Hanson and Centrelink

[2006] AATA 1105

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1105

ADMINISTRATIVE APPEALS TRIBUNAL        NºV2006/519

GENERAL ADMINISTRATIVE DIVISION

Re:        SHANE TROY HANSON

Applicant

And:CENTRELINK

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             21 December 2006

Place:            Melbourne

Decision:(1)      The respondent has complied with Mr Hanson’s Freedom of Information request by granting access to documents on 29 June 2006.

(2)      The Tribunal refuses Mr Hanson’s access to additional relevant documents on the grounds that all reasonable steps have been taken to find the documents, and the Tribunal is satisfied that the documents do not exist.

(sgd) G.D. Friedman

Senior Member

FREEDOM OF INFORMATION - documents relating to access to the applicant’s file ‑ whether documents exempt from disclosure - whether documents can be found or do not exist - sufficiency of searches

Freedom of Information Act 1982 ss 15(5)(a), (b), 24A, 40(1)

Chu v Telstra Corporation Limited (2005) FCA 1730

Re Langer and Telstra Corporation Limited (2002) AATA 341
Re Meschino and Centrelink [2002] AATA 627

Re Viewcross Services Pty Ltd and Telstra Corporation Limited (2003) AATA 1025

REASONS FOR DECISION

21 December 2006  G.D. Friedman, Senior Member

1.      Shane Hanson is a client of Centrelink.  In May 2006 he sought information concerning access to his Centrelink file by whom and for what reasons occurring since 1997.  He later narrowed his request to information concerning unauthorised browsing of his file within the last 5 years.  On 21 June 2006 Mr Hanson sought review by the Tribunal on the grounds that Centrelink had not provided the information.

2.      On 29 June 2006 Centrelink provided Mr Hanson with a number of documents and claimed that this complied with his request under the Freedom of Information Act 1982 (the FOI Act). Centrelink also claimed that any Customer Record Access Monitor Report (CRAM Report), if created, would be an exempt document under the FOI Act.

ISSUES

3.      The issues before the Tribunal are whether Centrelink has complied with the FOI request, and whether further documents could not be found or do not exist.

HAS CENTRELINK COMPLIED WITH THE FOI REQUEST?

4.        Mr Hanson told the Tribunal that he had placed a number of entries in the Yellow Pages telephone directory promoting proposed businesses that involved the manufacture, sales and distribution of various goods and services.  He said that initially he received a few legitimate calls, but after some time he began to receive calls that he believed were directly or indirectly attributable to Centrelink for the purpose of checking his entitlement to social security benefits by matching his identity with a Yellow Pages listing.  Mr Hanson described the calls as harassment and a breach of privacy laws by Centrelink staff.

5.        Mr Hanson said that he was dissatisfied with the response by Centrelink to his complaints, and that his efforts to identify the callers had been unsuccessful.  He stated that Centrelink had not responded to his FOI request satisfactorily, and he was critical of the delays that prevented him from confirming that unauthorised telephone surveillance had occurred.

6. There was no dispute that Centrelink failed to comply with the time limits specified in the FOI Act by not providing a notice of receipt within 14 days of receiving the FOI request (s 15(5)(a) of the FOI Act); and by not taking all reasonable steps to enable Mr Hanson to be notified of a decision on the request within 30 days of receipt (s 15(5)(b) of the FOI Act). However the Tribunal notes that on 29 June 2006 Centrelink provided the following documentation to Mr Hanson:

·Online Document Recording (ODR/DOC) Archive screens from 14 February 1995 to 30 October 2003;

·Document List screens from 10 July 2003 to 16 May 2006;

·Archive Display Summary screens from 14 February 1995 to 9 September 1999; and

·Receipt Number screens from 19 June 1997 to 13 January 2006.

7.        The Tribunal takes into account the nature of Mr Hanson’s request and that on 29 June 2006 Centrelink provided him with a large amount of documentation that comprised copies of relevant computer screens since 1995.  The Tribunal accepts that these documents were identified correctly by the respondent as relevant to the FOI request and that release of the documents to Mr Hanson complies with the request.    

COULD FURTHER DOCUMENTS BE FOUND OR DO NOT EXIST?

8. 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.

9.        In respect of the sufficiency of searches conducted by the respondent, the Tribunal notes that 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.

10.      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; whether there were persons within the agency who had not been consulted as to the possible existence of further documents; 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).

11.      The Tribunal takes into account material on the respondent’s files which indicates that the respondent took comprehensive steps to locate relevant documents by searching databases and other systems.  In the circumstances and on the available material the Tribunal is satisfied that the respondent has done all that could reasonably be required of it to find additional documents that might be relevant to the FOI request.  The Tribunal is satisfied that, within the scope of Mr Hanson’s FOI request for access, no relevant documents exist other than those identified by the respondent and released to Mr Hanson.

12. Further, the Tribunal is satisfied that any CRAM Report in relation to Mr Hanson, if created, would be exempt from disclosure under s 40(1) of the FOI Act (Re Meschino and Centrelink [2002] AATA 627).

DECISION

13.      (1)      The respondent has complied with Mr Hanson’s Freedom of Information request by granting access to documents on 29 June 2006.

(2)      The Tribunal refuses Mr Hanson’s access to additional relevant documents on the grounds that all reasonable steps have been taken to find the documents, and the Tribunal is satisfied that the documents do not exist.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)     Lydia Zozula

Associate

Date of hearing:  15 December 2006
          Date of decision:  21 December 2006

Advocate for applicant:                Self-represented 

Advocate for respondent:            Mr M. Hester, Centrelink