Hamden and Centrelink
[2011] AATA 587
•25 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 587
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0247
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID KEVIN HAMDEN Applicant
And
CENTRELINK
Respondent
DECISION
Tribunal Senior Member R W Dunne Date25 August 2011
PlaceAdelaide
Decision The Tribunal varies the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
FREEDOM OF INFORMATION – access to documents – refusal of access under s 24A of the Freedom of Information Act 1982 – whether all reasonable steps taken to find documents – whether documents exist or cannot be found – decision under review varied.
Freedom of Information Act 1982 (Cth) ss 4(1), 11(1), 24A, 55
Re Langer and Telstra Corporation Limited (2002) 68 ALD 762
Chu v Telstra Corporation Limited (2005) 147 FCR 505
Re Mester and Centrelink [2004] AATA 354REASONS FOR DECISION
25 August 2011 Senior Member R W Dunne introduction
1. This is an application for review by Mr David Hamden (“applicant”) under s 55 of the Freedom of Information Act 1982 (“Act”). By application dated 10 September 2010, Mr Hamden had requested access to certain documents of Centrelink (“respondent”), pursuant to s 11 of the Act. The application described the documents as follows:
“All emails sent by Bronwyn Szabados to Stephen Marsh for the period 3 May 2007 to 11 May 2007 inclusive, including ‘plse ignore previous attachment sent to you earlier today – this attachment supersedes’, refer attached copy of email.
All emails sent by Stephen Marsh to Bronwyn Szabados for the period 3 May 2007 to 11 May 2007 inclusive.
Evidence via affidavit lodged with the Federal Court in May 2010 indicates that these emails are available, refer attached copies.”
2. At the hearing, Mr Hamden appeared and gave evidence. Mr A Parker, from the Centrelink Program Litigation and Review Branch, appeared for the respondent. Evidence for the respondent was given by Mr C Hill, an officer employed by Centrelink in the position of Technical Manager, End User Communication Team. The T documents (Exhibit R1), lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were accepted into evidence, in addition to the following exhibits:
·email from Mr S Marsh, Centrelink Manager, to Mr R Fenby dated 10 May 2007 (Exhibit A1);
·further email from Mr S Marsh, Centrelink Manager, to Mr R Fenby dated 10 May 2007 (Exhibit A2); and
·witness statement of Mr C Hill dated 23 March 2011 (Exhibit R2).
issues before the tribunal
3. The issues for determination by the Tribunal are as follows:
(a) Whether reasonable steps have been taken to find the documents requested by the applicant, in particular, whether the documents exist in original (ie electronic) form.
(b) Whether the Tribunal is satisfied that the documents requested by the applicant cannot be found or do not exist.
legislation
4. The object of the Act, expressed in s 3 is “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth”. In achieving this object, s 11(1) of the Act provides a general right of access and reads:
“11 Right of access
(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.
…”
5. 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 to have 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)material maintained for reference purposes that is otherwise publicly available; 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 s 24A of the Act, which reads:
“24A Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non‑existent
(1)An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i)is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) An agency may refuse a request for access to a document if:
(a)in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and
(b) the agency has not received the document; and
(c)the agency has taken all reasonable steps to receive the document in accordance with those contractual measures.”
background and evidence
7. The factual background to this case was largely not in dispute and may be briefly stated. Following Mr Hamden’s request for access, a decision was made, by an Authorised Freedom of Information Officer with Centrelink (Ms Scanlon), on 17 December 2010:
(a) to provide partial access to certain of the documents requested;
(b)to provide full access to the remaining documents that fell within the scope of the request; and
(c) to refuse access to “original” emails sent between Stephen Marsh and Bronwyn Szabados in the period 3 May 2007 to 11 May 2007 and stored/held on Centrelink’s Lotus Notes electronic mail system.
8. In giving her decision (Exhibit R1, T7, page 42), Ms Scanlon said she considered the following:
·“You have requested access to a copy of emails sent between Stephen Marsh and Bronwyn Szabados using Centrelink’s email system during the period 3 May 2007 to 11 May 2007;
·The emails which you describe would have been sent internally i.e. Centrelink staff member to Centrelink staff member;
·The Centrelink Lotus Notes email is backed up daily and emails held on each staff member’s ‘inbox’ is stored centrally for 6 weeks;
·Mail on each individual staff member’s email is purged from the individual’s mailbox after 45 days;
·The maximum ‘age’ of Centrelink internal email which is stored is 6 weeks;
·The email records to which you seek access are in excess of 6 weeks old;
·No back up tapes of email over 6 weeks old are held by Centrelink;
·I have confirmed that there are no emails such as those you describe stored on any Centrelink electronic medium.”
9. By letter dated 21 December 2010, Mr Hamden requested an internal review of the FOI decision, specifically requesting review of the decision in relation to “copy of emails sent between Stephen Marsh and Bronwyn Szabados using Centrelink’s email system during the period 3 May 2007 to 11 May 2007”.
10. By letter dated 7 February 2011, the FOI Review Officer with Centrelink (Ms Moller) wrote to Mr Hamden about his internal review request in the following terms:
“I am an officer authorised under section 23 of the FOI Act to make decisions regarding your request. I have carefully examined all the circumstances surrounding your request and made a fresh decision.
Your request was for access to ‘All emails between Bronwyn Szabados and Stephen Marsh for the period from 3 May 2007 to 11 May 2007 inclusive’. In particular, you have asked for access to those documents which you believe have been electronically stored.
...
The facts and information on which I have based my decision are:
·You asked for copies of all emails that were sent between Bronwyn Szabados and Stephen Marsh during the period from 3 May 2007 to 11 May 2007 inclusive.
·At the time, you were employed by Centrelink, as were Ms Szabados and Mr Marsh. The emails to which you have requested access are about you. They were sent via Centrelink’s internal email network or intranet.
·Emails sent between Centrelink officers on the internal network for Lotus Notes are only retained for a maximum period of six weeks and are then ‘purged’, i.e., destroyed.
·This means that if an internal email has not been printed within that six week period and a hard copy retained, the email cannot be retrieved and accessed.
·External emails, i.e., those emails received or sent externally over the internet, are archived from the system after 45 days and saved to disc. None of the emails to which you have requested access were either received or sent externally.
I have considered these facts in conjunction with section 24A of the FOI Act.
…
Section 24A grants a person a right of access to ‘documents of an agency’ (in this case Centrelink, the Commonwealth Services Delivery Agency). Section 4 of the FOI Act defines a ‘document of an agency” as being only those documents ‘in the possession of an agency’.
Documents which cannot be located or do not exist are considered to be not in the possession of Centrelink and are not subject to any right of access. Requests for this category of documents must therefore be refused.
I have found that all reasonable steps to locate the emails to which you requested access have been undertaken and the documents have not been located. I am satisfied that the documents do not, or no longer, exist and therefore are not in Centrelink’s possession. This is why I have decided to refuse your request under section 24A of the FOI Act.”
11. By letter dated 10 February 2011, Ms Scanlon provided Mr Hamden with some clarification regarding her decision. She relevantly wrote:
“I refer to your request and to my decision letter of 17 December 2010 a copy of which is enclosed. I have been asked to provide you with some clarification regarding my decision.
The documents to which I provided access were hard copies (printouts) of emails which had been attached to a paper file at some time in the past. I did not print the copies from the database as the information is no longer held on a database. This means that electronic versions of these emails are no longer in existence, so it is not possible for them to be printed and given to you.
I acknowledge that my decision letter contained some ambiguity and I apologise for any misunderstanding which this may have caused.”
evidence of the applicant
12. Mr Hamden is seeking certain “original” emails that passed between Centrelink officers, Ms Bronwyn Szabados and Mr Stephen Marsh, during the period 3 May 2007 to 11 May 2007. He asserted that these electronic communications, although more than 87 days old, were held by Centrelink in its data records and are retrievable. An attempt had been made to locate the electronic records, which he said were still available on the Centrelink mainframe in its Lotus Notes electronic mail system. If the emails were not readily available, the documents were Commonwealth records and the searches that had been conducted by Centrelink were not sufficiently thorough. He said that email messages created using Australian Government systems were Commonwealth records and had to be managed in accordance with the Archives Act 1983.
evidence of mr c hill
13. It was Mr Hill’s evidence that he had been employed by Centrelink for four years and currently held the position of Technical Manager in the End User Communication Team. The handling of electronic email and of changes to email infrastructure fell within the scope of the team. He said that, in Centrelink, emails older than 45 days would be purged from a user’s inbox. In the Centrelink network, after an email arrived in a user’s inbox, it was backed up each night. It would remain on the back-up server from the time it arrived in the user’s inbox and for six weeks after the email was removed. Emails in a user’s inbox would be stored on disc then purged, backed-up and then after six weeks would be purged again. If emails were not purged after six weeks, greater storage would be required. He explained further that Centrelink had recently introduced a capability to allow users to retrieve email. The retention period for this was eight years, but would only date back to the time the system was installed in January 2011.
Applicant’s Contentions
14. Mr Hamden contentions arose out of his Summary of Argument and he explained them as follows:
(a) He referred to an affidavit that had been filed by his legal representative in an appeal to the Federal Court in relation to proceedings he had instituted against the Commonwealth under the Disability Discrimination Act 1992. The affidavit by Mr Luke Holland recited the following comments that had been made by Ms Lisa Kearney, Senior Legal Services Officer with Centrelink:
“Ms Kearney also informs me that the nature of the Respondent’s IT system is such that emails are archived from the system after 45 days and saved to disc.”
(b) Certain emails which were annexed to affidavits lodged by Centrelink in earlier proceedings in the Federal Magistrates Court were dated 10 May 2007 and were thus more than 87 days old (see Exhibits A1 and A2)..
(c) Email messages which were created using Australian Government systems were Commonwealth records and had to be managed in accordance with the Archives Act 1983. Looking externally, Centrelink used the National Archives of Australia recording-keeping framework, which ensured that the relevant record keeping standard (AS ISO 15489) was met.
(d) Centrelink also used the National Archives of Australia approved Record Disposal Authorities (RDAs), and the Administrative Functions Disposal Authority (AFDA). Under the AFDA, activities associated with the handling and resolution of grievances (including handling complaints over perceived discrimination) could only be destroyed five years after any action had been completed. Emails dated May 2007 would not be five years old.
(e)Mr Hill’s statement did not address the issue of email storage.
(f) Referring to paragraph 12.4.1 of the AFDA, in electronic systems, records were not destroyed when they were deleted. What was destroyed was the pointer to the record (eg the file name and directory path) that tells the operating system where a particular piece of data is held on the medium.
(g) Centrelink had ignored his suggestion in relation to a statement from a Centrelink officer with appropriate knowledge and expertise about the IT system within Centrelink and the storage and disposal of email communications.
(h) The respondent had not taken reasonable steps to find the documents he had requested access to. In particular, the respondent had not taken reasonable steps to locate the Word document that was a “previous attachment” to an email sent by Ms Szabados to Mr Marsh during the period 3 May 2007 to 11 May 2007 (see reference in Exhibit R1, T31, page 117).
Respondent’s Contentions
15. Mr Parker’s contentions for the respondent were as follows:
(a) The only issue for determination was whether the original emails between Mr Marsh and Ms Szabados were still available.
(b) The Tribunal only has jurisdiction to review the decision of the respondent that gave rise to the access refusal decision on 17 December 2010.
(c) The record keeping framework of the National Archives of Australia was not relevant to the present matter. Any reference to compliance with the Archives Act 1983 was also irrelevant to the present matter.
(d) The Tribunal has no jurisdiction in the present proceedings to review any decisions made by the respondent in relation to previous litigation in the Federal Court involving the applicant.
consideration and application of the law
16. The first issue for consideration in this matter is whether all emails between Ms Szabados and Mr Marsh in the period 3 May 2007 to 11 May 2007 inclusive, in particular those which Mr Hamden believes have been electronically stored, are retrievable. The evidence of Mr Hill, who is the Centrelink Technical Manager responsible for electronic mail and infrastructure was quite clear. In his witness statement (at paragraph 6) he said:
“Internal email can be retrieved from the backup servers only during the period from the time the email arrives in the user’s inbox and up to 6 weeks after the email has left the user’s inbox. There is no capability for an internal email to be retrieved beyond this time. The longest time frame an email can exist is 45 days in an inbox and a further 6 weeks on the backup server. The longest total amount of days an email can exist for is 87 days. The shortest is 1 day in a user’s inbox and 6 weeks on the back up server.”
17. Mr Hamden referred to affidavits filed or referred to in proceedings in the Federal Court and in the Federal Magistrates Court which showed that original Centrelink emails could be retrieved, even if they were more than 87 days old. I have reviewed his contentions and the emails involved. I am not satisfied that the contents of the affidavits support his contentions. The emails are not original documents, but are merely photocopies of attachments to the affidavits.
18. As to the creation, management and retention of Centrelink documents under the Archives Act 1983 or the National Archives of Australia, in my view, I have no jurisdiction in the present proceedings to review such matters. I am required to review the access refusal decision made by the respondent on 17 December 2010. In any event, I believe any such review under or pursuant to the Archives Act1983 would be irrelevant, given my other findings. Mr Hill’s evidence clearly addresses the issue of email storage. He is eminently qualified to speak about the IT system within Centrelink and the storage and disposal of email communications.
19. Interestingly, it was in his closing that Mr Hamden contended that the document he was seeking access to was not an email, but a Word document which was an attachment to an email, and the respondent should have looked for that attachment. This aspect is obviously important and it requires consideration of the second issue, namely the respondent’s compliance with s 24A of the Act. 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 among 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 in s 24A that 'all reasonable steps' (emphasis added) are to be taken to find any requested document.’
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.”
I note 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.
20. 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.”
21. 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?
22. Mr Hamden made reference to the decision of Senior Member Dwyer in Re Mester and Centrelink [2004] AATA 354. In that case, the Senior Member found that the searches that had been conducted by the respondent (Centrelink) as outlined in the evidence were not sufficiently thorough. She relevantly said:
29. Accordingly, I find that, in order to satisfy s 24A(a) of the Act, by taking "all reasonable steps to find the document[s]", it is appropriate that a person or persons within Centrelink familiar with the area of disability support pension should be consulted in connection with the searches. Such a person would have knowledge of what screens would be likely to carry further information relating to Mr and Mrs Meyer.
…
31. Further, I find that it is appropriate that Centrelink take steps to determine whether there are relevant documents which are still stored "off file in date batch order" or whether those documents have now been destroyed under the Archives Act 1983 ("the Archives Act"). If they have been destroyed, I would expect that there will be documents stating the date of such destruction, in order to comply with requirements in relation to the Archives Act.
32. I am conscious of the vast number of documents received by Centrelink, and of the effort Ms Fitzgerald and Mr Perdon have put into trying to locate any documents relevant to Mr and Mrs Mester. However, I find that there are further investigations which can be taken, to locate any further relevant documents or further lines of enquiry, or alternatively to establish that there are no further relevant documents still in existence.”
23. The email to which Mr Hamden refers at paragraph 14(h) above appears to have been sent by Ms Szabados to Mr Marsh on 8 May 2007, timed at 10.27am. It includes the following request from Ms Szabados to Mr Marsh:
“Subject re David Hamden – plse ignore previous attachment sent to you earlier today – this attachment supersedes.”
24. It would seem clear that the document Mr Hamden was seeking access to was not an email sent by Ms Szabados to Mr Marsh during the period 3 May 2007 to 11 May 2007, but the Word document that was a “superseded” attachment to the email dated 8 May 2007, forwarded during this period. I note that nowhere in the communications from Ms Scanlon and Ms Moller to Mr Hamden on 17 December 2010 and 7 February 2011, in relation to the searches and enquiries that were conducted by the respondent, was any mention made of an attachment, superseded or otherwise. It may be that such an attachment cannot (or could not) be found or is no longer in existence. Nevertheless, as Finn J said in Chu (supra), it is necessary for this Tribunal, upon review, to be satisfied that all reasonable steps have been taken to find the documents being sought. Is there a reasonable step that has not been taken by the respondent? In my view, given Mr Hamden’s evidence and the documents before me, there may be.
25. I am satisfied that all reasonable steps have been taken to find the “original” emails sent between Ms Szabados and Mr Marsh in the period 3 May 2007 to 11 May 2007 that were stored/held on Centrelink’s Lotus Notes electronic mail system (email). As was said by Mr Hill in his evidence (which I have no reason to doubt), the longest period an internal email can exist is 87 days – 45 days in an inbox and a further 6 weeks on the backup server. I am satisfied that the “original” emails Mr Hamden is seeking no longer exist.
26. In relation to the Word document, which is the “superseded” attachment referred to by Mr Hamden in his Freedom of Information application (Exhibit R1, T32), it would appear that no (or no reasonable) steps have been taken to locate the attachment. It may be that it cannot be found or, like the original email to which it was attached, it no longer exists. Nevertheless, I find that, in order to satisfy s 24A(a) of the Act, it is appropriate that Centrelink take steps to determine whether a Word document that was the “superseded” attachment can be found or whether, like the email to which it was attached, it has been purged from the user’s inbox and the backup server and no longer exists.
decision
27. The Tribunal varies the decision under review to the extent indicated in paragraph 26 of these reasons.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
J Scobie AssociateDates of Hearing 7 July 2011
Date of Decision 25 August 2011
Advocate for the Applicant Self-represented
Advocate for the Respondent Anthony Parker,
Centrelink, Program Litigation and Review
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