Mester and Centrelink

[2004] AATA 354

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 354

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/699

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JOHN MESTER AND MARINA MESTER

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date6 April 2004

PlaceMelbourne

Decision

1.        The Tribunal sets aside the decisions under review.  In substitution the Tribunal decides that the following steps be taken to find further documents covered by the applicants’ requests under the Freedom of Information Act 1982:

(a)      Enquiries be made of an appropriate person within Centrelink, who is familiar with the disability support pension area to find out what additional Centrelink computer screens it would be appropriate to search for records of letters between Mr Mester and Centrelink between 13 March 1998 and 31 January 2001; and those screens be searched to see if any further letters can be located;

(b)      Enquiries be made of an appropriate person within Centrelink, who is familiar with procedures in the disability support pension area between 13 March 1998 and 31 January 2001, to find out what letters he or she would expect would have been sent to Mr Mester between 13 March 1998 and 31 January 2001, and in particular whether there were any standard form letters in that time sent to all people who were in receipt of part disability support pension, and, if so, copies of such standard form letters be provided to Mr Mester;

(c)       Evidence be sought as to whether the activity statements from the Ballarat Office covering the period 1 March 1996 to 31 March 1997 and stored in batches have been destroyed in accordance with the Archives Act 1983 and if so, evidence as to the dates of destruction be obtained.

2.        The Tribunal reserves liberty to the parties to apply to have the matter brought on for further hearing if there should be difficulty or undue delay in taking the steps referred to in paragraph 1 of this decision.

[sgd] Mrs Joan Dwyer

Senior Member

FREEDOM OF INFORMATION – adequacy of searches – refusal of access to documents under s 24A Freedom of Information Act 1982 where all reasonable steps have been taken to find documents – relevance of reasons for making request – meaning of “reasonable steps” – reasonableness of steps taken – evidence that further documents could have been available but outside expertise of officer conducting search – evidence that further documents could be in storage – finding that reasonable steps not taken – decision set aside.

Administrative Appeals Tribunal Act 1975, s 37.
Freedom of Information Act 1982 s 3, 11, 24A, 55, 61.

Archives Act 1983.

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

Re Langer and Telstra Corporation Limited [2002] AATA 341

REASONS FOR DECISION

6 April 2004     Mrs Joan Dwyer, Senior Member

1. This is an application for review under s 55 of the Freedom of Information Act 1982 (“the Act”).  The review is of decisions made on internal review under s 54 of the Act on 16 July 2003 (“the reviewable decisions”, T34). Those decisions varied initial decisions made on 30 April 2003 (T13) which identified the documents covered by the requests of Mr Mester of 18 March 2003 (T3) and Mrs Mester of 21 March 2003 (T6), and granted access to all identified documents. The reviewable decisions granted access to further documents, found after Mr Mester pointed out, by letter and in telephone conversations with Centrelink staff, that there appeared to be missing documents. Centrelink did not claim that any documents were exempt documents under the Act. The only issue at this hearing was the adequacy of searches undertaken by Centrelink. After the applications for review were lodged, further documents had been located by Mr Perdon, who appeared for Centrelink at the hearing. Those additional documents were released to Mr and Mrs Mester prior to the hearing.

2. At the hearing Mr and Mrs Mester appeared and gave evidence. As stated, Mr Perdon, a Centrelink advocate, appeared for Centrelink. Evidence for Centrelink was given by Ms Fitzgerald, who is a Freedom of Information ("FOI") Officer with Centrelink. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and also the exhibits tendered during the hearing.

GENERAL PROVISIONS OF THE ACT

3. In considering applications under the Act, it is relevant to bear in mind the object of the Act. That is set out in s 3 of the Act which provides:

Object

(1)       The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2)       It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

4. Section 11 of the Act provides a general right of access to documents. It reads:

(1)       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.

(2)       Subject to this Act, a person's right of access is not affected by:

(a)any reasons the person gives for seeking access; or

(b)the agency's or Minister's belief as to what are his or her reasons for seeking access.

5. Section 61 of the Act puts the onus of proof in a proceeding before the Tribunal on the respondent. It provides:

Onus

(1)       Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

. . .

ADEQUACY OF SEARCHES

6. The issue as to adequacy of searches arises under s 24A of the Act, which provides as follows:

24A Requests may be refused if documents cannot be found or do not exist

An agency or Minister may refuse a request for access to a document if:

(a)all reasonable steps have been taken to find the document; and

(b)the agency or Minister is satisfied that the document:

(i)is in the agency's or Minister's possession but cannot be found; or

(ii)does not exist.

7.      Mr Perdon in his Statement of Facts and Contentions submitted that the Tribunal should find on the evidence that all reasonable steps had been taken to locate any documents not already released to Mr and Mrs Mester.  He submitted that the decision under review should be affirmed; either because  there were no further documents in Centrelink’s possession or because, if there were further documents, they could not be found.

HISTORY OF THE MATTER

8. Under s 11 of the Act, a person’s reason for making a request for documents under the Act is not relevant to a grant of access. However, it often provides the context of an application. Further, in a matter under s24A of the Act, the reason for requesting documents provides information relevant to a consideration of the reasonableness of further steps which may be proposed to find further documents. Mr and Mrs Mester are seeking access to their complete files to discuss with Centrelink the raising of overpayments they dispute. As they did not retain copies of all documents they lodged with Centrelink during the relevant period, they hope to obtain copies from the Centrelink files. The material they have obtained so far has been helpful but incomplete.

9.      Mr Mester said that, when an overpayment was first raised against him, it was said to be over $21,000.  He understands that the amount has now been reduced to approximately $17,000, due to documents which have been located.  However, he believes it should be reduced further.  His wife's alleged debt is much smaller.  The amount of a recoverable overpayment is an important matter for a person whose main income is social security payments.  From the material he has lodged in this matter, Mr Mester appears to be meticulous and accurate in his provision of information.  It would assist in sorting out the issue of the amount of any recoverable overpayment, if he had available all the information he and his wife provided to Centrelink at relevant times, and also any correspondence from Centrelink requesting him to provide information. 

10.     Mr Mester’s request for access to documents (T-docs p10), so far as relevant, was in the following terms:

...

I would like all files including telephone interactions, computer interactions, over the counter interactions and paper files.

11.     Mrs Mester’s requested (T6 p13):

...

I would like all files involving payments, telephone, computer, over‑the‑counter, postal, paper and all other interactions.

12.     The history of releases is set out in paragraph 9 of the respondent’s statement of case as follows:

…

b        On 30/4/03 the respondent decided to give Mr Mester full access to his paper and computer files and released 242 folios and 47 folios respectively.  It was also decided to give Mrs Mester full access to her paper and computer files and 73 folios and 45 folios respectively were released (T13, T14);

c        The applicants sought internal review of the original decision on 9/5/03 on the basis that the release of information had been incomplete (T16);

d        The applicants requested review from the Tribunal on 2/7/3 (T1);

e        An internal review was conducted and further searches made.  On 16/7/03 a review officer decided to release a further 77 folios of archived correspondence and 29 folios of computer files to Mr Mester and a further 155 folios of archived correspondence and 31 folios of computer files to Mrs Mester (T34);

f         The applicants corresponded with the respondent on 10/9/03 stating that there were "...gaps of information which still exist...";

g        The respondent made further searches of records and on 8/10/03 provided the applicants with explanations of its various storage systems and also released 43 folios from the applicants computer files.

13.     At the hearing Mr Mester referred the Tribunal to the documents which had already been released.  He submitted that they showed gaps which indicated that there must be, or at least must have once been, further relevant documents on his and his wife’s paper and computer files.  Mr Perdon agreed and demonstrated, by reference to printouts of computer screens which had been released, that in respect of some of the allegedly missing documents, it was clear that they had once existed.  However, he said they had not been able to be located.

14.     Mr Mester had three main arguments.  First, he referred to an estimate of income document, released as page 58 of Mrs Mester’s documents (A2, enc 4).  He said he and Mrs Mester provided an estimate of income each year and suggested there should be more than one of those forms on file. 

15.     Secondly, Mr Mester referred to an activity statement lodged by Mrs Mester in respect of the fortnight 7 to 20 February 1997 (A2, enc 3).  It was also among the documents released to Mrs Mester.  Mr and Mrs Mester swore that Mrs Mester had lodged similar documents fortnightly during the period she was receiving Newstart payments.  They questioned why only one activity statement had been released. 

16.     Mr Perdon agreed that Mrs Mester had lodged fortnightly activity statements.  He referred to a computer screen print out, attached to his letter of 8 October 2003 (R1 attachment p2), which confirms that.  He also referred to another computer screen print out (R1 attachment p5), which shows the figures provided by Mrs Mester in each of those activity statements, except the one which was released to her.  Mr Perdon explained that the relevant information from the other activity statements must have been keyed into the computer.  He thought it probable that the original forms had then been stored off file in date batch order.  He explained that the one activity statement which was released had apparently been kept on file because the information from it had not been keyed into the computer.

17.     Mr Perdon, in his letter of 8 October 2003 to Mr Mester (R1), wrote:

...

The then Department of Social Security policy was that forms which notified changed circumstances should be stored on the NSA file while no‑change forms were stored off‑file in date‑batch order ie in a folder holding all such computer transactions made by the office that day.

18.     The computer screen printouts (R1 attachment p4-5) show that the information provided in each activity statement showed different earnings figures and thus showed changes in Mrs Mester’s circumstances.  Therefore, Mr Perdon conceded that, if the activity statements providing the information referred to in those pages had been stored in batches, rather than on file, that was not in accordance with "The then Department of Social Security policy". 

19.     Mr Mester's third argument was that the documents provided do not include any correspondence between Centrelink and himself between 13 March 1998 and 31 January 2001.  He pointed out that, in comparison, there are six letters between Centrelink and Mrs Mester in that time, as shown on the Index he prepared of documents received in response to the two FOI requests.

20.     It was not in dispute that Centrelink came into existence in July 1997.  Mr Mester said he had been told that there were some difficulties with the implementation of the new Centrelink computer system.  He believed some data, including correspondence between him and Centrelink from March 1998 to January 2001, had been lost.

21.     In her statement (R2) and evidence, Ms Fitzgerald, who was involved in the internal review of Mr and Mrs Mester’s request, explained the searches which are usually made by her as a FOI officer.  She also said that information from some forms is keyed into a person's personal computer record as soon as practicable, and then the paper forms are stored off file in date batch order for each Centrelink office.  Ms Fitzgerald also explained the working of the Centrelink mainframe computer system in regard to clients’ payment records, and as to the recording of other documents, correspondence, decisions and contacts.

22.     Ms Fitzgerald said she was not aware of any data having been lost in the early days of Centrelink, although she was aware that there had been some difficulties in retrieving some information.

23.     Ms Fitzgerald described the searches that had been undertaken when she took over as FOI officer.  These searches had yielded many more pages of computer records than had been released as a result of the primary decision.  Ms Fitzgerald explained that her standard search procedure for an "all‑file" FOI request is:

(a)request paper files;

(b)request batches from storage;

(c)do a computer search checking the following screens:

(i)historical document list (HDL),

(ii)computer archive retrievals (CAR),

(iii)overpayment document list (OPDL), and

(d)if there has been an overpayment raised or an appeal, consult those files.

24.     Ms Fitzgerald said that there are up to 2500 computer screens which could have data about any one person.  She said that she only searches screens beyond those mentioned in paragraph 23 (c) above if there is a request for a specific screen to be searched.  She said otherwise she does not know what additional screens might be relevant to a particular FOI request.  She said that it is her belief that all available documents and records covered by Mr and Mrs Mester's requests have now been released.

THE LAW AS TO ADEQUACY OF SEARCHES

25.     In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, the Tribunal considered the meaning of the concept of taking “reasonable steps” to find the documents sought. Deputy President McDonald said, at paragraph 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", of 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.

26.     Deputy President Forgie in Re Langer and Telstra Corporation Limited [2002] AATA 341 at paragraph 95 stated:

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...and the steps that have already been taken to locate documents within the terms of the request.

27.     I have applied the tests in Cristovao and Langer to the facts of this matter.

FINDINGS AS TO ADEQUACY OF SEARCHES

28.     I find that the searches which had been conducted by Centrelink as outlined in the evidence before the Tribunal were, at first, not sufficiently thorough.  I find that, when Ms Fitzgerald took over the matter, she did a much more thorough search and located many more documents, but, as she acknowledged, there were some avenues of enquiry which could be made of people with different expertise to her.  Those enquiries could point to other relevant screens, or might locate further documents, or else could establish more definitively that no further documents do exist.  Although Ms Fitzgerald and then Mr Perdon did locate further relevant documents, Mr Mester has pointed to some documents which appear to still be missing.  Those documents are relevant to establishing the amount of overpayment, if any, which may be recoverable from Mr and Mrs Mester.

29. Accordingly, I find that, in order to satisfy s 24A(a) of the Act, by taking “all reasonable steps to find the document[s]”, it is appropriate that a person or persons within Centrelink familiar with the area of disability support pension should be consulted in connection with the searches. Such a person would have knowledge of what screens would be likely to carry further information relating to Mr and Mrs Meyer.

30.     Enquiries could also be made of a person within Centrelink who has knowledge of the kind of correspondence sent to people in the same or similar circumstances to Mr and Mrs Meyer in the relevant period.  I find it is appropriate that any standard form letters sent to all people who were in receipt of part disability support pension between 13 March 1998 and 31 January 2001 be produced in response to Mr Meyer’s request.  Such letters would have been sent to him in the relevant period and the standard form of such letters would still be in the possession of Centrelink and therefore be a document covered by his request.

31.     Further, I find that it is appropriate that Centrelink take steps to determine whether there are relevant documents which are still stored “off file in date batch order” or whether those documents have now been destroyed under the Archives Act 1983 (“the Archives Act”).  If they have been destroyed, I would expect that there will be documents stating the date of such destruction, in order to comply with requirements in relation to the Archives Act.

32.     I am conscious of the vast number of documents received by Centrelink, and of the effort Ms Fitzgerald and Mr Perdon have put into trying to locate any documents relevant to Mr and Mrs Mester.  However, I find that there are further investigations which can be taken, to locate any further relevant documents or further lines of enquiry, or alternatively to establish that there are no further relevant documents still in existence.

33. I bear in mind that the documents sought are relevant to determining the correct amount of an alleged overpayment which currently appears large. I also consider that if further enquiries are made of people within Centrelink with relevant expertise first, in the area of disability support pension and secondly, of destruction of batch storage documents under the Archives Act, those enquiries will not be very onerous to people with the relevant expertise.

34. I find that all reasonable steps have not been taken to find documents answering the applicants' requests under s 24A of the Act. The decision under review will be set aside. In substitution I have decided that it is reasonable that the following steps be taken to find further documents covered by the applicants’ requests under the Act:

(a)Enquiries be made of an appropriate person within Centrelink, who is familiar with the disability support pension area, to find out what additional Centrelink computer screens it would be appropriate to search in looking for records of letters between Mr Mester and Centrelink between 13 March 1998 and 31 January 2001; and those screens be searched to see if any further letters can be located;

(b)Enquiries be made of an appropriate person within Centrelink, who is familiar with procedures in the disability support pension area between 13 March 1998 and 31 January 2001, to find out what letters he or she would expect would have been sent to Mr Mester between 13 March 1998 and 31 January 2001, and in particular whether there were any standard form letters in that time sent to all people who were in receipt of part disability support pension, and, if so, copies of such standard form letters be produced;

(c)Evidence be sought as to whether the activity statements from the Ballarat Office covering the period 1 March 1996 to 31 March 1997 and stored in batches have been destroyed in accordance with the Archives Act 1983 and if so, evidence as to the dates of destruction be obtained.

35.     The Tribunal reserves liberty to the parties to apply to have the matter brought on for further hearing if there should be difficulty or undue delay in taking the steps referred to in paragraph 34 of these reasons.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer

Signed: Josephine McKay 
  Associate

Date/s of Hearing  26 March 2003
Date of Decision  6 April 2004
Representative of Applicants    Self
Advocate for the Respondent   Mr D Perdon