KENNETH LESLIE DOWD & VALMA DOWD and CENTRELINK
[2010] AATA 208
•19 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 208
ADMINISTRATIVE APPEALS TRIBUNAL )
)No 2009/5015
)No 2009/5016
GENERAL ADMINISTRATIVE DIVISION ) Re KENNETH LESLIE DOWD &
VALMA DOWD
Applicants
And
CENTRELINK
Respondent
DECISION
Tribunal Ms Regina Perton, Member Date19 March 2010
PlaceMelbourne
Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review. .................[signed] .................
Member
FREEDOM OF INFORMATION – applications for access to documents – respondent unable to locate – adequacy of searches – applications dismissed
Freedom of Information Act 1982 s 24A
REASONS FOR DECISION
19 March 2010 Ms Regina Perton, Member 1. The Tribunal provided oral reasons for its decision at a hearing of these applications on 19 March 2010. At the end of the hearing, Mr Dowd requested written reasons for the decision. They are set out below.
2. Kenneth Leslie Dowd and Valma Dowd have been in dispute with Centrelink for several years. Mr and Mrs Dowd are prolific correspondents. They have expressed concern that Centrelink, and other agencies, have failed to provide replies to many of the letters that they have written. Mr and Mrs Dowd have sought copies of their correspondence to Centrelink and the responses to that correspondence, if any. They have also sought copies of documents that they believe Centrelink may have created concerning them, following face-to-face meetings with members of staff.
3. On 16 April 2009 Centrelink received a Freedom of Information Act 1982 (the Act) application from Mr and Mrs Dowd dated 14 April 2009. They described the documents they were requesting as:
Copy of Mr Cahill’s account and version of meetings with us 7th and 14th September ’05. We think these are the correct 2 dates without checking.
4. On 23 April 2009, an officer of Centrelink’s Freedom of Information (FOI) Team granted Mr and Mrs Dowd access to seven records on Centrelink’s computer system that were created between 7 September 2005 and 3 October 2005 concerning their contact with the agency. Mr and Mrs Dowd sought internal review of that decision under the Act. They stated that they thought the decision was wrong because:
By F.O.I. to not supply anything re Mr Cahills account & version of meetings with Ken 7th Sept ’05 over 2 hrs & 14th Sept ’05…at Moorabbin with Val.
There has to be a record, over 2 hrs, did cover a lot. He never asked for any paper, only looked at some. Ken thought strange. The 14th Sept, Ken repeated the issues including assetts. He said, with Val present “we have been over this before.” “Never forget that”.
We wonder if he recorded anything re assetts.
5. On 15 June 2009 an FOI review officer informed Mr and Mrs Dowd that she had been unable to locate any document relevant to their request.
6. Mr and Mrs Dowd lodged another FOI application for access to further documents on or before 28 July 2009. These requests were summarised by an authorised FOI officer in a letter to Mr and Mrs Dowd dated 18 August 2009 as;
1) Letter to Centrelink dated 5 March 2009;
2) Account and version of Val’s contact with Oakleigh Pens Dept 1 May 2009;
3) Mr Cahill’s letter we received 7 September 2005;
4) Mr Cahill’s letter we received 10 November 2006;
5) Account and version of Mr Robb MP Office contact with Pens Dept 29 and 30 April when Ken saw Mr Robb’s office girl.
7. The review officer provided a copy of the first and second documents listed above. She stated that she was refusing access to the latter three documents as the documents could not be located or did not exist.
8. Mr and Mrs Dowd lodged two applications for review of Centrelink’s decisions with this Tribunal on 22 October 2009. The application concerning Mr Cahill’s notes (2009/5015) was lodged late but the Tribunal granted an extension of time for its lodgement. The latter application (2009/5016), seeking a review of the review decision of 18 August 2009, was lodged within the prescribed time limits.
Issues
9. The issues before the Tribunal are whether Centrelink FOI has complied with the FOI requests by Mr and Mrs Dowd; and whether Centrelink has complied with s 24A of the Act by taking all reasonable steps to find the documents requested by Mr and Mrs Dowd.
Did Centrelink COMPLY with the FOI requests?
10. Mr Dowd told the Tribunal that he and his wife have an ongoing dispute with Centrelink over the application of the assets test to the age pension. The dispute was precipitated by the way in which the assets test was applied after the death of Mr Dowd’s brother and the disposal of his estate. Mr Dowd provided the Tribunal with copies of correspondence he and his wife sent to Centrelink and other agencies in which he expresses his concerns about his treatment and expresses his distrust and dissatisfaction with the agency. He also provided copies of some responses he received that he has also found unsatisfactory.
11. Mr Dowd expressed his concerns that there were no records kept of the content of a two-hour meeting with Mr Cahill, a senior Centrelink officer. He was also suspicious that no record could be found of contact with the office of his local Member of Parliament. He was generally dissatisfied with Centrelink’s lack of response to his complaints and their poor record keeping. He said that he now attends Centrelink in person with documents and has an officer stamp them with the date of lodgement. He also keeps a copy of all correspondence to Centrelink and other agencies.
12. The Tribunal notes that on 18 August 2009, Centrelink provided some documents to Mr and Mrs Dowd, namely their letter to Centrelink dated 5 March 2009 and a record of Mrs Dowd’s contact with Centrelink on 1 May 2009. Prior to the Tribunal hearing, Centrelink located a copy of Mr Cahill’s letter to Mr Dowd dated 26 September 2005 and provided it to him.
13. At the hearing on 19 March 2010, Mr Dowd provided the Tribunal with a copy of a letter dated 9 November 2006 that he and his wife received from Mr Cahill on 10 November 2006. This was one of the letters that could not be located by Centrelink.
14. The Tribunal is satisfied that Centrelink has complied with Mr and Mrs Dowd’s requests by releasing the documents cited above.
Adequacy of searches for documents that could not be found or do not exist
15. Section 24A of the 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.
16. The remaining outstanding documents requested by Mr and Mrs Dowd, which Centrelink stated that it could not locate, comprise Mr Cahill’s notes concerning meetings on 7 September 2005 and 14 September 2005; and documents concerning contact by Mr Andrew Robb MP’s office with Centrelink on 29 and 30 April 2009. Mr Andrew Carson, the advocate representing Centrelink, summarised the efforts that Centrelink had made to locate those documents.
17. In relation to Mr Cahill’s notes, there have been at least two searches of Mr and Mrs Dowd’s paper files by the delegate and review officer. There was a search of on-line computer documents for the relevant period. Mr Carson personally conducted an additional search following the lodgement of the Tribunal applications. Mr Cahill was contacted and asked if he had retained notes or recorded details of the meetings in September 2005. Mr Cahill stated that he had not kept a record of the meeting. The review officer reported that Mr Cahill stated that he saw no reason to prepare an online record given the nature of the meeting.
18. In relation to the contact with Mr Robb’s office in April 2009, there was an unsuccessful search of computer records and paper files. Enquiries were made of relevant officers who confirmed that they do not hold copies of any documents concerning contact with Mr Robb’s office.
19. The Tribunal is satisfied that Centrelink has taken all reasonable steps to identify and locate documents relevant to Mr and Mrs Dowd’s requests under the Act. The Tribunal is also satisfied that those documents that could not be provided pursuant to the requests do not exist or cannot be found.
20. Mr and Mrs Dowd have lodged further FOI applications for documents from Centrelink. They had hoped that the Tribunal would be able to consider Centrelink’s failure to provide those documents. However, the Tribunal’s jurisdiction is limited to the documents that are the subject of these applications for review. Nor does the Tribunal have jurisdiction to deal with Mr and Mrs Dowd’s general dissatisfaction with actions or inaction by Centrelink and other agencies.
Decision
21. For reasons given orally at the hearing, the Tribunal affirms the decisions under review.
I certify that the twenty one [21] preceding paragraphs are a true copy of the reasons for the decision of:
Ms Regina Perton, Member
Signed: ………………………………………………….
Associate Grace HorzitskiDate of hearing: 19 March 2010
Date of decision: 19 March 2010
Self-represented applicants: Mr K Dowd and Mrs V Dowd
Advocate for respondent: Mr A Carson, Centrelink Advocacy Branch
0
0
0