Meschino and Centrelink

[2002] AATA 611

CATCHWORDS – FREEDOM OF INFORMATION - access to documents – complaint made against Centrelink officers – whether reasonable steps undertaken to find documents – whether documents exist or are unable to be found – decision affirmed. 

Freedom of Information Act 1982 ss. 4, 11, 12, 13, 24, 24A,
Archives Act 1983
Langer and Telstra Corporation Ltd [2002] AATA 341

DECISION AND REASONS FOR DECISION [2002] AATA 611

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          S2001/205
GENERAL ADMINISTRATIVE DIVISION     )          

ReCARLO MESCHINO

Applicant

AndCENTRELINK

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  25 July, 2002
Place:  Adelaide

Decision:The Tribunal affirms the decision of the respondent dated 11 April, 2001.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 12 June, 2001, the applicant, Mr Carlo Meschino lodged an application seeking review of a decision of the respondent, Centrelink, dated 11 April, 2001.  The effect of that decision was to vary an earlier decision dated 15 February, 2001 made with regard to Mr Meschino's request for access to documents under the Freedom of Information Act 1982 ("FOI Act").  Mr Meschino had asked for access:

"To all dealings, communications, enquiries, investigations etc ? All files and records not previously mentioned or obtained through an FOI request.  This request includes all documents in any form whether in hard copy or electronic or in any other format.  The documents will include all files, records, notes and memo's, E-mails, computer generated documents, interdepartment memo's, notes, documents to other agencies etc in whatever form.  All documents that have yet to be identified.  All documents in whatever form or format in relation to investigations to complaints lodged by myself and to investigations by Centrelink conducted by themselves or through other parties." (T documents, page 4)

1. Mr Martin Stacey, who had made the first decision, advised Mr Meschino that, since he had replied to Mr Meschino's previous request for access to documents on 22 January, 2001, folios 85 to 97 had been added in relation to newstart allowance and folios 290 to 296 had been added in relation to family assistance payments.  He decided that Mr Meschino should have full access to all of those folios.  In addition, he had found two documents, dated 18 December, 2000 and 17 January, 2001, on the Online Document Recording system.  Mr Stacey granted Mr Meschino access to those documents as well.  

1. On 13 March, 2001, Mr Meschino advised Mr Stacey that he had lodged a complaint with the Chief Executive Officer some four years before and that had not been disclosed.  Mr Stacey advised him to seek review of his decision and Mr Meschino did so on 14 March, 2001.  In his letter, Mr Meschino set out four grounds on which he considered Mr Stacey's decision to be incorrect:

"1.       There are no copies of the purported investigations into discrimination, intimidation and harassment toward me by Margaret Kelso and her manager Gary Witham both from the Port Adelaide Centrelink office that was conducted by Ms Mary Kosiak the CEO of Centrelink Administration, Adelaide and by Ms Sue Vardon the CEO of Centrelink Administration, Canberra.

2.There are no copies of the files and documents which include all other forms of information specifically asked for for (sic) all complaints to, responses from and other related correspondence directed to or directed from both Ms Mary Kosiak the CEO of Centrelink Administration, Adelaide and Ms Sue Vardon the CEO of Centrelink Administration, Canberra in relation to my complaints of discrimination, intimidation and harassment toward me by Margaret Kelso and her manger Gary Witham both from the Port Adelaide Centrelink office in dealing with my Family Payments and Newstart claims and activities.

3.No search was conducted for my files and documents which include all other forms of information specifically asked for under the Freedom of Information Act, 1982 on 22 January 2001 that is kept or filed in other Australian States and Territories.

4.No search was conducted for my files and documents which include all other forms of information specifically asked for under the Freedom of Information Act, 1982, on 22 January, 2001 apart from what was released on 15 February 2001." (T documents, page 9)

1. In reviewing Mr Stacey's decision, Mr Zadow decided that there are no files falling within the first two categories of documents sought by Mr Meschino and decided that his request should be refused pursuant to s. 24A of the FOI Act. Mr Zadow located three files in Centrelink's National Support Office in Canberra that contained three letters written by Mr Meschino to Ms Sue Vardon, who is the Chief Executive Officer of Centrelink, on 14 September, 2000, 26 October, 2000 and 19 December, 2000. Those files also contained the letters that had been sent to Mr Meschino in response to his. Each of the documents was released to Mr Meschino.

1. Mr Zadow's decision in relation to the fourth category of documents identified by Mr Meschino in his request for review was:

"My enquiries have also established that although there has been an investigation into your complaints of discrimination, intimidation and harassment laid against Margaret Kelso and Gary Witham of the Port Adelaide Customer Service Centre, a separate file for that compliant has not been created at Port Adelaide. Any account of that investigation has either been maintained on your existing file, or the investigation was conducted in an oral form and therefore not recorded. You have already been provided with a copy of your existing file and there is no other record that I am aware of that would fit the category you have complained about. I am refusing access to item 4 above under Section 24A of the FOI Act." (T documents, page 11)

1. At the hearing of Mr Meschino's application, Mr Meschino represented himself and Centrelink was represented by Mr Underwood. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence.  Also admitted was a witness statement of Mr Christopher Zadow, an E-mail from Mr Underwood to Ms Vardon and her response, an E-mail from Mr Underwood to Ms Mary Kosiak, who is the Area Manager of Centrelink based in Adelaide, and her response, a letter from Mr O'Connor to Mr Meschino dated 1 September, 2000 and Mr Meschino's statement of facts and contentions.  Oral evidence was given by Mr Zadow in support of Centrelink's case.

THE ISSUES

1. The issues in this case centred on complaints made by Mr Meschino against two staff members of Centrelink's Port Adelaide Customer Service Centre.  In essence, those issues are whether Centrelink has taken reasonable steps to find documents relating to those complaints and, if so, whether the documents are in its possession or do not exist.

LEGISLATIVE BACKGROUND

1. Section 11(1) of the FOI Act provides that:

"Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)a document of an agency, other than an exempt document; or

(b)an official document of a Minister, other than an exempt document."

1. It is clear from the terms in which the right is couched that it is a qualified right.  The first qualification is that it is a right to have access to a "document of an agency" or to "an official document of a Minister".  In so far as an agency is concerned, that means that the right is access to a document in the possession of the agency (s. 4(1)).  The word "document" is defined in very broad terms:

"(a)   any of, or any part of any of, the following things:

(i)any paper or other material on which there is writing;

(ii)a map, plan, drawing or photograph;

(iii)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(iv)any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

(v)any article on which information has been stored or recorded, either mechanically electronically;

(vi)any other record of information; or

(b)any copy, reproduction or duplicate of such a thing; or

(c)any part of such a copy, reproduction or duplicate;

but does not include:

(d)library material maintained for reference purposes; or

(e)Cabinet notebooks" (s. 4(1))

The terms of the definition are broad enough to encompass within them records kept on paper and in electronic form such as in e-mail records or in documents kept in electronic form. 

1. Section 11 is explicit in its terms that the right of access is not to every document of an agency.  It is only to every document in the possession of that agency that is not an "exempt document".  In so far as an agency is concerned, an "exempt document" is a document that is exempt by virtue of a provision of Part IV of the FOI Act (s. 4(1)).  Section 11 contains a further qualification for its opening words are "Subject to this Act".  Those words encompass sections such as ss. 12 and 13 (excluding access to certain categories of documents), 24 (permitting certain workload factors to be taken into account in refusing a request) and 24A (permitting a request to be refused if a requested document cannot be found or does not exist). 

1. It is with s. 24A that I am concerned in this case and it provides:

"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

1. Mr Zadow is employed in the Centrelink Area Office in Adelaide. He is a Team Leader in the Business Performance Branch and is, among his other duties, Review Officer in relation to requests made under the FOI Act. In his statement, Mr Zadow set out the steps that he had taken to ascertain whether Ms Vardon or Ms Kosiak held any documents in relation to Mr Meschino (Exhibit 2). He contacted Ms Kosiak's Personal Assistant, who told him that she and Ms Kosiak did not hold any documents in relation to either Mr Meschino or any other of Centrelink's customers. Mr Zadow also contacted Centrelink's Ministerial Correspondence Unit in Canberra. That office advised him that it held several files in relation to Mr Meschino. Among those files were copies of documents that had been sent to Mr Meschino by Ms Vardon and another Senior Executive. Mr Zadow contacted Ms Vardon's office and spoke to an Executive Assistant, who advised him that no correspondence about customers was held in the office. Once a reply had been sent to a customer, Mr Zadow said, all correspondence was sent to Centrelink's Ministerial Correspondence Unit.

1. Ms Vardon confirmed that she had "… no papers on this man" in her E-mail to Mr Underwood on 31 October, 2001 (Exhibit 3).  Ms Kosiak sent Mr Underwood an E-mail to the same effect on 18 February, 2002 (Exhibit 4).

1. Mr Meschino had complained about officers of Centrelink's Port Adelaide office in a letter to Ms Kosiak dated 12 May, 2000.  Mr O'Connor had been asked by Ms Kosiak to reply to that letter and he did so in a letter dated 1 September, 2000.  That letter reads in part:

"After thoroughly examining your file and in particular the statement you refer to dated 9th March 1998, and speaking to the people concerned, I am unable to find any objective evidence which supports your complaint.
You mention in your letter that Denis Daly was present at the time of your interaction with Margaret Kelso.  I have located and contacted Denis who is now domiciled in Western Australia.  His clear recollection of events is that all efforts were made to assist you at the time and that you were not denied any assistance from Centrelink staff in completing your statement.  This view is consistent with Margaret's independent recollection of the situation.
On a number of occasions you have made complaints about the Port Adelaide Office and in particular about Margaret Kelso and Gary Witham.  I am sorry that you consider the issues you have raised have not been properly addressed but I am, and have been, unable to find any objective evidence which substantiates those complaints.  There is also no indication of any other complaints from other customers directed at either Margaret or Gary who are both highly regarded Centrelink employees.
I understand that you feel strongly about these issues but there is nothing more I can add to this and previous interactions between us.
It is the aim of Centrelink to always provide the highest level of customer service possible, however, if you are not satisfied with the way your case has been handled you also have the right to lodge a complaint with the Commonwealth Ombudsman.  …" (Exhibit 5)

Mr Zadow said in his oral evidence that he had contacted Mr O'Connor, who was the Business Office Manager in South Australia, to ascertain whether he held any documents but that Mr O'Connor had told him that he did not.

1. When asked whether there were any other steps that he could have taken to find documents meeting Mr Meschino's request, Mr Zadow replied that, short of searching each office himself, he had to take each person at his or her word.  He did so understanding the normal processes used in Centrelink.  If letters are written to an Executive Officer such as Ms Kosiak, she does not normally respond.  Instead, she would seek advice from the office or officer with the detailed knowledge of the specific circumstances raised in the letters.  On some occasions, Ms Kosiak would sign letters prepared by others or others would prepare and sign letters.  She would generally rely on the Business Performance Branch to produce the technical information required to answer a letter but that documents normally stayed in the area that prepared the response for her signature.

1. Mr Zadow said that he had contacted the Manager at Centrelink's Port Adelaide office and was told that there had been no file created in relation to Mr Meschino's complaint.  The Manager recalled that there had been a discussion regarding the matters.

1. Mr Zadow said that, as a percentage of its business, only a small number of complaints are received by Centrelink.  Approximately 300 complaints are received each year alleging breaches of privacy.  When any complaint is received, they are generally about staff and generally serious and managers make some effort to investigate them.  The form of the investigation is to make oral enquiries first.  If nothing is revealed by the investigation, no report is prepared.  Factors affecting the decision whether or not to write a report include: whether the complaint is considered to have veracity; whether the incident complained of had substance; the seriousness of an incident; whether the action complained about had an impact upon the service delivered by Centrelink to its customers; and whether a customer had been treated unfairly or inappropriately.  All serious issues are documented and the report disposed of according to the appropriate Destruction Schedule.  That fact that there is no documentation does not mean that an investigation was not documented.

1. Mr Zadow said that he creates a new file for every complaint regarding privacy brought to his attention.  That file is generally a paper file although he does enter broad details relating to the customer, the alleged event and outcome on the Privacy Incident Reporting System ("PIRS").  PIRS is held on a computer file.  All details of the investigation are held in the paper file and are kept for 18 months unless they are ongoing or relate to a person's looking at a file when he or she should not have done so.  If that is the case, they are kept for five years from the date of the last investigation.  All files relating to breaches of privacy are kept in his room, Mr Zadow said, and are kept in a locked cabinet.  In the case of Mr Meschino, Mr Zadow said that he had not undertaken a search of relevant files destroyed according to the Destruction Schedules as there was nothing to suggest that Mr Meschino had ever made a privacy complaint.  He had looked for one in the other states and had asked Mr Stacey for confirmation, which he gave, that he had contacted all of the offices in which papers could have been kept.

1. Mr Zadow said that the integrity of Centrelink's computer files is maintained by training staff appropriately to ensure that they know how to use the system, relying on their not inappropriately gaining access to the system and making them aware of the penalties that apply under legislation if they are in breach of their duties as officers of Centrelink. 

1. Paper files may be lost or misplaced, Mr Zadow agreed with Mr Meschino.  That may occur as Centrelink has 392 customer service centres together with countless other sites.  A file may be misplaced in the internal mail system or may be misfiled in the filing room.  Over the years, maintenance of paper files has been discouraged and, if possible, records have been maintained in computer form.  At one time, there was a problem in dealing with New Start forms as Centrelink was "inundated" with them.  There were complaints that many were missing but that is no longer a problem.  There is, though, a considerable amount of paperwork that must be handled in a Centrelink customer service centre.  That at Port Adelaide has approximately 100,000 customers, Mr Zadow said, and they generate a significant amount of paperwork.

1. E-mail correspondence is permitted internally within Centrelink but external E-mails are not permitted.  A customer may be the subject of an E-mail but it is not possible to search the E-mail system for a particular name, Mr Zadow said.

CONSIDERATION

1. In the case of Langer and Telstra Corporation Ltd [2002] AATA 341, I summarised the authorities which have considered the scope of s. 24A and considerations which may be relevant in its application in a particular case:

"94. Section 24A of the FOI Act requires the consideration of two matters. The first requires a consideration of whether the Department has taken all reasonable steps to find the documents. If it has done that, the second requires a consideration of whether the documents are in the Department's possession but cannot be found or whether they exist. The first limb has been considered and applied in several cases but only Deputy President McDonald considered the elements of the first limb in any detail (Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138). He said:

"(19) The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the Agency but cannot be found or, alternatively, does not exist. The Shorter Oxford English Dictionary provides a number of meanings for the verb to 'find', the most apt of which for present purposes is 'to discover or attain by search or effort'. The Macquarie Dictionary similarly provides amongst the meanings given to the verb 'to learn, attain or obtain by search or effort'. The Shorter Oxford English Dictionary provides five meanings for the word 'reasonable', or which the following is, in the opinion of the tribunal, most appropriately applied:

'… 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate.  ME. b. Moderate in price; inexpensive 1667.  5. Of such an amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose.  late ME. (b. Of a fair, average, or considerable amount, size, etc – 1726."

The Macquarie Dictionary provides four meanings, including 'moderate; or moderate in price …'.  The tribunal notes the requirement in s 24A that 'all reasonable steps' (emphasis added) are to be taken to find any requested document." (page 145)

95. It seems to me that the first limb of s. 24A requires that the Department take such steps to discover the requested documents as are appropriate in the circumstances.  The circumstances that are relevant in determining the steps that are appropriate include the subject matter of the documents sought, the file management systems, any destruction schedules followed in Telstra and the steps that have already been taken to locate documents within the terms of the request."

1. Turning first to whether Centrelink has taken all reasonable steps to locate documents relating to Mr Meschino's request, I have first had regard to the searches that have been made by Centrelink for documents meeting the description of those sought by Mr Meschino. In the first instance, I find that it looked to the paper files that it maintained in relation to his Newstart Allowance and his Family Assistance since Centrelink had responded to his previous request under the FOI Act. It also looked for material recorded in the Online Document Recording System since that time. Centrelink released the documents that were located as a result of that search. I base this finding on the letter written by Mr Stacey to Mr Meschino on 15 February, 2001.

1. Mr Meschino's focus was upon the letter that he has stated that he wrote to Ms Vardin some four years before.  On the basis of the evidence of Mr Zadow, I am satisfied that Centrelink has searched for documents relating to such a complaint in several ways.  If it were treated as a complaint about a breach of Mr Meschino's privacy, I find that it would have been recorded on PIRS and a paper file would have been created for it and kept in Mr Zadow's office for a period.  I accept Mr Zadow's evidence that there is no record of it on PIRS and no paper file.  Even if the paper file had been destroyed in a manner consistent with Centrelink's obligations under the Archives Act 1983 ("Archives Act"), Mr Zadow's evidence as to the normal procedures in relation to a privacy complaint satisfy me that there would continue to have been a record of it on PIRS.

1. If the complaint made to Centrelink did not relate to a breach of privacy, I am satisfied that the normal procedure would have entailed an investigation of it. Whether or not a record of that investigation was maintained would have been determined on the basis of whether or not the investigating officer considered that it raised matters for further consideration. Such matters would be raised if, for example, it were thought to be a complaint with some substance or seriousness or if the matter complained of had some impact on the service delivered by Centrelink. If it were such a matter, a written record would be maintained and would only be destroyed in accordance with the Archives Act. I have again made these findings on the basis of the evidence of Mr Zadow. I am satisfied that Mr Zadow has searched for any paper files held by Centrelink in his own office and has made enquiries of other Customer Service Offices in the States but that his searches have revealed no documents relating to a complaint made by Mr Meschino.

1. On the basis of the evidence of Mr Zadow and of the E-mails exchanged between Mr Underwood and Ms Vardon and Ms Kosiak, I am satisfied that no documents relating to Mr Meschino have been retained in the office of either Ms Vardon or Ms Kosiak.  Any reply would have been prepared for Ms Vardon and/or Ms Kosiak by the section having responsibility for the subject matter of the complaint.  As a matter of practice, no copy would have been retained in their offices either when referred or subsequently when any reply was forwarded for signature and signed.

1. On the basis of the evidence of Mr Zadow, I also find that documents are destroyed in accordance with the Archives Act from time to time. In addition, documents may be lost from time to time through human error such as misfiling. I also find that it is not possible to search Centrelink's E-mail system on a general basis.

1. Mr Meschino was critical of Centrelink's investigation processes in relation to complaints and of systems for protecting the security of its paper files.  Neither is a matter that is relevant for me to consider in this matter as they do not impinge upon the question whether reasonable steps have been taken to find the documents requested by Mr Meschino.  In assessing what is reasonable, I am not conducting an enquiry into the adequacy or otherwise of Centrelink's investigatory processes or record keeping.  What might normally be considered to have been the proper steps in conducting an investigation or what might normally be considered to have been the proper documents to have been made and retained may, however, provide some guidance as to the types of documents that might be expected to be made and retained and the locations in which they might be found.

1. In that regard, I have considered Mr Meschino's complaints made to Ms Vardon and/or Ms Kosiak.  The practice of referring letters addressed to either Ms Vardon or Ms Kosiak to the section of Centrelink with responsibility of the substance of the matter raised in the letters and with that section's preparing replies for Ms Vardon or Ms Kosiak accords with Mr Zadow's evidence but also with normal administrative practice in Commonwealth agencies.  In view of that, it is reasonable to expect that the documents will be retained in the line area concerned with the substance of the complaint.  That is the Port Adelaide Customer Service Centre.  No further relevant documents have been found there. 

1. Having regard to all of the enquiries made by Mr Zadow, Mr Stacey before him and Mr Underwood after him and the investigatory and administrative processes that are normally followed in Centrelink, I am satisfied that Centrelink has searched in all parts of its organisation in which the requested documents would be likely to be retained: PIRS; the offices of Ms Vardon and Ms Kosiak; the Port Adelaide Customer Services Centre and customers services centres around Australia generally.  I am satisfied that those steps have been reasonable.  Given that Centrelink does not have a general search function to enable it to search its E-mail system, given that Mr Meschino refers only to a letter of complaint that would have been in documentary form and would have been made some four years ago and given Mr Zadow's evidence as to the generally short time for which E-mails are retained on the system, I am satisfied that it would be unreasonable to suggest that it search its E-mail data base by asking each officer to search his or her own E-mails.

1. That brings me to whether the document or documents sought by Mr Meschino are in Centrelink's possession but cannot be found or whether they do not exist.  Accepting that he made the complaint, I am satisfied that it cannot be found.   Having regard to Mr Zadow's evidence that not all complaints lead to a written report following an investigation and having regard to the failure of any of the searches to locate any relevant documents, I am satisfied that no documents were generated in response to the investigation and so none exists.

1. It follows that I consider that Centrelink's decision to refuse Mr Meschino's request for access to documents by relying on s. 24A of the FOI Act was correct and I affirm its decision dated 11 April, 2001.

I certify that the thirty-two preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),

Signed:          …………………………………..
  Paul Paczkowski      Associate

Dates of Hearing  26 February, 2002
Date of Decision  25 July, 2002
For the Applicant  Self represented
For the Respondent  Mr Underwood, departmental advocate