Miller and Chief Executive Officer, Services Australia (Freedom of information)
[2024] AATA 3559
•9 October 2024
Miller and Chief Executive Officer, Services Australia (Freedom of information) [2024] AATA 3559 (9 October 2024)
Division:Freedom of Information Division
File Number(s):2023/9032
Re:Ms Sophie Miller
APPLICANT
Chief Executive Officer, Services AustraliaAnd
RESPONDENT
Date:9 October 2024
Place:Brisbane
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the Australian Information Commissioner on 17 November 2023 is affirmed.
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Senior Member B. Pola
Catchwords
FREEDOM OF INFORMATION – whether all reasonable steps have been taken to find the relevant documents – Section 24A(1) Freedom of Information Act 1982 – whether those documents are in the respondent’s possession but cannot be found – whether those documents exist – decision under review affirmed.
Legislation
Freedom of Information Act 1982 (Cth).
Administrative Appeals Tribunal Act 1975 (Cth).
Archives Act 1983 (Cth).Cases
Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995.
De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770.
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138.Secondary Materials
2016 Guidelines issued by the Australian Information Commissioner under section 93A of the Freedom of Information Act 1982.REASONS FOR DECISION
Senior Member B. Pola
9 October 2024
Background
On 25 January 2021, the applicant, Ms Sophie Miller, made a Freedom of Information (herein referred to as “FOI”) request to the respondent, and requested a copy of documents relating to a historical compensation claim. The text of the request is transposed[1]:
“… Please find attached 4 documents that were sent to Compensation Recovery at Parramatta Sydney NSW on the 02.11.2011 or 03.1.2011. These were sent to you from an external storage area that I paid money to have retrieved and sent to above so as they could provide me with copies. Please advise the loction they were sent from- Fax number/loction. The location they were sent from was a regular place and process where files were sent from. It was not an unknown location…” (sic)
[1] Exhibit TR1, T4, pages 30 to 32.
On 8 February 2021, the respondent received the applicant’s FOI request[2].
[2] Exhibit TR1, T5, page 37.
On 10 March 2021, the respondent refused the applicant’s request pursuant to section 24A of the Freedom of Information Act 1982 (Cth) (herein referred to as the “FOI Act”) and advised that no records of the documents referred to in the request were found[3].
[3] Exhibit TR1, T5, pages 37 to 42.
On 14 March 2021, the applicant sought internal review of the respondent’s decision[4]. In her request for an internal review, she stated that she sought information with respect to the location of a fax number referenced on the documents that were sent on 2 November 2011 or 3 November 2011.
[4] Exhibit TR1, T6, page 43.
On 19 April 2021, the respondent notified the applicant of the outcome from an internal review decision, and again refused access to the applicant’s request pursuant to section 24A of the FOI Act[5]. The respondent notified the applicant that further searches within the relevant team had been undertaken and that no fax/documents could be located.
[5] Exhibit TR1, T7, pages 44 and 45.
On 10 May 2021, the applicant sought review of the respondent’s internal review decision with the Office of the Australian Information Commissioner (herein referred to as the “OAIC”), for an Information Commissioner review (herein referred to as an “IC review”)[6].
[6] Exhibit TR1, T8, pages 56 and 57.
Following numerous information requests between the OAIC and the respondent during the period of October 2021 to November 2023 (discussed in later reasons of this decision), on 17 November 2023, the Assistant Commissioner Freedom of Information (herein referred to as the “Commissioner”), affirmed the respondent’s internal review decision pursuant to section 55K of the FOI Act[7].
[7] Exhibit TR1, T2, pages 10 to 22.
On 28 November 2023, the applicant made an application to the General Division of the Administrative Appeals Tribunal (herein referred to as the “AAT” or “Tribunal”), for review of the decision made by the Commissioner on 17 November 2023[8].
[8] Exhibit TR1, T1, pages 1 to 9.
Jurisdiction
Section 54L of the FOI Act allows for the Commissioner to review decisions where an access refusal decision has been made, it provides:
“…54L IC reviewable decisions—access refusal decisions
(1)An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).
(2)This subsection covers the following decisions:
(a) an access refusal decision;
(b) a decision made by an agency on internal review of an access refusal decision (see section 54C);
(c) a decision refusing to allow a further period for making an application for internal review of an access refusal decision (under section 54B).
Note 1: An application for the review of an access refusal decision made for the purposes of paragraph (a) may be made regardless of whether the decision was the subject of internal review.
Note 2: If no decision is made on internal review within 30 days, a decision to affirm the original access refusal decision is taken to have been made (see section 54D).
(3)The IC review application may be made by, or on behalf of, the person who made the request to which the decision relates…”
Section 55K of the FOI Act directs the Commissioner to make a review decision in writing, it provides:
“…55K Decision on IC review—decision of Information Commissioner
(1)After undertaking an IC review, the Information Commissioner must make a decision in writing:
(a) affirming the IC reviewable decision; or
(b) varying the IC reviewable decision; or
(c) setting aside the IC reviewable decision and making a decision in substitution for that decision…”
Subsection 57A(1) of the FOI Act provides authority for the Tribunal to review decisions made by the Commissioner pursuant to section 55K of the FOI Act, it provides:
“…57A Tribunal reviewable decisions—which decisions are reviewable?
(1) An application may be made to the Tribunal for review of the following decisions:
(a) a decision of the Information Commissioner under section 55K on an IC review;…”
The Commissioner’s decision on 17 November 2023 was made pursuant to section 55K of the FOI Act. The Tribunal is satisfied that it has jurisdiction to review the decision of the Commissioner pursuant to section 57A of the FOI Act, and this application for review has been made in accordance with the FOI Act and the Administrative Appeals Tribunal Act 1975 (Cth) (herein referred to as the “AAT Act”).
Legislative Framework
The legislation and legislative instruments relevant to the application before the Tribunal include:
(i)The Freedom of Information Act 1982 (Cth) (also referred to as the “FOI Act”).
(ii)The Office of the Australian Information Commissioner’s FOI Guidelines. Section 93A of the FOI Act provides that the Commissioner may, by instrument in writing, issue guidelines for the purposes of the FOI Act; and stipulates that regard must be had to any guidelines issued by the Commissioner under this section of the FOI Act. Guidelines were issued by the Commissioner pursuant to section 93A of the FOI Act in December 2016 (herein referred to as the “FOI Guidelines”).
(iii)The Administrative Appeals Tribunal Act 1975 (Cth) (also referred to as the “AAT Act”).
Section 11 of the FOI Act provides:
“… 11 Right of access
(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…”
Section 4 of the FOI Act defines a document of an agency as a document in the possession of the agency, whether created or received by that agency.
Section 15 of the FOI Act sets out how a request for access to documents is to be received, it provides:
“… 15 Requests for access
Persons may request 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.
Requirements for request
(2) The request must:
(a)be in writing; and
(aa) state that the request is an application for the purposes of this Act; 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)give details of how notices under this Act may be sent to the applicant (for example, by providing an electronic address to which notices may be sent by electronic communication)…”
Section 24 of the FOI Act sets out provisions with respect to powers to refuse a request that involves a diversion of resources, it provides:
“… 24 Power to refuse request—diversion of resources etc.
(1) If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:
(a)must undertake a request consultation process (see section 24AB); and
(b)if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists—the agency or Minister may refuse to give access to the document in accordance with the request…”
Section 24AA of the FOI Act provides:
“…24AA When does a practical refusal reason exist?
(1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a) the work involved in processing the request:
(i)in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or
(ii)in the case of a Minister—would substantially and unreasonably interfere with the performance of the Minister’s functions;
(b) the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
(2) Subject to subsection (3), but without limiting the matters to which the agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following:
(a) identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister;
(b) deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for:
(i)examining the document; or
(ii)consulting with any person or body in relation to the request;
(c) making a copy, or an edited copy, of the document;
(d) notifying any interim or final decision on the request.
(3) In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:
(a) any reasons that the applicant gives for requesting access; or
(b) the agency’s or Minister’s belief as to what the applicant’s reasons are for requesting access; or
(c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind…”
Section 24AB of the FOI Act sets out provisions with respect to the consultation process, it provides:
“…24AB What is a request consultation process?
Scope
(1) This section sets out what is a request consultation process for the purposes of section 24.
Requirement to notify
(2) The agency or Minister must give the applicant a written notice stating the following:
(a) an intention to refuse access to a document in accordance with a request;
(b) the practical refusal reason;
(c) the name of an officer of the agency or member of staff of the Minister (the contact person) with whom the applicant may consult during a period;
(d) details of how the applicant may contact the contact person;
(e) that the period (the consultation period) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice.
Assistance to revise request
(3) If the applicant contacts the contact person during the consultation period in accordance with the notice, the agency or Minister must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.
(4) For the purposes of subsection (3), reasonable steps includes the following:
(a) giving the applicant a reasonable opportunity to consult with the contact person;
(b) providing the applicant with any information that would assist the applicant to revise the request.
Extension of consultation period
(5) The contact person may, with the applicant’s agreement, extend the consultation period by written notice to the applicant.
Outcome of request consultation process
(6) The applicant must, before the end of the consultation period, do one of the following, by written notice to the agency or Minister:
(a) withdraw the request;
(b) make a revised request;
(c) indicate that the applicant does not wish to revise the request.
(7) The request is taken to have been withdrawn under subsection (6) at the end of the consultation period if:
(a) the applicant does not consult the contact person during the consultation period in accordance with the notice; or
(b) the applicant does not do one of the things mentioned in subsection (6) before the end of the consultation period.
Consultation period to be disregarded in calculating processing period
(8) The period starting on the day an applicant is given a notice under subsection (2) and ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c) is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b).
Note: Paragraph 15(5)(b) requires that an agency or Minister take all reasonable steps to notify an applicant of a decision on the applicant’s request within 30 days after the request is made.
No more than one request consultation process required
(9) To avoid doubt, this section only obliges the agency or Minister to undertake a request consultation process once for any particular request…”
Section 24A of the FOI Act sets out provisions with respect to requests that are refused where documents cannot be found, do not exist or have not been received, it provides:
“…24A 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.
Document not received as required by contract
(2) An agency may refuse a request for access to a document if:
(a) in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and
(b) the agency has not received the document; and
(c) the agency has taken all reasonable steps to receive the document in accordance with those contractual measures…”
Issue
The issues for the Tribunal to determine with respect to the applicant’s request for the purposes of subsection 24A(1) of the FOI Act, is whether:
(a)all reasonable steps have been taken to find the relevant documents; and if so
(b)it is satisfied those documents are in the respondent’s possession but cannot be found, or that they do not exist.
Consideration
The hearing was conducted on 21 August 2024, with all parties appearing by way of telephone (as permitted by subsection 33A(1) of the AAT Act). The applicant was self-represented. The respondent was represented by Mr David McLaren of Mills Oakley, and also present was Ms Esther Robinson from the Department of Social Services, who was a non-participant at the hearing. In conducting the hearing and determining this application, the Tribunal has had regard to the following[9]:
(a)The respondent’s Statement of Facts Issues and Contentions dated 11 April 2024 (Exhibit R1);
(b)The section 37 T Documents received on 24 August 2023 (Exhibit TR1);
(c)Compensation documents received from the applicant on 28 April 2024 (Exhibit A1);
(d)Applicant’s correspondence to the Tribunal dated 13 August 2024 (Exhibit A2);
(e)An affidavit of Mr Paul Anthony Hart dated 11 April 2024 and received by the Tribunal on 28 April 2024 (Exhibit R2); and
(f)An affidavit of Ms Sharon Manpreet Sangha dated 25 July 2024 and received by the Tribunal on 26 July 2024 (Exhibit R3).
[9] All Exhibits relevant to this decision can also be found in Annexure A of these reasons.
The applicant’s request
The applicant’s original FOI request of 25 January 2021 relates to the location from which four documents associated with the applicant’s historical claim for personal injuries were sent from, the Tribunal refers to the applicant’s original request for information[10]:
“… Please find attached 4 documents that were sent to Compensation Recovery at Parramatta Sydney NSW on the 02.11.2011 or 03.1.2011. These were sent to you from an external storage area that I paid money to have retrieved and sent to above so as they could provide me with copies. Please advise the loction they were sent from- Fax number/loction. The location they were sent from was a regular place and process where files were sent from. It was not an unknown location…” (sic)
[10] Exhibit TR1, T4, page 31.
The four documents that the applicant referred to in her request were also attached to the application and were as follows:
(a)A letter from Health Insurance Commission (HIC) dated 17 December 1996;
(b)Notice of claim stamped by HIC Compensation for 23 September 1996;
(c)Cover letter from Tress Cocks & Maddox dated 18 September 1997; and
(d)Notice of Discontinuance/ Failure of Claim stamped by HIC Compensation for 23 September 1997.
The Tribunal refers to the summary of the applicant’s request detailed by the Information Commissioner’s in their decision of 17 November 2023[11]:
“… In 2011, the applicant was advised by Medicare Compensation Recovery that they did not have the 4 documents attached to the applicant's FOI request. The applicant was provided information on how to have the documents retrieved. The applicant submits their documents were taken away in 1997 and archived by the NSW Department of Health, in a location where Medicare did not have access. The applicant further submits that the archived file that contains the 4 documents, also holds other important information pertaining to the applicant.
The applicant paid money to retrieve the 4 documents under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and had them sent to Medicare Compensation Recovery in 2011. The applicant was advised by a staff member over the telephone that the 4 documents were not sent to Medicare Compensation Recovery by email, they were either faxed or sent internally in another manner. The 4 documents, and the applicant's file, must still exist as no documents can be destroyed without electronic notes.
Medicare Compensation Recovery advised the applicant that there was a document in another language about another individual with the same name as the applicant. The applicant submits that this is their birth certificate.
The applicant had telephone conversations with various Agency staff, who advised that the documents came from the NSW Department of Health and were not scanned and sent by email.
The applicant received a phone call from 'Helen' who the applicant understands was the archives manager at the NSW Department of Health, on 1 November 2011, who sent the applicant's 4 documents to Medicare Compensation Recovery. The applicant called Medicare Compensation Recovery on 3 November 2011, and spoke to a different 'Helen' who advised that the 4 documents they had received from the NSW Department of Health had been posted. Helen from Medicare Compensation Recovery advised that they dealt with Helen the archives manager at the NSW Department of Health on a regular basis.
The 4 documents contain the employee number of Helen the archives manager and barcodes, which the applicant believes may indicate their archived location. The documents also have a HIC reference number, beginning with the prefix NCO MP. This is the file the applicant is requesting access to.
The applicant's files do not relate to the NSW Department of Health, however management within Medicare Compensation Recovery allowed their files to be removed and archived under the NSW Department of Health.
The applicant requests that every page of every file is checked and that the content of-the electronic records be examined and identity checked…”
[11] Exhibit TR1, T2, pages 12 and 13.
The Tribunal is satisfied the above paragraphs summarise the applicant’s request for information, the context in which the applicant is seeking that information; and are consistent with submissions raised by the applicant.
In summary, the applicant has requested access to documents showing the originating fax number or location of the document transmission, which were retrieved from an external archive storage facility on either 2 or 3 November 2011 and were sent directly to Medicare Compensation Recovery.
Summary of steps taken to find the relevant documents
With respect to the steps taken to find the documents the applicant requested; the Tribunal refers to the following summary of searches undertaken by Services Australia, in the evidence tendered before the Tribunal:
(a)A search was conducted of the Compensation Case Management System (herein referred to as “CCMS”), which stores all scanned copies of case related documents, to ascertain whether an electronic copy of the file could be located. It is noted that all hardcopy documents received are scanned to the CCMS and are destroyed after 70 days. Services Australia advised that all electronic documents associated with the applicant's request have been provided to the applicant through previous FOI requests. Services Australia determined that the file may have been destroyed in accordance with the Archives Act 1983 (Cth), due to the age of the file[12].
[12] Exhibit TR1, T9, page 69.
(b)The Medicare Compensation Recovery Team (herein referred to as the “MCR Team”) advised that searches were conducted with respect to scanned remittances, case notes and historical financial systems in relation to the applicant’s past compensation cases, which located a refund payment of $311.00 which was paid to the applicant on 9 June 2011[13].
[13] Exhibit TR1, T9, page 101; and pages 104 and 105.
(c)The Records Management Team (herein referred to as the “RM Team”) prepared a spreadsheet setting out the search results for documents using the applicant’s name and Medicare number as search terms, which identified a list of 41 electronic records[14] and a list of 337 paper batch storage file reference numbers from 2011 and 2012[15].
[14] Exhibit TR1, T9, pages 80 to 82.
[15] Exhibit TR1, T9, pages 83 to 95.
(i)With respect to the 41 electronic records, it was found that rows 1 to 8 were electronic folders, and that searches conducted do not identify how many documents may be contained within each electronic record folder. All of these electronic folders relate to the applicant’s FOI requests to the agency. In response to previous FOI requests from the applicant, the agency has provided the applicant with all electronically stored documents able to be released to the applicant with respect to the FOI requests[16]. With respect to lines 9 to 41, these are individual electronic document records. Following communications between the OAIC and the respondent, it was found that lines 9 to 10 did not relate to the applicant and were located on a name search and related to building access of staff members[17]; lines 11 to 36 and 38 to 41 relate to the applicant’s previous FOI requests; and line 37 related to a previous compensation claim not relevant to the current FOI application[18]. With respect to searching each electronic record folder, Services Australia advised[19]:
[16] Exhibit TR1, T15, page 131 and T18, page 153.
[17] Exhibit TR1, T17, page 151.
[18] Exhibit TR1, T2, page 17.
[19] Exhibit TR1, T17, page 151.
“… The only way to determine the contents of an electronic record folder is to open it and manually search by file title… Content Manager records indexes of documents but does not contain electronic versions of the documents themselves. A generic search of all folder indexes cannot be conducted and a manual search of each record folder would be required. A definitive answer as to how long it would take to search each electronic folder cannot be provided, although we submit that a rough estimate of 1 hour per folder would be reasonable…”
(ii)With respect to the 337 paper batch storage files, Services Australia advised that they were unable to narrow the search to a date range and were only able to narrow the search to the 2011 and 2012 paper batch box records. Further, Services Australia advised that each paper batch box could contain up to 1,000 pages[20]. Services Australia further advised that with respect to these paper batch box records[21]:
[20] Exhibit TR1, T17, page 147.
[21] Exhibit TR1, T15, page 130.
“… If a document existed which recorded the location and fax number from which the four documents were sent (which the agency is unable to confirm), such a document would likely have been archived (i.e. sent to a batch box) in 2011 or 2012. As the documents in batch boxes are generally destroyed after 7 years of receipt, the Medicare Compensation Recovery Team has advised that any files archived in 2011 are unlikely to exist.
The destruction of documents after 7 years of receipt is consistent with arrangements approved by the National Archives of Australia for the disposal of records by the agency in accordance with section 24(2)(b) of the Archives Act 1983 (Cth).…”
(iii)The Tribunal notes that with respect to the 337 paper batch storage files, the respondent has contended that[22]:
[22] Exhibit R1, page 8, paragraph 30(b); Exhibit R2, Annexure D.
“… Preliminary searches conducted by the RM Team indicated that approximately 9 specialised Compensation Recovery containers would have existed with processing dates of 2 and 3 November 2011… As a standard records container could hold up to 1000 pages of documents and containers are not catalogued by their contents, in order to conduct searches of these containers a responsible officer of the agency would be required to manually review up to 9,000 pages of documents. However, these documents have all been scanned to the system. Therefore, even if the containers had not been destroyed and still existed, the resources required to conduct the searches would be unreasonable…”
(d)With respect to the barcodes which appear on the applicant’s four documents provided as part of her FOI application, Services Australia advised[23]:
[23] Exhibit TR1, T17, page 146.
“… We are informed that the barcodes on the documents are those applied by Services Australia to identify a form type and version. These barcodes are used for this administrative use only and do not contain information pertaining to the location of where the form may be physically stored…”
(e)With respect to telephone communications the applicant stated took place, Services Australia advised[24]:
[24] Exhibit TR1, T17, page 146.
“… Calls to Agency front line staff are recorded and stored for a period of time, however calls to and from the Program Management team (who were the team communicating with Ms Miller) are not recorded. As the Program Management team ordinarily has little to no customer contact, it is not an Agency requirement for them to record calls.
When contact is made with a customer, a case note is usually recorded in the case management system. The Project Management team have confirmed that no case or file notes were recorded following telephone communications with Ms Miller as she did not have an active case registered in the system to be able to record a case note against…”
(f)With respect to the applicant’s claims regarding the transfer of her files to NSW Department of Health, Services Australia advised that no such arrangement existed, and no attempt was made by Services Australia to contact the NSW Department of Health to ascertain whether they held the information requested by the applicant[25].
(g)With respect to documents held by Services Australia pertaining to the applicant in other languages, Services Australia stated[26]:
“… Extensive searches for records pertaining to Ms Miller have been conducted in response to her previous FOI requests and the request under review. We have not been able to locate any records indicating Ms Miller has made requests in any language other than English. No documents in any language other than English could be located…”
(h)With respect to whether any record of the applicant’s documents were emailed, faxed or posted, Services Australia has stated, “… all documents held by the Agency, relevant to Ms Miller, have been previously released to her through her various FOI requests…”[27].
[25] Exhibit TR1, T17, page 145.
[26] Exhibit TR1, T17, page 146.
[27] Exhibit TR1, T17, page 146.
The respondent has also submitted a signed affidavit affirmed on 11 April 2024 from a deponent who is employed with Services Australia, Mr Paul Anthony Hart. Key elements of Mr Hart’s affidavit were[28]:
(a)He is presently employed as an Assistant Director within the Debt and Compensation Programs Branch, that sits within the Debt Programme, Appeals and Reviews Division of the Agency (being Services Australia).
(b)Mr Hart stated that, “… All Medicare Compensation Recovery related documents in relation to the Applicant that are currently stored electronically in the Agency's case management system have been provided to her…”.
(c)Mr Hart detailed searches which were conducted in order to identify the documents sought by the applicant. With respect to the electronic records identified and the paper batch storage files, Mr Hart stated[29]:
“… I understand that, in relation to the list of 41 electronic document record numbers relating to searches for "Sophie Miller", the FOI Team determined that rows 2-9, 13-37 and 41 relate to FOI records which did not fall under the scope of the FOI Request. The remaining rows relate to a name match for "Sophie Miller" only, which could not be confirmed to relate to the Applicant. None of the entries reveal files from 2011 (as sought in the FOI request).
There is no way to determine that any of the 337 batch storage boxes hold any information relating to the Applicant as the boxes do not contain a description of customer names. Batch boxes are not catalogued by their contents, and are generally destroyed after seven years of receipt, and any files archived in 2011 are unlikely to exist.
Given the volume of documents contained in the storage boxes and that fact that these boxes relate to documents that have been scanned to the case management system, it was my view that retrieving these boxes from the storage facilities was not justified.
…Based on my experience, having reviewed the completed Search Minutes against the FOI Request, as well as the documents reproduced at Annexures B-D, I am of the opinion that all reasonable searches have been undertaken by the Agency in all locations where the requested documents would be located…”
[28] Exhibit R2.
[29] Exhibit R2, page 4, paragraphs 22 to 24.
The Tribunal notes the respondent made Mr Hart available as a witness at the hearing. The Tribunal asked the applicant if she wished to question Mr Hart with respect to the content of his affidavit of 11 April 2024, to which the applicant declined.
Whether all reasonable steps have been taken to find the relevant documents
The Tribunal refers to the FOI Guidelines at paragraph 3.85, which states:
“… An agency or minister may refuse a request if it has taken 'all reasonable steps' to find the document requested, and is satisfied that the document cannot be found or does not exist (s 24A(1)). There are two elements that must be established before an agency or minister can refuse a request for access to a document under s 24A:
·the agency or minister must have taken all reasonable steps to find the document, and
·the agency or minister is satisfied that the document cannot be found or does not exist…”
What constitutes reasonable steps when finding a document is not defined in the FOI Act. However, the FOI Guidelines state the following with respect to what constitutes a reasonable search, at paragraph 3.89:
“… Agencies and ministers should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency's operating environment or the minister's office… At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:
· the subject matter of the documents
· the current and past file management systems and the practice of destruction or removal of documents
· the record management systems in place
· the individuals within an agency or minister's office who may be able to assist with the location of documents, and
· the age of the documents…”
What constitutes reasonable steps has been considered in the Courts. The Tribunal refers to Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information)[30], where their Honour Jagot J observed that with respect to what is reasonable it, “… is a question of fact and degree which calls for a balancing of all the legitimate interests…”.
[30][2015] AATA 995 at [43].
What constitutes reasonable steps is further defined in the FOI Guidelines at paragraph 3.88, which provides:
“… The Act is silent on what constitutes 'all reasonable steps'. The meaning of 'reasonable' in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.
[De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770, applying Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138]…”
The Tribunal agrees with the respondent’s contention that the information provided by the respondent to the OAIC in its review, supplemented by the affidavit of Mr Hart, is that reasonable steps were taken to find the documents which the applicant is seeking in this application[31].
[31] Exhibit R1, page 7, paragraph 29.
In the present application, the respondent identified the relevant team within the Agency responsible for the subject matter of the applicant’s request; searched the relevant record management systems in which such documents would exist; and upon determining the scope of the search (with respect to the 41 electronic documents and the batch storage boxes in which such a document could exist), concluded that it was unreasonable to then proceed to search for the documents the applicant is seeking.
The unchallenged evidence of Mr Hart is that, in all likelihood, the documents the applicant is searching for are unlikely to exist given that documents of that nature contained in paper batch boxes are destroyed after seven years from the date of receipt, and files archived in 2011 are unlikely to exist. The Tribunal accepts this evidence and notes that it is consistent with submissions provided by Services Australia to the OAIC, which stated that, “…The destruction of documents after 7 years of receipt is consistent with arrangements approved by the National Archives of Australia for the disposal of records by the agency in accordance with section 24(2)(b) of the Archives Act 1983 (Cth).…" [32].
[32] Exhibit TR1, T15, page 130.
The Tribunal is of the view that the scope of the search is expansive with respect the efforts required to locate such documents the applicant is seeking, if they were to exist. Evidence before the Tribunal indicates that:
(a)With respect to the 41 electronic records that were identified (details of which have been set out by the Tribunal in earlier reasons as to what each of the 41 rows in the search relates to), the Tribunal accepts the respondent’s submission that[33]:
“… To search the electronic records, the electronic records would need to be retrieved by the MCR Team from the RM Team and each document contained within the electronic record would need to be reviewed to identify any relevant documents. The searches do not identify how many documents are contained in each record. In any event, none of the entries reveal files from 2011 (as sought in the FOI request)…”
(b)With respect to the paper batch storage files, the respondent’s submission is that[34]:
“… the RM Team indicated that approximately 9 specialised Compensation Recovery containers would have existed with processing dates of 2 and 3 November 2011. As a standard records container could hold up to 1000 pages of documents and containers are not catalogued by their contents, in order to conduct searches of these containers a responsible officer of the agency would be required to manually review up to 9,000 pages of documents. However, these documents have all been scanned to the system… Therefore, even if the containers had not been destroyed and still existed, the resources required to conduct the searches would be unreasonable…”
[33] Exhibit R1, page 8, paragraph 30(c).
[34] Exhibit R1, page 8, paragraph 30(b).
The Tribunal agrees that it is unlikely the documents the applicant is seeking exist, due to approved arrangements with respect to the destruction of such documents pursuant to subsection 24(2)(b) of the Archives Act 1983 (Cth), given the document in question would have been held for more than seven years. Further, the Tribunal is of the view that it would be unreasonable for the respondent to search the identified electronic records and paper batch storage files, given the significant resources required to do so, in circumstances where the document is unlikely to exist.
The Tribunal is of the view the respondent adequately addressed the circumstances of the disposal of such records the applicant is seeking. The Tribunal in its reasons has set out how the respondent explained the searches undertaken to identify the relevant paper and electronic sources of the information the applicant is seeking, and set out the records disposal policy, with reference to Services Australia submissions that, “…The destruction of documents after 7 years of receipt is consistent with arrangements approved by the National Archives of Australia for the disposal of records by the agency in accordance with section 24(2)(b) of the Archives Act 1983 (Cth).…" [35].
[35] Exhibit TR1, T15, page 130; Refer FOI Guidelines, paragraph 3.94.
The Tribunal notes the OAIC in communications with the respondent sought to follow up further aspects of the applicant’s request for documents regarding the origin of the barcodes found on the four documents the applicant identified in her application, telecommunication records with the applicant, claims of the applicant with respect to the transfer of her files to NSW Department of Health, and documents held by Services Australia pertaining to the applicant in other languages. The Tribunal has reviewed these aspects of the applicant’s request and is satisfied the respondent has satisfactorily addressed the questions of the applicant.
For the reasons outlined in this decision, the Tribunal is of the view the respondent has undertaken reasonable steps to find the relevant documents the applicant is seeking, and is satisfied those documents cannot be found, or that they do not exist.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the Australian Information Commissioner on 17 November 2023 is affirmed.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
……[SGD]………………
Associate
9 October 2024
Date of Hearing: 21 August 2024
Applicant: Ms Sophie Miller (self-represented)
Respondent Representative: Mr David McLaren of Mills Oakley
Annexure A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
R1.
Respondent’ Submissions
R
11/04/2024
TR1.
Section 37 T-Documents (T1-T18, total 161 pages)
-
Various
24/08/2023
A1.
Compensation Documents (2 pages)
A
23/09/1997
28/04/2024
A2.
Applicant’s email to the Tribunal dated 13 August 2024 (3 pages)
A
13/08/2024
13/08/2024
R2.
Affidavit of Paul Anthony Hart (39 Pages)
R
11/04/2024
28/04/2024
R3.
Affidavit of Sharon Manpreet Sangha (6 pages)
R
25/07/2024
26/07/2024
0
2
0