Khorramdel and Department of Human Services
[2011] AATA 803
•14 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 803
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0488
GENERAL ADMINISTRATIVE DIVISION ) Re Siavash Khorramdel Applicant
And
Department of Human Services
Respondent
DECISION
Tribunal Senior Member A K Britton Date14 November 2011
PlaceSydney
Decision 1. The application made by the applicant under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
2. The decision not to grant the applicant access to the email dated 26 March 2008, from the Commonwealth Director of Public Prosecutions to Centrelink, on the ground that it is exempt under s 42 of the FOI Act, is affirmed.
3. The decision not to grant the applicant access to the CRAM reports, contained in the Schedule of exempt documents provided to the Tribunal by the Respondent, on the ground that they are exempt under s 40 of the FOI Act, is affirmed.
4. The decision made under s 24A of the FOI Act to refuse to grant the applicant access to further documents is set aside and remitted to the Secretary, under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration after further searches for the requested documents have been conducted in accordance with these Reasons for Decision........................[sgd].......................
Senior Member A K Britton
CATCHWORDS
FREEDOM OF INFORMATION – exemptions claimed – cannot be found – do not exist – proper search – reasonable steps – legal professional privilege – operations of agency
Freedom of Information Act 1982 (Cth) – ss 4, 23, 24A, 40(1), 42(1), 55(5), 56(5), 61
Criminal Code 1995 (Cth)
Social Security (Administration) Act 1999 (Cth) – s 192
Administrative Appeals Tribunal Act 1975 (Cth) – s 35, 42D
Chu v Telstra Corporation Limited (2005) 147 FCR 505; [2005] FCA 1730
Bienstein v Attorney-General and Another (2007) 162 FCR 405; [2007] FCA 1174
Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788; [2007] AATA 1792
R v Bunting (2002) 84 SASR 378; [2002] SASC 412
Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25
AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185
REASONS FOR DECISION
14 November 2011 Senior Member A K Britton
1. These reasons concern a request for documents made by the applicant under the Freedom of Information Act 1982 (Cth) (the FOI Act) to the Department of Human Services (the Secretary) in August 2010. In broad terms, the requested documents relate to an investigation undertaken by Centrelink and the applicant’s subsequent conviction on two counts of dishonesty under the Criminal Code 1995 (Cth), after entering a guilty plea. The conviction was entered in May 2008 and related to the period 2001 to October 2006, when the applicant claimed social security benefits while working full-time.
2. After the applicant lodged his application for review with the AAT, the Secretary decided to release “all of the applicant’s file” save for three documents listed in a Schedule of documents claimed to be exempt and tendered in these proceedings (the Schedule). With the consent of the parties, I have decided to treat that decision as the subject of this review (s 56(5) of the FOI Act). I have also decided not to review the decision made by the Secretary not to grant access to various surveillance running sheets and reports in unreadacted form because the applicant has advised that he no longer requests access to the “exempt matter” deleted from those documents.
3. The issues that remain to be determined are whether, as claimed by the Secretary, a letter between the Commonwealth Director of Public Prosecutions and an officer of Centrelink and various computer generated reports, are exempt under the FOI Act. In addition, it is necessary to decide whether the decision made under s 24A of the FOI Act to refuse the applicant’s request for further documents on the grounds that they cannot be found or do not exist, is the correct and preferable decision. The Secretary bears the burden of proving that the decisions made in relation to the requested documents were justified: s 61 of the FOI Act.
A. Documents which could not be found or do not exist
4. The applicant asserts that the Secretary has failed to undertake “all reasonable steps” to find the documents the subject of his request and challenges the assertion that a proper search has been conducted.
5. Section 24A of the FOI Act provides that an agency may refuse a request for access if (a) all reasonable steps have been taken to find the document; and (b) the agency is satisfied that the document is in the agency's possession but cannot be found, or, does not exist. The Tribunal's power on review of a decision made under s 24A includes a power to require the agency to conduct further searches for the document: s 55(5). In Chu v Telstra Corporation Limited (2005) 147 FCR 505, Finn J commented on the nature of the obligation imposed by s 24A (at 514):
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.
6. In Bienstein v Attorney-General and Another (2007) 162 FCR 405, the Federal Court commented on the operation of the FOI Act (at 418):
[Sections 24(1) and (2)] suggest that, where a request is not so onerous, the recipient of it is obliged to cause the processing of it to be undertaken, using whatever resources are necessary to identify, locate and collate the documents in the filing system of the agency or the office of the Minister concerned. A refusal under s 24A is only possible if all reasonable steps have been taken to find the documents and the recipient of the request is satisfied either that the document cannot be found or that it does not exist.
7. To put the parties’ submissions in context, it is necessary to examine the steps taken by the Secretary to locate the requested documents.
8. In his initiating request, the applicant described the documents sought in the following terms:
A) Any form of documentations but not limited to correspondences, communications, notes, emails, computer generated between Centrelink and Australian Taxation Office during years 2005-2010 regarding Siavash Khorramdel.
B) Any form of documentations but not limited to correspondences, communications, notes, emails, computer generated between Centrelink and surveillance agency during years 2005-2006 regarding Siavash Khorramdel.
C) Any form of documentations but not limited to correspondences, communications, notes, emails, computer generated between Centrelink and Director of Public Prosecution (Federal or State) during years 2005-2010 regarding Siavash Khorramdel.
D) Any form of documentations but not limited to correspondences, communication, notes, emails, computer generated between Centrelink and Commonwealth Bank of Australia regarding Siavash Khorramdel during years of 2005-2010.
E) Any form of documentations but not limited to correspondences, communication, notes, emails, computer generated between Centrelink and Sydney South West Area health services during years 2005-2010 regarding Siavash Khorramdel.
F) Any form of documentations which were internal or external to Centrelink during years 2005-2010 regarding Siavash Khorramdel debt account [numbers deleted]
9. The original decision-maker granted the applicant access to a number of documents but refused access to others on the ground that they were exempt under the FOI Act. The applicant sought review of that decision, contending, among other things, that further documents relevant to his request existed but had not been provided. On internal review, a number of additional documents were located and provided to the applicant, namely, a surveillance DVD and correspondence between the Commonwealth Bank and Centrelink. Six months later, after discussion between the parties, a decision was made to grant the applicant access to all documents held on his “benefit” and “investigation” files, apart from those listed in the Schedule of exempt documents. The Secretary estimates that over three thousand documents have now been released to the applicant.
10. The original decision-maker and the officer who undertook the internal review gave evidence in these proceedings. Both officers explained that the Department’s record management policy required staff to place all documents generated or received on a file which is then recorded in TRIM — a records management tool used by the Department to manage its paper based files. Each file is allocated a bar code. In addition, TRIM records where the file is located — either in a central file repository or in the possession of an officer of Centrelink.
11. The original decision-maker explained that as a first step in searching for the requested documents, she requested the Department’s records management unit to provide a list of all files recorded in TRIM relating to the applicant. On her account, after locating and inspecting each file identified by the unit she concluded that additional files probably existed and requested the unit to conduct a further search through TRIM. On doing so the unit uncovered additional files which the original decision-maker then located and examined.
12. The original decision-maker claimed that in addition to the search conducted through TRIM, she conducted a search of Centrelink’s “mainframe database” to determine if any additional electronic documents existed.
13. The officer stated that she had followed “standard procedure” and short of personally contacting each section or team within Centrelink, was unaware of any further steps she could have undertaken to find the requested documents.
14. The officer who conducted the internal review examined the search undertaken by the original decision-maker and also made his own enquiries. He stated that in reviewing the search undertaken, he was mindful of the claim made by the applicant in his application for internal review that the following classes of documents probably existed but had not been provided: communications between Centrelink and the fraud investigation unit of the Australian Taxation Office, the Director of Public Prosecutions, the Commonwealth Bank and the surveillance agency used by Centrelink to investigate him. The internal review officer concluded that the original decision-maker had properly identified all files that fell within the scope of the applicant’s request. However, on examining those files he identified a number of Commonwealth Bank documents that had not been provided to the applicant and which he considered fell within the scope of the request. In addition, he concluded that as the applicant suspected, a surveillance DVD probably existed. A copy of the DVD was located after the investigation team had conducted a search of its records at the request of the review officer. According to the review officer, that was the only apparent omission from the files located by the original decision-maker.
15. The applicant contends that not all reasonable steps have been undertaken to locate the requested documents. He asserts that the review officer simply relied on the files located by the original decision-maker and conducted a more thorough examination of those files. He argues that both officers put undue reliance on Centrelink’s records unit to identify relevant files and should have contacted individual officers directly who might hold files relevant to his request. In support of the assertion that the search was inadequate, he points to the following purported documents, which he contends ought to have been located in the search:
·A questionnaire, or the like, prepared by the Commonwealth Bank (the Bank). The applicant asserts that Centrelink issued the Bank with a notice under s 192 of the Social Security (Administration) Act 1999 (Cth) directing it to provide details of any accounts he held. He points out that, contained in the documents provided in answer to his request, was a questionnaire prepared by the ANZ Bank in answer to a s 192 notice (Exhibit A 1, Attachment B). He contends that this indicates that a similar document prepared by the Commonwealth Bank must exist.
·Documents prepared by Veda Advantage. Veda provides information to credit providers about an individual’s credit history. Information obtained by the applicant reveals that in May 2006, Centrelink made a request to Veda for information about him.
·Documents generated by the “ID Crime Research Unit Adelaide”. An electronic file note prepared by a Centrelink officer refers to the “ID Crime Research Unit Adelaide”.
16. The Secretary contends that all reasonable steps have been undertaken to locate the documents the subject of his request. The Secretary asserts that there is no unit within Centrelink called the “ID Crime Research unit”. In support, a statement prepared by a Centrelink officer based in Adelaide who was asked to make enquiries about whether a unit of that name existed within Centrelink, was tendered. The officer, who has been working in Centrelink’s non-compliance area for four and half years, testified that she was not aware of any team of that name within Centrelink and nor was a team of that name listed in Centrelink’s organisational structure. She said, however, that when she raised the issue with an officer of the Australian Tax Office she was told that while the ATO did not currently have a team of that name, its “system” contained an historic reference to the name. The Centrelink officer pointed out that the reference to “ID Crime Research unit” contained in the electronic file note on which the applicant relies was made by a “Centrelink ATO Special Project Officer”, that is, a Centrelink officer based in the ATO.
17. The internal review officer, on questioning, stated that he understood that the “ID Crime Research unit” was the predecessor of what is now known as the Serious Non-Compliance unit.
18. Both officers confirmed that the names of teams within Centrelink change frequently.
Documents that could not be found or do not exist: Findings and conclusions
19. It falls to the Secretary to establish that all reasonable steps have been taken to find the documents the subject of the applicant’s request. Factors relevant to whether that occurred in this case might include:
·The nature and scope of the request
·The number of documents released
·The diversity of documents located
·The range of sources within the Department from which any located documents have been obtained
·The methodology employed to undertake the search
·The resources employed to undertake the search
·The steps taken to conduct and review the search
20. There can be no argument that significant resources have been expended to locate the requested documents. A large number of documents have now been provided to the applicant from a diversity of areas within Centrelink. While not determinative, these factors are consistent with the Secretary’s claim that a reasonable search has been undertaken.
21. I accept that the original decision-maker and the review officer have been diligent in their efforts to locate the requested documents. As noted, the review officer went through each of the paper files located by the original decision-maker and identified documents that she had overlooked and, in the case of the DVD, a document omitted from the files. Given the volume of documents involved this was no small task.
22. I do not accept, as the applicant submits, that the absence of any document prepared by the Commonwealth Bank (in a form similar to Exhibit A 1, Attachment B) or VEDA, necessarily points to a defect in the search undertaken. There are any number of reasons why such documents were not located — they might not exist, alternatively they might not have been provided to Centrelink or, cannot be found within Centrelink. Nor do I accept that the reference to the “ID Crime Research unit” is, as the applicant suggests, determinative. While the possibility that a unit of that name might have existed within Centrelink cannot be excluded, it seems more likely that a unit was at one time based in the ATO.
23. The assessment of whether “all reasonable steps” have been undertaken is difficult given the limited evidence before me about Centrelink’s record management practices and importantly, the extent to which they are observed. The only evidence about the latter was that given by the original decision-maker who believed from her own experience that most officers followed the policy of forwarding all documents to the records management unit. Whether all reasonable steps have been undertaken turns largely on whether all files relevant to the applicant’s request have been identified and the likelihood that all requested documents were placed on the relevant file. Without some cogent evidence about the steps taken by the unit to compile the list of files provided to the original decision-maker and the reliability of the information used by the unit, I am unable to conclude that “all reasonable steps” have been undertaken. In addition, scant evidence has been provided of the nature of the search undertaken of Centrelink’s electronic database.
24. In the absence of such evidence, I cannot be satisfied that the Secretary has discharged the onus of establishing that all reasonable steps have been undertaken. It seems to me, as suggested by the applicant, that a reasonable further step might include asking all teams who might reasonably be expected to have had some dealings with the documents the subject of the applicant’s request whether they hold any further documents or files, apart from those that have already been located. A further reasonable step might be a further search of the Department’s electronic database and an examination of the methodology employed to conduct that search.
25. Section 24A sets a high hurdle. It is not enough that reasonable steps be undertaken to locate the requested documents — all reasonable steps must be undertaken. I could not be satisfied on the evidence before me that the Secretary has discharged the evidentiary burden of establishing that all reasonable steps were taken to find the requested documents.
B. Legal professional privilege exemption
26. The Secretary claims an exemption under s 42(1) of the FOI Act in respect of an email, sent from an officer of the Commonwealth Director of Public Prosecutions (DPP) to Centrelink, requesting clarification and further information about a number of matters relating to the prosecution of the applicant. Section 42 exempts a document from disclosure “if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”. The Secretary carries the onus of proving that legal professional privilege attaches to the disputed email.
27. Legal professional privilege is attracted by communications between a lawyer and client or third party for the dominant purpose of providing legal services in connection with pending or anticipated proceedings (the so-called “litigation privilege”) (see for example Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788).
28. The applicant contends that legal professional privilege does not attach to the disputed email because Centrelink is not the client of the DPP rather the supplier of information to the DPP.
29. The contention that there is no client-lawyer relationship between the DPP and Centrelink is incorrect. In any prosecution, the “prosecutor” is, at law, the person who lays the information or, as in New South Wales, files a Court Attendance Notice, commencing the proceedings against a defendant. In a Centrelink prosecution, the informant or “prosecutor” is generally a Centrelink officer. The DPP conducts the prosecution. In effect, it represents the informant. Centrelink does not merely “provide information” to the DPP for the purposes of a prosecution. Centrelink investigators conduct an investigation and compile a brief of evidence, which is then brought to the DPP for consideration and advice. Often this process will involve communication back and forth between a DPP lawyer and, for example, a Centrelink case officer who has conduct of the investigation. Communications between the DPP and Centrelink for the purpose of the DPP providing legal advice on, for example, the prospects of a successful prosecution or an advice on evidence to be obtained for a prospective prosecution to be brought would clearly be privileged: see R v Bunting (2002) 84 SASR 378; see also Waterford v Commonwealth (1987) 163 CLR 54.
30. The applicant also contends that privilege no longer attaches to the disputed document because by granting him access under the FOI Act to another letter between Centrelink and the DPP (Exhibit A3) — privilege has been waived. Sent six weeks before the disputed email, the letter relates to the prosecution of the applicant. There can be no argument that by providing it to the applicant, Centrelink has waived privilege in the latter. Legal professional privilege will be waived where the advice or information contained in a document is disclosed to a person or persons outside the lawyer client relationship — that is, the person claiming privilege has acted in a way that is inconsistent with maintenance of the privilege: Mann v Carnell (1999) 201 CLR 1 at 13. It does not necessarily follow that because other documents for which the Secretary might have been able to claim privilege have been provided to the applicant, privilege has been waived in the disputed email. The issue is whether the advice or information, for which the claim of privilege is made, or its gist or substance, has been disclosed: see AWB Ltd v Cole (No 5) (2006) 155 FCR 30.
31. While the disputed email and the letter (Exhibit A3) each relate to the same proceedings and deal with pre-trial preparation, they are not identical and do not cover the same issues. Having examined each document I am satisfied that the disputed email does not contain the same advice, or the gist of the advice, contained in the letter. I am satisfied that the Secretary has not waived privilege and that the claim of legal privilege is justified.
C. Section 40(1)(D) “operations of agencies” exemption
32. The Secretary claims an exemption from disclosure under s 40(1) in relation to eight pages of Customer Record Access Monitor (CRAM) reports. The Secretary relies upon paragraph (d) which provides:
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
…
33. The Secretary explained that CRAM reports are used to detect unauthorised access to information held by Centrelink in electronic form and internal and external fraud. The Secretary claims that access to CRAM records is heavily restricted.
34. Centrelink holds a great deal of personal and sensitive information about many members of the Australian community. In the last financial year, Centrelink administered $90.5 billion in payments[1]. Centrelink currently employs over 25,000 staff based in over 300 Customer Service Centres throughout the country[2]. In this environment, the potential for fraud and misuse of personal information is plain. The CRAM system is one of the methods used by Centrelink to monitor and audit employee access of its electronic records for the purpose of preventing fraud and the misuse of personal information. The disputed records reveal the names of officers within Centrelink who have accessed information about the applicant; when that information was accessed and the type of information accessed.
[1] Centrelink Annual Report 2010-2011, ‘Secretary’s Review: ‘Financial Management’.
[2] Centrelink Annual Report 2010-2011, ‘Chapter 1: Overview’.
35. The Full Federal Court held in Attorney-General's Department v Cockroft (1986) 10 FCR 180 that the expression "could reasonably be expected to" in the context of the FOI Act s 43(1) should be construed in accordance with its ordinary meaning, and requires “a judgment ... as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous", to expect the prejudicial consequence. A similar approach should be taken to the construction of the same expression where it occurs in s 40(1)(d) of the FOI Act.
36. Disclosure of the information contained in the CRAM reports could, in my opinion, reasonably be expected to be of value to persons seeking to misuse information held by Centrelink. In my opinion, the reports could reasonably be expected to disclose to a person familiar with Centrelink’s database the way the information is collected and used by CRAM. For that reason, I have concluded that disclosure could reasonably be expected to undermine the integrity of the CRAM system. It follows, given the critical role played by CRAM in preventing misuse of personal information and fraud, disclosure of the disputed reports could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of Centrelink.
37. While there is a public interest in the disclosure of the mechanisms used by Centrelink to audit the use of information held in electronic form, I have some difficulty identifying how the public interest would be advanced by disclosure of the reports used as part of that process. In any event, any public interest in disclosure would be outweighed by the need to preserve the integrity and efficacy of the audit system.
38. I am satisfied that the disputed reports are exempt under s 40(1)(d) of the FOI Act.
Confidentiality order
39. The applicant seeks an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) that these reasons for decision not be disclosed to anyone but the parties.
40. The Tribunal has the power to make the order sought. The issue is whether that order should be made. In making that decision, s 35 requires the Tribunal to take as the “basis of its consideration” the principle that it is desirable that:
·hearings of proceedings should be held in public, and;
·the public and the parties should have access to:
oevidence given before the Tribunal
othe contents of documents lodged with the Tribunal or received in evidence by the Tribunal.
41. In deciding whether such an order should be made, s 35 instructs that “due regard” must be given for the reasons advanced as to why publication or disclosure of the evidence should be prohibited or restricted.
42. In Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, the Full Court set out the proper approach to be taken to the exercise of the s 35 power (at 148):
[W]e think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised "sparingly". It also explains the approach in Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164 at [6], [41] and [42] (an appeal to the Full Court of the Federal Court from the decision of the AAT in Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; [2008] AATA 106) emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be "the basis" of the AAT’s consideration of adopting a different approach (in contrast, for example, to "a basis" for that consideration).
75 Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.
43. The reason advanced by the applicant for seeking a non-publication order was that disclosure of his conviction for social security fraud could jeopardise his employment and cause embarrassment to him and his family. He argues that, having served a custodial sentence, he should not be subjected to the further “punishment” of the disclosure of his offending conduct.
44. It would be rare for the Tribunal to decide not to publish its reasons for decisions. This is because the principle underlying “the norm” established by s 35 is the open administration of justice. There is a clear public interest in merits review being conducted and being seen to be conducted, in an open and transparent fashion. Public confidence in the AAT and the system of Commonwealth merits review could be undermined if the Tribunal’s reasons for decision were not made available for public scrutiny.
45. The applicant was not legally represented in these proceedings and in fairness to him I have also considered whether it would be appropriate to make an order that his name be substituted with a pseudonym in any reasons for decision. Such approach would address his concerns without the attendant problem of these not making the reasons of the Tribunal available for public scrutiny.
46. I have some sympathy for the applicant’s position, especially given that decisions of the Tribunal are accessible through the internet. Nonetheless I have decided that the circumstances of this case do not warrant departure from the “norm” of public disclosure established by s 35 of the AAT Act. For these reasons I have decided not to accede to the applicant’s request or, to order that his name be suppressed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: ........................[sgd]...................................
Associate to Senior Member A K BrittonDate/s of Hearing 10 October 2011
Date of Decision 14 November 2011
Applicant self-representedSolicitor for the Respondent Mr G Lozynsky, Centrelink Program Litigation and Review Branch
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