Lawrence and CRS Australia

[2005] AATA 466

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 466

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/505

GENERAL ADMINISTRATIVE DIVISION		)
Re		AROHA LAWRANCE

Applicant

And CRS AUSTRALIA

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date24 May 2005

PlaceSydney

Decision The reviewable decision made by CRS Australia on 16 April 2004 is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

FREEDOM OF INFORMATION – access to documents – reasonable steps to find documents – documents can not be found – documents do not exist – decision affirmed

LEGISLATION

Freedom of Information Act (1982) Cth sections 24A and 61(1)

Disability Services Act 1986 Cth

CASELAW

Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138

REASONS FOR DECISION

24 May 2005   Mrs Josephine Kelly, Senior Member

1.        The Applicant, Ms Aroha Lawrance, seeks review of a decision made by the Respondent, CRS Australia (“CRS”), on 16 April 2004 affirming a determination made on 8 March 2004 that access to documents she had requested pursuant to the Freedom of Information Act (Cth) 1982 (“the Act”) not be provided pursuant to s 24A of the Act.

2.        Ms Lawrance was employed by the Commonwealth of Australia from 24 November 1986 to 5 January 2001.  From 1986 to 1992 she was employed by the Department of Social Security (“DSS”); from May 1992 to October 1997 she was a member of the Social Security Appeals Tribunal (“the SSAT”); from November 1997 to August 1998 she was at Centrelink, and from 31 August 1998 until 5 January 2001 she was employed by the Refugee Review Tribunal (“the RRT”). 

3.        CRS provides vocational rehabilitation under the Disability Services Act (Cth) 1986.

4.        Ms Lawrance’s request for access to documents dated 23 February 2004 is a lengthy, comprehensive and detailed document.  She sought access to all records of personal information, including sensitive personal information and health information held by CRS relating to her.  She sought records of e-mail activity and other communications engaged in by particular individuals, including friends, relatives and former colleagues, and  contracts with various employers.  

THE ISSUES

5. Section 24A of the Act provides that an agency or Minister may refuse access to a document if:

“(a) all reasonable steps have been taken to the 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.”

6.        The issues in this case are therefore whether all reasonable steps have been taken to find the documents Ms Lawrance requested and whether I am satisfied that the documents requested are either in the possession of CRS and cannot be found or do not exist.

7. Section 61(1) of the Act provides relevantly that the agency to which the request was made has the onus of establishing that a decision given in respect of the request was justified, that is, that the Tribunal should make a decision adverse to the applicant.

CONSIDERATION OF MS LAWRANCE’S EVIDENCE

8.        Ms Lawrance provided comprehensive affidavit evidence (Exhibits A1 and A2) as well as giving oral evidence.  She believes “in hindsight” that CRS has collected information about her unlawfully without her knowledge, that the information collected is inaccurate and that it has been unlawfully disclosed. She now believes that CRS had an involvement in her employment during her period with the Commonwealth of Australia and generally since she left that employment, including attempting to have her diagnosed with a disability such as schizophrenia and/or a personality disorder. She believes that CRS had become a “vehicle” for her victimisation by various individuals during her employment at the SSAT and the RRT.  She believes that CRS has contacted friends of hers who have no connection to her employment, and relatives, without her knowledge.  

9. She formed these views after reading the Disability Services Act (1986) (Cth) in 2004. Having perused that Act she states “I considered the drastic change in behaviour of ex-friends … and the incredible unlawful discrimination that I encountered” (at two specified workplaces in 2001 and 2002), “and in the provision of education, good & services and accommodation in 2002-2004, and the radical change in conduct of my relatives in the last few years, it occurred to me that I had been wrongly placed on some sort of programme under (the Act). It has occurred to me that this may have happened during my Commonwealth employment as well as currently.” (Exhibit A2)

10.      She believes that various individuals, including employees of CRS and other Commonwealth bodies have involved themselves in her employment at the SSAT, Centrelink and the RRT. 

11.      She learnt of “the existence of some form of public service surveillance … in mid 1999.”   She did not know whether she had been under surveillance before that time.  I understand the reference to “mid 1999” to be to when a former friend told her “Bev Smith is no friend to you”.  Ms Lawrance had never introduced the two and they had never met or spoken.  She was “astounded” by the comment and was given no explanation for it and still does not understand what was meant.  According to Ms Lawrance when asked about that comment, Ms Smith’s reaction was extraordinarily defensive and she hung up.  It was that comment that has caused Ms Lawrance to believe that Ms Smith had a “professional interest in her”.  Ms Smith was formerly employed by CRS.

12.      Ms Lawrance does not know “who was undertaking the surveillance nor what it was done for.  I still do not know these things, however it seems that it may have been undertaken by CRS … either alone or in conjunction with the NSW Department of Health”.  In relation to her employment at the RRT she says: 

“In essence, whatever organisation was behind the circulation of these lies is liable for the conduct of these two women, and if it is CRS Australia, then they are guilty of victimisation”. 

13.      Ms Lawrance also asserted that the same friend who had made the comment to her about Ms Smith had told her in 2000 that another friend had been in contact with her employers, although she has never expanded upon what it was that the other friend was doing in emailing people about her.

14.      She had never suspected that had been the case.  Further remarks were made to her in 2004 to similar effect which have led Ms Lawrance to believe that that other friend had been involved in “information-sharing about me, with employers of mine or with an agency like CRS Australia, or some other similar agency”. 

15.      Ms Lawrance has referred to many further dealings and conversations with friends and work colleagues, and circumstances in various work places from 1995 to 2004 which have caused her to believe that she was:

“being mislead (sic) by former friends.  I can state that this has only occurred because of the activity of CRS Australia. It is very obvious not only that [a friend] had a source of information about my workplace that was not I, but that that source of information (and lies) was in all probability CRS Australia.  There is no way that my friends in the past would ever have treated me like this.  Their mistakes in so doing are attributable to the conduct of CRS and the lies which that organisation have disseminated about me”.  

16.      She believes that “this may have something to do with Bev Smith”. 

17.      Ms Lawrance also set out comments and reactions of other friends, relatives and doctors apparently unconnected with her employment,,which support her belief that someone has been spreading lies about her.  She referred to a relative making comments which wrongly imputed a psychiatric disorder to her.  In 2002 a doctor told her “Canberra needs a diagnosis”.  That doctor had never treated her and did not have consent to treat or assess her.  In 2003 another doctor whom she had seen once before in 1994 and from whom she sought file notes, told her that a close relative was observing her. She asserted that doctor’s file notes indicated that a third person had consulted with the doctor in 1994 when a considerable amount of false information had been given about her and that the file notes also referred to an assessment having been undertaken of Ms Lawrance of which she was unaware and to which she had not consented.

18.      At paragraph 42 of her affidavit Exhibit A1 she refers to various matters mentioned above, plus one other, and states “it is evident that CRS Australia have a substantial number of documents about and in relation to me.” 

MS SMITH AND MS PERROTTET

19.      Ms Bev Smith and Ms Louise Perrottet are former employees of CRS.  They  were summonsed to give evidence by Ms Lawrance.  Both were also friends of Ms Lawrance in the past.   Ms Perrottet left CRS in 1994 and Ms Smith left CRS in 2002. 

20.      CRS contacted Ms Smith after the internal review of Ms Lawrance’s request had been carried out.  Ms Smith made it clear to CRS and in her evidence during the hearing that she was at one time a friend of Ms Lawrance and had had no dealings with Ms Lawrance as a CRS employee but only on a personal and social level.  She could not remember any e-mail communication with Ms Lawrance at work apart from possibly arranging times to give her a lift but she would probably have deleted it. Her practice has been to delete personal e-mails regularly.  She recalled receiving via a colleague a letter from Ms Lawrance sent to CRS in about 2002.  . 

21.      Ms Smith and Ms Perrottet discussed Ms Lawrance’s behaviour and mental state. No document was created following that discussion. When Ms Smith confronted Ms Lawrance with her concerns and suggested that Ms Lawrance obtain professional help or support, Ms Lawrance became abusive.  She accused Ms Smith of interfering.  Ms Smith then ended contact with Ms Lawrance.

22.      Ms Perrottet was not aware of any activity by CRS concerning Ms Lawrance. 

MS O’NEILL

23.      Ms Annette O’Neill was also summonsed by Ms Lawrance to give evidence. She was a Senior Member of the Social Security Appeals Tribunal during Ms Lawrance’s employment there (1992-1997).  She was unaware of any arrangement in relation to Ms Lawrance’s employment under the Disability Services Act or any other legislation and had not referred Ms Lawrance to CRS and did not know of anyone else there who had done so. 

24.      After this matter had been reserved, two pieces of correspondence came to my attention from one of the witnesses Ms Lawrance had summonsed but who had not attended the hearing. The witness first sought discharge of the summons and later indicated that if it were not discharged, he would only be available to give evidence by telephone.  My Associate inquired of Ms Lawrance whether she wished to have a directions hearing to determine whether the hearing should be re-opened to have the witness give evidence.  Initially she said yes, but later said no.  

WERE ALL REASONABLE STEPS TAKEN BY CRS TO SATISFY MS LAWRANCE’S REQUEST?

25.      Evidence relied upon by CRS included the affidavits and oral evidence of Ms Wood and Ms Carmody, the material in Exhibit T, its Client Service Charter and CRS Australia Privacy and Your Personal Information Statement.

26.      I find on the evidence that CRS does not collect or store an individual’s sensitive personal or health information unless that person is a client, employee or contractor of CRS. Vocational rehabilitation is a voluntary process and all CRS vocational rehabilitation programs are provided in consultation with the client. The service would not be provided with the consent of a third party only.  The informed consent of the client is necessary.  CRS does not conduct surveillance.  It is not an investigative agency.

27.      CRS conducted searches of documents for employees, contractors and clients.  No records were found relating to Ms Lawrance.  Searches were also made of the client databases (Nexus and its predecessor, CRMIS) which contain an index identifying files held relating to clients, human resources/employees and finance records of contractors/vendors. There are various retention periods for different categories of client records.  However, the records of Nexus go back to 1999 and are not destroyed when the documents are destroyed.  It includes historical data from its predecessors CRSMIS and RUMS dating back to 1987.  A number of variants of Ms Lawrance’s name were searched unsuccessfully.  

28.      Inquiries were made of CRS Payroll and Finance teams to find out whether she had ever been an employee, contractor or vendor.  No records were retrieved.

29.      If Ms Lawrance had been a client of CRS between 1986 and 2004, an electronic record of her involvement would have been created.  All correspondence about clients, including correspondence via e-mail and facsimile is kept in hard copy on the client file, until disposed of in accordance with the CRS Records Disposal Authority.    

30.      Searches were unable to find any contact with relatives of Ms Lawrance.  Two difficulties were knowing the surname of the relatives,, and where they might have contacted CRS. 

31.      CRS searched its electronic archives for relevant e-mails and other documentation in relation to Ms Smith and Ms Perrottet.  No records were found relating to Ms Perrottet.  Electronic holdings relating to Ms Smith were found.  They included e-mail and other documentation, amounting to approximately 400 megabytes of material.  A manual search would be required to determine whether any of the material was relevant.  Each e-mail would have to be opened and each attachment as well.  Other documents would have to be reviewed individually.  I accept Ms Wood’s oral evidence that the process of reviewing the material to identify matches to requested information and suitable for release is a lengthy one.  It would take four days to recover the material from IT services and on a conservative estimate 100 hours to review it. 

32.      I do not consider it reasonable to require a search of the electronic records relating to Ms Smith.  I accept her evidence that her relationship with Ms Lawrance was purely one of friendship.  Any e-mail records which Ms Smith created would have been to Ms Lawrance about giving her a lift and in all probability would have been deleted.  Ms Smith was not involved in any activity relating to CRS activities and Ms Lawrance.  Apart from Ms Lawrance’s belief, arrived at in hindsight, there is no other evidence to suggest that there was any connection between CRS and Ms Lawrance. 

33. I am satisfied on the evidence that all reasonable steps have been made to find the documents the subject of Ms Lawrance’s request. In coming to that conclusion I have borne in mind Deputy President McDonald’s discussion of s 24A in Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 at 145. It is not reasonable to require further searches for the information to which Ms Lawrance seeks access. Her belief was formed in 2004 when she found the Disability Services Act (Cth) 1986. For her, that legislation provided a coherent explanation of various comments and incidents which had occurred in her private and working life over a number of years.

34.      Given CRS’s role as a provider of vocational rehabilitation services, its practices, the information it stores and its storage procedures, I am satisfied that if it held information about a program or service relating to Ms Lawrance, it would have been found by the searches it undertook.

35.      I accept that Ms Lawrance genuinely holds the belief that CRS may have had an involvement in her life, however, I am satisfied on the evidence that CRS has never had any such involvement.

36.      I find that the documents to which Ms Lawrance has requested access do not exist.

CONCLUSION

37. Pursuant to s 24A of the Act I am satisfied that CRS has taken all reasonable steps to find the documents to which Ms Lawrance sought access and that the documents do not exist.

DECISION

38.      The reviewable decision made by CRS on 16 April 2004 is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior  Member

Signed: Miss Sacha Keady           .....................................................................................

Associate

Date/s of Hearing  1 November 2004
Date of Decision  24 May 2005
Representative for the Applicant               Self
Counsel for the Respondent                      Jane Lye
Solicitor for the Respondent  AGS