Francis and Department of Defence
[2008] AATA 486
•12 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 486
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0931
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD WILLIAM FRANCIS Applicant
And
DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Senior Member R W Dunne Date12 June 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
FREEDOM OF INFORMATION – access to documents – whether all reasonable steps taken to find documents – whether documents exist or cannot be found – decision affirmed.
Freedom of Information Act 1982 (Cth) ss 4(1), 11(1), 12, 13, 24, 24A, 55, 56
Archives Act 1983 (Cth) ss 3, 27
Re Langer and Telstra Corporation Limited (2002) 68 ALD 762
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Chu v Telstra Corporation Limited (2005) 147 FCR 505
Re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025REASONS FOR DECISION
12 June 2008 Senior Member R W Dunne 1. This is an application for review by Ronald William Francis (“applicant”) under s 55 of the Freedom of Information Act 1982 (“Act”). The applicant had sought access to certain documents, by letter to the respondent dated 14 February 2007 (“FOI Request”), pursuant to s 11 of the Act. The documents in his FOI Request were described by the applicant in the following terms:
“1/ All documentation both administrative and medical held by the Department of Defence or any of it’s agencies relating to my accepted Chronic Post Traumatic Stress Syndrome and fractures of the 4th & 5th vertebra.
2/ All documentation both administrative and medical held by the Department of Defence or any of it’s agencies relating to my hospitalization in the 36th US Evac Hospital and the 8th Field Ambulance, Vung Tau and my medical evacuation back to Australia in February, 1968.
3/ All documentation both administrative and medical held by the Department of Defence or any of it’s agencies relating to my incarceration in cells at HMAS Penguin, Balmoral, Sydney, NSW during 1969.
4/ All documentation both administrative and medical, over which the Department of Defence (Commonwealth) has a “Duty of Care” commitment, that contain personal information about me that are contained in boxes from Balmoral Naval Hospital and HMAS Penguin that have been transferred to National Archives of Australia, Villawood, NSW, as per that which is stated in Department of Defence document, The Defence Legal Service, reference: 2000/18916/1 FOI – 163/99/00 (Denhollender), 2000/14514/1 – FOI 137/99/00 (Francis) dated the 5/11/2001 of which you already have a copy.
5/ To have all relevant administrative and medical documentation (files) held by the Department of Defence or any of it’s agencies amended to acknowledge the conditions of Chronic Post Traumatic Stress Disorder and fractures of the 4th & 5th Vertebra as present from date of trauma, during my service and on the day of discharge.
6/ All documentation (files) both administrative and medical held by the Department of Defence or any of its agencies that state or reflect the percentage of disability for each condition mentioned.”
2. At the hearing, the applicant represented himself and the respondent was represented by Mr Justin Davidson from the office of the Australian Government Solicitor. The T documents (Exhibit R1), pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were tendered before the Tribunal, along with the following documents:
·a letter dated 18 July 2001 from Ms E Watson, Health Information Manager, Balmoral Naval Hospital to Mr R G Coldrey, Defence Legal Service (Exhibit A1);
·letter dated 5 November 2001 from Mr R G Coldrey, Acting Director Freedom of Information, Department of Defence to Australian Government Solicitor (Exhibit A2);
·schedule of documents released by the respondent to the applicant (Exhibit R2); and
·affidavit of Commander R T Dobson, Royal Australian Navy dated 3 March 2008 (Exhibit R3).
3. The respondent did not make a decision on the applicant’s FOI Request within the period specified in s 56 of the Act, and the applicant sought a review by the Tribunal on the basis of a deemed refusal. Because the documentation referred to in Item 5 of the FOI Request had been dealt with on an earlier occasion, it was common ground that the only documents that remained the subject of the FOI Request were those referred to in Items 1, 2, 3, 4 and 6 of the applicant’s letter dated 14 February 2007.
issues for the tribunal
4. The issues for the Tribunal’s consideration are:
(a)whether all reasonable steps have been taken to find the documents requested by the applicant; and
(b)whether the Tribunal is satisfied that the documents requested by the applicant cannot be found or do not exist.
legislation
5. Section 11(1) of the Act provides that:
“(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
…”
It is clear from the terms in which the right of access is couched that it is a qualified right. The first qualification is that it is a right to have access to “a document of an agency” or to “an official document of a Minister”. Insofar as an agency is concerned, that means the right is access to a document in the possession of the agency (s 4(1)). The word “document” is defined in s 4(1) in very broad terms to include:
“(a) any of, or any part of any of, the following things:
(i) any paper or other material on which there is writing;
(ii) a map, plan, drawing or photograph;
(iii)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(iv)any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
(v)any article on which information has been stored or recorded, either mechanically or electronically;
(vi) any other record of information; or
(b) any copy, reproduction or duplicate of such a thing; or
(c) any part of such a copy, reproduction or duplicate;
but does not include:
(d) library material maintained for reference purposes; or
(e) Cabinet notebooks.
…”
The terms of the definition are broad enough to encompass within them records kept on paper and in electronic form, such as in email records or in documents kept in electronic form.
6. Section 11(1) is explicit in its terms that the right of access is not to every document of an agency. It is only to every document in the possession of that agency that is not an “exempt document”. Where an agency is concerned, an “exempt document” is a document that is exempt by virtue of a provision of Part IV of the Act (s 4(1)). Section 11(1) contains a further qualification as its opening words are expressed as “Subject to this Act”. These words encompass sections such as ss 12 and 13 (which exclude access to certain categories of documents), s 24 (which permits certain workload factors to be taken into account in refusing a request) and s 24A (which permits a request to be refused if a requested document cannot be found or does not exist).
7. Having regard to what transpired when the respondent failed to respond to the applicant’s FOI Request, it is with s 24A that the Tribunal is presently concerned, and it provides:
“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.”
background and evidence
8. The Tribunal noted from the conduct of the hearing that the factual background to this case was largely not in dispute. It may be briefly stated from what appears in the statement of facts, issues and contentions of the respondent. The applicant served with the Royal Australian Navy between 1965 and 1972. In 1968 he was injured whilst serving on HMAS SYDNEY, which was on deployment to Vietnam at the time. He was evacuated back to Australia due to his injury and received treatment at Balmoral Naval Hospital. The applicant’s FOI Request related broadly to his service history and, in particular, to certain specific injuries, to his stay at Balmoral Naval Hospital and to his “incarceration in cells at HMAS Penguin, Balmoral, Sydney, NSW during 1969”. When a timely decision was not made on his FOI Request, the respondent advised the applicant by letter that a decision could be made by 27 April 2007 (Exhibit R1, T6). The respondent subsequently advised him by letter that a decision was anticipated by 27 May 2007 (Exhibit R1, T7). On 27 July 2007, the respondent disclosed to the applicant a copy of every document it had located which, according to the respondent, fell within the terms of the FOI Request. Particulars of the documents released are contained in Exhibit R2.
Evidence of the Applicant
9. In his evidence, the applicant referred to certain documents that had been furnished to him by the respondent. He said that some of the information contained in the documents was incorrect or open to question. At a certain stage, officers of the respondent had denied having documents that related to him, but in later communications the documents had been referred to and released to him. In further explanation, the applicant said:
“Now, a letter came to surface, which is mentioned in my FOI request, that a lot of boxes were taken to archives from Penguin. They were mislabelled, and all the consignment lists were lost, right. Now, in here they state we’ll just tell the Tribunal they don’t exist. Now, all reasonable steps have to be taken to search for my documents. Nowhere in this whole lot has Defence, when I’ve asked the questions on numerous occasions, have they come up with an answer – have those boxes been searched? Now, as far as I’m concerned the documents I’m seeking are contained within those boxes, and until a proper and thorough search is done of those boxes then they haven’t filled the criteria of all reasonable steps taken.” (Transcript, page 9)
10. Then, in further reference to the “boxes” in which, so the applicant asserted, the documents requested by him were contained, he referred to extracts from paragraphs 7 and 8 of the letter dated 5 November 2001 from Mr R G Coldrey, the respondent’s Acting Director, Freedom of Information (Exhibit A2). The letter from Mr R G Coldrey was referred to in Item 4 of the FOI Request. The extracts from paragraphs 7 and 8 read:
“7. … The contact officer confirmed the Health Information Manager had worked with the National Archives of Australia at Villawood to try and find Mr Francis’s records but without success. A principal reason was the absence or loss of lists, normally compiled when Commonwealth records are transferred to the Archives, of files and identification of the boxes in which particular files are held. Without these lists, nothing short of individual inspection of the contents of a vast quantity of boxes could establish whether a particular file is there. Such an exercise is out of the question. …
8. Turning to the remainder of the AAT Order, if files and records about ‘incarceration’ of Mr Francis at HMAS Penguin during 1968 (sic) are not on Mr Francis’s Central Medical File then we do not have them to provide to the tribunal (item 2.ii). With regard to item 2.iii, documents from the 36th United States Evacuation Hospital and the Eighth Field Hospital at Vung Tau might, in the view of Alan Lovi, have been brought back to Australia and reached the Balmoral Naval Hospital with Mr Francis. If that had been the case then location of those records would require location of Mr Francis’s hospital records. Despite determined efforts, the records have not been located. Whether naval signals relating to Mr Francis being ‘medivacced’ out of Vietnam to Australia (item 2.iv) can be made available depends on whether such are on Mr Francis’s Central Medical Record. …”
11. The applicant said he believed Commander Dobson had conducted a thorough search of the respondent’s records, but that a search had not been conducted of the documents in the boxes at the National Archives of Australia (“National Archives”) at Villawood, which was the respondent’s responsibility.
Evidence of Commander R T Dobson
12. Mr Davidson referred Commander Dobson to his affidavit dated 3 March 2008 (Exhibit R3). He confirmed that the information in his affidavit was, to the best of his knowledge and belief, correct. The Tribunal noted from his affidavit that Commander Dobson had been an officer of the Royal Australian Navy since 28 February 1977. From 28 January 2006 until 18 January 2008, he was the Commanding Officer of HMAS PENGUIN (“PENGUIN”). PENGUIN is situated in the suburb of Mossman on Middle Head in Sydney Harbour. It comprises Balmoral Naval Hospital, the Coxswain’s office for the Naval Police Service and a gangway. Paragraph 7 of the respondent’s statement of facts, issues and contentions contains a summary of the steps taken by the respondent, as detailed by Commander Dobson in his affidavit, to locate documents that were relevant to the FOI Request. The steps summarised were:
“7.1The respondent made enquiries of the Directorate of Freedom of Information, Directorate of Entitlements and the Directorate of Litigation within Defence;
7.2The respondent located the applicant’s personnel files and examined them. The files examined included the applicant’s service files, invalidity considerations files and compensation (fractured back) file;
7.3The respondent located the applicant’s medical files within the Directorate of Entitlements and also the Australian Defence Force Health Records – Navy. These files were also examined for relevant documents;
7.4The respondent attended the Australian War Memorial to inspect HMAS PENGUIN Reports of Proceedings files for the period 1968-1970;
7.5Significant searches were conducted by HMAS PENGUIN for records stored at that facility. Complete searches were undertaken of the Gangway area and Naval Police Coxswains area for any old Unit Detention Registers, Gangway Logs or Officer of the Day (OOD) Logs for 1969;
7.6Further searches were conducted of Defence Force Correctional Establishment (DFCE) at Holsworthy, as searches indicated that PENGUIN’s detention records may have been forwarded [to] DFCE when the Cells at PENGUIN were closed down in the late 1990s;
7.7A complete search of current Ship’s files and Archived files held at PENGUIN was conducted to locate any information concerning the closure of PENGUIN Cells and the location of old records. This included a thorough search of incoming and outgoing mail registers and files titles ‘investigations’, ‘punishments’, ‘cells’ or ‘detentions’;
7.8The Directorate of Policing and Security – Navy was contacted to determine whether they could locate any conduct records relating to the applicant;
7.9Defence Archives Canberra was formally requested to search for any of PENGUIN’s Unit Detention register[s], Officer of the Day Logs, Gangway Incident Logs or any other documents relevant to the Cells and the applicant. The punishment returns for 1969 were scrutinised for any reference to the applicant;
7.10The respondent asked the NAA to complete searches similar to those requested of Defence Archives Canberra;
7.11The respondent also obtained from NAA a copy of the consignment lists for records transferred from HMAS PENGUIN. NAA retrieved bed tickets from 1968 8 Field Ambulance and 36 Evac Hospital and these were examined to determine if any material relating to the applicant could be located; and
7.12NAA was also provided with a copy of the applicant’s FOI request and undertook a search for any documents relating to the request.”
13. In examination by Mr Davidson, Commander Dobson referred to an additional search that had been carried out by the respondent a few days before the hearing. The following exchange took place between Mr Davidson and Commander Dobson:
“MR DAVIDSON: Thank you. Commander Dobson, are there any additional searches that have been done which are not discussed in your affidavit to your knowledge?‑‑‑There is one additional search that was carried out on Friday. After Mr Francis spoke to the Director of the Freedom of Information and indicated that he was on board HMAS Melbourne in 1969, where he was charged, the Director at Freedom of Information went to the defence archives in Queanbeyan and pulled the punishment returns from HMAS Melbourne for that period, 1969. There were seven – sorry. There were a number of punishment warrants and punishment returns in those files. A punishment warrant is like a charge sheet, is [sic] what’s given to the individual when they are charged, and a punishment return is the outcome from the case or – or the hearing. There were seven punishment returns for Mr Francis during the period 1969.
How do you know that?‑‑‑I went through the files this morning.
MR DUNNE: And these are the boxes that Mr Francis was referring to earlier?‑‑‑These were the boxes that – when he referred to his time on board HMAS Melbourne ‑ ‑ ‑
Melbourne, yes?‑‑‑ ‑ ‑ ‑ he – he was correct when he said we would not hold any punishment returns at Penguin, at HMAS Penguin for him, because he was not a member of HMAS Penguin. So if there was any punishment returns they would have been on HMAS Melbourne’s files, which was the ship that he was attached to, and that was the – the search that was carried out was HMAS Melbourne’s punishment returns.” (Transcript, page 19)
14. When questioned by Mr Davidson about Mr Coldrey’s letter to the Australian Government Solicitor dated 5 November 2001 (Exhibit A2) and the letter from Ms Elizabeth Watson to Mr Coldrey dated 18 July 2001 (Exhibit A1), Commander Dobson said that he had not seen the letters before. In relation to the searches undertaken by PENGUIN, he was unaware of anyone else in PENGUIN who had relied on the letters as part of the search process. Further, in relation to the searches processed by the Director for Freedom of Information, Commander Dobson saw no documents which indicated that anyone in that Directorate relied on the letters in processing the searches.
15. Then, when questioned by the Tribunal about the reference in paragraph 7 of Exhibit A2 to the absence or loss of lists compiled when Commonwealth records were transferred to the National Archives, Commander Dobson said that no search had been conducted of the boxes and files at Villawood. The only way a search of the boxes at Villawood could be conducted would be by using the file lists and identifying documents relating to the applicant’s name, then anything relating to PENGUIN cells, detention, log books and officer day books during the period 1965 to 1970, but mainly looking at the 1969 period. In relying on the file lists, he said no documents in, or relating to, the applicant’s name had been found.
16. In cross-examination, the applicant referred Commander Dobson to paragraph 51 of his affidavit, which read:
“51.On 29 June 2007, POWTR Bailey contacted Petty Officer Elizabeth Jess [sic] (PO Jesse) of Fleet Headquarters registry and requested she conduct a search for PENGUIN’S Unit Detention Register, Gangway Logs or Officer of the Day Logs for the period of the late 1960s to early 1970s, or any record relating to Mr Francis generally. PO Jesse replied that she was unable to locate any such records. …”
In response to questioning, Commander Dobson said that no search of documents relating to the applicant had been conducted at Fleet Headquarters, HMAS KUTTABUL at Garden Island. The records of PENGUIN would not be held at HMAS KUTTABUL. He did not know whether the records of HMAS MELBOURNE would be held there. Also, in relation to the records at Villawood, there was no indication from the FOI Request that the applicant had been on HMAS MELBOURNE. No search had been conducted of the records of HMAS MELBOURNE for the applicant’s name. In response to further questioning by the applicant about Annexure “RD14” to his affidavit and the PENGUIN punishment returns for the period 1969, Commander Dobson said that the returns had been scrutinised by the respondent, but nothing had been found relating to the applicant.
17. In re-examination, Mr Davidson directed Commander Dobson to Annexure “RD18” to his affidavit. He said that the Annexure comprised a list of the information held at the National Archives for PENGUIN. When asked by the Tribunal about several annotations appearing in the list, Commander Dobson said that the respondent had been simply “fishing” to find anything in the list that might relate to the applicant during the period 1965 to 1970. There had been one annotation where the respondent had found the bed ticket for the applicant. This had not been found previously, but had subsequently been furnished to the applicant.
consideration and application of the law
18. The Tribunal is satisfied that s 24A is the relevant section of the Act when considering this application for review. The scope of s 24A was considered by Deputy President S A Forgie in Re Langer and Telstra Corporation Limited (2002) 68 ALD 762. Deputy President Forgie observed (at paragraphs 94 and 95):
“94. Section 24A of the FOI Act requires the consideration of two matters. The first requires a consideration of whether the Department has taken all reasonable steps to find the documents. If it has done that, the second requires a consideration of whether the documents are in the Department's possession but cannot be found or whether they exist. The first limb has been considered and applied in several cases but only Deputy President McDonald considered the elements of the first limb in any detail (Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138). He said:
’19. The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the Agency but cannot be found or, alternatively, does not exist. The Shorter Oxford English Dictionary provides a number of meanings for the verb to 'find', the most apt of which for present purposes is 'to discover or attain by search or effort'. The Macquarie Dictionary similarly provides amongst the meanings given to the verb 'to learn, attain or obtain by search or effort'. The Shorter Oxford English Dictionary provides five meanings for the word 'reasonable', or which the following is, in the opinion of the tribunal, most appropriately applied:
'... 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate. ME. b. Moderate in price; inexpensive 1667. 5. Of such an amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose. late ME. (b. Of a fair, average, or considerable amount, size, etc - 1726.’
The Macquarie Dictionary provides four meanings, including 'moderate; or moderate in price ...'. The tribunal notes the requirement ins 24A that 'all reasonable steps' (emphasis added) are to be taken to find any requested document.’ (page 145)
95. It seems to me that the first limb of s. 24A requires that the Department take such steps to discover the requested documents as are appropriate in the circumstance. The circumstances that are relevant in determining the steps that are appropriate include the subject matter of the documents sought, the file management systems, any destruction schedules followed in Telstra and the steps that have already been taken to locate documents within the terms of the request.”
The Tribunal observes that, in Re Cristovao (supra), referred to by Deputy President Forgie in Re Langer, Deputy President McDonald considered the meaning of the concept of “reasonable steps to find documents sought” in s 24A(a) of the Act.
19. More recently, Finn J in Chu v Telstra Corporation Limited (2005) 147 FCR 505 emphasised the need (in s 24A(a)) for the agency or Minister (and this Tribunal, upon review) to be satisfied that all reasonable steps had been taken to find the document being sought. At paragraphs 14 and 35, he said:
“14. I have already indicated what, in the language of s 24A itself, could be taken as suggesting that the requirement of all reasonable steps having been taken is itself jurisdictional in character. Nonetheless, I am satisfied, that in the context both of the Act and its purposes and of the known provenance of the section itself, the judgment to be made is for the agency in question and, upon review, for the Tribunal and not ultimately for the Court.
…
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.”
20. To interpolate, the question is not, “Were the searches that were done reasonable, in a general sense?” Rather, the question is, “Is there a reasonable step that has not been taken?” As was succinctly put by Finn J, is the Tribunal, upon review, properly satisfied that the respondent has done all that could reasonably be required of it to find the documents in question?
21. As Mr Davidson contended, in his outline of the respondent’s submissions, the applicant was seeking access to documents which he claimed were in the custody of the National Archives (Item 4 of the FOI Request). He was also seeking access to documents which, if they existed, would be nearly 40 years old (Item 3 of the FOI Request). Finally, he was seeking certain administrative and medical documentation relating to him held by the respondent. Under the Act, the respondent’s obligation to locate relevant documents extends only to locating those documents which are in its possession. A person’s right of access is to documents of an agency (s 18), which are defined as documents in the possession of the agency (s 4). Documents which have been Commonwealth documents for more than 25 years, or which are no longer required to be readily available to the relevant agency, are usually required to be transferred to the custody of the National Archives (s 27 of the Archives Act 1983) (“Archives Act”). The Act provides that a document which has been placed in the custody of the National Archives by an agency is deemed to be in the agency’s possession for the purposes of the Act (s 13(2)). A document which is in the open access period of the Archives Act is not available under the Act (s 12(1)). The open access period is 30 years after the end of the calendar year in which the document was created (s 3(7) of the Archives Act). Additionally, a document created more than 5 years before the commencement of s 12 of the Act is usually outside the scope of the Act (s 12(2)). Hence, subject to certain exceptions, a document created before 1 January 1977 would not ordinarily be subject to the Act. One such exception is that the exclusions for older records do not operate in relation to documents containing personal information about the applicant (ss 12(1)(a) and 12(2)(a)(i) of the Act). As a result of these provisions, a person may validly seek access to information about himself or herself by making an FOI request to an agency, even if the document is more than 30 years old, and even if it is in the custody of the National Archives.
22. In Re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025, Senior Member J Dwyer suggested (at paragraph 47) the following factors were relevant in determining whether all reasonable steps had been taken to locate documents:
(a) the subject matter of the documents;
(b) the documents one would expect to exist and their expected location;
(c) whether there were persons within the agency who had not been consulted as to the possible existence of further documents;
(d) the age of the documents;
(e) the steps already taken to locate relevant documents;
(f)file management systems and the practice of destruction or removal of documents;
(g) the willingness of the applicant to provide further information;
(h) the willingness of the agency to conduct further searches;
(i) the purpose for which the request for documents was made; and
(j) the commitments of the agency.
23. Mr Davidson contended that factors (a) to (f) could be seen as broadly going to the likelihood of a particular step resulting in the agency locating further relevant documents. Factors (g) to (i) should not be accorded much weight, having regard to what Finn J said in Chu. In Chu, Finn J (at paragraphs 40-43) questioned the appropriateness of taking into account matters, such as whether the applicant was able to suggest further searches, and whether the applicant was prepared to disclose his reasons for seeking access.
24. In dealing with the respondent’s documents in the custody of the National Archives, Mr Davidson submitted (and the Tribunal accepts) that the resourcing burden on the respondent in the present case would be minimal. In Annexure “RD19” to Commander Dobson’s affidavit, when requested by the respondent that certain PENGUIN documents relating to the applicant be released, the National Archives responded:
“As we have this as a formal inquiry our reference staff will under a search of the series
SP 1861/1 – General Correspondence files, multiple number series 1968 – 1968
ST 3105/1 Bed Tickets (Forms AF Med 9) 1968 – 1968
If we identify any relevant records we will copy these records and send them to you. You do not need to search these records yourself and they cannot be withdrawn from archival custody as they are over 30 years of age. We will search them for you for relevant information.”
The Tribunal is satisfied that, in relation to the documents relating to the applicant at Villawood, the responsibility for undertaking a search of those documents would be with the staff at the National Archives and not the respondent. Moreover, as the only list of the records transferred to the National Archives for PENGUIN appears in Annexure “RD18” to the affidavit of Commander Dobson, all of the documents listed would need to be examined. The Tribunal further notes from the list (in Annexure “RD18”) that in excess of 450 metres of documents (which the Tribunal understands is a stack of documents in excess of 450 metres high) would need to be examined. Mr Davidson submitted that the time required to examine such documents, assuming 10 documents per centimetre and each document taking 3 minutes per page to read, would take one person working a full-time day more than 12 years. As the applicant had, during the course of the hearing, suggested that the boxes in which the documents were situated had been mislabelled, a search through all the boxes (and the documents in them) would be required. Moreover, as the applicant had been on board HMAS MELBOURNE for a period, a search of similar documents relating to the applicant during that posting would also be required.
25. In his evidence, the applicant referred to the search processes that took place in 2001 (see Exhibits A1 and A2). In the Tribunal’s view, the search processes that took place in 2001 have no relevance to the applicant’s FOI Request. The 2001 search processes related to other proceedings in this Tribunal and not to the present matter. In his submissions, he indicated a level of satisfaction with the searches that were undertaken at PENGUIN, but a level of dissatisfaction with the searches that had been undertaken of the documents in the custody of the National Archives. In relation to the documents with the National Archives, comprising the documents in Items 3 and 4 of the FOI Request, the Tribunal is of the view that a search of in excess of 450 metres of documents would not be a “reasonable step” for the respondent to undertake. As was said by Deputy President McDonald in Re Cristovao (supra), when considering dictionary meanings for the word “reasonable”, to undertake an examination of the boxes at Villawood and the documents contained in them would be “going beyond the limit assigned by reason” or would be “extravagant or excessive” in the circumstances, taking into account firstly, the likelihood of further relevant documents being located as a result of any such step, and secondly, the level of effort and resourcing required to undertake any such step (see the factors in Re Viewcross Services (supra)).
26. In relation to the documents referred to in Items 1, 2 and 6 of the FOI Request, the affidavit and evidence of Commander Dobson confirms the searches that had been undertaken for the respondent. As mentioned earlier in these reasons, the applicant displayed a level of satisfaction with the searches that had been conducted at PENGUIN. At an early stage in the hearing, he said:
“I believe that Commander Dobson did do a thorough search now, right, as what was there. What I’m upset about is that these boxes at archives, which is defence’s responsibility, because they’re my employment records, have not been looked at. …” (Transcript, page 15)
It was clear from his evidence that Commander Dobson is a senior Navy officer of long-standing, with an intimate knowledge of PENGUIN and Balmoral Naval Hospital’s operations. In his affidavit (paragraph 68), in considering whether any further searches should be conducted, he said:
“I am not aware of any other searches that Defence could undertake in relation to Mr Francis’ FOI request. Mr Francis’ personnel records, including service, compensation, medical and invalidity files have been obtained. PENGUIN has been thoroughly searched, and inquiries of both a specific and general nature made at NAA and Defence Archives. A range of other less obvious sources have been explored, including DFCE, the Australian War Memorial and former PENGUIN officers. Based on my knowledge of the searches undertaken by Defence set out in this my affidavit, and taking into account my experience as a long-standing Navy officer and former Commanding Officer at PENGUIN, I cannot think of any further steps that may be taken by Defence which could be considered even remotely likely to yield any further documents.”
27. 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 the applicant. In respect of the second step required by s 24A 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 of those documents to the applicant (Exhibit R2). The Tribunal is satisfied that no other documents, that fall within the FOI Request, exist other than those that have been released by the respondent.
decision
28. For the reasons above, the Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
AssociateDate of Hearing 11 March 2008
Date of Decision 12 June 2008
Advocate for the Applicant In person
Counsel for the Respondent Mr J Davidson
Solicitor for the Respondent AGS
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