Prefumo and Australian Federal Police

[2010] AATA 1078

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1078

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2642

GENERAL ADMINISTRATIVE DIVISION		)
Re		LOUIS PREFUMO

Applicant

And AUSTRALIAN FEDERAL POLICE  

Respondent

DECISION

Tribunal   Deputy President, R D Nicholson

Date14 December 2010

Date of Written Reasons  12 January 2011

Place  Perth

Decision The application as maintained by the applicant following withdrawal of that portion of the application relating to issues of exemption be itself dismissed.

.....(sgd) R D Nicholson......

Deputy President

CATCHWORDS

Freedom of Information – application for access to documents – withdrawal of application in respect of issues of exemption – whether application continues in respect of documents said to have been supplied by applicant to respondent – no reviewable decision in respect of such documents

REASONS FOR DECISION

12 January 2011 Deputy President, R D Nicholson

1. On 29 June 2010 a Case Service Officer of this Tribunal notified the respondent that the applicant had applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) for a review by the Tribunal of the decision referred to in an attached copy of the application. That application was accepted as seeking access to documents under the Freedom of Information Act 1982 (the FOI Act) and, in particular:

All documents in possession of the Australian Federal Police, both at the Canberra and Perth operations centre from 1 November 2009 to 15 January 2010 incl.

2. In a statement of reasons attached to a letter of 2 March 2010 Ms Jackie Matan, team leader, Freedom of Information Team and an officer authorised under section 23 of the FOI Act to make decisions in relation to the Australian Federal Police advised the applicant of her decision. After reciting the searches which had been carried out on AFP PROMIS database and in other places, the officer advised that she had identified 53 documents totalling 267 folios relevant to the request. She attached a schedule of each document and details of her decision in relation to each. She decided that some of the documents were to be released in full. Further, that some of the folios itemised in an annexure B were exempt pursuant to section 36(1)(a) of the FOI Act. Further, that some of the folios itemised in annexure B are partially exempt pursuant to sections 22(1)(a)(ii) and 41(1) of the FOI Act.

3. By letter dated 7 April 2010 the applicant requested an internal review pursuant to the FOI Act of the decision to exempt all or part of the documents held by the respondent. The reviewing officer, Ms Angela Anderson of the Policy Performance and Planning, ACT Policing Division of the Department, concluded that upon consideration of all the information provided, she had decided that the decision made by Ms Matan was correct. It is in that context that the applicant’s application for review arises in this Tribunal.

4.      At a directions hearing held by Deputy President Hotop on 26 November 2010, consideration was given to the issue whether the applicant wishes to continue his application to a hearing solely on the issue of exemptions as per a respondent’s letter before him.  The respondent was of the view that the Deputy President had considered that was the appropriate course of action. However, no particular direction was made by the Deputy President in that regard. 

5. On the commencement of the hearing before this tribunal, the applicant advised that he did not wish to proceed with the application so far as it related to decisions by the respondent on issues of exemption. He notified the Tribunal and the respondent that such portion of this matter as related to those issues was withdrawn in accordance with section 42A(1) of the AAT Act. The applicant then signed a notice of withdrawal of that portion of the application. It was countersigned by counsel for the respondent, Mr Shaw.

6.      The applicant said that the central issue which he wished the Tribunal to consider was what had happened to certain documents which he had sent to the respondent on several occasions and which the respondent had not located amongst its documents.  The applicant traced from his files the occasions where he maintained where these documents had been provided by him to the respondent.  The documents may generally be described as the applicant’s compilation of issues relating to his allegation that his ex-wife had engaged in perjury in the course of Family Court proceedings, that is, the documents concerned were ones which the contents of which were known to the applicant because he had compiled them.  Unfortunately when sending them as he alleges to the respondent, he did not retain a copy.

7.      The first line of communication which he alleges he had with the respondent and provided documents to it, were through the Perth office.  These were dealt with by Mr Michael Johnson, federal agent in the Perth Operations Management Centre of the respondent.  The correspondence to which we were referred may be traced in letters dated 7 May 2009 from Mr Johnson to the applicant; May 18, 2009 to Mr Johnson; and May 18 2009 to the Commonwealth Attorney-General.

8.      In the letter of 7 May 2009 Mr Johnson states that he has returned the files to the applicant and that they are attached.  The applicant accepts that they were returned to him and that he subsequently returned them again to Mr Johnson and these were again returned to him.

9.      The applicant also embarked on a second leg of the forwarding of these documents, on his case, namely, to Commissioner Kelty of the respondent.  This may be traced through letters of the 27 May 2008 from the applicant to the Commissioner in which he states that he is forwarding the two files and a statutory declaration relating to the perjury matters; a further letter of 5 June 2009 from the applicant to the commissioner in which the applicant asserts he has forwarded both folders to the Commissioner for some comments.  And finally in a letter from the applicant to the Commissioner dated 24 August 2009 in which he states he has attached for the Commissioner's information and necessary action some more evidence to complement his complaint letter of 27 May 2009.

10.     Based on that evidence the applicant asserts that it is patent that he forwarded to the respondent – and in particular its Commissioner - the two files which he is seeking to have returned.  He states that if he does not get them returned to him, then, if he wishes to pursue the allegations of perjury, he will have to laboriously again prepare the files referring to the allegations which he says support the perjury charge.

11.     The applicant now requests that this Tribunal review the matters which he says are raised by these copies of correspondence.

12. The problem is that this Tribunal can only do what it has jurisdiction to do. And the respondent submits, and I accept, that there is no relevant decision by the respondent which would be reviewable in respect of the non-exemption matters which the applicant now raises. We simply are not a tribunal of general inquiry. We must have jurisdiction which arises under the AAT Act in the permitted way. It is patent that the respondent has not made a decision not to return the documents which are on the face of it adequately identified by the copies of correspondence which the applicant has relied upon before the Tribunal and the respondent today.

13.     What the Tribunal here has jurisdiction to do is to review the decision which was reconsidered and which I have previously set out.  That would have required a review of the exemptions but the applicant does not want that.  What he wants is (for understandable reasons) the return of the documents which he compiled in the past, on his assertion.

14.     The result is that this Tribunal cannot on this application deal with a matter which does not properly arise under any reviewable decision. 

15.     It may be that armed with the copies of the correspondence made available today that the counsel for the respondent can refer these to relevant persons in the respondent with a view to finding any additional way in which or place at which these documents may be located, despite the very profound searches which have been made.  There is an affidavit of Ms Matan sworn on 13 September 2010 showing just how wide and thorough the search has been in an endeavour to find the documents which the applicant seeks.   They have not led to any evidence that the documents the applicant seeks are presently located within the respondent nor to any decision that they or any of them be not returned to the applicant.

Decision

16.     The applicant has withdrawn his application so far as it relates to the issues of exemption.  He maintains that the application remains on foot so far as it relates to the issues of the documents which he alleges have not been returned to him.  In my view the application does not remain on foot in the way which the applicant maintains because no decision was made concerning the documents the applicant seeks.  Nevertheless the applicant maintains the application endures in the way he describes.  For the purpose of removing any doubts it therefore seems prudent that that the application now maintained by the applicant after the withdrawal of its application to the issue of exemptions, be dismissed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President, R D Nicholson

Signed:.(sgd) T Freeman........
  Associate

Date/s of Hearing  14 December 2010
Date of Decision  12 January 2011
Representative for the Applicant    Self represented
Solicitor for the Respondent          Mr D Shaw

DLA Phillips Fox