QMSF and Chief Executive Officer, Services Australia (Freedom of information)

[2022] AATA 2488

QMSF and Chief Executive Officer, Services Australia (Freedom of information) [2022] AATA 2488 (20 May 2022)

Division:FREEDOM OF INFORMATION

File Number(s):       2021/6245

Re:QMSF  

APPLICANT

AndChief Executive Officer, Services Australia

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:20 May 2022

Place:Melbourne

The Tribunal affirms the decision under review.

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Dr Stewart Fenwick, Senior Member

Catchwords

FREEDOM OF INFORMATION – refusal of access to documents – whether all reasonable steps have been taken to find documents – whether documents in possession but cannot be found or do not exist – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Freedom of Information Act 1982 (Cth)

Secondary Materials

FOI Guidelines

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

BACKGROUND

1. The Applicant sought review by the Tribunal, in an Application dated 4 September 2021, of a decision of the Acting Information Commissioner dated 1 September 2021. The decision made was that  Services Australia had taken all reasonable steps to locate a document that the Applicant had sought through a Freedom of Information Request (“FOI”), and that the document does not exist.

2. The matter arises from the Applicant’s earlier request in January 2020 to the Department of Human Services for access to a document described in her request as a psychological report that was faxed to a courthouse between 6 July 2017 and 8 August 2017, in relation to a legal matter in which she was then involved. This itself is pertinent because, at the relevant time, the Applicant had communication with the agency in relation to job search obligations.

3. The request was deemed to have been refused, and the Applicant subsequently applied to the Office of the Australian Information Commissioner (“OAIC”) in April 2020 for review of this decision. At the same time, further information was provided by the Applicant to the agency about the nature and circumstances of the said transmission of the document in question.

4. Ultimately, following further investigations by the agency, a statement of reasons was produced to the effect that the Applicant’s request  had been refused on the ground that the document sought does not exist.

5. The Applicant represented herself before the Tribunal. She provided a statement dated 8 March 2022, with a number of attachments.

6. The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) (“T documents”) and Supplementary T documents. A Statement of Facts, Issues and Circumstances was lodged (“RSFIC”), and a brief Response to the Applicant’s statement, dated 30 March 2022, was also lodged. Four affidavits by staff members of the agency were provided:

   (a)Sielito, Social Work Manager, dated 10 February 2022;

   (b)Jordan Sullivan, Director, Digital Assistants and Digitalisation, dated 11 February 2022;

   (c)Kate Phipps, Director, Assessment Services and Smart Centres Operations, dated 11 February 2022; and

   (d)Penny Damianakis PSM, National Manager, Smart Centres East, dated 11 February 2022.

7. The Respondent also lodged a supplementary affidavit of Jordan Sullivan, dated 30 March 2022.

8. At the hearing evidence was given by the Applicant, Ms Damianakis and Mr Sullivan.

   LEGISLATION

9. The Freedom of Information Act 1982 (Cth) (“the Act”) provides that every person has a legally enforceable right of access to a document of an agency (s 11).

10. A document of an agency is defined as a document in the possession of the agency, whether created or received by that agency (s 4).

11. Section 24A(1) of the Act provides that a request for access may be refused if:

    (a)all reasonable steps have been taken to find the document; and

    (b)the agency is satisfied that the document:

    (i)is in the agency’s or Minister’s possession but cannot be found; or

    (ii)does not exist.

12. The phrase ‘all reasonable steps’ is not defined, but the matter is addressed in the FOI Guidelines issued under s 93A of the Act (“the Guidelines”). Accordingly, what constitutes a reasonable search is to be understood in the circumstances of each request (at [3.89]), taking into account:

    (a)the subject matter;

    (b)current and past file management systems and record management systems;

    (c)the individuals within an agency who may be able to assist; and

    (d)the age of the document.

    ISSUE

13. The sole issue in this matter is whether Services Australia has taken all reasonable steps to locate the particular document sought by the Applicant.

14. I take note of the fact that this matter has a relatively  long history. The wider context is also quite complex, touching as it does upon a series of engagements by the Applicant with a range of federal and state agencies and institutions. The Applicant has, accordingly, provided information to the agency and to the Tribunal in the course of this application that traverses matters relating to her employment and, in particular, to the legal matter referred to briefly in the Background to this decision.

15. I made an order under s 35 of the AAT Act at the hearing for the non-disclosure of the Applicant’s identity. This was due in part to the particular nature of the legal matter in which she was involved. Notwithstanding this order, I consider that the relatively narrow nature of the legal question arising means that it is not necessary to include further particulars of this aspect of the background to her claim.

    EVIDENCE

16. At the hearing the Applicant explained the background to her application, which had its origins in communication with the agency about her attendance at a court event. The Applicant stated that she spoke to a social worker, and that she believed that another person became involved in this contact (for whom she provided a name). Subsequently, during her court attendance, the Applicant understood the court to have been provided with a report by the agency by facsimile, bearing an ‘02’ number, and to have considered it on several occasions.

17. The Applicant also stated that she was of the understanding that this document had an adverse impact on her position in the legal matter before the court. She sought access to her court file in order to identify the document in question, and she considered that the court file had been interfered with.

18. In the course of her engagement with the agency about the document, the Applicant explained that she had discussions with a call centre. She understood that an attempt appeared to have been made to identify a nearby fax machine during this contact. The Applicant also stated that her dealings with the agency led to a complaint, giving rise to ministerial correspondence.

19. I note, in addition, that in her written statement the Applicant provides some specific information, including a receiving fax number for the court and a sending fax number commencing with 1300. These numbers were obtained from internet searches. She also provides here the name of the individual she considered to have been involved with the document transmission. I note further specific details as to times and dates as set out in the Supplementary T documents.

20. Ms Damianakis stated in her evidence that her work unit in the agency is responsible for telephony. She also confirmed that she has responsibility for FOI search and retrieval.

21. Ms Damianakis confirmed that searches across eight standard categories of material were undertaken in respect of the Applicant’s request, as summarised in her affidavit (at [10]). Ms Damianakis stated further that a search of online records was conducted, and a request made to Human Resources to attempt to identify the individual named by the Applicant. These inquiries were unsuccessful.

22. In his evidence, Mr Sullivan explained, in the terms provided in his affidavit, the methods by which documents were faxed during 2017. These comprised physical transmission, for which there would be many thousands of instances, and also transmission digitally, via email to a fax number.

23. To search under the first category, several pieces of information are required, being: the receiving fax number; date and time; and the sending number. For the second category, additional information being the name and login ID of the sender was also required.

24. Mr Sullivan stated that each month Services Australia sends and receives over 40,000 documents via facsimile. Therefore, parameters were required in order to conduct an effective search. Mr Sullivan stated, consistent with his supplementary affidavit, that he had performed searches using the additional information from the Applicant’s statement. These had not been successful.

25. In his evidence, Mr Sullivan also stated that there were limitations to the amount of data retained by fax machines, and a telephone number would be required to facilitate a search of telephone records. He also stated that the task was further complicated with the decommissioning of machines, and consequent closing of numbers.

26. Mr Sullivan also addressed in his evidence questions arising from the contact record contained in the Supplementary T documents (at S4). This record indicates the Applicant spoke with the Canberra Surge Team on 17 July 2017 with respect to her job search exemption request.

27. With respect to the ease with which a call centre operator might have been able to identify a fax machine, Mr Sullivan explained that the call centre in question was spread across four buildings. He stated that one of these buildings alone contained 3,000 telephone lines.

28. The witness explained that an attempt had been made to identify necessary personnel details for the handler in the Surge Team, and for the social worker to whom the call had been transferred. These inquiries were not successful, and without a sending fax number a conclusive search was not possible.

29. I note that in their affidavit, Sielito explains the search activity undertaken in respect of records, documents, or notes that may have been authored by a social worker. While the deponent was able to identify material on the Applicant’s file relating to the court in question, they were unable to identify any document that met the terms of the access request.

30. Further, the deponent states in their affidavit that staff identified five of the seven social workers who had ever had contact with the Applicant. These remaining employees also conducted searches pertaining to the access request and were unable to locate any relevant document.

31. I note also the affidavit of Kate Phipps. The deponent describes searches conducted with a range of health and allied professionals to identify the document sought by the Applicant. She states that searches of electronic records were undertaken unsuccessfully, and that no paper documents are retained by the relevant staff.

32. Ms Phipps further states that a search was undertaken of the Applicant’s records, and that no document meeting the description of the access request was identified.

    CONSIDERATION

33. It was submitted by the Respondent, as outlined in its written submissions, that in essence there was insufficient information available in this case to sustain further searches. The uncertainty around personnel involved, the multiple possible sites involved, and – critically – the lack of a sending fax number, meant that resolution of this search was difficult, if not impossible.

34. The Respondent’s representative also submitted that additional searching had focused on the identity of the individual named by the Applicant, but without success. Further efforts in this regard were not appropriate given the significant number of staff employed by the agency.

35. It was further submitted that if the agency had indeed successfully determined that a document had been sent by fax, the access request would remain unresolved  because the record itself had not been identified in the searches undertaken.

36. In closing, the Applicant noted, simply, that she always considered that searching for the document described in her request would be a waste of time.

37. It is apparent from the scope of the material that the agency has undertaken a wide range of inquiries in respect of the Applicant’s FOI request. I am also satisfied that the evidence advanced presents an accurate picture of these inquiries.

38. I accept that the agency has sought to identify the specific document; and has done so through searches in multiple relevant locations. Moreover, a deal of effort has been made to determine whether the document, consistent with the terms of the access request, was transmitted in the manner described by the Applicant.

39. I am therefore satisfied, on the basis of the evidence, that the agency has indeed undertaken all reasonable steps to find the document, and that it is either in its possession and cannot be found, or it does not exist.

40. In making this finding, I take into account that:

    (a)the Applicant has provided additional clarifying information about the document and the circumstances in which she believes she became aware of it;

    (b)the agency has identified client contact data contemporaneous to the relevant time; and

    (c)the range of inquiries involving multiple relevant work units and, indeed, specific individuals with prior experience of dealing with the Applicant.

41. In short, both parties have made efforts to narrow the scope of document searches and the efforts undertaken have been comprehensive, but ultimately unsuccessful.

    DECISION

42. For the reasons given above, the Tribunal affirms the decision under review.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decisions herein of Dr Stewart Fenwick

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Associate

Date: 20 May 2022

Date of hearing:	4 April 2022
Applicant:	Self-represented
Advocate for the Respondent:	Ms Emily Hill
Solicitors for the Respondent:	Minter Ellison