Mulder and Department of Immigration and Multicultural Affairs - [2001] AATA 545

DECISION AND REASONS FOR DECISION [2001] AATA 545

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1753

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JACK DENIS MULDER
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date18 June 2001
PlaceSydney
DecisionThe Tribunal sets aside the decision under review and decides as follows:

That part of the decision under review which was to delete certain material on folios 44 and 45 of file A99/000918 is affirmed.
The searches undertaken in response to the Applicant's request were appropriate and reasonable.
Several additional searches should have been attempted and would very likely have been attempted had the Respondent had access to Exhibits A7, A8 and A9 before the hearing. The Tribunal now directs that these searches be undertaken.

[Sgd] M J Sassella
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION - right of access to information - requests for access - requests for information involving use of computers - access to documents to be given on request – forms of access - deletion of exempt matter or irrelevant material – refusal of requests if documents cannot be found or do not exist - documents affecting personal privacy
Freedom on Information Act 1982 ss 11, 15, 17, 18, 20, 22, 24A, 41(1), (2), 54, 55(1), (2), 61(1)

REASONS FOR DECISION

18 June 2001 M J Sassella, Senior Member

History of application

On 27 July 2000 the Department of Immigration and Multicultural Affairs ("the Respondent") received a request from Mr Jack Denis Mulder ("the Applicant") for access to documents under the Freedom of Information Act 1982 ("the FOI Act") (T5). The request was for access to "any and all information, including personal information about myself, including computer records, held by all associated departments of the Department of Immigration, Australia wide, but not limited to those documents containing information:

a) For Jack Denis Mulder with Date of Birth 29 January 1949;

b) Information about the 'various passports and the visas', held by the applicant;

c) The Citizenship, Migration, and Permanent Residency status matters of the applicant between 13 October 1977 and 17 October 1995;

d) All correspondence between D.I.M.A. and Centrelink about the applicant."

He asked that copies of "this information" be made available to him. He asked that the Respondent contact him in writing if any difficulties arose. He requested an acknowledgment under s 15 of the FOI Act.
On 31 July 2000 an officer in the Respondent agency wrote to the Applicant (T6) acknowledging the request.
On 22 August 2000 an officer in the Respondent agency wrote (T7) to the Applicant to say that the requested documents had been assembled but that the signature on the Applicant's freedom of information ("FOI") request letter matches none of the signatures in the documents located by the Respondent. He was asked to provide proof of identity by 15 September 2000.
On 19 September 2000 an officer in the Respondent agency wrote (T9) to the Applicant noting that no response had been received to the letter at T7. He wrote further that the requested documents were to be treated by the Respondent as exempt under s 41(1) of the FOI Act on the basis that disclosure would involve the unreasonable disclosure of personal information about another person.
On 29 September 2000 the Applicant wrote to the FOI Coordinator in the Respondent agency (T11) in response to the letter at T9. He said that he had tried to contact the Respondent on the "13" telephone number provided in the letter at T7. However only a recorded message was available. He noted that the letter at T9 had a different contact telephone number. He noted that the letter at T6 suggested that the Applicant would be contacted by several named "offices" from the Respondent agency. No such contact had been made. He said, "Information received from the passport office, is that my passport K0581330 has been canceled [sic] and my details are taken off their database and I have to contact DIMA". He said further,
"My Passport K0581330 was handed to the Australian Authorities as part of bail conditions imposed by local court Campbelltown July 1996. As I did not have the use of my passport since then, and I believe the passport should have been valid until March 2001, I request to be issue [sic] with a replacement passport valid for an identical period. The FOI Act 1982, gives me the right to obtain access to any personal information and to correct any incorrect, misleading, out-of-date information. Under these circumstances, I request DIMA to provide me urgent access to my personal file. I plan to travel overseas to attend my father's 80th birthday on 15/10/00".
On 11 October 2000 an officer in the Respondent agency wrote (T12) to the Applicant querying whether he wanted his letter at T11 to be regarded by the Respondent as an appeal against the decision to refuse access to the documents.
On apparently 18 October 2000 the Applicant provided his driver's licence for the Respondent agency to copy. He also said in writing, "I require a review FOI request 20 July 2000".
On 25 October 2000 the Applicant wrote (T15) to the Respondent stating, amongst other things, that he had still not been given access to his personal file as requested on 20 July 2000.
On 26 October 2000 Mr Peter Lovell, Executive Officer, Public Access Unit, in the Respondent agency wrote (T1) to the Applicant, having conducted the requested internal review. He wrote, amongst other things:
"[I] have decided to release all documents relevant to your request apart from two folios which are partially exempted from release as they contain the information of persons other than yourself. …
"…Searches were undertaken of DIMA data bases of file registry records, Australian citizenship records and international movements. An electronic record was located on the Australian citizenship database for Jack Denis Mulder acquired at a ceremony on 13 October 1977. Records were located of international movements for Jack Denis Mulder and there were file references located. These files were N99/300011, A99/000918, and Q83/000689 all in the name of Jack Denis Mulder. File Q83/000698 was destroyed on 14/01/1993. Jack Denis Mulder was also one of several cross referenced to file N97/101071 titles 'Privacy Act disclosures – The Rocks Office'. …
"I have examined files N99/300011 and A99/000918 and the relevant folios on file N97/101071 which contain information about you. At the time your FOI application was lodged, file A99/000918 consisted of 73 folios. File N99/300011 consisted of 70 folios most of which are copies of the folios on A99/000918. There are six folios on file N99/300011 which are not contained on file N99/000918. These folios are numbered 56-59 and 67-68. All the folios on file N97/101071 which contain information concerning Jack Denis Mulder have been copied onto files A99/00918 and N99/300011.
"… In relation to file A99/000918, I am releasing all 73 folios on this file to you in full apart from folios 44 and 45 which I am releasing in part only. Parts of these two folios are exempted for release as they contain the information of persons other than yourself. I am exempting the information of these persons under section 41(1) of the FOI Act …. The six folios on N99/300011 which are not contained on file A99/00918 are released in full."

On 23 November 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the AAT", "the Tribunal") an application for review of the Respondent's decision of 26 October 2000 not to provide him with access to the requested documents (T1). He stated as reasons for seeking a review, "I know not all folios so held on me I have received copies of. I have a right per FOI Act to see all actual + original files (not just copies of some) so held, by all DIMA offices Australia wide."
On 29 November 2000 the Tribunal wrote (T1) to the Respondent informing it of the application from Mr Mulder. The Respondent provided to the Tribunal a statement under s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") on 29 December 2000.
Legislation
The relevant legislation is in the Freedom of Information Act 1982 at ss 11, 15, 17, 18, 20, 22, 24A, 41(1), (2), 54, 55(1), (2), 61(1):
"Section 11
Right of access
11. (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 15
Requests for access
15. (1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
(2) The request must:
(a) be in writing; and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c) specify an address in Australia at which notices under this Act may be sent to the applicant; and
(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and
(e) be accompanied by the fee payable under the regulations in respect of the request.
(3) Where a person:
(a) wishes to make a request to an agency; or
(b) has made to an agency a request that does not comply with this section;
it is the duty of the agency to take reasonable steps to assist the person to make the request in a manner that complies with this section.
(4) Where a person has directed to an agency a request that should have been directed to another agency or to a Minister, it is the duty of the first-mentioned agency to take reasonable steps to assist the person to direct the request to the appropriate agency or Minister.
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and
(b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).
(6) Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5) (b):
(a) the period is to be taken to be extended by a further period of 30 days; and
(b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended."
"Section 17
Requests involving use of computers etc.
17. (1) Where:
(a) a request (including a request of the kind described in subsection 24 (1)) is made in accordance with the requirements of subsection 15 (2) to an agency;
(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and
(c) the agency could produce a written document containing the information in discrete form by:
    (i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or
    (ii) the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.
(2) An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations."
"Section 18
Access to documents to be given on request
18. (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."
"Section 20
Forms of access
20. (1) Access to a document may be given to a person in one or more of the following forms:
(a) a reasonable opportunity to inspect the document;
(b) provision by the agency or Minister of a copy of the document;
(c) in the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the person to hear or view those sounds or visual images;
(d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document.
(2) Subject to subsection (3) and to section 22, where the applicant has requested access in a particular form, access shall be given in that form.
(3) If the giving of access in the form requested by the applicant:
(a) would interfere unreasonably with the operations of the agency, or the performance by the Minister of his or her functions, as the case may be;
(b) would be detrimental to the preservation of the document or, having regard to the physical nature of the document, would not be appropriate; or
(c) would, but for this Act, involve an infringement of copyright (other than copyright owned by the Commonwealth, an agency or a State) subsisting in matter contained in the document, being matter that does not relate to the affairs of an agency or of a Department of State;
access in that form may be refused and access given in another form.
(4) Subject to subsection 17 (1), where a person requests access to a document in a particular form and, for a reason specified in subsection (3), access in that form is refused but access is given in another form, the applicant shall not be required to pay a charge in respect of the provision of access to the document that is greater than the charge that he or she would have been required to pay if access had been given in the form requested."
"Section 22
Deletion of exempt matter or irrelevant material
22. (1) Where: (a) an agency or Minister decides:
    (i) not to grant a request for access to a document on the ground that it is an exempt document; or
    (ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
    (i) would not be an exempt document; and
    (ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
(2) Where access is granted to a copy of a document in accordance with subsection (1):
(a) the applicant must be informed:
    (i) that it is such a copy; and
    (ii) of the ground for the deletions; and
    (iii) if any matter deleted is exempt matter because of a provision of this Act - that the matter deleted is exempt matter because of that provision; and
(b) section 26 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish to him or her a notice in writing in accordance with that section."
"Section 24A
Requests may be refused if documents cannot be found or do not exist
24A. 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."
"Section 41
Documents affecting personal privacy
41. (1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
…"
"Section 54
Internal review
54. (1) Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:
(a) a decision refusing to grant access to a document in accordance with a request; or
(b) a decision granting access to a document but not granting, in accordance with the request, access to all documents to which the request relates; or
(ba) 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
(c) a decision to defer the provision of access to a document; or
(d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or
(e) a decision under section 30A relating to remission of an application fee; or
(f) a decision to grant access to a document only to a qualified person under subsection 41 (3); or
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48;
the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.
(1A) The application must be made:
(a) in the case of a decision of a kind mentioned in paragraphs (1) (a), (c), (d), (e), (g) and (h) - within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
(b) in the case of a decision of a kind mentioned in paragraph (1) (b), (ba) or (f):
    (i) within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
    (ii) within 15 days after the day on which the access referred to in that paragraph was granted;
whichever period is longer.
(1B) A decision by an agency to allow a further period for making an application may be made whether or not the time for making such an application has already expired.
(1C) Subject to subsection (1F), where:
(a) arrangements of the kind mentioned in section 26A have been entered into between the Commonwealth and a State; and
(b) an agency has decided, in relation to a request to the agency for access to a document that relates to the State in a way mentioned in paragraph 26A
(1) (a), that the document, or an edited copy of the document, is not an exempt document under section 33A; and
(c) the decision was not made by the responsible Minister or principal officer of the agency;
the State may, by application in writing to the agency, request a review of the decision.
(1D) Subject to subsection (1F), where:
(a) on a request of a kind mentioned in subsection 27 (1) being made to an agency, the agency has decided that the document to which the request relates, or an edited copy of the document, being a document or edited copy that contains information concerning a person, organisation or proprietor of an undertaking, is not an exempt document under section 43 by virtue of containing that information; and
(b) the decision was not made by the responsible Minister or principal officer of the agency;
the person, organisation or proprietor may, by application in writing to the agency, request a review of the decision.
(1E) Subject to subsection (1F), where:
(a) on a request of a kind mentioned in subsection 27A (1AA) being made to an agency, the agency has decided that the document to which the request relates, or an edited copy of the document, being a document or edited copy that contains personal information about a person, is not an exempt document under section 41 by virtue of containing that information; and
(b) the decision was not made by the responsible Minister or principal officer of the agency;
the person may, by application in writing to the agency, request a review of the decision.
(1F) An application under subsection (1C), (1D) or (1E) must be made within 30 days, or such further period as the agency allows, after the day on which notice of the decision was given to the applicant.
(1G) An agency's power under subsection (1A) or (1F) to allow a further period for making an application may be exercised by an officer of the agency acting within the scope of authority exercisable by him or her in accordance with the arrangements approved by the responsible Minister or principal officer of the agency.
(2) Subject to subsection (3), where an application for a review of a decision is made to the agency under this section, it must as soon as practicable arrange for a person (not being the person who made the decision) to conduct such reviews to review the decision and make a fresh decision.
(3) Subsections (1), (1C), (1D) and (1E) do not apply in relation to:
(a) a decision made on a review under this section; or
(b) a decision in relation to the provision of access to a document upon a request that is, under subsection 56 (1) or (3), to be deemed to have been given.
(4) The provisions of section 26 extend to a decision made under this section."
"Section 55
Applications to Administrative Appeals Tribunal
55. (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
(b) a decision to defer the provision of access to a document; or
(c) a decision refusing to allow a further period for making an application under subsection 54 (1) for a review of a decision; or
(d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or
(e) a decision under section 30A relating to remission of an application fee; or
(f) a decision to grant access to a document only to a qualified person under subsection 41 (3); or
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
(2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
…"
"Section 61
Onus
61. (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.
…"

Appearances

The Tribunal convened a hearing in this matter on 29 May 2001. Mr Mulder represented himself. Mr A Chand from the legal unit in the Department of Immigration and Multicultural Affairs represented the Respondent.
Documentary evidence
The Tribunal had access to documentary material admitted into evidence as follows:

Exhibit TD1 – the Section 37 Statement of the Respondent, 29 December 2000.

Exhibit A1 –copy of letter from the Applicant to the Minister for Immigration and Multicultural Affairs, 26 March 2001.

Exhibit A2 – copy of letter to the Applicant from Senator the Hon Kay Patterson, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs, 16 May 2001.

Exhibit A3 – copy of page one of letter to the Commonwealth Services Delivery Agency from the Commonwealth Director of Public Prosecutions, 21 January 1998.

Exhibit A4 – copy of note for file by Mr Andrew Chambers, EAT Leader, Compliance, Centrelink, 27 December 2000.

Exhibit A5 – copy of letter from Mr Ross Marston, Public Access Unit in the Respondent agency to the Prosecution Unit, Department of Social Security, 11 August 1997.

Exhibit A6 – copy of answers by an officer in the Respondent agency to a questionnaire submitted by the Department of Social Security, 11 August 1997.

Exhibit A7 – copy of letter to Mr Andrew Chambers, Centrelink, from Ms Dawn Gardiner, Privacy Officer in the Respondent agency, 26 March 1999.

Exhibit A8 – copy of fax to Mr Neville Hill, Department of Social Security, from Ms Heather Thompson in the Respondent agency, 31 July 1997.

Exhibit A9 – copy of fax to Department of Social Security from Respondent agency, 6 August 1996.

Exhibit A10 – copy of letter to the Applicant from Centrelink demanding repayment of $1,170 Newstart Allowance for the period 7 June 1990 to 16 August 1990, 28 January 2000.

Exhibit R1 – affidavit by Peter Lovell, 9 April 2001.

Exhibit R2 – schedule of exempt documents

Exhibit R3 – copy of letter to the Applicant from Mr Lovell, Public Access Unit, Respondent agency, 23 November 2000.

Applicant's case

At the hearing Mr Mulder opened by objecting to the late provision by the Respondent of the Section 37 Statement. He also observed that the Respondent's statement of facts and contentions, affidavit (Exhibit R1) and schedule of exempt documents (Exhibit R2) were all provided later than the time permitted under the Tribunal's applicable practice directions. The Tribunal noted that the Section 37 Statement was provided 30 days after it sent the Respondent notice of the Applicant's application for review. Allowing for the time taken for that notice to reach the Respondent the Tribunal is satisfied that the section 37 Statement was provided within the allowed 28 days.
The Respondent provided its statement of facts and contentions on 10 April 2001. The Respondent had been required at a Tribunal conference to provide these by close of business on 6 April 2001. The Applicant had been required to provide his material in reply by 12 April 2001. The Respondent was late by four days, two of which were a Saturday and a Sunday. The Tribunal notes that the Applicant filed his statement of facts and contentions on 29 May 2001, some 45 days late. In the Tribunal's view, the lateness of the Respondent was regrettable but not serious. The material was available to the Applicant and the Tribunal in ample time to prepare for the hearing.
Exhibits R1 and R2 were due for filing with the Tribunal by 22 May 2001. Exhibit R1 was filed early, ie on 10 April 2001. Exhibit R2 appears to have been filed on that day also.
The Applicant stated that he wants access to what is listed in T5, his FOI request.
The Applicant stated his concern that he may be regarded by the Respondent as an illegal immigrant. He has an Australian passport but is concerned that any return to Australia from overseas may be problematic if he makes use of the passport. The Respondent tendered Exhibit R3 which assures the Applicant that he was the subject of an alert notice but that was deleted in early November 2000 following the Respondent's receipt of a letter from the Netherlands Consul-General dated 24 October 2000 stating that Mr Mulder did not have Netherlands citizenship. The Respondent's representative asserted that this was tantamount to a declaration that Mr Mulder is an Australian citizen.
The Applicant told the Tribunal that he was not intending to challenge the Respondent's decision to provide folios 44 and 45 of A99/000918 with deletions. The documents were lists of movements into and out of Australia on certain dates and contained that information about a number of persons including Mr Mulder. The deletions were required to expunge the references to those other persons. In the Tribunal's view this was a lawful exercise of the Respondent's powers under ss 22 and 41(1) of the FOI Act and the Applicant's concession was helpful.
The Applicant argued forcefully that he had not been provided with all of the material relating to him held on the Respondent's files and databases.
In the Applicant's statement of facts and contentions handed up at the hearing he made a number of additional points:

The Respondent did not comply with the FOI Act by giving him access to the requested documents within 30 days of receipt of the request. The Respondent took some 97 days to provide copies of documents.

The Respondent had not provided material caught by paragraphs B, C and D of his request as it appeared in T5.

The Applicant refers to a number of subject matters which he considers are not reflected in the documents provided, and should have been so reflected. However, this content is of limited utility to the Tribunal because the Applicant uses as his point of reference the material provided to him by the Respondent and that material is not available to the Tribunal.

Respondent's evidence

The Respondent called Mr Lovell, the internal review officer and the author of the Respondent's exhibits, to give evidence. He explained how the FOI processes work in the Respondent agency. A request is received. An officer works out what documents are being requested and consults a registry database system, "TRIM". The FOI application is registered on the ICSE tracking system. There is a citizenship system that can be accessed. It contains citizenship records dating back to the nineteenth century. These records are rarely directly or immediately available to Mr Lovell. They are called for and provided to him when they are identified.
The Applicant's application was treated in the usual way. However, the case was unusual in the main release of documents occurred at the appeal stage (ie on 26 October 2000).
In the Applicant's case the database searches had turned up references to three files about Mr Mulder and references to him on a fourth file containing material about him and many other persons. The fourth file related to disclosures of personal information by the Respondent to other Commonwealth agencies, and possibly others as well. It is the type of file customarily kept by Commonwealth agencies to assist the office of the Privacy Commissioner when staff from that office conduct privacy audits. The witness was satisfied that the searches were comprehensive. All folios had been disclosed except for two containing deletions, as discussed above (paragraph 21).
Mr Mulder cross-examined Mr Lovell. He homed in on paragraph 6 of Mr Lovell's affidavit (Exhibit R1) where he notes that file Q83/000689 was destroyed on 14 January 1993. Mr Lovell explained that files on applications for citizenship, permanent residence and migration are kept in perpetuity. Others are destroyed lawfully under the Archives Act 1983. Some, such as files on student visa applications and temporary residence case files, are destroyed within a year or two of the last action. Inactive files can be sent to Australian Archives. Australian Archives holds nothing lodged by the Respondent concerning Mr Mulder.
Mr Mulder put to Mr Lovell that he had been provided with copies of his file folios which had been numbered from 1 to 73. One of these bore an original folio number of 124. Mr Mulder suggested that this meant that a large number of folios had been omitted. There was reference to the fact that folio 67 contains an annotation suggesting it is folio 167 on an original file. Mr Lovell suggested that these instances may refer to the folios taken from the general file on Privacy Act disclosures containing material on a great many persons.
Mr Mulder suggested that he received copies of documents held by other agencies that they had received from the Respondent. There was no counterpart to some of these documents in the material provided to him by the Applicant. The Tribunal asked Mr Mulder to table any of these copies in his possession. Exhibits A3, A4, A5, A6, A7, A8 and A9 fall into this class. In relation to these documents the following emerged.
Exhibit A3
This letter from the Director of Public Prosecutions was sent to the Commonwealth Services Delivery Agency and the content related largely to material received by way of advice from the Respondent. The Applicant alleged that there was no reference to the Respondent having provided that information in the materials given to the Applicant by the Respondent. Mr Lovell said that such material would be on the general file relating to releases of information under the Privacy Act. He was not satisfied that such material was not released to Mr Mulder. It should be noted that Mr Mulder refused to permit the Respondent to examine his copy of the folios given him by the Respondent pursuant to his FOI request. The Respondent had, unfortunately, not itself kept a copy of the material it provided Mr Mulder in the form it was provided. Thus it was not possible for Mr Lovell to check documentation to ensure that his assertion that the material would have been provided was correct.
Mr Lovell did concede that there could have been human error with the consequence that counterpart material was not retained by the Respondent, or that it was retained but not filed or referenced so as to be retrievable.
In general terms the Applicant said that the question of his citizenship status had been of considerable concern to agencies such as the Department of Social Security and the Director of Public Prosecutions. According to the Applicant there was no documentation given to him concerning any investigation into his citizenship status. He expected such an investigation to be evidenced on the file. The witness responded that there had been an administrative investigation within the Department, that there are papers on that provided to Mr Mulder, and that the internal investigation had cleared him.
Exhibit A4
Mr Mulder queried Mr Lovell's last point. He is not convinced that he has been "cleared" by the Respondent. Exhibit A4 is a Centrelink file note which, amongst other things, says:
"Although DIMA have been aware for many years of Mr Mulder's travel overseas on a Dutch passport and his entry to Australia using a temporary visitors visa. During that time they have not taken any action to investigate the matter or take any action against Mr Mulder. In fact, they have issued at least one, possibly two passports to him describing his nationality as Australian.
"There is no indication that DIMA intends conducting any investigation or taking any action in relation to Mr Mulder. They have refused to provide Centrelink with a definitive answer about Mr Mulder's residency and citizenship status.
"… There is no evidence that Mr Mulder relinquished Australian citizenship to acquire Dutch citizenship.
"DIMA has not made a decision that Mr Mulder's citizenship is other than that as documented by his Citizenship Certificate and his passport. DIMA has not indicated to me there will be a change to this in the near future. DIMA has not made clear whether any decision about this matter would be retrospective.
"DIMA is the Commonwealth Department responsible for administration of the Migration Act. I am not delegated to determine Mr Mulder's residence and citizenship status. However, for the purpose of administering the Social Security Act a view needs to be formed, on the basis of the available evidence, as to what the situation is.
"I have concluded that the available evidence indicates that Mr Mulder is an Australian citizen and has permission to reside permanently in Australia. Mr Mulder's claims for payment should be assessed on this basis unless and until DIMA advises they have made a decision to the contrary."

Exhibits A5 and A6

Exhibit A5 is a covering letter returning answers to a questionnaire emanating from the Department of Social Security on the Applicant's immigration status. Exhibit A6 is the questionnaire with the answers written in. Mr Mulder's concern was that the version of Exhibit A6 he obtained from the Respondent contained additional material to that on the version he was given by Centrelink. From an examination of Mr Mulder's copy it was clear to the Tribunal that it was appropriate that the Respondent supplied Mr Mulder with the more complete version of the document in its possession. Indeed, it could have done otherwise only if it had claimed an exemption of some sort under the FOI Act.
Exhibit A7
This document is a letter to Centrelink from the Respondent about Mr Mulder's citizenship status. Mr Lovell considers that a copy was provided to Mr Mulder. Mr Mulder insisted he obtained it from Centrelink. The Tribunal was unable to confirm either account because it had no access to the file of material provided by the Respondent to the Applicant.
Exhibits A8 and A9
The Department of Social Security had copies of these faxes from the Respondent agency containing details of the Applicant's travel movements and his citizenship status. No counterpart documents had been provided to the Applicant by the Respondent. These are the type of document that should have been held on the Respondent's general file on Privacy Act releases. Mr Lovell checked that file and the documents seemed not to be there. It would appear that the documents were not retained or that they were retained but could not be found.
Consideration of the claimed exemptions
The only exemption still before the Tribunal is s 24A of the FOI Act. This section permits an agency to refuse a request for access to a document if all reasonable steps have been taken to find the document, and the agency is satisfied that the document does not exist or is in the possession of the agency but cannot be found.
From the evidence presented it is clear that the Respondent conducted its search in an orderly way using the normal tools available. It also seems clear that the Respondent has not provided to the Applicant copies of certain documents one would expect to be present on the Respondent's files.
Findings on material questions of fact with reference to the evidence and other material relevant to those findings
The Tribunal makes the following findings on matters raised in these proceedings.
The Applicant lodged a valid FOI request on 27 July 2000 (T5).
On 31 July 2000 the Respondent issued a valid acknowledgment of Mr Mulder's request (T6).
On 22 August 2000 the Respondent responded in a valid, if unusual, way by calling attention to a problem of identification (T7).
On 19 September 2000 the Respondent made a decision not to provide access to documents (T9).
On 11 October 2000, and again on 18 October 2000, the Applicant sought an internal review of the primary decision (T11, T13).
On 26 October 2000 the Respondent provided the Applicant with access to the documents it considered met the Applicant's requirements, subject to deletions on two documents because of references to personal information about other persons (T1).
On 23 November 2000 the Applicant lodged a valid application for review with the Tribunal (T1).
On 29 December 2000 the Respondent filed its Section 37 Statement within the 28 days time period allowed by s 37 of the AAT Act (paragraphs 12 and 16 above).
The Respondent filed its statement of facts and contentions four days after the date set by the Tribunal at a conference (paragraph 17 above).
The Respondent filed its affidavit and schedule of documents almost six weeks earlier than it was obliged to do pursuant to the Tribunal's procedures (paragraph 18 above).
The Tribunal is satisfied on the balance of probabilities that file Q83/000689 was destroyed on 14 January 1993 in accordance with the Archives Act (paragraph 27 above).
The Tribunal finds that the mere fact that a folio in the collection of documents provided to Mr Mulder bears a folio number lower than that it had on its original file does not necessarily mean that some documents from the original file have not been identified, copied and provided (paragraph 28 above).
The Tribunal finds that it is not satisfied on the balance of probabilities that a copy of Exhibit A3 was provided by the Respondent to the Applicant (paragraph 30 above).
The Tribunal finds on the balance of probabilities that the Respondent has provided such documentation as it has located concerning any internal investigation into Mr Mulder's citizenship status (paragraph 32 above).
The Tribunal finds that the Respondent provided Mr Mulder with appropriate access to the documents in Exhibits A5 and A6 (paragraph 34 above).
The Tribunal finds on the balance of probabilities that the Respondent did not locate and provide a copy of Exhibit A7 to the Applicant (paragraph 35 above).
The Tribunal finds that the Respondent did not locate or provide to the Applicant a copy of the documents in Exhibits A8 and A9 (paragraph 36 above).
The Tribunal finds that the Respondent's decision to delete certain material on folios 44 and 45 of file A99/000918 was correct (paragraph 21 above).
Other observations
The Tribunal considers that the Respondent carried out its FOI responsibilities in this matter generally appropriately and acting in good faith. The main area that could have been improved was its decision to write on 11 October 2000 to ascertain whether the Applicant had in fact requested an internal review on 29 September 2000 (T12). A preferable approach would have been to write back and state that the letter in T11 had been taken to be a request for an internal review. The Tribunal has seen agencies adopt this approach in FOI and other contexts when receiving letters of protest or criticism which do not literally request a review. In his September letter the Applicant had explained his reason for requiring quick action. This was to get to the Netherlands by 15 October 2000 for his father's birthday celebration. The delay occasioned by seeking confirmation of Mr Mulder's internal review wishes virtually made it impossible, if it was in fact ever possible, for him to reach the Netherlands in time.
It is not germane to the subject of this application, and it is a matter outside the Tribunal's jurisdiction, but the Applicant at base wants some form of certification that he is regarded by the Respondent as an Australian citizen. The Parliamentary Secretary told him in Exhibit A2 that he could obtain such a certificate from the Respondent agency at a cost of $50. The Applicant has elected not to pay this. It appears from the file that he has been exempted from payment of FOI fees because of his financial situation. The Respondent might like to consider whether it can provide Mr Mulder with a certificate and waive the fee. This is entirely a matter for the Respondent and I reiterate that the Tribunal has no power in this matter.
It is unfortunate both that the Respondent retained no copy of the file as it was provided to the Applicant, and that the Applicant has adopted an attitude of cooperating as little as possible with the Respondent in furthering his FOI matters with that agency. The combination of these factors has made it more difficult to bring about any form of acceptable result in the case.

It appears that some staff in the Respondent agency are not as assiduous as would be ideal in ensuring that accessible file copies are retained of communications with external agencies where those communications include personal information about third persons.
Conclusion
The Tribunal has decided to affirm in large part the decision of the Respondent. The Tribunal is satisfied that generally speaking the searches undertaken by the Respondent for the material sought for access by the Applicant were responsible and reasonable.
The Tribunal relies on the comments by Deputy President McDonald in Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, 144-145 where the Deputy President spoke in useful terms about the meaning and application of s 24A of the FOI Act.
"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 (i.e. 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 (i.e. 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 Tribunal has found that Exhibits A3, A7, A8 and A9 were not located by the Respondent and were not provided to the Applicant. The Applicant has contributed to this by not previously approaching the Respondent to discuss this with the Respondent's officers. However, there is a possibility that the officers in the Respondent agency who created these documents may have other similar documents caught by the Applicant's request and accessible to them which were not located in the searches undertaken. Identifying a relevant officer in the Respondent agency will not be a simple matter in relation to Exhibit A3. However, it is relatively straightforward in the other instances. The Tribunal will therefore ask that these officers be approached to see whether they can explain how the relevant documents appearing in the nominated exhibits may have been filed. This should be taken to be continued action to satisfy the FOI request lodged by the Applicant on 27 July 2000 and to permit the Applicant access to review rights under the FOI Act in respect of the Respondent's action to implement this aspect of the Tribunal's decision.
Decision
The Tribunal sets aside the decision under review and decides as follows:
That part of the decision under review which was to delete certain material on folios 44 and 45 of file A99/000918 is affirmed.
The searches undertaken in response to the Applicant's request were appropriate and reasonable.
Several additional searches should have been attempted and would very likely have been attempted had the Respondent had access to Exhibits A7, A8 and A9 before the hearing. The Tribunal now directs that these searches be undertaken.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  29 May 2001
Date of Decision  18 June 2001
Representative for the Applicant              Self-represented
Representative for the Respondent        Mr A Chand