Mulder and Centrelink
[2003] AATA 454
•24 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 454
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/137
GENERAL ADMINISTRATIVE DIVISION )
Re J D MULDER Applicant
And
CENTRELINK
Respondent
DECISION
Tribunal Mr G A Mowbray Date24 April 2003
PlaceCanberra
Decision For reasons given orally at the hearing on 24 April 2003, the Tribunal sets aside the decision under review, being the deemed refusal of the Applicant’s request of 28 February 2002 under the Freedom of Information Act 1982 (“the FOI Act”), and in substitution therefor decides:
1. The Respondent is to conduct further searches for the SU019 form covering the period 2 to 15 February 2001 pursuant to section 55(5) of the FOI Act, such searches to be at least conducted in the locations identified in the Tribunal’s reasons.
2. All reasonable steps have been taken to find the SU019 form covering the period 29 September to 12 October 2000 and all assessment documents not yet provided, and the Tribunal is satisfied that the documents either do not exist or are in the Respondent’s possession but cannot be found.
3. Access to the documents in paragraph 2 is refused under section 24A of the FOI Act.
....................(sgd)..................
Member
CATCHWORDS
FREEDOM OF INFORMATION - access to documents - whether all documents provided - whether additional documents exist but cannot be found – whether additional searches should be conducted
Freedom of Information Act 1982 s 24A, 55(5)
Re Redfern and University of Canberra (1995) 38 ALD 457
Re Cristavao and Secretary, Department of Social Security (1998) 53 ALD 138
REASONS FOR DECISION
20 May 2003 Mr G A Mowbray History of the application
1. On 28 February 2002 Mr Mulder made an application to Centrelink along the following lines on a form provided by that agency
“I request under FOI Act to access those forms advising Centrelink of “living with” and assessment and/or any further action taken.”
2. On 14 March 2002 Ms Diana Wareing on behalf of Centrelink acknowledged receipt of this request on 28 February. Having received no further response from Centrelink, Mr Mulder applied to the Tribunal on 4 April 2002 for a review of the deemed refusal to grant access to these documents. The scope of his request set out in the application to the Tribunal for review was
“Access to those documents (SUO19) that deal with the assessment/approval/further action and those 14 day/fortnightly forms, advising as per Q2 of the form: "Are you married or de facto and living with your partner?", which are answered YES.”
3. Certain documents have since been provided to Mr Mulder by Centrelink, both in the T-documents and separately prior to this hearing.
4. The matter came on for hearing on 7 March 2003. Mr Mulder represented himself and Centrelink was represented by Mr John Kenny. On that occasion Mr Kenny indicated that the ambit of the request appeared somewhat broader than he had anticipated and that there might be other relevant documents. The hearing was therefore adjourned with directions to allow for a search for and access to any of those documents and for the parties to meet to delineate the ambit of the matters that remained in dispute.
5. The hearing resumed on 24 April 2003. Oral reasons for decision were given on that day setting aside the deemed refusal of Mr Mulder’s original request for documents and in substitution making a decision on the documents remaining in dispute. On 8 May 2003 the Tribunal received a request for written reasons for the decision from Mr Mulder pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.
Legislation
6. The following provisions of the Freedom of Information Act 1982 (“the Act”) are relevant to this matter
“3 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 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“document” includes:
(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 or 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.”
“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.”
“18 Access to documents to be given on request
(1) Subject to this Act, where:
(a) a request is made in accordance with the requirements of subsection 15(2) by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is granted has been paid;
the person shall be given access to the document in accordance with this Act.
(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.”
“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.”
“55 Applications to Administrative Appeals Tribunal
(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision refusing to grant access to a document in accordance with a request; or
(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
(ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
…
…
(5) The Tribunal's power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.
(5A) The Tribunal's power to make a decision on a review of a decision of a kind mentioned in paragraph (1)(ab) includes a power to require the agency or Minister concerned to conduct further searches for the document.
…”
“56 Application to Tribunal where decision delayed
(1) Subject to this section, where:
(a) a request has been made to an agency or Minister in accordance with section 15; and
(b) the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and
(c) notice of a decision on the request has not been received by the applicant;
the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.…
(5) Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a decision:
(a) to grant, without deferment, access to the document in accordance with the request; or
(b) to amend or annotate the record of personal information to which the application relates;
the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part.
…”
“58 Powers of Tribunal
(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
…”
“61 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.
…”
Evidence
7. The Tribunal took into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (“T-documents”) numbered T1 to T13, the Applicant's exhibits A1 to A5 and the Respondent's documents R1 to R11. Oral evidence was given by telephone by Ms Rechelle Davis and Mr Terry Borland, both Centrelink officers.
Onus of proof
8. Section 61 of the Act makes clear that the onus of establishing that a decision on a document was justified or that the Tribunal should give a decision adverse to an applicant rests on the agency, in this case Centrelink.
Issues
9. The Tribunal has before it a request to review a deemed refusal of access to documents. However, since the application to the Tribunal Mr Mulder has been given, through the T-document processes or otherwise, a number of documents which fall within the scope of his request
· A total of 15 SU019 forms, of which 9 had the “yes” box ticked (T3 to T7, T10 to T13, part of Exhibit R2, Exhibits R3 and R4, part of Exhibit R5)
· 5 pages of Archive Display Summary from Centrelink’s computer systems (part of Exhibit R5)
· 19 pages of Archive Display (part of Exhibit R5, Exhibit R8)
· a Marital Status screen, one page (Exhibit R6)
· a Medical Conditions detail screen for an event on 20 July 2000, one page (Exhibit R7)
· an e-mail of 6 August 2001 to Lucy Roppola (Exhibit R9)
· two “DOC” (Document) screens (T8 and T9)
· a Historical Document screen (part of Exhibit R2)
10. At the hearings on 7 March and on 24 April 2003 it was agreed that the matters still in contention fell into two classes. First, two SU019 forms covering the periods 29 September – 12 October 2000 and 2 – 15 February 2001 respectively. Secondly, documents dealing with assessment/approval/further action for the nine SU019 forms within the period from 2 February 2000 to 5 February 2002 for which the "yes" box in the marital partner question – that is question 2 or 3 depending on the individual form – had been ticked, as well as the assessment documents for the two outstanding SU019 forms. This latter class of documents I shall refer to as the "assessment documents".
11. Section 56(5) provides
(5) Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given… the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part.
Therefore, consistent with this provision I take the decision under review to be the deemed refusal to grant access to those documents in dispute and to which I have just referred in paragraph 10 – that is, two SU019 forms and the assessment documents.
Consideration of Issues and Findings
Mr Mulder’s submissions
12. In his Statement of Facts and Contentions (Exhibit A1) Mr Mulder wrote the following
“ISSUES
Over a period of more than 2 years (period: 2/2/00 – 5/2/02) continuation forms were returned to the Respondent by the Applicant.
The specific issue is the question on those forms:
“Are you married or de facto and living with your partner?”
It was answered in the positive, as can be seen at the box marked ‘YES’.
None of the forms appear to have been `assessed/logon Id-ed’, as can be seen on the back of each form (right-hand bottom), but only three (3) appeared to have:
“Approved/logon Id-ed”, as it can be seen on the back thereof, except for T10 [page] 18, T11 [page] 20, T13 [page] 24. None of the forms were ‘further action-ed’ as can be seen on the back thereof, except for T12 [page] 22, form due 31/1/02 (not provided by respondent as part of the T37 documents) and T13 [page] 24.
NO folio’s were provided by the respondent as requested, to indicate:
"Assessment and/or further action taken" dated 28 February 2002.
The applicant is seriously confused that although on continuation forms as returned to the respondent between 25/3/1991 and 3/5/1991 the [tick in a box] NO box was ticked, although information on oath has been given to the Courts, that the married rate was paid; between 2/2/00 – 5/2/02, although the YES box was ticked, it appears the married rate was not paid. This is contradictory to what a reasonable person would expect to have been appropriate.
It appears no Proof of identification for the partner was ever documented, although documents on file clearly shows that proof of Identification was demanded on several occasions but many a request under the FOI Act to access such documents, no proof of identification could be found during the period 1991 – 1993, although Proof of identification of the applicant still remains on file during the same period.
FACTS
The facts of this matter clearly show many documents, namely the continuation forms, clearly indicate the Respondent has been advised of the partner over the period between 2 Feb 2000 and 5 Feb 2002.
Although none of these forms indicate any assessment was made, and no follow-up or enquiry was entered into with the Applicant.
This shows the incompetence of Centrelink to administer or is there a clear attempt by the respondent to reduce or nullify any claim for social security benefit.
In the case of this applicant, recent experience clearly shows the supercilious attempts by the department to allege overpayments, of which up to this point in time more than $5000-00 has been successfully appealed, at great stress and anxiety to this applicant.
CONTENTIONS
…
The applicant again seeks directions to provide further documents, including:
"Assessment/approval/further action" documentation as requested in the original request for access on 28.2.02:
…
The Applicant requests of the Tribunal to make a direction for the Respondent to accept an identifiable notification has been made in relation to a partner for the period between 2 February 2000 and 5 February 2002.”
I note in passing that during the hearing Mr Mulder accepted that the Tribunal did not have any power in these proceedings to make the direction that he requested in that last sentence.
Mr Kenny's submissions for Centrelink
13. Mr Kenny submitted that the two SU019 forms have been the subject of extensive searches and could not be found. The Centrelink Statement of Facts and Contentions (Exhibit R5) contains the following on the assessment documents
“5. There is nothing in file and electronic records to indicate that any particular action was taken on the “Yes” answers. The applicant has not had a partner record at any relevant time.
6. Continuation forms are processed electronically by accessing screens in the customer record. Each processing action creates a permanent record called an “activity”, identifiable from an archived Activity Management History (relevant extracts attached). Each relevant activity can be selected from the Activity Management History and displayed.
7. At all relevant times, each continuation form was assessed and determined on that system by a single officer. To stimulate a payment, it was possible for the delegate to successfully access 2 screens, the NC (newstart continuation) screen to confirm lodgement and the AR (assessment results) screen to approve payment. A quicker alternative combined both functions on a single screen – NBC (newstart bulk continuations) – which was the screen of choice if there were no earnings to record.
8. Another alternative, the BRET screen (bulk data entry – returned forms), was a bulk screen for processing multiple "cleanskin" (continuation forms with no changes) for several customers, requiring only the input of each customer's reference number.
9. The screens described above are data entry screens only and are not archived in that form.
10. Changes of circumstances might require access to other screens. For example, the MC (medical certificate) screen is used to record periods of incapacity for work. The MS (marital status) screen would be needed to record relationship changes. On no occasion was the MS screen accessed.”
14. I note here that Mr Kenny submitted that a tick in the “Further Action” box on the second page of the SU019 forms rarely means that a document was attached, despite the wording. Rather, it indicated that some further action that could not be immediately undertaken was required. I also note that Ms Davis gave evidence on the processing of forms consistent with Mr Kenny’s submissions.
15. Mr Kenny’s contentions were as follows
“11. The bulk of Mr Mulder's statement of facts and contentions addresses non-FOI issues, to which it is not relevant to reply.
12. The respondent has provided all documents of which it is aware that relate to the applicant's request.
13. The respondent is not aware of any other documents which relate to his request. The tribunal now has the system records of the processing of –
· each form in which Mr Mulder ticked a box to indicate that he was married or de facto living with a partner; and
· each of the two unlocated forms, which may or may not have had the relevant question and, in that event, may or may not have had a “yes” tick.
14. On no occasion was the MS (marital status) screen accessed by any delegate to record a relationship change.”
General observations and the law
16. Mr Mulder's underlying concerns are really about what he perceives as maladministration in Centrelink – that is, its failure to properly assess and implement information from the SU019 forms. But this is not the issue before the Tribunal. If he has concerns about this issue, Mr Mulder must take them up with Centrelink or with the Ombudsman. The Tribunal cannot provide him with a remedy under the Act.
17. Furthermore “Freedom of Information” under the Act is in truth about access to documents, not information. In Re Redfern and University of Canberra (1995) 38 ALD 457 Deputy President McMahon said
“17. There is of course ample authority for the proposition that an agency is not obliged to generate a document so as to provide one falling within the description of a request for access. The right of access conferred by s 11 is a right to obtain access to documents, not information. The Act does not generally require an agency to make available information which is not in its possession in a documentary form, nor does it require an agency to collect together information from a number of documents in its possession so as to create a new document.”
18. In this matter the real issue is whether particular documents exist. On that question section 24A of the Act 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.”
19. This was considered by Deputy President McDonald in Re Cristavao and Secretary, Department of Social Security (1998) 53 ALD 138. The following passage is particularly pertinent because it refers to SU019 forms
“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.
20. The tribunal recognises that DSS handles thousands of documents and makes thousands of computer entries daily. Given the volumes involved, however regrettable it may be, it is inevitable that some of those documents/computer transactions will be misplaced or mis-keyed. Mr Randall said that, given the number of SU19 forms, there was usually some trouble in locating every completed form when a search was instigated. The diligent researches of Mr Cristovao have, in this case, unveiled the intermingling of a document on his file with that of his son and vice versa. Care needs to be taken in recognising that some social security recipients will have the same Christian as well as surnames to ensure that their documents do not become intermingled. However, for purposes of s 24A of the FOI Act, the tribunal is satisfied that in this case all reasonable steps with respect to the SU19 documents to batches, and in the case of the record of interview, the applicant's hard copy file and computer records, have been taken to find the documents. In the case of the former documents (that is, the SU19 documents) the tribunal is satisfied that they were in the department's possession but now do not exist. In relation to the latter (that is, the record of interview) the tribunal is satisfied that the documents, which includes any computer record, does not exist. It follows that under the provisions of s 24A of the FOI Act the agency can refuse the request for access to the documents. Accordingly, with respect to the FOI claim the decision under review is affirmed.”
The SU019 forms
(i) form for 29 September – 12 October 2000
20. This document was lodged at Centrelink’s Camden office and processed at Camden by Gail Davies. Centrelink conducted a search in August 2001 but the document was not found (Exhibit R9). Another search was conducted by Mr Borland in October 2002 (Exhibit R11) but he was unable to locate this particular form.
21. One possibility was that this document was at Centrelink’s Campbelltown office rather than Camden. However Mr Borland indicated in his oral evidence that documents from Campbelltown had been transferred to the Sydney Records Management Unit and all documents for the relevant time period had been destroyed.
22. For section 24A to apply all reasonable steps must have been taken to find the document and I should be satisfied the document cannot be found or does not exist. I am satisfied that all reasonable steps have been taken to find this particular document. Further I am satisfied that it either continues to be in the agency's possession and cannot be found or that it does not exist. In my view, therefore, section 24A applies to this document and access to it can be refused.
(ii) form for 2 – 15 February 2001
23. This was lodged and processed in Kempsey by R. Lyons. It was sent to Camden as recorded in the Historical Document Display screen within Exhibit R2
“received su19 in mail from kempsey – stated a/n [above-named] had sold home- have sent this info to neville hill for his info”
24. This document was also not found in the initial searches or by Mr Borland in his search of October 2002. There are however a number of strange notes in the documents before the Tribunal in relation to this particular form. The first one is the above record of it having been mailed from Kempsey to Camden and of information being sent to Neville Hill. The second one is a note in Exhibit R9 (the e-mail message to Ms Lucy Roppola) which suggests that the document had been among those found at Camden.
25. It seems to me that there remain a number of possibilities for the location of this document. It is possible that it is with the Prosecutions Unit where Mr Neville Hill worked. It is also possible that it still is with the Kempsey batches for this period and that it was only the information in the document that was forwarded to Mr Neville Hill, rather than the actual document itself. There was no evidence before the Tribunal on searches that may have been conducted in these two areas.
26. The question for me then is whether I am satisfied that all reasonable steps have been taken to find this document, with the onus resting on Centrelink. Given the outstanding questions in my mind, I am not so satisfied and I propose to direct pursuant to section 55(5) that further searches be undertaken for this document, at least of the Prosecutions Unit, Centrelink’s Kempsey office and wherever Kempsey forms for this period are now stored.
Assessment documents
27. It is clear from the evidence of Ms Davies, who has seven years experience as a Centrelink officer processing SU019 forms and whose evidence I found impressive, that SU019 forms are assessed by a simple electronic command on the computer on various screens. Generally there are no new documents created. The screens themselves are not stored and not retrievable except for the medical condition (MC) screen and marital status (MS) screen.
28. In Mr Mulder's case the MS screen was not accessed after its activation at the beginning of his entitlement to allowance, which occurred before the relevant period (February 2000 to February 2002), and the MC screen was only activated once during the relevant period. Mr Mulder now has the documents showing this to be the case. Whether there should have been more processing by people such as Ms Davis, given the nature of the question that was asked on the SU019 forms and Mr Mulder’s answers, is not to the point in a Freedom of Information application (see paragraph 16 above).
29. I am satisfied that no further assessment documents exist for the relevant period, that Centrelink has carried out appropriate inquiries to establish what documents do exist and that these documents have been given to Mr Mulder already.
30. In terms of section 24A, I am satisfied that all reasonable steps have been taken to find other assessment documents, that is, documents not already provided to Mr Mulder, for the relevant period and that no such documents exist.
Further observations
31. On 17 April 2002 I had cause to convene a directions hearing because of the continuing failure by Centrelink to comply with the Tribunal's directions. The Tribunal was less than impressed by this lack of diligence by Centrelink and its officers. I trust that my comments on that occasion have had a salutary effect.
Decision
32. Noting that access has been given to a number of documents since the application by Mr Mulder was made to the Tribunal, the Tribunal sets aside the deemed refusal of Centrelink and decides
· that further searches be undertaken in accordance with these reasons for decision for the continuation form (SU019) for the period of 2 to 15 February 2001
· that all reasonable steps have been taken to find the SU019 form for the period 29 September to 12 October 2000 and for all assessment documents related to all the SU019 forms under consideration in this matter, and that these documents either do not exist or are in Centrelink’s possession but cannot be found. Access to these documents is therefore refused under section 24A of the Act.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
..........(Trevor Mobbs)..............................
AssociateDate/s of Hearing 7 March, 24 April 2003
Date of Decision 24 April 2003
Date of Written Reasons 20 May 2003
Counsel for the Applicant Self-represented
Counsel for the Respondent Mr J Kenny, Centrelink Service Recovery Team
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