Palmer Leisure Coolum Pty Ltd and The Treasury (Freedom of information)
[2022] AATA 2475
•4 August 2022
Palmer Leisure Coolum Pty Ltd and The Treasury (Freedom of information) [2022] AATA 2475 (4 August 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/8243
2020/8244
Re:Palmer Leisure Coolum Pty Ltd
APPLICANT
Clive Palmer
APPLICANT
The Treasury And
RESPONDENT
Appeal from: MR18/00702
MR18/00703
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:4 August 2022
Place:Brisbane
I affirm the reviewable decisions.
.............................[SGD]...........................................
Deputy President Dr P McDermott RFD
Catchwords
Freedom of Information – Freedom of Information requests – adequacy of searches – whether all reasonable steps undertaken – methodology of searches – whether search terms relevant to request – where Office of Australia Information Commissioner declined review – where searches adequate – where all reasonable steps taken – decision under review affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Bienstein and Attorney General (Commonwealth of Australia) [2008] AATA 490
Costello and Secretary, Department of Transport (1979) 2 ALD 934
Chu v Telstra Corporation Limited [2005] FCA 1730
Cristovao and Secretary, Department of Social Security [1998] AATA 787
Langer and Telstra Corporation Ltd [2002] AATA 341
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Shi v Migration Agents Registration Authority [2008] HCA 31
Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025
Secondary Materials
Part 3 - Freedom of Information Guidelines
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
4 August 2022
BACKGROUND
On 11 June 2018, Mr Clive Palmer (relating to matter 2020/8244) and Palmer Leisure Coolum Pty Ltd (relating to matter 2020/8243) (‘the Applicants’) made separate applications under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) to the Treasury (‘the Respondent’) for access to documents relating an Australian Securities and Investments Commission (‘ASIC’) investigation and related criminal proceedings.
The applicant in 2020/8243 (being Palmer Leisure Coolum Pty Ltd) requested access from the Respondent, to the following:
For the period 22 May 2015 to the date of this request [this being 11 June 2018]:
a) correspondence (including electronic communications) between the Treasury and any of the parties referred to in the Schedule set out below and all attachments to such correspondence,
concerning:
(a) the requirement for or the obtaining or giving of any consent by the Minister under s 1316 of the Corporations Act 2001 (Cth) (Corporations Act) to the commencement of the proceedings in the Brisbane Magistrates Court commenced by ASIC on 22 February 2018 against Palmer Leisure Coolum (the “Proceedings”);
(b) the commencement of the Proceedings;
(c) the commencement of any other proceedings (ie other than the Proceedings) against Palmer Leisure Coolum for any alleged contravention of the Corporations Act;
(d) ASIC investigation reference 15-20135 into suspected contraventions of ss 606 and 631(1) of the Corporations Act by Palmer Leisure Coolum (ASIC Investigation ref: 15-20135);
(e) ASIC investigation reference 5668/16 of suspected contraventions of the
Corporations Act by The Presidents Club Limited (ASIC Investigation ref:
5668/16);
(f) any other investigation of The Presidents Club Limited by ASIC (ie other than ASIC Investigation ref:5668/16) for any suspected contravention of the Corporations Act;
(g) ASIC investigation reference 16-30007 into suspected contraventions of ss 180 to 184 of the Corporations Act and s 408C of the Criminal Code Act 1899 (Qld) in connection with the transfer of, granting of rights in or security over, and accounting treatment of, the assets and liabilities of Cosmo Developments Pty Ltd ACN 010 793 790, Mineralogy Pty Ltd ACN 010 582 680, Palmer Coolum Resort Pty Ltd ACN 010 593 638, Palmer Leisure Australia Pty Ltd ACN 152 386 617, Palmer Leisure Coolum Pty Ltd ACN 146 828 122, QNI Metals Pty Ltd ACN 066 656 175, QNI Resources Pty Ltd ACN 054 117 921, Queensland Nickel Pty Ltd ACN 009 842 068 (in Liquidation) and Waratah Coal Pty Ltd ACN 114 165 669, and related entities thereof (collectively the Palmer Group Entities) (ASIC Investigation ref: 16-30007); (h) any other investigation of Palmer Leisure Coolum by ASIC (ie other than ASIC Investigations ref: 16-30007 or 15-20135) for any suspected contravention of the Corporations Act;
(i) any other investigation of any member of the Palmer Group Entities by ASIC (ie other than ASIC Investigations ref: 16-30007 or 15-20135) for any suspected contravention of the Corporations Act.
Schedule – List of parties for requested correspondence
i. the Prime Minister;
ii. the Department of the Prime Minister and Cabinet;
iii. the Commonwealth Attorney-General;
iv. the Commonwealth Attorney-General’s Department;
v. the Minister for Jobs and Innovation (formerly Minister for Employment);
vi. the Department of Jobs and Small Business (formerly known as the Department of Employment);
vii. the Department of Industry, Innovation and Science;
viii. the Federal Member of Parliament for Herbert;
ix. the Federal Member of Parliament for Fadden;
x. the Australian Securities & Investments Commission;
xi. the Chair of the Australian Securities & Investments Commission;
xii. any Commissioner of the Australian Securities & Investments Commission
xiii. the Commonwealth Director of Public Prosecutions; and
xiv. the Office of the Commonwealth Director of Public Prosecutions.[1]
[1] Exhibit A, T-Documents (2020/8243), T3.
The applicant in 2020/8244 (being Mr Clive Palmer) requested access from the Respondent, to the following:
For the period 22 May 2015 to the date of this request:
(a) correspondence (including electronic communications) between the Treasury and any of the parties referred to in the Schedule set out below and all attachments to such correspondence,
concerning:
(i) the requirement for or the obtaining or giving of any consent by the Minister under s 1316 of the Corporations Act 2001 (Cth) (Corporations Act) to the commencement of the proceedings in the Brisbane Magistrates Court commenced by ASIC on 22 February 2018 against me (the “Proceedings”);
(ii) the commencement of the Proceedings;
(iii) the commencement of any other proceedings (ie other than the Proceedings) against me for any alleged contravention of the Corporations Act;
(iv) ASIC investigation reference 15-20135 into suspected contraventions of ss 606 and 631(1) of the Corporations Act by Palmer Leisure Coolum Pty Ltd (ASIC Investigation ref: 15-20135);
(v) ASIC investigation reference 5668/16 of suspected contraventions of the Corporations Act by The Presidents Club Limited (ASIC Investigation ref: 5668/16);
(vi) any other investigation of The Presidents Club Limited by ASIC (ie other than ASIC Investigation ref:5668/16) for any suspected contravention of the Corporations Act;
(vii) ASIC investigation reference 16-30007 into suspected contraventions of ss 180 to 184 of the Corporations Act and s 408C of the Criminal Code Act 1899 (Qld) in connection with the transfer of, granting of rights in or security over, and accounting treatment of, the assets and liabilities of Cosmo Developments Pty Ltd ACN 010 793 790, Mineralogy Pty Ltd ACN 010 582 680, Palmer Coolum Resort Pty Ltd ACN 010 593 638, Palmer Leisure Australia Pty Ltd ACN 152 386 617, Palmer Leisure Coolum Pty Ltd ACN 146 828 122, QNI Metals Pty Ltd ACN 066 656 175, QNI Resources Pty Ltd ACN 054 117 921, Queensland Nickel Pty Ltd ACN 009 842 068 (in Liquidation) and Waratah Coal Pty Ltd ACN 114 165 669, and related entities thereof (collectively the Palmer Group Entities) (ASIC Investigation ref: 16-30007);
(viii) any other investigation of Palmer Leisure Coolum Pty Ltd by ASIC (ie other than ASIC Investigations ref: 16-30007 or 15-20135) for any suspected contravention of the Corporations Act;
(ix) any other investigation of any member of the Palmer Group Entities by ASIC (ie other than ASIC Investigations ref: 16-30007 or 15-20135) for any suspected contravention of the Corporations Act; and
(x) any other investigation of me by ASIC (ie other than ASIC Investigations ref: 16-30007 or 15-20135) for any suspected contravention of the Corporations Act.
Schedule – List of parties for requested correspondence
i. the Prime Minister;
ii. the Department of the Prime Minister and Cabinet;
iii. the Commonwealth Attorney-General;
iv. the Commonwealth Attorney-General’s Department;
v. the Minister for Jobs and Innovation (formerly Minister for Employment);
vi. the Department of Jobs and Small Business (formerly known as the Department of Employment);
vii. the Department of Industry, Innovation and Science;
viii. the Federal Member of Parliament for Herbert;
ix. the Federal Member of Parliament for Fadden;
x. the Australian Securities & Investments Commission;
xi. the Chair of the Australian Securities & Investments Commission;
xii. any Commissioner of the Australian Securities & Investments Commission
xiii. the Commonwealth Director of Public Prosecutions; and
xiv. the Office of the Commonwealth Director of Public Prosecutions.[2]
[2] Exhibit B, T-Documents (2020/8344), T3.
The respondent undertook searches to locate documents relevant to the FOI request, these searches identified 22 documents, which the Respondent refused access to on 23 July 2018 pursuant to ss 42, 37(1)(a), and 47E(d) of the FOI Act. This refusal forms the basis of the reviewable decisions.
On 19 September 2018, the applicants applied to the Office of the Australian Information Commissioner (‘the OAIC’) for review of the decisions to refuse the applicants access to the documents.
By way of letter dated 16 November 2020, the OAIC advised the applicants of its intention to decline the requests for review under s 54W of the FOI Act. In doing so, the OAIC stated:
… decided not to continue to undertake a review of this IC review on the basis that the interests of the administration of the FOI Act make it desirable that the IC reviewable decision by considered by the Administrative Appeals Tribunal. The effect of my decision is to allow the applicant[s] to apply directly to the Tribunal.[3]
[3] Exhibit A, T-Documents (2020/8243), T1; Exhibit B, T-Documents (2020/8244), T1.
On 11 December 2020, pursuant to section 58(1) of the FOI Act, the applicants lodged two applications with this Tribunal, seeking review of the decision of the Respondent to deny them access to the 22 documents identified. As a result of the lodgement of these applications, and the applicants questioning the adequacy of the searches, the Respondent undertook further searches.[4]
[4] Exhibit D, Affidavit of Mr Jeremenko at [7-8].
On 9 July 2021, following an interlocutory hearing on the matter, the applicants and the respondent reached an agreement that the 22 documents identified were not within to the scope of the FOI requests.[5]
[5] Exhibit C, Respondent SFIC, para 10; see also Exhibit E, Applicant reply
On 3 November 2021, a further document was identified as being relevant to the FOI requests of the applicants. However, by consent of the applicants on 8 November 2021, this document was excluded from the scope of the reviews because it was an exact duplicate of a document which is under review in a separate application before this Tribunal.
On 29 March 2022, a Hearing was held by Microsoft Teams. The applicants were represented by Mr Sam Iskander of Alexander Law and the respondent was represented by Mr Justin Davidson and Ms Felicia Nevins of Australian Government Solicitor. At this Hearing, the applicants and the respondent consented to this Tribunal making a Direction that these applications be both considered and decided together.
ISSUES
Noting the agreement between the applicants and respondent that the 22 documents identified are not relevant to the scope of the request, the primary issue before this Tribunal is whether the Respondent took all reasonable steps to identify documents relevant to the applicants’ FOI requests and whether despite undertaking all reasonable steps, no documents within the scope of the applicants’ requests exist or can be identified, pursuant to s 24A(1) of the FOI Act.
Section 24A(1) of the FOI Act relevantly 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.
In order to establish whether ‘all reasonable steps’ have been taken; I must first have consideration to the definition of this phrase. Despite the terminology “reasonable steps” being used repeatedly (at least 14 times) within the FOI Act, it does not provide any definition of this phrase. Fortunately, there is an established body of caselaw, including previous decisions of the Tribunal to provide guidance on the meaning of the phrase “reasonable steps”.
When discussing what constitutes “reasonable steps”, Deputy President Forgie in Langer and Telstra Corporation Limited[6] (“Langer”) remarked:
It seems to me that the first limb of s. 24A requires that the Department take such steps to discover the requested documents as are appropriate in the circumstances. The circumstances that are relevant in determining the steps that are appropriate include the subject matter of the documents sought, the file management systems, any destruction schedules followed in Telstra and the steps that have already been taken to locate documents within the terms of the request. [7]
[6] [2002] AATA 341.
[7] Langer and Telstra Corporation Ltd [2002] AATA 341, at [95].
The reasonableness of steps required to be undertaken by the respondent was also considered by Deputy President McDonald in Cristovao and Secretary, Department of Social Security[8] (“Cristovao”). Deputy President McDonald made reference to the dictionary definitions of the word “reasonable” and remarked:
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..."
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.[9]
[8] [1998] AATA 787.
[9] Cristovao and Secretary, Department of Social Security [1998] AATA 787 at [19].
There have been a number of decisions concerning the operation of section 24A of the Act. A leading authority, which is referenced in the Guidelines, is Chu v Telstra Corporation[10] (“Chu”) where Finn J emphasised that the Tribunal must “ask itself what the section in express terms required of it. This was not that ‘reasonable steps must have been taken’ – to use the language of an earlier Tribunal decision relied upon. Rather it was that ‘all reasonable steps’ be taken.[11]
[10] [2005] FCA 1730.
[11] Chu v Telstra Corporation [2005] FCA 1730 at [34].
His Honour also remarked:
It is understandable, where the decision as to the taking of all reasonable steps is left to agency or Minister concerned (subject to Tribunal review), why this more stringent requirement has been imposed. A person requesting access to a document that has been in that agency's or Minister's possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised."[12]
[12] Chu v Telstra Corporation [2005] FCA 1730 at [35].
Following the decision in Chu, the Tribunal has examined what steps are required to be undertaken in order for the respondent to establish that “all reasonable steps” have indeed, been undertaken. With respect to the different considerations which may be relevant to determining whether all reasonable steps have been undertaken, Deputy President Forgie remarked in Bienstein and Attorney General (Commonwealth of Australia)[13] (“Bienstein”), at [48]:
Having regard to the authorities of the sort to which I have referred, it seems to me that the approach I adopted in Langer … continues to be the correct approach. Whether all reasonable steps have been taken will be assessed having regard to such matters as the nature of the documents sought in the request, whether documents of that sort are usually filed in a certain category or categories and whether documents of that sort would normally be referred to a certain Division, Branch or Section or to more than one in an agency for action. Steps that are comprehensive and that are directed to locating documents in those places will be relevant. Where documents are proving elusive, discussions with persons who would be likely to have dealt with the subject matter at the relevant time may be relevant. It may be that those people are no longer in the relevant area of the agency or of the Minister’s Office but contacting them may lead to an insight into where the documents could have got to. The size of the agency or of the Minister’s Office may also be relevant as may evidence of any practices regarding the retention of documents or, in the case of a Ministerial Office, the transfer of documents to the relevant Department. Finally, there may be cases in which an examination of documents already found may reveal further areas in which relevant documents may be located. These are some of the matters that may be relevant in deciding whether a Minister or agency has taken all reasonable steps to find a document within the meaning of s 24A(a) of the FOI Act.
[13] [2008] AATA 490.
The Tribunal’s function in these matters is to stand in the shoes of the decision-maker and make a determination as to whether the respondent has undertaken all reasonable steps to identify documents which are within the scope of the FOI request. The respondent bears the onus of proof insofar as they are required to demonstrate, as outlined above, that
“all reasonable steps” have been taken to identify documents within the scope of the FOI request. If I am not satisfied that the respondent has undertaken “all reasonable steps”, pursuant to section 58A of the FOI Act, I will require the respondent to undertake further searches. If I consider that that there is a likelihood that further documents within the scope of the FOI request exist, it may be appropriate for the respondent to undertake further searches.[14]
[14] Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025
I am required under s 93A of the FOI Act to have regard to the Guidelines issued by the OAIC (the “Guidelines”). As part of its electronic list of authorities lodged with this Tribunal on 25 March 2022,[15] the respondent provided Part 3 of the Guidelines, which were in force on 7 June 2020. After closing submissions at the Hearing on 29 March 2022, the Tribunal became aware that Part 3 of the Guidelines had been updated by the OAIC on 15 December 2021. The Tribunal subsequently sought the views of the applicants and respondent as to which version of the Guidelines the Tribunal should have regard to when deciding these applications. The respondent and applicants considered that the Tribunal should have regard to the current version of the Guidelines. I accept the submissions of the applicants and respondent. Ever since the decision in Costello and Secretary, Department of Transport,[16] this Tribunal has applied the law as at the date of the Tribunal’s decision. In Shi v Migration Agents Registration Authority,[17] Kirby J referred to the general principle enunciated by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[18] that an administrative decision-maker is required to make I accept that the correct position at law to take, is that I am to have regard to the current version of the Guidelines.
[15] Exhibit H, Respondent’s List of Authorities.
[16] (1979) 2 ALD 934.
[17] [2008] HCA 31.
[18] (1986) 162 CLR 24 at 45.
The Guidelines which I must consider and consider to be most relevant to the matter presently before me is Part 3 of the Guidelines. Part 3 of the Guidelines relates to general considerations when administering the FOI Act.
The key principles outlined at 3.1 of the Guidelines are as follows:
The FOI Act closely regulates the way that agencies and ministers must process requests for access to documents. In addition to the detailed rules discussed in this Part, agencies and ministers should have regard to central principles that underpin the right to obtain access to documents held by government (see Part 1 of these Guidelines). These include:
·subject to the FOI Act, every person has a legally enforceable right to obtain access to government documents (s 11(1))
·a person’s reasons for seeking access to a document, or an agency or minister’s belief about a person’s reasons for seeking access, are not relevant (s 11(2))
·the functions and powers given by the FOI Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost (s 3(4))
·the Act does not limit any power to give access to information under other legislative or administrative arrangements (s 3A(2)).
[Footnotes omitted]
Part 3 of the FOI Guidelines also outlines the formal requirements of an FOI request as follows:
A request for documents under the FOI Act must meet the following formal requirements:
·The request must be in writing (s 15(2)(a)).
·The request must state that it is a request for the purposes of the FOI Act (s 15(2)(aa)). This requirement distinguishes an FOI request from a simple enquiry requesting administrative access. Agencies and ministers should nevertheless take a flexible approach when assessing whether an applicant has met this requirement. If an applicant’s intention is not clear, the agency or minister should contact them to confirm whether the request was intended to be made under the FOI Act.
·The request must provide such information as is reasonably necessary to enable a responsible officer of the agency or the minister to identify the document that is requested (s 15(2)(b)) (see [3.109]). Before refusing a request for failing to meet this requirement an agency or minister must undertake a ‘request consultation process’ (see [3.127]–[3.132]).
·The request must give details of how notices under the FOI Act may be sent to the applicant (s 15(2)(c)). The return address may be a physical, postal or electronic address (such as an email address).
·The request must be sent to the agency or minister. This may be done by:
odelivery of the request in person to a central or regional office of the agency or minister as specified in a current telephone directory
osending of the request by pre-paid post to an address of the agency or minister as specified in a current telephone directory; or
osending by electronic communication to an email or fax address specified by the agency or minister (s 15(2A)).
[Footnotes omitted]
EVIDENCE
Affidavit of Robert Jeremenko
The respondent lodged with the Tribunal an affidavit of Robert Jeremenko
(“Mr Jeremenko”) dated 29 November 2021. Mr Jeremenko is the First Assistant Secretary (“FAS”) of the Market Conduct Division (“MCD”) in the Treasury. In his affidavit, Mr Jeremenko outlined the steps which had been taken, at his direction, to locate any documents which fall within the scope of the FOI request. Mr Jeremenko also provided as annexure RJ-1, the respondent’s “Quick Guide to Record Keeping”.
Areas and Methodology of Searches
In his affidavit dated 29 November 2021, Mr Jeremenko remarked on the areas that had been searched for documents which may fall within the scope of the applicants’ FOI request as well as the methods used to search for them.[19]
[19] Exhibit D, Affidavit of Mr Jeremenko, pages 2-6.
Mr Jeremenko deposed that the MCD would be the most likely division of the respondent to hold records which fall within the scope of the applicants’ FOI request, stating:
As the Division responsible for ensuring efficient and effective markets across the economy, my Division would be the most likely recipients of documents relevant to the requests. This is because the subject matter of the investigations and proceedings relate broadly to market conduct. As such, [redacted] suggested and I agreed that MCD records should be a focus of the searches for the documents requested.
Mr Jeremenko also deposed that staff members under the employ of the respondent are required to store all non-highly classified records within a system named ‘SharePoint’ which is the principal document management system of the MCD.[20] It was further deposed by
Mr Jeremenko that there is a departmental requirement that all documents which constitute an official record must be stored within an endorsed Treasury business system. The two endorsed Treasury business systems for keeping records are SharePoint and the Parliamentary Document Management System (“PDMS”).[20] I note the ‘Guide to record keeping’ annexed as RJ-1 to Mr Jeremenko’s affidavit states that all documents classified SECRET or higher are not stored within the approved systems.
With respect to the methodology of the searches conducted within SharePoint,
Mr Jeremenko deposed:[21][21] Exhibit D, Affidavit of Mr Jeremenko, pages 3-4.
SharePoint was searched using its search functionality for identifying documents containing key words and phrases.
I arranged for multiple searches of SharePoint to be undertaken by the Treasury IT Security team using the key word search terms: 'Brisbane Magistrates Court',
'ASIC + investigation + Palmer' and the ASIC investigation numbers referred to in the requests, that is, '15-20135', '5668/16', '16-5668' and ' 16-30007'. Each document located in the search was reviewed and compared to the scope of the requests. No documents were located that were relevant to the request.
I also asked staff to search for hard copy documents relevant to the requests. Documents not suitable for storage in SharePoint because of their security classification are stored in secure filing cabinets known as C Class cabinets. MCD staff searched our C Class cabinets and the personal filing cabinets of staff. No hard copy documents were found that were relevant to the requests.
I am not aware of any other locations that could be searched for documents belonging to my Division that would be relevant to the requests.
With respect to the methodology of the searches conducted within the PDMS, Mr Jeremenko deposed the following:[22]
I am informed by the Parliamentary team that they conducted searches of PDMS using the same search terms as detailed at paragraph [15] [paragraph 23 of my written reasons for decision] above and that no documents relevant to the requests were located.
[22] Exhibit D, Affidavit of Mr Jeremenko, page 4.
Mr Jeremenko outlined the role of the General Counsel’s Branch and stated that he had liaised with the respondent’s Deputy General Counsel and had received advice that “the Legal Team is not aware of Treasury being involved in the proceedings in the request and would not expect to locate any documents relevant to the request”.[23]
[23] Exhibit D, Affidavit of Mr Jeremenko, page 4.
With respect to searches undertaken by the IT Security Team, Mr Jeremenko deposed the following:
The IT Security team manages archived information on SharePoint and archived emails in Outlook stored in the 'Veritas Enterprise Vault'. All emails sent or received by the Treasury within the timeframe (22 May 2015-11 June 2018) in the requests are stored in the 'Veritas Enterprise Vault' or otherwise searchable by the IT Security team via Outlook or SharePoint searches. Other correspondence, if stored electronically on any of the Treasury's systems, is searchable by the IT Security team.
I am informed that the IT Security team searched all documents currently stored on SharePoint and archived emails (which includes live Outlook folders of Treasury staff), including documents that were already searched by MCD, and the results are as follows:
Search Terms
Results
Documents located relevant to request
ASIC investigation numbers referred to in requests, that is, ’15-20135’, ‘5686/16’, ’16-5668’ and 16-30007
26 search results
Inspection of these documents revealed phone numbers and sheets of computer data containing these numbers
0 documents
Brisbane Magistrates Court
86 search results
Most of these documents concerned unrelated ASIC enforcement proceedings against a financial adviser in the Brisbane Magistrates Court, news articles about the proceedings against Mr Palmer provided to the Treasury but its media services providers and correspondence that was otherwise out of scope of the request.
1 document
ASIC investigations into the companies named in the requests, that is:
· ‘Presidents Club’
· ‘Cosmo Developments’
· ‘Mineralogy’
· ‘QNI’
· ‘Queensland Nickel’
· ‘Waratah Coal’
Nil search results
0 documents
After the searches were conducted by the IT security team, one document was identified and was supplied to the applicants in the course of this proceeding.[24]
[24] Transcript, page 12.
Mr Jeremenko concluded his affidavit with the following:
I am not aware that there was any reason for the Treasury to be involved in the proceedings in the requests in question in this case. As I noted above, had the Treasury been involved, I expect I would have had personal knowledge or involvement in that given my FAS positions, and particularly as head of MCD since January 2021.
I am not aware of any other locations within the Treasury that might contain documents and could be searched for documents relevant to the requests.
From my knowledge of the searches undertaken by the Treasury and Treasury's lack of involvement in the proceedings in the requests, I would not expect any further documents to be located that would be relevant to the requests.[25]
[25] Exhibit D, Affidavit of Mr Jeremenko.
The applicants, by way of correspondence dated 24 February 2022, posed the following questions and requested that they be put to Mr Jeremenko:
1. When undertaking a search in SharePoint, did you or any staff that you had asked, use the following key word search terms:
a.Palmer Leisure Coolum Pty Ltd;
b.Coeur de Leon Investments Ply Ltd;
c.The Presidents' Club Ltd;
d.Clive Frederick Palmer;
e.Takeover;
f.Bid;
g.Interest or Stapled Interest; or
h.Shares or Villa interests.
2. If you did, please identify the date when the key word search terms were used?
3. If you did not use the search terms above at 1, please identify why not?
4. At paragraph 19 of your affidavit sworn on 29th November 2021, you state that "... Mr Palmer would likely have come to my attention..." Were you aware of any prosecution against Mr Palmer at any time? If so, how, and when were you first notified?
5. I refer to paragraph 22 of your affidavit, please advise who in the Parliamentary Team advised you of the searches that were conducted on the Parliamentary Document Management System (PDMS) and what were the exact searches they used and when?
6. Please identify which key word searches were used as well whether any other manual searches that may have been conducted?
7. In relation to paragraph 24 of your affidavit, did the Treasury's Deputy General Counsel conduct a search or was he merely making an assumption? Did you check with him as to whether an actual search was conducted? If a check was conducted, what were the extent of the searches that were conducted?
8. In relation to paragraph 26 of your affidavit, please advise what search terms were used by IT Security team and when the searches were conducted?[26]
[26] Exhibit G, Supplementary Affidavit of Mr Jeremenko, Annexure RJ-1.
Mr Jeremenko subsequently provided a supplementary affidavit dated 3 March 2022 in which he responded to the above questions.[27]
[27] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
Mr Jeremenko answered the first question posed by the applicants by reference to paragraphs 15 and 26 of his first affidavit. Mr Jeremenko stated that none of the terms, as they appear in the applicants’ correspondence were searched.[28] It was therefore not necessary for Mr Jeremenko to answer the second question posed by the applicants.
[28] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
In response to the third question posed by the applicants, Mr Jeremenko referenced paragraph 9 of his first affidavit.[29] In response to the specific terms posed as part of the first question, Mr Jeremenko outlined the methodology of the searches undertaken. Mr Jeremenko deposed that the preferred search terms were those which are broader, for example searching for "Presidents Club" is likely to bring about more results than "The Presidents' Club Ltd'. Mr Jeremenko deposed that the way the search function works, any documents containing the term "The Presidents' Club Ltd' would have been identified by searching "Presidents Club".[30]
[29] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
[30] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
In relation to the terms "takeover", "bid", "Interest or stapled interest", "shares or villa interests", Mr Jeremenko deposed that these terms were not used, in part due to the Fol requests not suggesting the documents sought would relate to these concepts. Mr Jeremenko further deposed that these search terms would produce a significant number of documents unrelated to the requests of the applicants.[31]
[31] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
Mr Jeremenko responded to question 4 by stating he would have become aware of the prosecution of Mr Palmer by the news media, but that he cannot recall specifically when that would have occurred.[32]
[32] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
Mr Jeremenko answered questions 5 and 6 by reference to paragraph 22 of his first affidavit.[33]
[33] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
Mr Jeremenko's response to question 7 posed by the applicants was that the Deputy General Counsel informed him that they had made enquiries with staff in their branch and that the result of those enquiries was that nobody in the team was aware of Treasury having been involved in the proceedings.[34]
[34] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
In reply to question 8, Mr Jeremenko deposed that a Treasury official informed him the searches by IT security were conducted between September and October 2021.[35]
[35] Exhibit G, Supplementary Affidavit of Mr Jeremenko.
Applicant’s Contentions
The applicants’ primary contention is:
The Applicants contend that the Respondent has not taken all reasonable steps to search and identify documents relevant to both requests but also acknowledging the document that was excluded by agreement.[36]
[36] Exhibit E, Response to SFIC, page 1.
The applicants further contend that:
… not all adequate search criteria may have been used to identify certain documents. It is noted that search criteria such as:
a. Palmer Leisure Coolum Pty Ltd;
b. Clive Frederick Palmer;
c. Takeover;
d. Bid;
e. Interest or Stapled Interest; or
f. Shares or Villa interests.
The list above is by no means exhaustive however is targeted at the main key words within the scope of the requests that were made by the applicants.
The [applicants do] not agree that the respondent has conducted an adequate search for the documents. It would be expected that all documents pertaining to the above-mentioned search criteria would at least cover the scope of the request which was not even considered in the fresh review.
The Applicants agree that the fundamental issue is whether the Respondent is in possession of any further documents within the scope of the request and whether all reasonable steps have been taken to find the documents as per the applicants’ requests.[37]
[37] Exhibit E, Response to SFIC, pages 1-2.
At Hearing the applicants contended terms such as ‘bid’ and ‘takeover’ were not included in the search results. In reply to the respondent advising that such terms would result in thousands, if not tens of thousands of documents, the applicants suggested that the issue may be bypassed with the utilisation of ‘Boolean expressions’ to reduce and refine the search results.[38]
[38] Transcript, page 19.
The contentions of the applicants, if accepted, would necessitate the respondent undertake further searches.
Respondent’s Contentions
The respondent, in their submission dated 29 November 2021, outlined the searches which were undertaken as a result of the FOI request of the applicants.[39]
[39] Exhibit C, Respondent’s Statement of Facts Issues and Contentions, pages 7-8.
Furthermore, the respondent contends that:
… all reasonable steps have been taken to search for and identify documents relevant to the scope of both of the requests (2020/8243 and 2020/8244) and that no documents exist or can be located within scope of the requests (other than the document that was excluded by agreement).[40]
[40] Exhibit C, Respondent’s Statement of Facts Issues and Contentions, page 7.
The respondent further remarked that further searches were conducted during this Tribunal’s review of the application, which was consistent with the evidence of Mr Jeremenko, as I have outlined above in paragraphs 19-28.[41]
[41] Exhibit C, Respondent’s Statement of Facts Issues and Contentions, pages 7-8.
The respondent contends that it has undertaken all reasonable steps to identify and locate any documents that fall within the scope of the applicants’ FoI request and that which may be in its possession.[42] In doing so, it relies upon the affidavits of Mr Jeremenko and the methodology of the specific searches undertaken.
[42] Exhibit C, Respondent’s Statement of Facts Issues and Contentions, pages 5-8.
In response to the applicants’ written submissions dated 14 January 2022 (Exhibit E) (see paragraph 34 above), the respondent contends that the searches proposed are not reasonable.[43] The respondent contends that terms such as “bid” and “takeover” are not reasonable, stating:
There is no evidence to indicate that these terms would have yielded additional relevant search results. The applicants’ requests were framed using language clearly focused on seeking access to documents relating to specified Australian Securities and Investments Commission (ASIC) investigations or legal proceedings involving the applicants, rather than all documents concerning them.
…
As to the applicants’ suggested search terms a and b, the term ‘Palmer’ was used in the SharePoint search – Jeremenko affidavit, [15]. Running the same searches on ‘Palmer Leisure Coolum Pty Ltd’ or ‘Clive Frederick Palmer’ would have resulted in the same or narrower outcome.
As to search terms c-f, these are so generic that they are apt to generate an unreasonable volume of false positive responses. Searching on ‘Takeover’ for example, would likely capture an enormous amount of irrelevant material, particularly considering that Treasury staff are members of the Australian Government’s Takeover Panel which is established under the Australian Securities and Investments Commission Act 2001.
Similarly, the other search terms – ‘Bid’, ‘Interest’, ‘Stapled Interest’, ‘Shares’ and ‘Villa interests’ are not unique to the applicants’ legal proceedings in question. In particular, the terms ‘Bid’, ‘Interest’ and ‘Shares’ are so ubiquitous in the context of Treasury’s functions that they are apt to apply to a vast array of circumstances entirely unconnected with the subject matter of the applicants’ requests.[44]
[Footnotes omitted]
[43] Exhibit F, Respondent’s Reply to A submissions, at [3]-[11].
[44] Exhibit F, Respondent’s Reply to A submissions, at [5]-[9].
The respondent further remarked that:
The applicants have provided no evidence suggestive of the existence of further documents within the scope of the applicants’ requests that have somehow been overlooked. Rather, the applicants’ case is that further search terms could have been used. For the reasons outlined above, the omission of those terms does not point to a failure to take a reasonable step in the search process.[45]
[45] Exhibit F, Respondent’s Reply to A submissions, at [11].
CONSIDERATION
Mr Iskandar has explained that the applicants were concerned whether Treasury had conducted the full scope of its inquiries in relation to the sought documents. He explained that the applicants made the applications to the Tribunal because of the decision made by the Director, Freedom of Information in the Office of the Information Commissioner. The Director decided to exercise the discretion under s 54W of the Act not to continue to undertake a review of the IC review decisions. Mr Iskandar drew the attention of the Tribunal to the following remarks of the Director:
One of the reasons for obtaining a right of review to the AAT is that an experienced review body, the AAT, can properly deal with highly contested applications. This provision enables the Information Commissioner to decline to undertake a review if satisfied it would be more appropriate and efficient for the application to be made directly to the AAT -
In making these applications to this Tribunal, the applicants have acted in accordance with the advice of the Office of the Information Commissioner to make an application directly with this Tribunal.
Mr Iskander has, quite properly, remarked that the applicants were:
… just seeking clarity as to whether that has covered all those search terms as identified in that paragraph 25 in both the current and the archived systems. If that is the case, then it may be that the exhaustive searches may have been conducted.
Mr Jeremenko deposed in his first affidavit (at paragraph 26) that the IT security team searched all documents that were stored on SharePoint and archived emails, including live Outlook folders of Treasury staff as well as the documents that were already searched by the Market Conduct Division. I consider that the Treasury has complied with the Guidelines [3.89], 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 and the record management systems in place.
Mr Iskander also informed the Tribunal that the applicants were concerned about when the searches were undertaken. In his supplementary affidavit, Mr Jeremenko has provided advice of when the searches were undertaken.
The applicants did not require Mr Jeremenko to attend the hearing for cross-examination. These applications were, by consent of the parties, heard without any witnesses being called. The applicants remarked that they were content with the general form of the searches that have been conducted and that quite extensive evidence of the searches has been given in both affidavits.
After Mr Jeremenko provided his first affidavit, the applicants in the correspondence dated 24 February 2022 put forward some additional search terms that they considered could be used for the SharePoint search. Mr Jeremenko in his supplementary affidavit responded to this inquiry by the applicants.
The applicants put forward that a search should be made for ‘Palmer Leisure Coolum Pty Ltd’. However, I accept the explanation of Mr Jeremenko that any search for the name of that company would have been identified using the broader search term ‘Palmer’.
The applicants put forward ‘Coeur de Leon Investments Pty Ltd’ as a search term: however, I accept the explanation of Mr Jeremenko that the name of the company, irrespective of how it was spelt, was not mentioned in the FOI requests. There is no justification to require a search in the name for that company which is not mentioned in the FOI requests.
The applicants put forward ‘The President’s Club Ltd’ as a search term, However, Mr Jeremenko has explained how a search using the term ‘President's Club’ which had already been undertaken would have picked up any reference to ‘The President’s Club Ltd’. There is no justification to require a search in the name of that company having regard to the search that has been undertaken.
The applicants have put forward that there should be a search for documents that contain the word "interest", “stapled interest”, “shares” or “villa interests”. However, I do not consider that these terms should be searched as they are not contained in the FOI requests.
The applicants have also put forward that a possible search term in relation to the word 'takeover’ was not undertaken. There is my view no justification to require a search term for 'takeover’ which is not mentioned in the FOI requests. There is no issue that the respondent is responsible for managing the records of the Takeovers Panel. Mr Jeremenko in his first affidavit (at paragraph 13) stated that it is a Departmental requirement that information is stored on an endorsed Treasury business system and that SharePoint and the Parliamentary Document Management Systems are the two endorsed Treasury business systems. Any Takeovers Panel records would have to be in either SharePoint or the Parliament Documentary Management Systems which have already been searched.
The respondent has quite properly mentioned the jurisdiction of the Tribunal to require the respondent to undertake further searches which was adverted to in Viewcross Services Pty Ltd v Telstra Corporation[46] by Senior Member Dwyer who remarked (at [55]): “Further searches could be appropriate in a matter where the evidence established that documents which should be in existence could not be located.” After my review of the evidence before the Tribunal I have determined that there is no cogent evidence which establishes that there are other documents which should be in existence.
[46] [2003] AATA 1025.
The applicants also raised whether there was a sufficient search of the companies which were referred to in the hearing as ‘the Palmer Group entities’. I consider that the searches concerning those companies were identified in para. 24 of the first affidavit of Mr Jeremenko. I consider that a comprehensive search was undertaken to satisfy the request of the applicants and that there is no cogent evidence which establishes that there are other documents which should be in existence.
I consider that the searches made in the General Counsel’s Branch were reasonable, those searches confirmed that no person in that Branch was aware of any Treasury involvement in the proceedings in the Magistrates Court. Mr Jeremenko in his first affidavit (at paragraph 28) explained that when ASIC decides to investigate or commence proceedings against a corporation or individual, Treasury would typically not be involved in that process. I consider that the Treasury has complied with the Guidelines [3.89] by searching in the General Counsel’s Branch because the individuals within that Branch of the Treasury may be able to assist with the location of documents. Mr Jeremenko, in his first affidavit (at paragraph 19) explained that the ASIC prosecution was not mentioned in any leadership group meetings.
In my opinion, there was a comprehensive search of all Treasury records to ascertain what documents came within the scope of the requests of the applicants. I consider that all reasonable steps were taken to find the documents requested by the applicants.
DECISION
I affirm the reviewable decisions.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
......................[SGD]...............................
Associate
Dated: 4 August 2022
Date of Hearing:
Date of Last Submission:
29 March 2022
12 April 2022
Solicitor for the Applicant:
Advocate for the Respondent:
Solicitor for the Respondent:
Mr Sam Iskander
Alexander Law
Mr Justin Davidson
Ms Felicia Nevins
Australian Government Solicitor
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