deletions as per doc 56 which is attached to email trail58. Schedule 3, folios 119-120 2 3rd party 3rd party 10 Jun 2004 12:39 Email trail headed RE: Letter at counters Release in Part s41
s22Name of Sender- message 10 June 12:39
Name of Recipient- message 10 Jun 12:39
Whole of message- message of 12:39 Deletions as per doc 61 which is attached to email trail (with exception of deletion of phone number which is the other branch from the message of 12:25 btwn 3rd parties)59. Schedule 3, folio 121 2 3rd party 3rd party 10 Jun 2004 12.40 Email trail headed FW: Letter at counters Release in Part s41
s22Name of Sender- message 10 Jun 12.40
Name of Recipient- message of 12.40 Name of 3rd party- message of 12.40 Name of Recipient- message of 12.38 Name of Recipient- in line 4 – message of 12.38
Deletions as per doc 62 which is attached to email trail60. Schedule 3, folios 122-123 2 3rd party Williams, Jarryd 10 Jun 2004 12:40 Email trail headed RE: Letter at counters Release in Part S41
s22Name of Sender- message of 10 Jun 12:40
Deletions as per doc 62 which is attached to email trail62. Schedule 4, folios 11-12, 20-21 4 Cummins, Chris Mutton, Geoff 23 Jun 2004 ATO Office Minute: Inappropriate Use of IT Facilities Exempt s22
s41Whole Document 63. Schedule 4, folio 43 1 Unsigned N/A 10 Sep 2004 File notes of telephone conversations btwn CSA & Deacons Release in Part s41
s22Names of 3rd parties in line 1 & 2 6. Ms L. Fahey, Executive Level 1 of the respondent, stated that Mr Ford was employed by the respondent from 23 August 1999 to 7 July 2004, until he was dismissed. From November 2002 until January 2004 he was involved in a personal relationship with Ms N. Hoskin (formerly Jenkins), another officer of the respondent. She said that Mr Ford has been on remand since 14 February 2004 arising from criminal charges for matters involving Ms Hoskin, and that on 13 December 2005 in the County Court of Victoria he was found guilty of 11 charges. She stated that Mr Ford has initiated as of 23 July 2004 unfair dismissal proceedings in the Australian Industrial Relations Commission.
7. Ms Fahey told the Tribunal that documents 18, 26, 42, 46, 51-60, 62 and 63 contain personal information comprising the names of third parties (and information personal to them) who were sent emails concerning Mr Ford, which she said do not come within the scope of the FOI requests. She stated that any of the information that refers to Mr Ford is inextricably intertwined with the personal information of the third parties, and release of the documents would breach the privacy of the third parties.
8. Mr C. Cummins, Assistant Director, Fraud Prevention Team of the respondent, told the Tribunal that he was responsible for the investigations undertaken in 2004 into the alleged misuse of the respondent’s Information Communication Technology. He said that he requested a snapshot of Mr Ford’s emails stored in his personal drive (H drive) of his work computer and his email mail box. Mr Cummins also stated that he obtained statements from several witness, including Ms Hoskin. He stated that he had contact with Ms Hoskin in person, by telephone or by email, and it was evident to him that she was in fear of Mr Ford and that she believed that he would attempt to locate and harm her. Mr Cummins said that document 46 was given by Ms Hoskin in confidence after he had advised her that any additional information she provided would be investigated and kept confidential. He stated that the information was not used for the purposes of criminal or disciplinary proceedings against Mr Ford, or broadly known by the respondent’s staff or the general public.
9. Ms Hoskin told the Tribunal that she and Mr Ford began their personal relationship in November 2002 after meeting at the workplace, and that they often communicated with each other via the respondent’s email system. She said that the offences that resulted in criminal charges occurred between 8 March 2003 and 14 February 2004. She explained that she was the main prosecution witness during his trial in November/December 2005. Ms Hoskin stated that release of part of Document 18 would enrage Mr Ford and would cause him to endanger her life and physical safety when he is released from gaol. She said that Mr Ford has written threatening letters to her and her friends, has made civil claims against her, and has demonstrated stalking behaviour. Ms Hoskin noted that Mr Ford has ascertained her whereabouts and is likely to seek revenge for his incarceration.
10. Ms Hoskin said that Documents 26, 51 and 60 contain information that is personal to her and the other third parties involved in the correspondence, and mentions Mr Ford only in passing. She stated that the information does not relate to Mr Ford’s criminal or civil proceedings.
11. Mr Ford gave evidence that most of the officers of the respondent contained in the exempt documents were already known to him. He stated that communications about him by staff had a direct bearing on his criminal proceedings, and should be disclosed to him. He denied that he was a threat to Ms Hoskin or any officers of the respondent, and pointed out that he had no prior convictions for violence. Mr Ford explained that Ms Hoskin’s current address was contained in the Police brief of evidence, and he was aware that she had relatives in Western Australia. He said that if Ms Hoskin had any genuine fear of him, she would not have moved to that State, as he has close relatives there.
12. Under cross-examination Mr Ford denied any actual or threatened violence towards Ms Hoskin other than slapping her once, and stated that her allegations are untrue. He acknowledged her fear of him, but stated that this is unwarranted and unjustified. He agreed that he chose not to give evidence at his criminal trial.
13. Section 22 of the FOI Act (documents 42, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62 and 63) provides that:
where an agency decides that to grant access to a document would disclose information that would reasonably be regarded as irrelevant to a request, and it is possible and reasonably practical for the agency to make a copy of the document so as not to disclose the irrelevant information, the agency shall make and grant access to such a copy of the document, unless it is apparent from the request or from consultation with the applicant that the applicant would not want access to such a copy.
14. In Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 the Tribunal held that:
In determining whether information could reasonably be regarded as irrelevant to a request, it is necessary to consider whether disclosure might reasonably, as opposed to irrationally or absurdly, be looked upon as irrelevant to the request for access.
15. The Tribunal accepts the evidence from Ms Fahey and, taking an overall view of the FOI requests, concludes that the material contained in the identified documents is not relevant to Mr Ford’s request and has been properly deleted from the documents by the respondent. The Tribunal finds that documents 42, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62 and 63, or parts of these documents, are exempt from disclosure under s 22 of the FOI Act.
16. Section 37(1)(c) of the FOI Act (documents 18 (part) and 46) applies where disclosure could reasonably be expected to endanger the life or physical safety of any person in relation to the investigative or compliance activities of an agency and the enforcement of the law, including public safety. In Centrelink v Dykstra (2002) FCA 1442 the Federal Court held that the test in s 37(1)(c) is whether the documents had the character that their release would, or could reasonably be expected to, endanger the life or physical safety of any person, and if so, whether that possibility was a reasonable one as distinct from one that was irrational, absurd or ridiculous.
17. In Re Caldow v Secretary, Department of Social Security No. D95/10, AAT No. 10946 the Tribunal held (at para 25):
…I must have regard to the content of the documents themselves and to any other relevant material. Other relevant material in this case includes any views expressed by others as to the likelihood of any harm to any person should the documents be released under the Act. It also includes the behaviour of Mr Caldow himself and the circumstances in which the documents came into being.
18. The Tribunal notes that the allegations by Ms Hoskin against Mr Ford are extremely serious and that her evidence was accepted by a jury in respect of a number of charges during his trial. He did not give evidence. The Tribunal takes into account Mr Ford’s evidence that he has not harmed her and is no threat to her. However the Tribunal notes Mr Cummins’ evidence of her demeanour and apprehension, and prefers Ms Hoskin’s evidence that Mr Ford has written to her and to her friends and family for more than 3 years, showing an ongoing interest in her. She said she is afraid of Mr Ford and was unwilling to be cross-examined directly by him at the hearing. The Tribunal accepts Ms Hoskin’s evidence and concludes that there is a real and objective apprehension by her of harm from him. Release of the documents may enrage him and result in harm to her. For these reasons the Tribunal finds that documents 18 (part) and 46 are exempt from disclosure under s 37(1)(c) of the FOI Act.
19. Section 41 of the FOI Act (documents 18, 26, 42, 46, 51-60, 62 and 63) provides an exemption of personal information the disclosure of which would be unreasonable.
The term personal information is defined in s 4 of the FOI Act as follows:
“personal information” means information or an opinion, (including information forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
20. In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 the Federal Court held that what is unreasonable disclosure of information for purposes of s 41(1) must have public interest considerations as its core. The public interest in disclosure is the general right of the public to have access to documents held by the Commonwealth and to participate in the Government’s decision-making process. The public interest against disclosure include the individual’s right to privacy and the right to confidentiality of information about himself or herself held by the Commonwealth. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Tribunal stated (at para 51):
…
Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
21. The Tribunal accepts the evidence from Ms Hoskin and Ms Fahey that the documents were received as part of private email communications, and are not related to Mr Ford’s work or to his dismissal or criminal proceedings. The third parties have objected to disclosure, and release to Mr Ford would merely satisfy his curiosity. Taking all relevant circumstances into account the Tribunal concludes that the public interest in non-disclosure outweighs the public interest in disclosure. For these reasons disclosure of the material would be unreasonable, and the Tribunal finds that documents 18, 26, 42, 46, 51-60, 62 and 63 are exempt from disclosure under s 41(1) of the FOI Act.
22. Section 45 of the FOI Act (document 46) provides exemption on the basis that disclosure would found an action by a confidential informant for breach of confidence. In Re Kamminga and Australian National University (1992) 15 AAR 297 the Tribunal adopted the test as described by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 at 443:
…
The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge);(iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information…to the detriment of the plaintiff.
The Tribunal accepts the evidence from Mr Cummins and Ms Hoskin that the document was written in Ms Hoskin’s personal capacity. It is specific, and contains private personal information that is not known widely and has the necessary quality of confidentiality. The respondent received the document in circumstances which imported an obligation of confidence; and there is actual or threatened misuse of the information that would be to Ms Hoskin’s detriment. In all the circumstances the Tribunal finds that document 46 is exempt from disclosure under s 45 of the FOI Act.
WERE THE SEARCHES ADEQUATE?
23. Mr Ford told the Tribunal that some of the relevant emails contain questions for which there must be emails containing answers, and that adequate searches were not conducted. He also stated that there must be additional documents relating to his criminal proceedings.
24. Ms Fahey told the Tribunal that the respondent maintains a database for the storage of client information, however there is no single database for the storage of the various types of information sought by Mr Ford. She said that relevant officers were asked whether they had any emails on their personal computer systems concerning Mr Ford and the Code of Conduct investigation. Each had advised that, other than documents already identified, no emails or other relevant information had been retained. Ms Fahey said that extensive searches were conducted on all relevant files and computer systems and in all relevant places. She noted that no emails or other relevant documents were located among Mr Ford’s personal effects that were stored by his then team leader after his incarceration in February 2004.
25. Ms Fahey said that all relevant documents had been located and identified, so that no further searches were necessary.
26. Ms A. Fry, Team Leader, Legal Technology Solutions, Australian Government Solicitor (AGS), told the Tribunal that she identified about 10,000 items on 7 computer discs, including emails, Microsoft Word documents, Excel documents and various system and program files, which were then uploaded onto the AGS database. Ms K. Miller, solicitor, AGS, told the Tribunal that she examined documents, including documents contained on compact discs concerning an investigation by the Fraud Prevention & Control section of the Australian Taxation Office (ATO). She said that she identified and dealt with all relevant documents.
27. Mr J. Roach, Director, Forensics and Investigations Unit, ATO, told the Tribunal that at the relevant time the respondent operated on the computer infrastructure of the ATO. He described the process for retaining data on file servers and said that a backup copy of the physical storage locations (drives) is made onto magnetic tape. This tape is retained for varying periods and then overwritten and recycled. He stated that there are no tapes in storage from 2004, and documents are no longer recoverable. Mr Roach noted that Mr Ford’s computer account was cancelled on 7 July 2004, and information stored on the system would not be recoverable after October 2004.
28. Section 24A of the FOI Act provides:
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.
The FOI Act applies to a document of an agency (s 11(1)).
The term document of an agency is defined in s 4(1) of the FOI Act as follows:
a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.
In Beesley v Australian Federal Police (2001) FCA 836 the Federal Court held that the question of possession goes beyond physical custody or possession. It extends to a concept of constructive possession, which is a right or power to deal with the document or an immediate right to possession or control of the document.
29. In Chu v Telstra Corporation Limited (2005) FCA 1730 the Federal Court held that the Tribunal needs to be properly satisfied that the agency has done all that could reasonably be required of it to find the documents sought. Finn J stated at paragraph 35:
…
A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised.
30. In Re Viewcross Services Pty Ltd and Telstra Corporation Limited (2003) AATA 1025 the Tribunal held that the steps involved in finding a document should take into account considerations such as the subject matter of the documents; the documents one would expect to exist and their expected location; the steps already taken to locate relevant documents; and whether there were persons within the agency who had not been consulted as to the possible existence of further documents. Other steps include; the age of the documents; file management systems and the practice of destruction or removal of documents; the willingness of the applicant to provide further information; the willingness of the agency to conduct further searches; the purpose for which the request for documents was made; and the commitments of the agency. The Tribunal must then determine whether it is satisfied that the document is in the possession of the respondent and cannot be found or does not exist (Re Langer and Telstra Corporation Limited (2002) AATA 341).
31. The Tribunal accepts the evidence from Ms Fahey, Ms Miller, Mr Roach and Ms Fry that all relevant officers of the respondent were contacted, and all files and proper places were searched. The manner of the search was thorough and comprehensive, and the Tribunal is satisfied that no other documents (such as personal emails taken home by staff) were in the respondent’s constructive possession.
32. The Tribunal also accepts the evidence from Mr Roach that copies of emails in Mr Ford’s email account were destroyed within three months of the closure of his account in July 2004. On balance the Tribunal is satisfied that the respondent has done all that could reasonably be required of it in the circumstances, to find the documents sought by Mr Ford. In respect of the second requirement concerning whether documents exist or cannot be found, the Tribunal takes into account the comprehensive nature of the steps taken by the respondent to locate relevant documents and the provision to Mr Ford of documents by the respondent. The Tribunal is satisfied that no other documents within the scope of his FOI requests for access exist other than those released by the respondent or included in the exempt documents.
SHOULD THE RECORDS BE AMENDED?
33. Mr Ford sought to amend the following records:
·Document 1: undated file note regarding emails between Mr Ford and Ms Hoskin
·Document 2: file note dated 15 August 2003 describing events of that day
·Document 3: email correspondence dated 17 February 2004 and 18 February 2004 concerning criminal investigation
·Document 4: email correspondence dated 2 December 2003, 2 February 2004, 13 February 2004 and 19 February 2004 concerning Code of Conduct investigation
·Document 5: email dated 23 February 2004 and attachment concerning Code of Conduct investigation
·Document 6: email correspondence dated 6 February 2004, 24 February 2004 and 26 February 2004 concerning Code of Conduct investigation
·Document 7: email dated 26 February 2004 and attachment concerning Code of Conduct investigation
·Document 8: email correspondence dated 4 March 2004 and 5 March 2004 concerning Code of Conduct investigation
·Document 9: entry dated 9 August 2004 from Fraud Prevention & Control Running Sheet concerning action taken by Victoria Police
·Document 10: email correspondence dated 17 February 2004 concerning criminal investigation
34. Mr Ford told the Tribunal that the documents have been used by the respondent to dismiss him and are incorrect or misleading. He said that the documents largely contain opinions of the author of each document, and that the opinions are inaccurate. He stated that in some cases emotive words are used and opinions are expressed selectively, leading to the recording of false and misleading information on the files, and unproven assertions. Mr Ford said that any subjective comments should be removed from the files.
35. Ms Fahey told the Tribunal that the documents contain the views and opinions of officers of the respondent concerning Mr Ford and the Code of Conduct investigation. She said that the documents also contain accounts of events provided to the respondent and the ATO as part of a police investigation. Ms Fahey stated that the views and accounts of events were reasonable on the basis of information known to the authors at the time the documents were created. She said that there is no information or material that has come into existence since the opinions were expressed by the authors to suggest that the opinions were incorrect or mistaken.
36. Ms Fahey noted that the documents have been annotated with Mr Ford’s version of events in full, and each annotated document has been placed with the corresponding document wherever it appears in the respondent’s files.
37. Mr M. Honner, Human Resources Manager of the respondent, told the Tribunal that the emails contained in the documents are brief summaries of the opinions by the authors that were held honestly at the time. Ms M. Bentley, Stream Leader Collection Support of the respondent, stated that in Document 3 she forwarded information received from Victoria Police to another officer of the respondent. Ms R. Stewart, Team Leader of the respondent, said that in the attachment to Document 5 she referred to various matters such as the amount of leave taken by Mr Ford. She told the Tribunal that, when taken in context, her comments were accurate at the time she compiled the document.
38. Section 48 of the FOI Act provides:
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.
39. In Re Jacobs and Department of Defence (1988) 15 ALD 645 the Tribunal referred to the undesirability generally of using s 48 of the FOI Act to re-write history. Section 50(1) of the FOI Act lists the elements that must be satisfied before amendment of a record is required.
40. Under s 50(1)(a) the record of personal information must be must be contained in a document of an agency. Under s 50(1)(b) the decision-maker must be satisfied that the information is incomplete, incorrect, out of date or misleading. In Re Cox and Department of Defence (1990) 20 ALD 499 the Tribunal noted that the record ought not be amended simply because the information that it correctly records is incorrect information. Information would be incorrect if it was wrongly recorded, based on a mistake of fact or reached without proper regard to the particular evidence (Re Close and Australian National University (1993) 31 ALD 597. In Re Jacobs the Tribunal noted that information will not be incorrect if at the time it was written it was correct and no evidence has been produced to show that it was anything but correct.
41. In Re Page and Director-General of Social Security (1984) 6 ALN N171 the Tribunal held that misleading means leading astray, causing to go wrong, giving the wrong impression.
42. The Tribunal finds that the records sought to be amended concern Mr Ford’s employment with the respondent and were used for an administrative purpose. Therefore Mr Ford satisfies s 50(1)(a) of the FOI Act. However the Tribunal accepts the evidence from Ms Fahey, Mr Honner, Ms Bentley and Ms Stewart that the documents contain statements of opinion that were based on views held by the authors at the time the documents were created, or were documents forwarded to other officers, and were recorded correctly. The Tribunal is not persuaded that Mr Ford’s dissatisfaction with the contents of the opinions, or his assertions of an alternative version of events, are adequate reasons for the records to be amended. There is insufficient evidence that the opinions, or the facts behind the opinions, were clearly incorrect at the time of their creation. For these reasons the Tribunal concludes that the information was not incomplete, incorrect, out of date or misleading, so s 50(1)(b) and s 48 of the FOI Act are not satisfied, and the documents should not be amended.
DECISION
43. (1) In application numbers V2004/1184, V2005/220 and V2005/800: The Tribunal varies each decision under review and grants access to documents released to the applicant in full or in part by the respondent during the proceedings.
(2) In application numbers V2005/740 and V2005/741: The Tribunal affirms each decision under review.
(3) The Tribunal is satisfied that under s 24A of the Freedom of Information Act 1982 all reasonable steps have been taken to find relevant documents, in addition to the exempt documents sought by the applicant, and that further relevant documents do not exist. Therefore, the Tribunal refuses the request for access to these documents.
I certify that the forty-three [43] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Lydia Zozula
Associate
Dates of hearing: 6 March 2006, 8-10 March 2006
Date of decision: 29 March 2006Advocate for applicant: Self-represented
Counsel for respondent: Ms M. Campbell
Solicitor for respondent: Ms E. Arduca, Australian Government Solicitor
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