Kerekes and Centrelink FOI
[2008] AATA 268
•4 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 268
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1408
GENERAL ADMINISTRATIVE DIVISION ) Re BEVERLEY KEREKES Applicant
And
CENTRELINK FOI
Respondent
DECISION
Tribunal Senior Member R W Dunne Date4 April 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, 54, 55
Re Langer and Telstra Corporation Limited (2002) 68 ALD 762
Chu v Telstra Corporation Limited (2005) 147 FCR 505Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
REASONS FOR DECISION
4 April 2008 Senior Member R W Dunne 1. This is an application for review by Mrs Beverley Kerekes (“applicant”) under s 55 of the Freedom of Information Act 1982 (“Act”). The review follows a request for an internal review made by the applicant under s 54 of the Act on 9 March 2007. The applicant had sought access to certain documents, by letter received by Centrelink (“respondent”), pursuant to s 11 of the Act and was in the following relevant terms:
“I am writing to request access to all information held in my compensation file, reference no C11075456M.”
2. At the hearing, the applicant represented herself by telephone. The respondent was represented by Ms Margaret Boylan, an advocate with the Centrelink Legal Services Branch. The T documents (Exhibit R1) and the supplementary T documents (Exhibit R2), pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were tendered before the Tribunal, along with the following:
·the applicant’s submission to the Tribunal, together with accompanying documents (Exhibit A1);
·additional documents from the applicant (Exhibit A2);
·the witness statement of Judith Anne Moller dated 3 December 2007, together with Attachments A to E (Exhibit R3);
·the witness statement of Lynne Mary Makin dated 4 December 2007 (Exhibit R4);
·the witness statement of Lee-Anne Odgers dated 5 December 2007 (Exhibit R5);
·the further witness statement of Lee-Anne Odgers dated 12 December 2007, together with Attachment A (Exhibit R6); and
·Centrelink’s “Policy for Recordkeeping” (Exhibit R7).
issues for the tribunal
3. The Tribunal has to consider the following issues:
(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
4. 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.
5. 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).
6. Having regard to what transpired when the respondent failed to respond to the applicant’s request for an internal review, it is with s 24A that the Tribunal is concerned in this case 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
7. The factual background to this case was largely not in dispute and may be briefly stated. By a letter dated 1 February 2007 (received by the respondent on 5 February 2007), the applicant made a request for access to all information held in her compensation file, C11075456M, in Centrelink’s records. She was granted access to documents identified by the respondent as relevant to her request and copies were provided to her on 6 March 2007. In a letter dated 9 March 2007 (said by the respondent to have been received on 19 March 2007), the applicant requested an internal review of the respondent’s decision not to provide her with access to her compensation file, C11075456M. In her letter (Exhibit R1, T4) the applicant said:
“I am aggrieved by this determination on the grounds that the documents provided only deal with the period 2004-2007, whereas my compensation file no C11075456M should contain documents dating back to 1994.”
8. The internal review of the respondent’s decision was conducted by a Centrelink FOI Review Officer, Ms Judith Moller. However, the result of the review was not conveyed to the applicant by letter until 1 May 2007 (Exhibit R1, T6). In her letter, Ms Moller stated:
“…
I have been unable to locate a paper file for ‘Compensation File Reference No. C11075456M’. However, transactions and information with respect to your compensation claim have been recorded on your computer record, and documents relevant to your compensation matters have been attached to your customer and appeals files. Therefore, I have decided to:
·refuse access to a compensation paper file (Reference No. C11075456M) under the provisions of section 24A of the FOI Act; and
·provide you with access in full to documents contained on your customer and appeals files and your computer record which I have identified as being relevant to your request.
…”
As Ms Moller stated in her letter, the applicant’s request was refused under s 24A of the Act. Then, in a letter dated 8 June 2007 (Exhibit R1, T12), the applicant provided a list of documents that she believed should have been provided to her in response to her freedom of information request. These documents were:
·the applicant’s correspondence to Ms Pugsley, Centrelink Service Recovery Team, dated 17 May 2005;
·Judicial Determination by the Hon Auxilliary Justice L T Olsson dated 4 August 2003; and
·correspondence to and from the Hon T Draper MP, the applicant’s local Federal Member of Parliament.
The applicant stated that the documents should have been included with “documents A67-A169”. She also stated that she did not receive copies of the following documents:
·correspondence of 10 April 2007 requesting a determination with regard to a redemption offer made by the Crown on behalf of her employer;
·her correspondence of 11 April 2007 regarding an outstanding 1990 New Act claim for a groin injury;
·the response of 20 April 2007 from Mr Shore, Compensation Recovery Officer;
·correspondence dated 9 August 2004 from D Dimopoulos, Compensation Recovery Officer; and
·correspondence dated 16 June 2005 from L Makin, Compensation Recovery Officer.
9. In a letter dated 4 July 2007 from the respondent’s Legal Services Branch, the applicant was provided with copies of the following documents that she had requested:
·the applicant’s correspondence to Centrelink dated 10 April 2007 and 11 April 2007 and Centrelink’s response dated 20 April 2007;
·a copy of a letter from the Crown Solicitor to the applicant’s lawyers dated 5 March 2007; and
·copies of letters from D Dimopoulos, Compensation Recovery Officer, dated 9 August 2004 and L Makin, Compensation Recovery Officer, dated 16 June 2005.
The letter to the applicant also stated that the attachments to the correspondence to Ms Pugsley had not been located and should be regarded as not being in Centrelink’s possession. As paper files were not maintained for most compensation cases, including the applicant’s claim, access to her compensation file, C11075456M, was again refused under s 24A of the Act.
evidence of the applicant
10. The evidence of the applicant was that she had received correspondence from the respondent which sought to identify the issues that were to be considered by the Tribunal in her case. However, the letter also suggested that the applicant was “free to raise any other issues” which she thought were relevant. Based on this statement, the applicant endeavoured to raise other issues that she said were related to her present application before the Tribunal. The Tribunal advised the applicant that these matters were not presently within the jurisdiction of the Tribunal and no further discussion took place. The applicant’s concern seemed to be that documents that were included in her correspondence to Ms Pugsley had not found their way into her Centrelink records. This correspondence, so that applicant said, was critical to other claims or matters she had which involved Centrelink. As the Tribunal understood it, the documents included the applicant’s compensation file, C11075456M, or formed part of that file.
evidence of ms judith moller
11. Ms Moller gave her evidence by telephone and Ms Boylan referred her to her witness statement dated 3 December 2007 (Exhibit R3). At the relevant time, Ms Moller was a FOI Review Officer based in Brisbane. Following the applicant’s request, Ms Moller conducted a review of the decision made by the Centrelink FOI Officer on 6 March 2007. In conducting her review, she considered whether there were relevant paper or electronic records in Centrelink relating to the applicant. Compensation claims were monitored by Centrelink’s Compensation Recovery Team. However, paper files were not maintained for most compensation cases. They were only kept in exceptional cases, such as where a “preclusion period” was required to be served. The Compensation Recovery Team retained a record of compensation claims on a customer’s on-line computer record on the Compensation Management Information System (CMIS) and in the form of On-line Documents (electronic file notes). Ms Moller conducted a search of the applicant’s computer records and identified On-line Documents and CMIS records as being relevant to her request. She provided the applicant with access to these computer records. She contacted the applicant and advised her that she had been unable to locate a paper compensation file for her, but that she would provide the applicant with printouts of her compensation computer records. She would also obtain and inspect the applicant’s paper files to ascertain whether there were any additional documents relating to her compensation claim, to which she had not already been provided with access. She received from the Records Management Unit a paper customer file and an appeals file for the applicant, together with a paper customer file for the applicant’s partner. Upon inspection of the applicant’s customer file, she identified 13 documents relating to her compensation claim that had been attached to the customer file in 1994. Upon inspection of the applicant’s appeals file, she identified 103 documents that the applicant had provided to Centrelink with respect to her compensation claim. These documents had been attached to her appeals file at folios A67 to A169. Upon inspection of the file of the applicant’s partner, she identified documents relating to the applicant for the period 1992 to 1994. None of these documents were relevant to the applicant’s current FOI request.
12. On 1 May 2007, Ms Moller wrote to the applicant advising her of her decision to refuse her request for access to her paper compensation file because the file could not be located. She provided the applicant with access to copies of the documents she had located on her paper files and printouts of computer records that she had identified as being relevant to the applicant’s request. Following her decision, Ms Moller confirmed with the Compensation Recovery Team that it did not hold a paper file for the applicant. She said that she had conducted searches of all locations where a paper compensation file for the applicant might be found, namely the Records Management Unit and Compensation Recovery. The searches had been unsuccessful. When asked by Ms Boylan about the searches, she said that they had been thorough. She considered that all reasonable searches for a paper file had been conducted and she concluded that no such file existed.
evidence of ms lynne makin
13. Ms Boylan referred Ms Makin to her witness statement dated 4 December 2007 (Exhibit R4). At the relevant time, Ms Makin was the Team Leader for the Area South Australia, Centrelink Compensation Recovery Team. There were a number of Compensation Recovery Teams within Centrelink. Regardless of where the customer resided, any compensation correspondence received was documented by the receiving team and appeared on the customer’s computer record. Any correspondence received after the initial claim would be noted on the computer record and attached to the customer’s file. However, Compensation Recovery Teams would only create a separate “compensation” paper file when a decision made by a Compensation Team resulted in the matter being referred to an Authorised Review Officer. Any other documentation relating to a customer’s compensation record was maintained “off-file”. “Off-file” documents were eventually forwarded to the Records Management Unit for storage, either on the customer’s paper file or in a “batch” storage. “Batch” storage meant that all documents received by a particular office of Centrelink on a particular day were stored together. A customer’s electronic record would identify whether any documents were batch stored. Similarly, any electronic records were maintained on the customer’s electronic records. Ms Boylan referred Ms Makin to the email that she had sent to Ms Moller and which appeared at Attachment “E” to Ms Moller’s witness statement. She said she was unable to recall the email. However, she was able to confirm that no separate paper file relating to compensation had been created for the applicant. She recognised the reference number the applicant had given for her compensation file, C11075456M, as being a reference number created by the Compensation Recovery Team. This number was used to assist the Team in distinguishing between different claims relating to the same customer. It was allocated by Centrelink’s computer system. However, the fact that a particular claim had been allocated a reference number did not mean that any further action was taken to create a separate paper file. Instead, if any papers relating to the claim needed to be retained by Centrelink, they would be stored in “batch” storage.
evidence of ms lee-anne odgers
14. Ms Boylan referred Ms Odgers to her witness statement dated 5 December 2007 (Exhibit R5). Ms Odgers was a Legal Services Officer in the Legal Services Branch of Centrelink. Her duties included assisting in the preparation of cases for presentation before the Tribunal. As part of the preparation for the hearing of the applicant’s case, she had read the letter from the applicant to Centrelink dated 8 June 2007 (Exhibit R2, T12, pages 37-38). She noted that, amongst the outstanding documents requested by the applicant, was a letter and attachments which she stated she sent to Ms Pugsley of the Service Recovery Team on 17 May 2005. The Service Recovery Team was a former name of the Legal Services Branch of Centrelink and Ms Pugsley was a former colleague of Ms Odgers from that Team. She said that Ms Pugsley was currently on extended leave of absence from Centrelink, pending early retirement. On 25 October 2007, Ms Odgers had contacted Ms Pugsley by telephone at her home. She asked Ms Pugsley whether she could recall the earlier Tribunal matter involving the applicant, to which the letter to Ms Pugsley dated 17 May 2005 related. Ms Odgers said she also asked her whether she had any recollection of the applicant having provided her with a bundle of documents during the course of that Tribunal matter, and whether there were any other locations that had not already been identified where documents provided by the applicant to Ms Pugsley may have been stored. Ms Odgers said that Ms Pugsley did not have any specific recollection of the 2005 Tribunal matter. If documentation had been received from a customer in relation to such a matter, her usual practice was to place it on the appeals file. Once the matter was finalised, the documentation would either be left on the appeals file or placed on the customer file. Having perused all the files that were relevant to the applicant’s case, Ms Odgers said that all relevant documents relating to the applicant’s FOI request contained on her appeals file and her customer file had been provided to her.
15. Ms Boylan referred Ms Odgers to her further witness statement dated 12 December 2007 and to Attachment “A” to that statement (Exhibit R6). Ms Odgers said that, on 7 December 2007, she had received two archived Centrelink FOI files relating to the applicant. The files concerned FOI requests made by the applicant in August 2004 and in 2005. She said she perused both files to establish whether any documents relating to the applicant’s current application had been placed on them. She said she noted a number of documents that could represent documents of the type that the applicant considered to be outstanding in relation to her present FOI request. However, Ms Odgers pointed to the fact that copies of these outstanding documents had already been provided to the applicant and were included in the documents marked A67-A169 appearing in the supplementary T documents (Exhibit R2, T14, pages 66-168).
consideration
16. It is apparent from the applicant’s submission (Exhibit A1) she believed that, in addition to the review of the decision (or deemed decision) made in respect of her FOI request dated 1 February 2007, she was free to raise any other issue before the Tribunal that she thought was relevant. This arose from her misunderstanding of a letter to her from Centrelink dated 11 May 2007. The issue concerned the legality of agreements or contracts she reached regarding a targeted separation package. The Tribunal is satisfied that this issue is not presently before it and, in these circumstances, it has no jurisdiction to hear the matter. The issue before the Tribunal is the review of the decision by the respondent refusing to grant access to documents in accordance with the request by the applicant dated 1 February 2007. That request related to what the applicant referred to as her compensation file, C11075456M. During the course of the hearing, it became apparent the applicant was also concerned that she had not been granted access to certain other documents held by Centrelink, namely:
·a letter dated 27 February 2001 to the applicant from the Hon T Draper MP, together with its enclosure; and
·Judicial Determination dated 4 August 2003 made by Olsson J in the Workers’ Compensation Tribunal of South Australia.
17. 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 paragraph 94):
“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 (supra), Deputy President McDonald considered the meaning of the concept of “reasonable steps to find documents sought” in s 24A(a) of the Act.
18. 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 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.”
19. For the respondent, evidence was given by Ms Judith Moller, Ms Lynne Makin and Ms Lee-Anne Odgers of the searches and enquiries that were conducted by the respondent in relation to the FOI request made by the applicant. The Tribunal finds that all reasonable steps have been taken to find the documents answering the applicant’s request. The Tribunal is satisfied that the document (or documents) answering the applicant’s request for her compensation file, C11075456M, does (or do) not exist. In relation to the two documents referred to in paragraph 16 of these reasons, the Tribunal notes that copies of the documents are held by the applicant and have been supplied by her to Centrelink. At the end of the hearing, Ms Boylan undertook to place on the applicant’s customer file copies of the two documents. The Tribunal notes that Ms Boylan wrote to the applicant on 19 December 2007 (copied to the Tribunal) in the following terms:
“…
I am writing to advise that the following action has been taken:
1.Copies of the above two documents have been placed on your customer file. Each has been endorsed as follows:
‘DO NOT REMOVE THIS DOCUMENT FROM FILE – TO BE RETAINED ON FILE – SEE DOC DATED 14 DECEMBER 2007.’
2.A ‘doc’ has been created on your electronic customer record. This is effectively a file note in electronic form that will be displayed every time a Centrelink staff member accesses you[r] electronic record. I enclose a copy of the doc, which is dated 14 December 2007.
…”
decision
20. For the reasons above, the Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
AssociateDate of Hearing 13 December 2007
Date of Decision 4 April 2008
Advocate for the Applicant In personAdvoate for the Respondent Ms M Boylan
Centrelink Legal Services Branch
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