Lever and Australian Nuclear Science and Technology Organisation (Freedom of information)
[2022] AATA 2259
•12 July 2022
Lever and Australian Nuclear Science and Technology Organisation (Freedom of information) [2022] AATA 2259 (12 July 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/7614
Re:Ronald Lever
APPLICANT
AndAustralian Nuclear Science and Technology Organisation
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 July 2022
Place:Sydney
The decision under review, as altered under paragraph 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) on 30 July 2021, is affirmed.
........................................[sgd]..............................
Chris Puplick AM, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – OAIC declined to undertake further review under 54W of the FOI Act – freedom of information decision under review by the Tribunal – decision altered under 26 of the AAT Act – whether respondent has taken all steps to find documents within the scope of the applicant’s freedom of information request – whether conditional exemptions in 22 and 47F of the FOI Act properly applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 26, 43
Archives Act 1983 (Cth) ss 6, 24
Freedom of Information Act 1982 (Cth) ss 4, 11, 11B, 22, 24A, 24AA, 37, 42, 45, 47F, 54W, 58, 58A
Privacy Act 1988 (Cth) s 6
CASES
Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Dezfouli and Australian Federal Police (Freedom of information) [2019] AATA 4079
Gould and Department of Health [1985] AATA 63
Langer and Telstra Corporation Ltd [2002] AATA 341
Radar Investments Pty Ltd and Ors and Health Insurance Commission [2004] AATA 166
Singh and Commonwealth Ombudsman (Freedom of information) [2021] AATA 3889
VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619
SECONDARY MATERIALS
FOI Guidelines: Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982
REASONS FOR DECISION
Chris Puplick AM, Senior Member
12 July 2022
INTRODUCTION
These are proceedings under the Freedom of Information Act 1982 (Cth) (the Act) brought by Mr Ronald Lever (the Applicant) against his former employer, the Australian Nuclear Science and Technology Organisation (ANSTO or the Respondent).
They relate to a request by the Applicant for the release to him of certain documents which relate primarily to matters involving a claim which the Applicant has against Comcare.[1]
[1] The reasons given by any applicant for seeking information under the Freedom of Information Act 1982 (Cth) (Act) are not relevant in any determination of an application pursuant to paragraph 11(2)(a) of the Act.
The proceedings have reached an extraordinary level of complexity resulting in over 11 separate sets of Directions being issued by this Tribunal in an attempt to manage the case and requests being considered for the issuance of at least seven separate summonses or sets thereof.
The original application for review was lodged with the Tribunal on 15 November 2020 (see narrative below) and the hearing was conducted on 16 May 2022. At the conclusion of the hearing the Applicant was granted (at his request and not opposed by the Respondent) until 7 June 2022 to file any further written submissions and the Respondent was given until 22 June 2022 to file any written response. These dates were subsequently extended so that final submissions were received on 17 June and 4 July 2022 respectively.
THE FREEDOM OF INFORMATION ACT
The Freedom of Information Act (the Act) provides a mechanism whereby “every person” has a legally enforceable right to access documents held by a Commonwealth agency or Minister, unless those documents are “exempt” documents.[2] The Act provides, inter alia, for the way in which requests must be made, the time within which applications must be determined and a process for appeal against refusal decisions.
[2] Act s 11.
It also provides that certain documents may be exempt from production if access to that document “would, on balance, be contrary to the public interest”.[3]
[3] Ibid s 11B(1).
A document may be “conditionally exempt” if any of the specified qualifications on access apply to it, or in certain circumstances (for example national security or Cabinet documents) may be wholly “exempt”.
For a document to be conditionally exempt its disclosure must be against the public interest on one (or more) of the grounds specified in Division 3 of Part IV of the Act. These grounds include for example, such matters as the protection of the personal privacy of third parties (i.e. persons other than the applicant) (s 47F); the protection of legal professional privilege (s 42), material obtained in confidence (s 45) or matters of law enforcement and public safety (s 37).
Where a document contains matter which is both exempt and not exempt, an agency may release part of that document or may redact parts of that document prior to release.
Finally, in this context, an agency may refuse access to documents if any search for or production of those documents would “substantially and unreasonably divert the resources of the agency from its other operations” (s 24AA). This is referred to as a “practical refusal” of a request. The question of what constitutes an unreasonable burden on an agency will vary depending on a variety of factors as explained by this Tribunal in VMQD v Commissioner of Taxation.[4]
[4] [2018] AATA 4619.
Agencies may also refuse to release a document if that document contains material which is irrelevant to the request or may release such a document in an edited form (s 22).
NARRATIVE AND SCOPE OF THE APPLICATION
The starting point must be the Applicant’s original FOI request made on 12 July 2018 which itself was by no means the first such request made to ANSTO by the Applicant. However, those previous matters are not in issue before the Tribunal in these proceedings.
The Applicant’s request of 12 July 218 was in the following specific terms:[5]
[5] Tribunal documents (T-documents) at 25.
“FOI request ANSTO 12 July 2018
I wish to make the following FOI request:
For the period 13 May 2005 to 31 January 2006,
Mr Davies (sourced from Mr Davies pst[6] file of his emails located by Ms Larkins), in relation to my Comcare compensation claim 744396/3.
[6] PST files = personal storage table files. As explained in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [5]: A PST file is an open proprietary file format used to store copies of messages, calendar events, and other items within Microsoft software such as Microsoft Exchange Client, Windows Messaging, and Microsoft Outlook stored on a server and located on an individual’s local computer. Most commonly, PST files are used to store archived items.
1. All email communications between Mr Davies and the AGS (acting for Comcare),including but not limited to, Ms Briony Eales.
2. All email communications between Mr Davies and Comcare, including but not limited to, Mr Pasfield.
3. All email communications between Mr Davies and Henry Davies York, including but not limited to, Mr Jauncy.
4. All email communications between Mr Davies and any other party in relation to my Comcare claim for compensation and/or ANSTO security.
Mr Ryan (sourced from Mr Ryan’s pst file of his emails located by Ms Larkins), in relation to my Comcare compensation claim 744396/3.
5. All email communications between Mr Ryan and the AGS (acting for Comcare), including but not limited to, Ms Briony Eales.
6. All email communications between Mr Ryan and Comcare, including but not limited to, Mr Pasfield.
7. All email communications between Mr Ryan and Henry Davies York, including but not limited to, Mr Jauncy.
8. All email communications between Mr Ryan and any other party in relation to my Comcare claim for compensation.
Please note:
1. I agree to limit the search to the pst files already located by Ms Larkin's.
2. I agree to limit the search to only those documents not previously provided in answer to my previous FOI requests. These documents are readily identifiable by date and time.
3. Searching the emails in the pst file by date range is a simple process. A search of this kind would only take a number of seconds, possibly a number of minutes.
4. Given the emails sought are from the organisations, Comcare, AGS and HDY the search can be further refined by their, the organisations' suffixes, @comcare.gov.au, @ags.gove.au and @hdy.com.au, a further number of seconds possibly minutes.
5. Given emails are date and time stamped identifying duplicates will be straightforward and easy.
6.I note in ANSTO’s FOI decision 22 November 2017 release of documents ANSTO claimed exemption in part or in full on 14 documents. I also note there were email communications involving Mr Davies and Mr Pasfield that were not released nor was exemption claimed on them.
7. The fact is I cannot say how ANSTO, Comcare, the AGS or HDY referred to me, by name or by claim number and/or by their respective internal reference numbers, however, the email should be readily identifiable, by reference to the email trail if the email is related to my claim or not.
8. Claiming Legal Professional Privilege (LPP) does not exempt a document from the FOI Act from release. Whether ANSTO are claiming LPP or not still requires the document to be released (identified), with sufficient particulars about the document whether redacted in part or in full.
9. Examining a document is a normal part of the FOI process.
10. To state, letter dated 26 June 2018, “Preliminary basic searches have already identified around 1258 emails, plus attachments, as potentially being relevant to your request.” is not relevant without also stating how many of these emails are duplicates?
11. The period requested was when I was absent ANSTO on sick leave.
12. The emails requested are business emails, not personal emails.
13. ANSTO cannot legitimately use LPP to protect past ANSTO officers and practices. The email communications sought are 13 years old. As I have stated ANSTO, the client, needs to show the legitimate harm that would be caused by the release of documents that are 13 years old. If ANSTO persists with a claim of LPP, ANSTO is to provide a minimum of information in relation each of the documents to identify the participants and the reasons given for maintaining a claim of LPP including the harm it would cause ANSTO should the document be released in full.”[7]
[7] T-documents at 25-26.
The Tribunal has highlighted the self-imposed limitations proposed by the Applicant namely, to confine his request to “the pst files already located by Ms Larkin’s [sic]”. The Respondent has thereafter acted in accordance with those restrictions in going about its duties to locate and identify relevant documents.
On 20 September 2018 ANSTO made a decision which:
(a)identified 80 documents as being within the scope of the application;
(b)released 23 of those in full to the Applicant;
(c)released 14 in part to the Applicant; and
(d)decided that 43 were fully exempt under the Act.
The statutory basis upon which redactions were made in the 14 partially released documents derived from the exemption provisions of the Act which covered grounds of personal privacy (s 47F); protection of legal professional privilege (s 42) and edited copies in which exempt or irrelevant material has been deleted (s 22).
The basis upon which the 43 documents were held to be fully exempt relied upon the same section 42 provisions.[8]
[8] Ibid at 27-33.
On the application of the Applicant, an internal review of the decision of 20 September 2018 was undertaken which resulted, on 15 November 2018, in a variation of that original decision such that:
(a)one document previously released in part was released in full;
(b)one document which was previously determined to be fully exempt was released in part; and
(c)five documents which were previously determined to be fully exempt were released in full.[9]
[9] Ibid at 7-13 and 15-22.
The Applicant then applied (on 14 December 2018) to the Office of the Information Commissioner for a review of the 15 November 2018 decision but on 23 October 2020 the Commissioner exercised her powers under section 54W of the Act not to undertake a review but to refer the matter directly to this Tribunal[10] and as a result the Applicant’s request was lodged on 15 November 2020.
[10] Ibid at 80-82.
The next step in the process was that the matter came before the Tribunal on 30 July 2021 when Deputy President Constance considered a request from ANSTO to alter the decision under review.[11] The Deputy President issued an Order (on 30 July 2021) which provided a further 134 pages of documents to the Applicant. The Tribunal stated:
The Respondent wishes to alter the decision under review made on 15 November 2018 to claim documents to be exempt in full or in part under section 42 of the Freedom of Information Act 1982 (Cth) (FOI Act) by identifying the following documents described in the Schedule of Documents at Attachment A as no longer being claimed as exempt.
[11] Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 26(1)(b).
In an attached Note it stated:
The Tribunal notes the parties’ agreement that the documents described in Attachment A as being exempt under section 47F of the FOI Act and documents described as irrelevant under section 22 of the FOI Act remain subject to the review of the Tribunal.[12]
[12] Section 26 Order issued by Deputy President Constance on 30 July 2021.
It will be seen that this means that ANSTO was no longer claiming any legal professional privilege (s 42) exemptions in relation to any of the requested documents and that, as a result, the basis of claiming exemptions for the remaining documents rest upon the provisions of sections 47F and 22 of the Act.
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(c) it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d) it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
Notice to applicant
(3) The agency or Minister must give the applicant notice in writing:
(a) that the edited copy has been prepared; and
(b) of the grounds for the deletions; and
(c) if any matter deleted is exempt matter—that the matter deleted is exempt matter because of a specified provision of this Act.
(4) Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole document unless the applicant requests the agency or Minister to give the applicant a notice in writing in accordance with that section.
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
(3) Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
Access given to qualified person instead
(4) Subsection (5) applies if:
(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and
(b) it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health, or well‑being.
(5) The principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:
(a) carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (7), as the first‑mentioned qualified person; and
(b) is to be nominated by the applicant.
(6) The powers and functions of the principal officer of an agency under this section may be exercised by an officer of the agency acting within his or her scope of authority in accordance with arrangements referred to in section 23.
(7) In this section:
qualified person means a person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well‑being, and, without limiting the generality of the foregoing, includes any of the following:
(a) a medical practitioner;
(b) a psychiatrist;
(c) a psychologist;
(d) a counsellor;
(e) a social worker.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
“Personal information” is defined in section 4 of the Act as having the same meaning as in section 6 of the Privacy Act 1988 (Cth) where it is defined as:
information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
It would thus appear to the Tribunal that, in relation to the 80 documents identified as being part of the Applicant’s original request, after the various further releases, the following documents remain in issue:
Document Number
Folio number
Date
Author
Content
+ indicates attachment
Decision
Exemption
1
2
05/12/06
Davies
Email stream
Release in part
47F
22
2
4 and 7
05/12/06
Ryan
Email stream +
Release in part
47F
22
4
9
29/11/05
Muffatti
Release in part
47F
13
35
10/11/05
Eyles
Email stream +
Release in part
47F
18
53
31/10/05
O’Shea
Email stream
Release in part
47F
19
54-55
24/10/05
Frost
Email stream +
Release in part
47F
36
90-91
23/09/05
Smith
Email stream +
Release in part
47F
37
93
21/09/05
Muffatti
Email stream
Release in part
47F
42
99
15/08/05
Muffatti
Email stream
Release in part
47F
22
45
102
11/08/05
O’Shea
Email stream
Release in part
47F
22
55
118
04/08/05
O’Shea
Email stream
Release in part
47F
60
127-128
13/07/05
Davies
Email stream
Release in part
47F
68
144-145
30/06/05
O’Shea
Email stream +
Release in part
47F
71
151
29/06/05
O’Shea
Email stream +
Release in part
47F
77
165
28/06/05
O’Shea
Email stream +
Release in part
47F
The Tribunal notes that on 4 April 2022 the Applicant made a submission to the Tribunal in which he identified two FOI requests which he had on foot, one being to ANSTO and the other (made 14 May 2013) to Comcare.[13] The only matter before the Tribunal is that made to ANSTO and the only decision under review is that of 12 July 2018 as modified by the provision of further documents as outlined above.
[13] Applicant’s Submissions Substantive Hearing (Submissions) dated 4 April 2022.
None of the other matters raised in any of the submissions of the Applicant, whether they relate to the Comcare FOI request or accusations made about the behaviour of Comcare, ANSTO or the Australian Government Solicitor has any relevance in these proceedings, although the Tribunal will return to them at a later stage of these Reasons.
RECOGNISING THE LIMITATIONS OF THIS REVIEW
It is worth repeating that the matter before the Tribunal is a narrow one because it has been narrowed by the Applicant himself and, as a result, consists of no more than the following:
(a)documents created or recorded between 13 May 2005 and 31 January 2006;
(b)documents which were part of the PST files of Mr Davies and Mr Ryan;
(c)the PST files of the emails located by Ms Larkins;
(d)correspondence between Mr Davies and any other party, and Mr Ryan and any other party related to the Applicant’s Comcare claim; and
(e)documents not otherwise provided in relation to earlier FOI requests.[14]
[14] T-documents at 25. These parameters reflect those outlined in the Applicant’s 12 July 2018 FOI request at [4], [8], and following notes [1] and [2].
In Radar Investments, Deputy President Forgie made it clear that neither an applicant nor the Tribunal has the right to expand the scope of an FOI request beyond that which was made originally. Even when a decision has been altered under section 26 of the AAT Act, the matter before the Tribunal remains that which was defined in the original application. In Radar, the Tribunal said:
[41] …Section 26 permits a decision to be altered where the parties consent to that course or where that alteration is permitted by an enactment. …Other than extending the decision-maker's power to alter the decision at all, though, s. 26 does not otherwise extend the powers that the decision-maker may exercise when making that altered decision. He or she must make any decision, be it the original decision or an altered decision, within the same scope of authority. The scope is not extended by virtue of a decision's being an altered decision. That scope is limited by the request in respect of which the decision is made and so to the documents in the possession of the agency at the time that the request was received.
[42] For the reasons that I have given, I have decided that the Tribunal's jurisdiction is limited to those documents that were within the scope of the applicant's request and that were in the respondent's possession on the day it received the request.[15]
[15] Radar Investments Pty Ltd and Ors and Health Insurance Commission [2004] AATA 166.
ATTEMPTS TO EXPAND THE CLAIM
Throughout the proceedings and especially in the further submission received from the Applicant dated 17 June 2022,[16] the Applicant advances the claim that there must be more than the 80 identified documents which fall within the scope of his application. He states:
“I submit that ANSTO has not fully complied with the release of all documents in the scope of my FOI request.”[17]
[16] This submission contains 201 detailed paragraphs over 50 pages plus a further 200 pages of attachments.
[17] Applicant’s Final Submissions Substantive Hearing (Submissions) dated 17 June 2022 at [1].
He goes on to advance the propositions that:
“…A decision-maker does not identify how many documents are in the scope of an FOI request.
A decision-maker’s role is to determine what exemptions apply to the documents located in the search.
The identification of 80 documents when considered on the balance of probabilities, is a subset of the resulting search results.
Again this is not the delegate’s role; all documents found through the search process fall within the scope of the FOI request.”[18]
[18] Ibid at [11], [12], [13] and [26].
It is incumbent on an applicant, when making a request to:
“provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it”.[19]
[19] Act s 15(10)(b). Emphasis added.
As a matter of general principle, a respondent must give access to all the documents which “may reasonably be taken to be comprised within the applicant’s request”.[20]
[20] Gould and Department of Health [1985] AATA 63.
The FOI Guidelines issued by the Information Commissioner[21] provide:
[3.54] A request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used. A request for a ‘file’ should be read as a request for all of the documents contained in the file, including the file cover.
[21] Act s 93A.
However, the Applicant has not made a specific request for any “files” in globo but rather for specified emails located within two certain specified PST files, (those of Messrs David and Ryan), created during a specified and limited period of time.
Quite clearly someone has to identify those documents which fall within the categories of being emails, located in specified files and created within specified dates.
The process is a two-step one. In the first instance the relevant agency/Minister must identify which are the files that are subject to the request and secondly, decide if those files are exempt. There may be several officers involved in these processes (search/evaluation) but what is of concern to a Tribunal of review is simply the decision arrived at by the relevant agency/Minister.
It should be noted that the Respondent states:
“PST files are not complete records, but are a selection of messages contained in PST files that were retained by former of current staff.”[22]
[22] Larkins Affidavit at [13.2].
If this is the case, and the Tribunal has no reason to believe otherwise, then it may explain why the Applicant believes that there are more documents in the files than appear to have been identified. In support of this proposition the Applicant in fact alleges mala fides[23] on the part of the Respondent. He claims, inter alia:
[23] Bad faith.
“…I submit that ANSTO decided to avoid evidence of wrongdoing by past ANSTO employees…
I submit that ANSTO’s wrongdoing motivates ANSTO not to keep complete PST file.
…
Mr Cullen was looking for ammunition; ANSTO had nothing to target me with, so they made it up.
…
This email was not produced because it would not have assisted ANSTO’s case.
…
Mr Davies reacted to the CPSU compliant with another lie/fabrication about missing documents.
…
Once again Mr Davies repeats his lies and fabricated evidence.
…
ANSTO was manipulating the evidence.
…
I submit that ANSTO knew the PST file was incomplete or that ANSTO breached the FOI Act by withholding this email trail from release with or without exemptions claimed on it.”[24]
[24] Applicant’s Submissions dated 17 June 2022 at [21a], [94], [122c], [134a], [138], [141e], [142] and [162]. Similar accusations were made in the Applicant’s Statement of Issues in Response of the Applicant (Statement of Issues) on 12 November 2021.
The Tribunal notes that the Respondent in its submission of 4 July 2022 takes serious objection to the claims made against it and its officers by the Applicant.[25]
[25] Respondent’s Submissions in Reply to Applicant Submissions of 21 June 2022 (Submissions) dated 4 July 2022 at [11]-[13].
It is right to do so.
None of these claims is accompanied by any substantive or probative support and they are rejected by the Tribunal.
The Respondent has also called for the Applicant’s submission of 17 June 2022 to be withdrawn and resubmitted without such allegations being made. The Tribunal does not believe that prolonging this process would serve any useful purpose and does not accede to the Respondent’s request, rather it restates for the record that all such claims are unfounded, unsubstantiated and should, as a matter of record, be rejected.
The Applicant claims that he does not accept that ANSTO has not kept backups for more than 10 years and that indeed they have an obligation to do so under the Archives Act 1983 (Cth) (Archives Act).[26] In response to this, Ms Larkins advises:
“ANSTO did make regular tape backups of all mailboxes. I am informed by Mr Smith, and believe, that these mailbox backups were not a complete record of a user’s mail activities, but a backup or snapshot in time of a mailbox as it looked at the time of backup. For instance, any content received and subsequently deleted before the monthly backup was taken would be lost. I am informed by Mr Smith that tapes from this period have deteriorated and some are in an impaired state.”[27]
[26] Ibid at [59].
[27] Larkins Affidavit at [13.3].
In any event, it should be noted that the Archives Act provides a mechanism for the disposal of Commonwealth records in accordance with a formal disposal schedule agreed between an Agency and National Archives.[28]
[28] Archives Act 1983 ss 6(h) and 24.
In some instance, searches of backup systems may be required to meet an FOI request. The FOI Guidelines provide:
[3.93] On the other hand, if an agency or minister is aware that its backup system may contain relevant documents not otherwise available or if the applicant clearly includes backup systems in the request, a search of the backup system may be required (provided it does not involve a substantial and unreasonable diversion of agency resources, see [3.111]). [Emphasis added].
Again, what must be noted is that while the Applicant calls for this to be done in his submission of 17 June 2022,[29] there is no such request contained, or alluded to, in his original request.
[29] See section headed Orders Sought.
ISSUES FOR DETERMINATION
After sifting through all the claims and counterclaims what is left for the Tribunal to determine is relatively simple. It is no more than:
(a)was a comprehensive search for the items requested under the original FOI request undertaken by the Respondent in accordance with the provisions of the Act; and
(b)have the documents identified by this search been released to the Applicant or otherwise withheld as being exempted properly?
Adequacy of the search
Ms Larkin’s Affidavit is comprehensive in its description of the steps taken by the Respondent to fulfil the Applicant’s original, narrowed request. She records that:
“I am informed by Mr Smith, and believe, that the PST files provided to me on 31 August 2016, were identified from a list of some 24 million files residing on ANSTO’s primary file server at the time. From this list of 24 million files, Mr Smith first identified all PST files and then further refined this list based on the names of the individuals identified in the relevant request and searched for full names and the UserID’s for each individual. PST files were then identified where either a part of the full name or UserID appeared in PST filename or originating directory path.
The PST files were loaded on the Legal drive and were available to both Fiona Lenhardt and myself and were used for the purpose of searching for the Summons documents and for providing a response to the applicant’s various FOI Act applications.”[30]
[30] Larkins Affidavit at [28]-[29].
In terms of this Affidavit and the oral testimony given under oath by Ms Larkins at the Tribunal hearing, there is nothing to suggest that the Respondent did not properly discharge its responsibilities to identify all the documents which fell within the narrow request made by the Applicant and then properly assess whether or not they were exempt or could be released.
Of course, it is always possible that some documents cannot be found or that documents claimed to have existed, in fact never did.
Section 24A of the FOIA provides:
Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non-existent
(1) 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.
The evidence presented by the Respondent in many submissions, together with the Affidavit and evidence of Ms Larkins is more than sufficient to establish, to the satisfaction of the Tribunal, that “all reasonable steps” have been taken to find the relevant documents. Although, as the Commissioner’s Guidelines (at [3.88]) point out, this term is not defined in the Act itself, cases before the Tribunal have suggested that this means at least:
Not going beyond the limit assigned by reason; not extravagant or excessive; moderate. [31]
[31] Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 at [19].
In Dezfouli Deputy President Pascoe said:
The question of reasonableness needs to be looked at within the particular circumstances of this case. Reasonable for these purposes means appropriate, involving effort, and thorough. It should not be excessive or exhaustive, inordinately expensive or should not impose an unreasonable or extraordinary burden on the agency. In other words the section is not looking for perfection but rather what would normally be considered an appropriate or reasonable effort in all of the circumstances.[32]
[32] Dezfouli and Australian Federal Police (Freedom of information) [2019] AATA 4079 at [23].
The tests as to what might constitute “all reasonable steps” were considered in detail in Langer which also examined issues relating to the destruction of back-up tapes.[33] There is nothing in the evidence related to ANSTO’s processes which would suggest that the tests applied in Langer have not been met in this instance.
[33] Langer and Telstra Corporation Ltd [2002] AATA 341 at [103]-[109].
Moreover, the conduct of searches under the FOIA does not necessarily require multiple persons to be involved, nor does it require that the decision-maker(s) or internal reviewer(s) themselves also conduct searches.
The Applicant throughout has insisted that there “must be”[34] other material in the files which has (deliberately) not been identified or disclosed.
[34] Applicant’s Submission dated 17 June 2022 at [152]; Statement of Issues dated 12 November 2021 at [21].
With due respect to the Applicant, this is almost akin to a belief that some documentary El Dorado or Lasseter’s Reef is out there and that if only more effort were put into the search then a golden reward would be forthcoming. Unfortunately for the Applicant there is no El Dorado; there is no Lasseter’s Reef; there is no case for a more extensive search.
The Applicant has raised issues about the identity of other officers who may have been involved in the search process, including the reviewing officer and ANSTO’s Corporate Counsel.[35] He sought to summons these officers to give evidence about the search. This request for summonses was refused by the Tribunal as it misunderstands the provisions of the Act in relation to searches.
[35] Applicant’s Submission dated 17 June 2022 at [17] and [19].
The task of the Tribunal was set out by Deputy President Pascoe in Singh as follows:
It is well established that it is the task of the Tribunal to review a decision, rather than the reasons for it. The reasons for a decision are those contained within it. It is of no assistance to the Tribunal what may or may not have been in the reviewer’s mind at the time or the various thought processes that the reviewer may or may not have gone through in writing his or her decision. There is even less relevance in relation to someone who is further removed from the actual decision the Tribunal is asked to review, including the primary decision-maker.[36]
Exemptions claimed on remaining material[37]
[36] Singh and Commonwealth Ombudsman (Freedom of information) [2021] AATA 3889 at [17].
[37] Respondent’s SFIC at [40] – section 22 and [43] – section 47F.
Returning to the list of material still in issue, it is convenient to deal firstly with the use of the section 22 exemption which, it will be seen, applies to five of the identified documents.
The Respondent claims section 22 of the Act applies to documents corresponding to folio numbers (2), (4), (7) and (102) because these documents contain references to another employee of ANSTO who has/had no relationship with the Applicant. In relation to folio number (99), this contains reference to two other employees, again with no relationship to the Applicant and in this instance also includes personal information which is otherwise exempt.
In relation to the section 47F exemptions the Respondent claims that:
·the section 47F FOIA exemption is enlivened in relation to folio numbers (99), (102) and (118) because these documents include names and/or other identifying information about employees of the Respondent; and
·folio numbers (9), (35), (54-55), (90-91), (93), (99), (144-145) and (151) contain telephone numbers and email addresses of Commonwealth Public Service Union representatives and as such are also exempt under section 47F.
At the hearing on 16 May 2022 the Applicant informed the Tribunal that he did not press for access to any documents which were no more than records of email addresses and telephone numbers.[38]
[38] See also Respondent’s Submissions dated 4 July 2022 at [15].
At the direction of the Tribunal, each of the documents being claimed as exempt was provided to the Tribunal for its examination. The Tribunal is satisfied that the exemptions claimed in relation to each of the documents before it are valid exemptions under the relevant provisions of the Act as claimed.
If documents recording no more than email addresses or telephone numbers are excluded, the Applicant is left with an application relating to only eight folios/documents each of which is exempt on either section 22 or section 47F grounds.
Final request by the Applicant
In his submission of 17 June 2022 the Applicant listed a number of “Orders” which he sought the Tribunal to make. Specifically he requested orders that:
“1. ANSTO restore the mailboxes of Mr Davies and Mr Ryan from July 2006.
2. ANSTO identify and locate the PST file(s) attached to Mr Davies and Mr Ryan's mailbox.
3. ANSTO create another PST file for all those emails left in Mr Davies’ mailbox, the
balance of the emails that are not stored in the PST file(s).
4. ANSTO create another PST file for all those emails left in Mr Ryans’ mailbox, the balance of the emails that are not stored in the PST file(s).
5. ANSTO safeguard those PST files for future reference.
6. ANSTO conduct another search for documents within the scope of my FOI request on those PST files.
7. That I [the Applicant] will be allowed to supervise the search for documents in the PST files. This can be done safely and without me being able to read any of the email's metadata or content of the emails located.
8. Should ANSTO wish to claim any exemptions for any new emails located that I will be allowed to challenge the exemption claimed? If ANSTO and I cannot agree, we, ANSTO or myself, can return to the Tribunal for directions.
9. ANSTO restore the mailboxes of Mr Davies and Mr Ryan on or before March 2010, when both Mr Davies and Mr Ryan had left ANSTO. This is so ANSTO can restore my personnel file records and future searches.”
Just as the Applicant has misunderstood elements of the Act, so he misunderstands the powers of the Tribunal under the AAT Act. The Tribunal is empowered only to review decisions and make determinations related directly to that decision, and nothing more. Section 43 of the AAT Act states:
Tribunal's decision on review
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Tribunal must give reasons for its decision.
There is a slight modification to the Tribunal’s general powers within the framework of the Act itself. It provides in section 58 and 58A:
58. Powers of Tribunal
(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
(6) The powers of the Tribunal under this section extend to matters relating to charges payable under this Act in relation to a request.
58A. Powers of Tribunal--requiring further searches
(1) This section applies to a review on an application to the Tribunal under section 57A if:
(a) access to the document is refused under section 24A (document cannot be found etc.); or
(b) access is purportedly given to the document (amongst others to which the request relates), but is not actually given.
(2) For the purposes of the review, the Tribunal may require the agency or Minister concerned to conduct further searches for the document.
The only “Order” sought by the Applicant which actually falls anywhere within the powers of the Tribunal in number (6) which seeks to have the Tribunal remit the matter to ANSTO with a direction to conduct a further search under the AAT Act or to conduct further searches under section 58A of the Act, although it is to be noted that no exemption claim under section 24A has been advanced by the Respondent.
In either case, the Tribunal declines to do so. It repeats its position that it is satisfied that ANSTO has taken all reasonable steps to search its files, identify those within the scope of the Applicant’s limited request and determine their exemption status (if any). Having done so, the Respondent has released all relevant documents to the Applicant.
CONCLUSION
The Tribunal takes this opportunity to urge that this matter now be brought to conclusion. No useful purpose is served in prolonging proceedings or re-litigating matters decided.
Folio numbers (2), (4), (7), (99) and (102) are exempt documents under both sections 22 and 47F of the Act.
Folio numbers (9), (35), (53), (54-56), (90-91), (93), (99), (102), (118), (127-128), (144-145), (151) and (165) are exempt documents under section 47F of the Act.
DECISION
The decision under review, as altered under paragraph 26(1)(b) of the AAT Act on 30 July 2021, is affirmed.
I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..................................[sgd]......................................
Associate
Dated: 12 July 2022
Date(s) of hearing: 16 May 2022 Date final submissions received: 4 July 2022 Applicant: In person Counsel for the Respondent: Ms R Graycar Solicitors for the Respondent: Ms E Arduca, Australian Government Solicitor
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