Rana and Australian Federal Police
[2006] AATA 325
•6 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 325
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/176
GENERAL ADMINISTRATIVE DIVISION ) Re RANJIT SHAMSHER RANA Applicant
And
AUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal Senior Member R W Dunne Date6 April 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
FREEDOM OF INFORMATION – access to documents – whether all reasonable steps taken to find documents – whether documents exist or cannot be found – decision affirmed.
Freedom of Information Act 1982 (Cth) ss 4, 11, 12, 13, 24, 24A, 25, 33
Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138
Re Langer and Telstra Corporation Limited [2002] AATA 341
Chu v Telstra Corporation Limited [2005] FCA 1730
Re Boehm v Department of the Prime Minister and Cabinet (1984) 7 ALN N163
Department of Health v Jephcott (1985) 8 FCR 85REASONS FOR DECISION
6 April 2006 Senior Member R W Dunne 1. In a letter dated 26 June 2005, the applicant (Mr Ranjit Rana) applied for review of a decision made by the respondent refusing access to documents sought by the applicant pursuant to s 11 of the Freedom of Information Act 1982 (Cth) (“Act”). The refusal was made in reliance upon s 24 of the Act.
2. The request by the applicant under the Act was made on 18 February 2005 (“February 2005 Request”) and was in the following terms:
“Seeking freedom of information between 1978 to 2005 about myself … I seek all materials and including a Queensland Police file (including the Special Branch files) that I provided you in 1990.”
3. In a letter to the Tribunal dated 17 August 2005, the applicant limited his application to the Tribunal to his request for documents said to have been provided by him to the respondent in 1991. He described the relevant documents as follows:
“… documents [that] were given to me by the Queensland Police after I had complained to the Fitzgerald Inquiry. Australian Federal Police wanted to know about my involvement with Operation Maitita an undercover role that I had played to trap some members of the Ananda Marga sect implicated allegedly in the 1978 Hilton Hotel bombings in Sydney.”
(“1991 Documents”)
4. In a letter dated 15 April 2005, the applicant was advised by the respondent of the possibility of his request being refused and his approval was sought to narrow the request to cover the period from 1991 to 2005. The applicant refused to narrow his request. The applicant was then advised, on 6 May 2005, that his request had been refused pursuant to s 24 of the Act. He requested an internal review of the decision refusing him access and, on 21 June 2005 following the review, he was advised that the decision to refuse his request was correct. In advising the applicant, the review officer indicated that he agreed with the decision-maker’s decision, but on the basis that refusal was instead being made pursuant to ss 24A(a) and 24A(b)(ii) of the Act.
issues for consideration
5. The issues for the Tribunal’s consideration are:
(a)whether all reasonable steps have been taken to find the documents requested by the applicant; and
(b)whether the Tribunal is satisfied that the documents requested by the applicant cannot be found or do not exist.
legislation
6. Section 11(1) of the Act provides that:
“(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.”
7. It is clear from the terms in which the right is couched that it is a qualified right. The first qualification is that it is a right to have access to a “document of an agency” or to “an official document of a Minister”. Insofar as an agency is concerned, that means the right is access to a document in the possession of the agency (s 4(1)). The word “document” is defined in s 4(1) in very broad terms to mean:
“(a) any of, or any part of any of, the following things:
(i) any paper or other material on which there is writing;
(ii) a map, plan, drawing or photograph;
(iii)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(iv)any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
(v)any article on which information has been stored or recorded, either mechanically or electronically;
(vi) any other record of information; or
(b) any copy, reproduction or duplicate of such a thing; or
(c)any part of such a copy, reproduction or duplicate;
but does not include:
(d) library material maintained for reference purposes; or
(e) Cabinet notebooks.”
The terms of the definition are broad enough to encompass within them records kept on paper and in electronic form, such as in e-mail records or in documents kept in electronic form.
8. Section 11 is explicit in its terms that the right of access is not to every document of an agency. It is only to every document in the possession of that agency that is not an “exempt document”. Where an agency is concerned, an “exempt document” is a document that is exempt by virtue of a provision of Part IV of the Act (s 4(1)). Section 11 contains a further qualification as its opening words are expressed as “Subject to this Act”. These words encompass sections such as ss 12 and 13 (which exclude access to certain categories of documents),s 24 (which permits certain workload factors to be taken into account in refusing a request) and s 24A (which permits a request to be refused if a requested document cannot be found or does not exist).
9. Having regard to the notification provided by the review officer to the applicant on 21 June 2005, it is with s 24A that the Tribunal is concerned in this case and it provides:
“An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i)is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.”
the hearing
10. The applicant represented himself and Mr Prince from the Australian Government Solicitor acted as counsel for the respondent.
11. The T documents were received into evidence as exhibit R1, along with the following documents:
(a)affidavit of Mr Peter Norman, from the Australian Federal Police (“AFP”), dated 10 January 2006 (exhibit R2);
(b)letter from Queensland Information Commissioner to applicant dated 23 February 2005 regarding access to documents of the Queensland Police Service Special Branch (exhibit A1); and
(c)letter from applicant to the Tribunal dated 17 August 2005 referring to the 1991 Documents (exhibit A2).
the evidence
12. The evidence of the applicant was that he had been given certain Queensland Police Special Branch files after he had assisted in undergoing work in infiltrating the Branch in Queensland. He said his contact with the Branch was Detective Barry Krosch. He said he then gave the Special Branch files to the AFP and was advised that the files would never be destroyed and he could get them back whenever he wanted. He said he was told this by a Mr Baines who was a detective in the Special Information Unit with the AFP. He said the AFP wanted to have access to the Special Branch files to see whether they made reference to an Ananda Marga operative called “Maitita”. The applicant then referred to the T documents and to T27 (pages 27.3-27.5) in which a reference to the name “Maitita” appeared. He then asserted that pages 27.3-27.5 formed part of the 1991 Documents to which he was seeking access.
13. The applicant then referred the Tribunal to T23 (pages 23.1-23.11), which he asserted was the response from the AFP, dated 17 December 1991, to his request for access to the Queensland Police Special Branch files. Included in the AFP response (at page 23.6) was a reference to a document described as “Operation Maitita”, which had been declared totally exempt pursuant to ss 33A(1)(a) and 33A(1)(b) of the Act. The applicant then questioned why “Operation Maitita” had been referred to at page 23.6, why part of his Queensland Police Special Branch file appeared at pages 27.3-27.5 and yet the remainder of the file was missing.
14. The applicant’s further evidence was that he had been given the whole Queensland Police Special Branch file, that he had made a copy of the file and had provided the original to the AFP. He then appeared to contradict himself by saying that he did not keep a copy of the file, but that the AFP had provided him with a copy of the whole file in 1991 and it was this copy that he had lost. He said that “Operation Maitita” was not an operation of the AFP, but he believed it was an operation of the Queensland Police Special Branch and ASIO.
15. Following cross-examination by Mr Prince, the applicant then gave further evidence. This was to the effect that, in earlier proceedings before this Tribunal in 1991, the matter being considered at that time had been conciliated and all the documents the applicant had then been seeking, between 1978 and 1991, had been provided to him. He said it was these documents that he had later lost or misplaced.
16. It was Mr Prince’s contention to the Tribunal in opening that the respondent had taken all reasonable steps to locate the documents sought by the applicant and had formed the view that either the documents did not exist or, having conducted searches, the documents could not be located. When referred by the Tribunal to the document at exhibit R1, T27, Mr Prince acknowledged that the document (including pages 27.3-27.5) had been released to the applicant by the respondent. However, he submitted that the respondent’s evidence would be that no other document could be found which fell within the description of documents that the applicant had offered to the Tribunal. Further, the respondent’s evidence would be that the information contained in exhibit R1, T23 at page 23.6 and following, was not sufficient to identify what those documents were, nor to identify whether the documents formed part of those allegedly given by the Queensland Police Special Branch to the applicant and then by the applicant to the AFP. The document(s) contained in T27 at pages 27.3-27.5 were still available to the respondent, but did not form part of the file or bundle of documents that had been furnished by the Queensland Police Special Branch.
17. Mr Norman, who described himself as the Co-ordinator of National Operations Information with the AFP was sworn. Through him, his affidavit of 10 January 2006 (exhibit R2) was tendered. Mr Prince had no further examination of the witness.
18. By way of additional background, it is appropriate to refer to aspects of Mr Norman’s affidavit. These concern previous requests by the applicant pursuant to the Act for information from the AFP about himself and the Queensland Police Special Branch file. The requests are as follows:
(a)On 17 April 1985, the applicant sought from the AFP “all or any documents relating to [the applicant] and his involvement with the Federal Police, in particular those sections dealing with narcotics and security intelligence” (exhibit R1, T34 at page 34.1) (“1985 Request”).
(b)In 1991, the applicant made another request to the AFP for “all records from 1978 until now” (exhibit A1, T24 at page 24.3) (“1991 Request”).
(c)Both the 1985 Request and the 1991 Request were subject to applications to this Tribunal.
(d)On 11 December 2003, the applicant caused a Tribunal summons to be issued. The summons was set aside as being too wide and the applicant was given leave to issue a new summons in an amended form.
(e)The applicant caused a further summons to issue on 9 January 2004 (exhibit R1, T15 at page 15.1) (“2004 Summons”). This 2004 Summons required the AFP to produce the following:
“Any file or files held by the Australian Federal Police which contains information pertaining to claims of physical, verbal or sexual abuse and/or racial vilification including any statements obtained or supplied to the AFP in relation to those matters arising from the applicant’s time in the Australian Army for the period 14/10/80 to 14/7/82.”
19. It was also Mr Norman’s affidavit evidence that the applicant sought access to the 1991 Documents (referred to in paragraph 3 of these reasons) during return of summons hearings before this Tribunal in January and February 2004. As a result, the AFP undertook numerous searches to locate the 1991 Documents. The following searches were detailed by Mr Norman in his affidavit:
·PROMIS database in respect of the applicant;
·MNIFTY database, which was the database used prior to the introduction of PROMIS, in respect of the applicant;
·AFP mainframe directory in South Australia in respect of the applicant;
·the AFP dossier files in South Australia and the AFP’s archives in Canberra.
A number of documents (and parts of documents) falling within the scope of the 2004 Summons were identified and no objection was taken to the applicant being granted leave to inspect them. The above particulars were contained in affidavits sworn by Darlene Karen Grech, Co-ordinator, Intelligence within the Adelaide office of the AFP, made on 29 January 2004 and 12 February 2004 and annexed to Mr Norman’s affidavit.
20. In her affidavits of 29 January 2004 and 12 February 2004, Ms Grech stated:
“… the applicant has suggested the AFP may have documents collated in response to an application pursuant to the Freedom of Information Act (Cth) in the early 1990s. Whilst the AFP has located some documents in relation to a request (AAT Reference No S93/221), the documents that were produced to the applicant have not been kept on a single file and cannot be easily produced. In any event, all of the documents located and which fall within the scope of the summons are summarised above.”
“The documents located as a result of the searches outlined in my [affidavit of 29 January 2004] have been re-examined and I confirm that the AFP has not located a Queensland Police file in relation to the applicant held by the AFP.”
21. In his affidavit, Mr Norman further stated:
“I am advised … that the Applicant suggested during a conference before the Tribunal on 16 August 2005 that the AFP may have already collated documents in response to the 1991 application. Whilst the AFP located some documents in relation to a request (AAT Reference No S93/221), the documents that were produced to the Applicant have not been kept on a single file and cannot be easily produced. The information contained in the schedule at T23.6 to T23.11 [T documents] is not sufficient to identify those documents or to establish that they are the requested documents.
I am advised and verily believe that Ms Alexandra Briggs, of the AFP’s Freedom of Information Team, made inquiries as to the location of the AFP’s file relating to the 1991 request (file 91/1914) and I am advised by her that that file was destroyed on 1 January 2002. I also made similar inquiries as part of my internal review. I was advised by the AFP’s archivists that the file/s had been destroyed.”
22. The applicant cross-examined Mr Norman on his affidavit and the annexures to it. When asked what specific inquires were made about the Queensland Police Special Branch files, Mr Norman answered:
“There were a number of searches done over time in reply to your various applications for information. On each of those occasions, searches were done of our computer records, of our manual records, of our archive systems and no record either showing the existence or non-existence of those files could be found.”
23. He was then cross-examined the applicant about exhibit R1, T27 at pages 27.3-27.5 and how this document came to be included in the T documents. Mr Norman replied:
“The fact that they are in the T documents means that the AFP has that particular record, that particular document, but as to the source of that document we have no information.”
When asked whether he was aware that the documents at pages 27.3-27.5 were part of a diary of the applicant of some 40 or 50 pages, Mr Norman said:
“If, and it is an ‘if’, if those documents were part of a larger set of material it is a possibility that they exist, but the AFP has undertaken numerous searches on multiple occasions and we cannot find them.”
24. Mr Norman was then asked by the Tribunal whether, to his knowledge, the documents at pages 27.3-27.5 formed part of the documents being sought by the applicant. He replied:
“No, to the extent that we have been unable to find any other materials surrounding these – these documents noted at T27. We can’t find any other contextual material surrounding those, so whether – so whether they are part of a larger set of material or not, we just don’t know.”
25. The applicant then referred Mr Norman to his affidavit statement that the AFP’s file relating to the applicant’s 1991 Request had been destroyed on 1 January 2002. In answer to the applicant’s question concerning the destruction of the file, Mr Norman said:
“The files we are referring to there are the AFP files which – which the AFP generated as a result of your 1991 request. The actual internal files of the AFP generated to document your FOI application at the time. Those are the files that have been destroyed. As to – as to the files that may or may not have come from the Queensland Police, we just have no record of.”
The applicant then continued by saying:
“All right, I accept that you destroyed, okay, all right, that is a photocopy file, I received that, but you have not mentioned anything about destruction of my original Queensland Police Special file, where are they?”
To which Mr Norman replied:
“Well, that’s correct. We don’t know if they have been destroyed. We – we simply have no record of them and we cannot find them.”
26. The applicant then referred Mr Norman to exhibit R1, T23 and the document at page 23.6. In answer to questioning by the applicant, Mr Norman said that it was not possible for him to ascertain whether the documents at pages 27.3-27.5 were those described as “Operation Maitita”. When asked by the Tribunal about the document description, “Operation Maitita” at page 23.6 of the T documents and how it was arrived at, Mr Norman said that the title came from the documents that were relevant to the application or to the type of document that was found to be potentially relevant. Mr Norman said that, on face value, it was correct to say that there were some documents that formed part of the request by the applicant that related to an operation called “Operation Maitita”. However, from the searches that had been conducted it was not possible for him to say whether there was any relationship between the documents at pages 27.3-27.5 and the reference to “Operation Maitita” at page 23.6.
27. The applicant questioned Mr Norman about the interaction between the various AFP offices and whether the Queensland Police documents might have been forwarded to the Queensland general office. In response, Mr Norman said:
“The searches that we undertake don’t distinguish between the offices the AFP has and even over time as the AFP is restructured, all our records are integrated into one repository so any search that’s undertaken automatically without exception automatically searches across all our offices. So there’s no distinction made. So any searches that have been made actually include all the AFP offices.”
28. Finally, the applicant questioned Mr Norman about the introduction by AFP of its computerised archive system or index system and the manual system that had existed prior to its introduction. When asked whether his file may have been overlooked in error, Mr Norman said that he had not made any inquiries as to any system variations that may have occurred, but he was not aware of any. In re-examination by Mr Prince, Mr Norman said it was his understanding that all manual indexes had been computerised some time ago and that that material had been searched.
consideration
29. The applicant has sought to rely on s 25 of the Act. However, in the letter from the review officer dated 21 June 2005 (exhibit R1, T1 at page 1.6) the respondent had indicated to the applicant that his request was refused pursuant to s 24A. The Tribunal is satisfied that s 24A is the only relevant section of the Act that is necessary in considering the application for review. The scope of s 24A was considered by Deputy President S A Forgie in Re Langer and Telstra Corporation Limited [2002] AATA 341. Deputy President Forgie observed at paragraph 94:
“(94) Section 24A of the FOI Act requires the consideration of two matters. The first requires a consideration of whether the Department has taken all reasonable steps to find the documents. If it has done that, the second requires a consideration of whether the documents are in the Department's possession but cannot be found or whether they exist. The first limb has been considered and applied in several cases but only Deputy President McDonald considered the elements of the first limb in any detail (Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138). He said:
"(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', or 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 ins 24A that 'all reasonable steps' (emphasis added) are to be taken to find any requested document." (page 145)
(95) 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 circumstance. 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.”
30. More recently, in considering s 24A, Finn J in Chu v Telstra Corporation [2005] FCA 1730 emphasised the need (in s 24A(a)) for the agency or Minister to be satisfied that all reasonable steps had been taken to find the document being sought. At paragraph 14, he said:
“I have already indicated what, in the language of s 24A itself, could be taken as suggesting that the requirement of all reasonable steps having been taken is itself jurisdictional in character. Nonetheless, I am satisfied, that in the context both of the Act and its purposes and of the known provenance of the section itself, the judgment to be made is for the agency in question and, upon review, for the Tribunal and not ultimately for the Court.”
31. For the respondent, Mr Norman has given oral and affidavit evidence of the searches and inquiries that were conducted by the respondent in response to the various requests that were made by the applicant. He has also attached a copy of affidavits that were relied upon by the respondent in responding to a summons issued in this Tribunal in a related matter in 2004. The present application represents the third attempt by the applicant to obtain what appears to be essentially the same material. In terms of responding to the summons in 2004 and then to the present application, the evidence of the respondent is that it has not been able to locate or identify the documents that are now sought. Mr Norman has referred to the attempts made to locate the file that was created in relation to the applicant’s 1991 Request and, as advised, that that file was destroyed on 1 January 2002. His affidavit evidence is also that a search of the respondent’s electronic data bases (PROMIS and MNIFTY) for references to an Operation Maitita have failed to identify any record of such an operation. The Tribunal accepts the evidence of Mr Norman that the reference to Operation Maitita in the T documents is only a description given to documents in the applicant’s file relating to his 1991 Request and not to an operation name used by the AFP. Mr Norman’s further evidence was that the Queensland Police Service museum had been contacted and that they had no records relating to an Operation Maitita.
32. Finally, Mr Norman’s evidence, based upon the affidavits of Ms Grech, was that searches of the AFP’s data bases (PROMIS, MNIFTY, AFP mainframe directory and AFP dossier files) had failed to locate the file or the documents specifically sought by the applicant.
33. Having regard to all the evidence, the Tribunal is satisfied that the respondent has taken all reasonable steps to locate the documents sought by the applicant. Further, the Tribunal is satisfied that, if the documents are in the respondent’s possession, they cannot be found or do not exist.
34. The applicant referred the Tribunal to a number of cases which he said supported his contentions. In particular, he referred to Re Boehm and Department of the Prime Minister and Cabinet (1984) 7 ALN N163 and Department of Health v Jephcott (1985) 8 FCR 85 in support of his contention that s 25 of the Act was applicable. The Tribunal has already referred to the relevance of s 24A to the present review and is, therefore, unable to gain any assistance from Re Boehm and Jephcott or any of the other cases that the applicant referred to.
decision
35. For the reasons above, the Tribunal affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
AssociateDate of Hearing 10 January 2006
Date of Decision 6 April 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent AGS
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