Hillier and Secretary, Department of Family and Community Services

[2004] AATA 356

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 356

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/1162   

GENERAL ADMINISTRATIVE DIVISION		)
Re		Barry HILLIER

Applicant

And Secretary, Department of Family and Community Services (‘Centrelink’)

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date5 April 2004

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[sgd] Ms Isenberg, Member

CATCHWORDS

ADMINISTRATIVE LAW – Freedom of Information – documents not found after search by government agency – decision affirmed

LEGISLATION

Freedom of Information Act 1982 section 24A

REASONS FOR DECISION

5 April 2004 Ms N Isenberg, Member

DECISION UNDER REVIEW

1. Centrelink's decision of 28 February 2003 not to give Mr Hillier access to documents requested under the Freedom of Information Act 1982, that is, copies of statements regarding him receiving remuneration for breaking in horses, because after taking all reasonable steps Centrelink failed to locate them.

BACKGROUND
2. On 18 February 2003 Mr Hillier completed a Freedom of Information request for copies of statements made to Centrelink in relation to allegations about him having received remuneration for breaking in horses (T4/5-6). On 24 February 2003 Cater & Blumer, solicitors, wrote to Centrelink on Mr Hillier’s behalf requesting copies of statements made to Centrelink in relation to allegations about Mr Hillier receiving remuneration for breaking in horses (T3/4).

3. On 28 February 2003 a decision was made by a Freedom of Information Officer to deny Mr Hillier access to requested documents, citing failure to locate them. (T5/7-8)

4. On 20 May 2003 Brian Wood, who was then a Centrelink Field Investigator provided a statement that information that Mr Hillier was breaking in horses had been received verbally and that no documents were received (T6/9-10).

5. On 27 May 2003 a Centrelink Section Manager reviewed and affirmed the decision of the Freedom of Information Officer (T2/3) and on 18 July 2003 Mr Hillier lodged the present application for review of decision (TI/1-2)

ISSUE BEFORE THE TRIBUNAL
6. Whether Centrelink's decision on 28 February 2003 not to give Mr Hillier access to documents requested under the Freedom of Information Act 1982, copies of statements regarding him receiving remuneration for breaking in horses, because all reasonable steps taken by Centrelink have failed to locate them, was correct.

APPEARANCES

7. A hearing was held before the Tribunal on 23 March 2004 at which Mr Hillier, who was unrepresented, discussed the matter by conference telephone.  Mr G Peek, a solicitor from the Australian Government Solicitor represented Centrelink.

CONSIDERATION OF EVIDENCE AND FINDINGS

8. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

9. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.  Centrelink also tendered an affidavit by Diana Wareing, the Centrelink Freedom of Information Officer (Area South West).

10. Mr Hillier gave evidence and was cross-examined on behalf of the Respondent.  I also asked him questions.  His evidence is referred to, only to the extent relevant in coming to my decision.

11. Mr Hillier said that on a date which was shortly before his FOI request, he saw Mr Wood one morning at his wife’s home, which is about 200 metres from his own home.  Mr Hillier said he had stopped by there to see if his wife was all right, as she had been ill. 

12. He said that Mr Wood had said:

“I’ve got 3 signed stat decs from people that you are breaking in horses for a living.”

Mr Hillier did not see any statutory declarations. 

13. Although Mrs Hillier was present when Mr Wood allegedly spoke of the statutory declarations, she was not called as a witness.  Mr Hillier said, and I accept, that his wife is very ill.  While I might ordinarily form a view if an important witness is not called to give evidence, in this case, that plays no part in my decision.

14. Mr Wood was called to give evidence.  He adopted his statement as follows:

“During the course of my enquiries, concerning allegations that Mr Hillier resided with a female I was advised verbally that he also was breaking in horses. At the time of the interview, this was mentioned to Mr Hillier, who advised me that he had broke a horse in for his grand daughter?, for memory [sic]. At no time did I receive any documentation or paper work to support this.”

15. At the hearing Mr Wood told me that he had travelled about 3 hours from Orange to Tallimba that day to make enquiries about people who may not be entitled to Centrelink benefits.  He stopped in the town to make his enquiries.  In the course of those enquiries he was told that Mr Hillier may have been living with his wife, and also that he may have been breaking in horses for a living.  He said that his enquiries at Mrs Hillier’s home were in relation to Mr and Mrs Hillier’s living arrangements.  While there, he mentioned that he had been told that Mr Hillier was breaking in horses.  He said that Mr Hillier had told him he had broken in a horse, or ‘pony’ for his grandaughter.  He agreed that Mr Hillier may have said ‘grandson’.  He denied, despite the proposition being put to him in the strongest possible terms, that he had said anything about having 3 statutory declarations, nor did he ever have any such declarations.  He had not come to talk to Mr and Mrs Hiller about the horses anyway, only about their living arrangements.

16. It was Centrelink’s position that documents pertaining to Mr Hillier’s receiving remuneration for breaking in horses do not exist, and therefore it ‘refuses’ his request for access to these documents in accordance with s24A of the Freedom of Information Act 1982.

17. Section 24(A) of the Freedom of Information Act 1982 provides as follows:

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.

18. Centrelink contends that all reasonable steps have been taken to locate any documents pertaining to Mr Hillier receiving remuneration for breaking in horses and relied on the affidavit of Diana Wareing, Freedom of Information Officer in Area South West, to this effect.  She said her searches for the documents included on-line computer and records, paper file records and microfiche records.  Searches were conducted by name and reference number.  This manner of searching allowed her to locate records in relation to Mr Hillier regardless of any change of address.  She also said she was satisfied that Records Management Unit staff undertook the same searches and completed these thoroughly.  To ensure these previous checks were conducted correctly, on 8 May 2003 she requested the staff at  Centrelink’s Records Management Unit do a further search of the paper file and microfiche records, again by name and reference number.  Nothing was found.

19. I am satisfied on the evidence before me that Mr Wood did not have the ‘3 statutory declarations’ that Mr Hillier seeks.  He had arrived in the town only that day.  He had conduced enquiries about Mr and Mrs Hillier’s living arrangements, in the course of which he was told something about Mr Hillier breaking in horses.  It was in fairness that he put this allegation to Mr Hillier.  I find it unlikely that Mr Wood, who had travelled 3 hours to the town that day, received information, following which he prepared statutory declarations, and attended Mrs Hillier’s home all in the one morning.  The information about horse breaking appears to have come to him coincidentally to his main enquiry, that is, in relation to Mr and Mrs Hillier’s living arrangements.

20. I am satisfied that reasonable steps have been taken to find the documents, and that they cannot be found because they never existed.

21. I accept that this is a frustrating result for Mr Hillier. However, on the evidence before me, I am satisfied that Centrelink’s decision was correct in its application of section 24A of the Act, and accordingly, I affirm the decision under review.

DECISION

22. The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed: Guy Moloney           .....................................................................................

Associate

Date of Decision  5 April 2004
Representative for the Applicant    Self
Solicitor for the Respondent          Greg Peek of the AGS