Lawrance and Centrelink
[2005] AATA 14
•5 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 14
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/594
GENERAL ADMINISTRATIVE DIVISION ) Re AROHA LAWRANCE Applicant
And
CENTRELINK
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member Date5 January 2005
PlaceSydney
Decision The reviewable decisions dated 17 March 2004 and 8 April 2004 are affirmed.
[sgd] Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – request refused on grounds that documents do not exist – agency had taken all reasonable steps – meaning of “exist” – agency not required to make enquiries of persons who were never employees – decisions affirmed
LEGISLATION
Freedom of Information Act 1982 sections 4, 15, 15A, 16, 24A
Disability Services Act (Cth) 1986 part lll, section 25
Disability Services Act (NSW) 1993
CASE LAW
Re Cristovao and Secretary Department of Social Security (1998) 53 ALD 138
Langer and Telstra Corporation Ltd [2002] AATA 341
Beesley v Australian Federal Police [2001] FCA 836
REASONS FOR DECISION
5 January 2005 Mrs Josephine Kelly, Senior Member WHAT IS THE SUBJECT OF THE APPLICATION?
1. The Applicant, Ms Lawrance, seeks the review of decisions made by the Respondent, Centrelink, on 17 March and 8 April 2004 in response to her requests for access to documents pursuant to s 15 and s 15A of the Freedom of Information Act 1982 (“the Act”). Section 15 of the Act applies to requests for access to documents of an agency and s 15A applies to a request for “personnel records”.
2. The decision made on 17 March 2004 was in response to Ms Lawrance’s request dated 23 February 2004 for information including her personnel records “as well as all other records held by Centrelink containing personal information about me and health information about me”.
3. Ms Lawrance specified that her request included her personnel records during her employment with Centrelink during 1997/1998, the Social Security Appeals Tribunal from 1992 to 1997 and with the Department of Social Security (“DSS”) from 1986 to 1992. Ms Lawrance noted that she assumed the DSS and Centrelink records would have been amalgamated.
4. Ms Lawrance elaborated upon her request for “all records which contain sensitive, personal, and health information”. She included records of any arrangements involving CRS Australia or the Human Rights & Equal Opportunity Commission under s 25 or Part III of the Disability Services Act (Cth) 1986, which she believed may have been entered into around 1998 or 1999. She sought all records “including email records, other electronically held or stored records relating to any unusual conditions of work that may have even existed at Centrelink in relation to me, [and] records from any aural or optical surveillance” from the same time. She nominated a particular employee as being involved. She sought access to “to any personal, personnel, or health information from the SSAT”, referring to certain former colleagues and sought all records of information collected from and disclosed to friends and family.
5. The decision dated 17 March 2004 stated that 92 folios and 71 electronic records were held and access was allowed to all. The decision also advised Ms Lawrance that “Centrelink forwarded your entire personnel file to the Refugee Tribunal on commencement of your employment there in 1998. All the information you seek, if it exists, should be on this file” and advised her to contact the relevant section of that Tribunal for access.
6. Ms Lawrance’s request of 24 March 2004 stated that “you are required to obtain my personnel and other records from whatever agency is holding them, and undertake a FOI action in relation to all of those records”. She also specified certain email and electronically held information.
7. The response dated 8 April 2004 advised Ms Lawrance that:
“Centrelink is not the holder of the information you require and as such I will transfer the request on your behalf to the Refugee Review Tribunal. It is up to the Refugee Review Tribunal to release or exempt the information you are seeking not Centrelink.
Regarding the electronic records and email you seek from 1997 and 1998, unless this information was produced as hard copy and placed on your personnel file it no longer exists. However, I cannot confirm this as I have no authority for access to this file as it is now the property of the Refugee Review Tribunal (if this is your last government employer).”
8. On 19 April 2004, Ms Lawrance’s request was transferred to the Refugee Review Tribunal (“the RRT”) pursuant to s 16 of the Act.
9. In a letter dated 1 July 2004, Ms Lawrance wrote to Centrelink “to clarify and refine my FOI enquiries”, specifically in relation to the provision of programmes and services in relation to her involving CRS or CRS employees under the Disability Services Act (NSW) 1993 and the Disability Services Act (Cth) 1986. To the extent that that document extends the request beyond the two earlier requests the subject of the proceedings before the Tribunal, I do not have power to consider it as there is no reviewable decision before me.
10. To understand Ms Lawrance’s case, it is necessary to know the background to her request. Her evidence was that a couple of people in 2000 and 2004 had told her that a former friend of hers (not employed by Centrelink) sent emails to her employer. She believed the e-mail quite wrongly imputed to her psychiatric disorders. The employer was not specified.
11. Also, in 2002 a doctor told her that “Canberra needs a diagnosis” and in 2003 a doctor told her that a close relative of hers had been observing her. As a result of these remarks Ms Lawrance formed the belief that there was a possibility of an assessment of her or a programme of some kind being carried out, or conditions being implemented in relation to her during her employment at the Administrative Law Section of Centrelink (“ALS”). She formed this belief some years after she had left Centrelink’s employment.
THE ISSUES
12. The issues are whether Centrelink has taken all reasonable steps to find the documents Ms Lawrance requested and whether or not they exist, as required by s 24A of the Act.
THE LEGISLATION
13. Provisions of the Act relevant to this matter are:
“Section 4:
“document of an agency” or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.
…
Section 16
Transfer of requests
1. Where a request is made to an agency for access to a document and:
(a) the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency; or
…
the agency to which the request is made may, with the agreement of the other agency, transfer the request to the other agency.”
Section 24A provides:
“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.”
14. Section 61 places on the agency or Minister the onus of establishing that the decision given in respect of the request was justified, or that the Tribunal should give a decision adverse to the applicant.
CONSIDERATION
15. Mr McDougal, a former manager of ALS at Centrelink who was employed at the time Ms Lawrence worked in that section, was called by Ms Lawrence to give oral evidence. His evidence confirmed the procedures for the transfer of employee files from one Commonwealth agency to another if the employee ceases employment with one agency and commences employment with another.
16. He was not aware of any contact between Ms Lawrence’s relatives and Centrelink about her health, nor of any e-mail communications of that nature. He had no responsibility for personnel records, which he thought were held in Canberra, and no responsibility for personnel issues in his section. He had had no experience of a social worker being appointed to undertake an assessment of a member of staff, either with or without that person’s knowledge. He had no knowledge of any arrangement between his section and CRS Australia. He was aware that Ms Ann Brimson, an advocate at the ALS had a law degree but was not aware whether she was a social worker or had any role in assessing Ms Lawrance. He was also not aware of any special conditions of Ms Lawrance’s employment with the Refugee Review Tribunal which she went to when she left Centrelink. He was unaware of any suggestion being made, officially or unofficially, that she suffered from a psychological disorder. Mr McDougal was also not aware either officially or unofficially of any of Ms Lawrance’s friends, unconnected with her employment, e-mailing any Commonwealth agency or her employer. He was unaware of any inquiries being made about Ms Lawrance’s not being reappointed to the SSAT or about her transfer to ALS. He did not know Denise Connolly, Bev Smith or Louise Perrottet who Ms Lawrance thought might have provided information or had some role in a programme relating to her. Mr McDougal said that a reference he wrote for Ms Lawrance for her appointment to the RRT would be part of the selection process and form part of that agency’s file. It was not relevant to ALS.
17. Apart from Ms Lawrance’s own evidence, no evidence was called or tendered supporting Ms Lawrance’s account or supporting her belief. Mr McDougal’s evidence did not support any aspect of her case.
18. For Centrelink, Ms Jane Shearer gave evidence about the searches that were carried out for Ms Lawrance’s personnel file. Those searches included the national Records Management Unit based in Victoria and archives files based at Chesterfield and Villawood NSW. No file was located.
19. Ms Mary Livingston also gave evidence of searches for personnel records. She searched the national database in which personnel files are registered. No file was found. She also contacted the Human Resources Manager at Centrelink Area East Coast. There was no record of any additional personnel files, separate fitness for duty, discipline, compensation files or other records. Ms Livingston also contacted the Refugee Review Tribunal and confirmed that Ms Lawrance’s personnel file was in its custody.
20. Ms Denise Culpitt, an employee of Centrelink, gave evidence about the storage and purging of e-mail records. I am satisfied that no records exist of any emails sent to or by people who were not employed by Centrelink at the time of the upgrade of Centrelink’s computer system in February to April 2004. In cross-examination Ms Culpitt gave evidence that there were no e-mails relating to Ms Lawrance sent to staff of ALS in 1997-1998 and no such e-mails sent or received by any employee of ALS of SSAT pursuant to a Department of Family and Community Services programme or activity.
21. Ms Andrea Garcia gave evidence of the inquiries she made to determine whether various individuals named by Ms Lawrance were either former or current employees of Centrelink. Only one was currently employed by Centrelink and of those who were former employees, such employment ceased before January 2001. She also made inquiries of current ALS employees who were also employed in that section during Ms Lawrance’s employment there. The inquiry was whether their mail file or PC contained any documents relating to Ms Lawrance. No such documents were found.
22. I accept Ms Garcia’s evidence in cross-examination that if there had been a programme such as Ms Lawrance contends, the records would be on her personnel file. Further, the requests Ms Garcia made were for all information relating to Ms Lawrance, not just her personnel file and even if information were confidential, it would have been disclosed.
23. Ms Lawrance gave evidence that certain documents had not yet been found and she did not believe that they did not exist. For example, she believed the medical report she had been given by the RRT was incomplete, and that the full report should be held by Centrelink, and that Mr McDougal’s reference for her appointment to the RRT should also be held by Centrelink. She saw the medical report in 1986 when she was appointed to the Commonwealth public service. I do not accept that her recollection is accurate, given the lapse of time and Ms Garcia’s evidence that medical reports of that period were only one page. Mr McDougal’s evidence contradicted what Ms Lawrance said. He said that a reference he had provided would have been held by the RRT, not by Centrelink.
24. In coming to the conclusions that follow, I have had regard to the discussion of s 24A of the Act in Re Cristovao and Secrretary Department of Social Security (1998) 53 ALD 138, in particular the analysis of that section at paragraph 19.
25. Ms Lawrance’s principal argument was that because certain documents were not provided to her, all reasonable steps had not been taken to find the documents she had requested. On the evidence as set out above, I do not accept that is so for the following reasons:
.documents relating to various subjects to which her request related would have been in her personnel file which was transferred to the RRT;
.if there were documents relating to her otherwise held by Centrelink, they would have been disclosed by the searches Centrelink carried out; that is established by the fact that documents were found and were provided to her as set out in the decision of 17 March 2004, although Ms Lawrance said they were not what she had asked for;
.her belief that certain documents must exist, including e-mails, relating to assessments, programmes or conditions of work affecting her, e-mails from a friend to her employer and information provided to or from family members, is purely speculative; that documents satisfying the requests were not found does not persuade me that the searches undertaken by Centrelink were inadequate. There is no evidence to which I attribute significant weight that supports Ms Lawrance’s belief.
.given the speculative nature of Ms Lawrance’s belief, it is not reasonable for Centrelink to carry out further searches for the material requested. All reasonable steps have been taken.
26. There were two further matters relevant to this argument which I did not understand Ms Lawrance to press at the hearing, but which I address for completeness. The first is a suggestion that Centrelink ought to have made inquiries of past employees and of people who were not employees. Ms Lawrance referred to paragraph 104 of Langer and Telstra Corporation Ltd [2002] AATA 341 which mentioned that Telstra officers “pursued a number of leads”, “that they have contacted officers involved in the proposal to become a participant in the RDN-CRC in order to obtain documents held by them or to ascertain the location of documents they once held”. I do not understand this to be authority for the proposition Ms Lawrance put. Rather, the paragraph refers to current employees whose positions have changed over time.
27. Further, in my opinion s 24A(a) does not require such inquiries to be made in this case. The documents that must be provided are those in the possession of the agency. Ms Garcia’s evidence was that all the former employees ceased employment before January 2001. It would be unreasonable to require Centrelink to search for the individuals involved. Further, whether any assistance would be provided if an individual were found is uncertain. This is particularly so in this case where Ms Lawrance’s belief about a programme or conditions of employment and the involvement of former friends and colleagues which would have led to the creation of documents, is not supported by evidence to which I attribute any significant weight.
28. No authority was brought to my attention to support a proposition that inquiries must be made of people who were not employed by the agency and there is nothing in the Act to support such a proposition.
29. The second matter that Ms Lawrance did not press was that Centrelink had to obtain its records which had been transferred to the RRT, as Ms Lawrance requested on 24 March 2004. Centrelink stated in its response of 8 April 2004 that the decision-maker had no authority to access that file “as it is now the property of the Refugee Review Tribunal”. There was no evidence or legal argument to refute that statement. Further Ms Lawrance’s request was transferred to the RRT pursuant to s 16 of the Act. The RRT was relevantly in possession of the file and Centrelink had no right to it. In my opinion, the issue of “possession” which arose in cases referred to by Ms Lawrance, including Beesley v Australian Federal Police [2001] FCA 836 and the cases discussed in that decision, are not relevant. Centrelink did not have to “repossess” the material it had created. It acted appropriately in referring the request to the RRT pursuant to s 16. The authorities relied upon do not address the situation where documents have been transferred to another government agency in accordance with the practice of Commonwealth agencies and where pursuant to s 16 of the Act, the request under the Act has been transferred to that other agency.
30. Ms Lawrance’s second argument was that I ought not be satisfied that the documents do not exist. The first matter that needs to be mentioned although not addressed by either party, is the meaning of “exist” in s 24A(b)(ii) because it is clear that Ms Lawrance’s personnel records from her time of employment with Centrelink and its predecessors do “exist” in the possession of the RRT. I have found no authorities on this question. In the context of s 24A and the scheme of the Act, including ss 4 and 16, it is my opinion that the term is limited to documents that are in the possession of the agency.
31. I am satisfied on the evidence that the documents requested and to which access has been refused, relevantly do not exist.
CONCLUSION
32. I am satisfied as required by s 24A of the Act that Centrelink has taken all reasonable steps to find the documents to which Ms Lawrance requested access (and which have not been provided to her) and that they do not exist.
DECISION
33. I affirm the decisions made by Centrelink on 17 March and 8 April 2004.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member
Signed: Guy Moloney .....................................................................................
Associate
Date/s of Hearing 29 October 2004
Date of Decision 5 January 2005
Representative for the Applicant Self
Solicitor for the Respondent Judy Pownall, Australian Goverment Solicitor
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