Low and Australian Postal Corporation

[2007] AATA 2064

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2064

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3189

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LANNY LOW

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date18 December 2007

PlaceSydney

Decision The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act1975 to hear the application.  

...............[sgd]...............................

Rear Admiral A R Horton AO
  Member  

CATCHWORDS

AUSTRALIA POST – applicant sought access to documentation vide Freedom of Information Act 1982 – application to Tribunal in respect of information provided – conditions for FOI request vide section 15 of the Act not met – no reviewable decision – no jurisdiction to hear application

LEGISLATION

Administrative Appeals Tribunal Act 1975 – section 25

Freedom of Information Act 1982 – section 15, 15A

REASONS FOR DECISION

18 December 2007 Rear Admiral A R Horton AO        

1.      An interlocutory hearing was held before me on 27 November 2007 to determine whether the Administrative Appeals Tribunal (“the Tribunal”) has jurisdiction to review a purported decision made by Australian Postal Corporation (“Australia Post”) in relation to the provision of information requested under the Freedom of Information Act1982 (“the FOI Act”). Ms Low was self represented and the Respondent was represented by Ms M Crawford, solicitor, instructed by Mr R Pavarajah, FOI Co-ordinator NSW/ACT.

BACKGROUND

2. In May 2006, Ms Low sought access under the FOI Act from Australia Post to documentation in respect of her employment with that organisation. On 6 June 2006, Mr Raj Pavarajah advised Ms Low by letter (Exhibit R1) of the criteria required under section 15(2)(e) of the FOI Act in respect of an application fee, and this and other correspondence in relation to this issue will be further addressed.

3.        On 21 July 2006, Ms Low was suspended by Australia Post following psychiatric review by Dr Enrico Parmegiani, this action being advised in a letter from Mr Peter Dodson, Manager, Human Resources, Commercial Division NSW/ACT.  Return to work was subject to medical evidence of fitness for duty or compliance with a treatment program.  Such evidence or undertaking remains outstanding and Ms Low remains suspended.

4. In the period since Ms Low sought access to documentation under the FOI Act, there has been a fairly continuous exchange of letters between Ms Low and senior management of Australia Post in respect of the extent and completeness of information provided to her. At the hearing, the issue at times detracted from the matter before me, that of the jurisdiction of the Tribunal to review a decision, the particular matter being whether a decision in respect of FOI had been made.

LEGISLATION

5. Ms Crawford submitted at the outset that, in essence, no decision had been made that could result in the Tribunal having jurisdiction, as Ms Low had not made a proper request for FOI access in accordance with the FOI Act, and was so advised on numerous occasions by Mr Pavarajah.

6. Section 15 of the FOI Act gives the criteria for access under the provisions of this Act and relevantly states:

15  Requests for access

(1)Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.

(2)       The request must:

(a)       be in writing; and

(b)provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and

(c)specify an address in Australia at which notices under this Act may be sent to the applicant; and

(d)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and

(e)be accompanied by the fee payable under the regulations in respect of the request.

(3)       Where a person:

(a)       wishes to make a request to an agency; or

(b)has made to an agency a request that does not comply with this section;

it is the duty of the agency to take reasonable steps to assist the person to make the request in a manner that complies with this section.

…

(5)       On receiving a request, the agency or Minister must:

(a)as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and

(b)as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).

…

7.Section 15A refers to access for personal records thus:

(1)      In this section:

personnel records, in relation to an employee or former employee of an agency, means those documents containing personal information about him or her that are, or have been, kept by the agency for personnel management purposes.

(2)       Where:

(a)there are established procedures in an agency (apart from those provided for by this Act) in accordance with which a request may be made by an employee of the agency for access to his or her personnel records; and

(b)a person who is or was an employee of the agency wishes to obtain access to his or her personnel records;

the person must not apply under section 15 for access to such records unless the person:

(c)has made a request for access to the records in accordance with the procedures referred to in paragraph (a); and

(d)       either:

(i)        is not satisfied with the outcome of the request; or

(ii)has not been notified of the outcome within 30 days after the request was made.

8.        As to the jurisdiction of the Tribunal, the Administrative Appeals Tribunal Act1975 (“the AAT Act”) does not, itself, set out the decisions that may be reviewed by the Tribunal. Instead, section 25 states that an enactment may provide for review by the Tribunal of decisions made in the exercise of powers conferred by that enactment, or conferred by an instrument such as rules, regulations or by-laws made under that enactment. But the matter before me in this instance is whether a decision has been made in respect of the application for access under the FOI Act. Unless the answer is in the affirmative, then the matter falls outside the jurisdiction of the Tribunal.

9. A number of documents/letters originated by Australia Post management were taken into evidence. That by Mr Pavarajah of 6 June 2006 (Exhibit R1), as previously referred to, is significant in my view as in response to her application for access – the details of which are not before me – it specifically informs Ms Low that an application fee must accompany a request vide section 15(2)(e) of the FOI Act, and that in the absence of such fee “I cannot process your request”. It notes that any consideration of waiver of this fee because of hardship or some other ground, would be based on evidence provided in writing. Mr Pavarajah also advises that the statutory period of 30 days within which a decision must be made vide section 15(5)(b) would not commence until either the application fee has been paid or a decision made to remit the fee on the basis of hardship.

10. The above letter further stated that the request by Ms Low for documentation did not provide the necessary information to enable access under section 15 of the FOI Act to be properly addressed.

11. Further letters from Mr Pavarajah dated 28 July 2006 (Exhibit R2) and 24 November 2006 (Exhibit R3), reiterated the need to respond to the letter of 6 June 2006 which set out the requirements of section 15 in respect of the application fee and provision of information to identify the requested documents. Exhibits R4 to R9 refer variously to the provision of various documentation to Ms Low, and to the information either being provided by various managers in Australia Post or indeed their inability to provide the information which Ms Low considers to be in existence and relevant. In his letter of 26 July 2007 (Exhibit R10), Mr Pavarajah states that no further records – other than those provided to Ms Low in the past – have been made available to him.

12.      There is considerable documentation by way of letters and facsimiles originating from Ms Low, which I did not take into evidence on the basis that they referred to her concerns in respect to the information and documentation provided to her.  There was no evidence before me at the hearing that Ms Low responded to the requirement placed upon her by Mr Pavarajah to pay the application fee, or to formally seek waiver because of hardship.  Ms Low strongly voiced the opinion that she had informed a “Mr Turner” of a condition of hardship, and in any event, given her suspension as a part-time employee – which I note did not occur until two months after her application for access – a hardship condition should have been obvious to Mr Pavarajah.

13. Ms Low confirmed that she had not responded to the letters at R1, R2 and R3 from Mr Pavarajah, but believed she may have made some note in her diary at the time, or have a response in a file at home. On conclusion of the hearing, Ms Low was invited to make available to the Tribunal in a short timescale any evidence in respect of the matters arising under section 15 of the FOI Act, and this she did by way of a copy of a letter dated 28 July 2006 to Mr Dobson, Manager, Human Resources.

14.      That letter, received by the Tribunal on 3 December 2007,  states “Please be advised that I have followed your direction (per 21.7.06) and it’s unclear if your office would follow hardship provisions as I’m a part time worker at GPO Sydney, EBA6 clause to transparency and procedure fairness requirement”.  Ms Crawford responded to that letter by emphasising (supplementary submission dated 12 December 2007) that Mr Pavarajah had not received any response to his letters of 6 June 2006 and 28 July 2006; further, Mr Dobson had not received Ms Low’s letter of 28 July 2006, nor was he aware of it until 10 December 2007.  Mr Dobson provided an affidavit to that effect dated 11 December 2007.   

15. I cannot accept that this later submission by Ms Low fulfils the requirement detailed by Mr Pavarajah in order to meet the conditions of section 15 of the FOI Act. The fee payable under the regulations has not been paid, and there is no evidence that Mr Pavarajah received an application to consider waiver because of hardship. The letter by Ms Low of 28 July 2006 was not addressed to Mr Pavarajah, there is no evidence it was received by the addressee, and in any event, the direction by Mr Dobson as referred to in her letter seemingly relates to the medical evidence and conditions required to permit her restoration to duty or compliance with a treatment program.

16.      Australia Post management has evidently sought to provide appropriate responses to Ms Low’s request for documentation; whether they have provided all relevant information is not for me to say, nor is it relevant to the matter before me, that is, whether a decision was made such that the Tribunal has jurisdiction to review.  I find that Ms Low’s application for access did not accord with the requirements of the legislation, in spite of her being notified accordingly on a number of occasions.  That being the case, and as formally advised by Mr Pavarajah, no decision on her request was made.

DECISION

15. The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the application.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO

Signed:         ...............[sgd].................................................................
  Associate

Date of Hearing  27 November 2007
Date of Decision  18 December 2007
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Ms M Crawford, Holding Redlich