re Langer and Telstra Corporation Limited

[2002] AATA 341

CATCHWORDS – FREEDOM OF INFORMATION – refusal of access to documents – whether reasonable steps to find document – whether document in possession but cannot be found or does not exist – whether processing request would be substantial and unreasonable diversion of agency's resources – meaning of substantial and unreasonable – whether computerised records raise different issues from paper records – decision affirmed.

Freedom of Information Act 1982 ss. 4, 11, 12, 13, 22, 24, 24A, 26, 27, 36, 40, 43 and 45
Archives Act 1983 ss. 3, 5, 6, and 24

Re Swiss Aluminium Australia Ltd and Department of Trade (1986) 10 ALD 96
SRB and SRC and Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171
Re Connolly and Department of Finance (1994) 34 ALD 655

DECISION AND REASONS FOR DECISION [2002] AATA 341

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V1993/1112
GENERAL ADMINISTRATIVE DIVISION     )          

ReALBERT LANGER

Applicant

AndTELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  10 May, 2002
Place:  Melbourne

Decision:The Tribunal affirms the decision of the respondent dated 10 June, 1993.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 12 August, 1993, the applicant, Mr Albert Langer, applied for review of a decision of the respondent, which was then known as Australian Telecommunications Corporation ("Telecom") and is now known as Telstra Corporation ("Telstra").  I will refer to the respondent as either Telecom or Telstra in the course of these reasons.  The decision, dated 10 June, 1993, had been to refuse Mr Langer access to various documents he had sought under the Freedom of Information Act 1982 ("FOI Act"). I have set out his request in detail below but, in broad terms, Mr Langer had sought documents relating to the funding of the Research Data Network-Cooperative Research Centres ("RDN-CRC"). Telstra initially released some documents to Mr Langer in response to his request but also refused access to a considerable number on the basis that they were exempt under the FOI Act.

1. Mr Langer's application for review came on for hearing in the Tribunal on 27 May, 1994.  During the course of that hearing, it became apparent that Mr Langer had obtained, and properly so, at least some of the documents which Telstra had claimed to be exempt.  The hearing was adjourned to enable Telstra to reconsider its position.  Over the intervening years, there have been many directions hearings intended to narrow the issues between the parties and to locate documents.  Various factors affecting one participant or another at various times have caused lengthy delays in the process.  Telstra has released numerous other documents and Mr Langer has directed their attention to the documents he has sought and the manner in which they might be located.  Both the number of documents and the issues have become vastly narrower.

1. At both the hearing and the resumed hearing, Mr Langer represented himself and Telstra was represented by Mr Cavanough, who is now senior counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") were admitted in evidence together with various documents to which I will refer in the course of these reasons.  Mr Langer gave oral evidence in support of his own case and referred to a folder of documents ("Exhibit A").  Dr O'Callaghan, Mr George Sutton, Mr Peter Raymond Meggs, Mr Brian Kelly and Ms Susan Rayner-Laver gave oral evidence in support of Telstra's case.

THE ISSUES

1. Mr Langer's request is set out in paragraph 27 below.  By the time of the hearing, Telstra had abandoned its claims for exemption in relation to the documents sought.  There remained only three issues:

   whether Mr Langer's request extended to documents relating to the Experimental Broadband Network ("EBN") which Telstra offered as its contribution to the funding of the Research Data Network-Cooperative Research Centres ("RDN-CRC");

   whether Telstra has disclosed all relevant documents, and indices of relevant documents, held by those units in Telstra which were involved in the RDN-CRC and related EBN.  This involved a consideration of whether Telstra had made appropriate searches for documents. 

   whether Telstra has disclosed all relevant e-mail and other computerised records maintained by those officers of Telstra involved with RDN-CRC and who are named in the documents already released to Mr Langer.  This involved a consideration of whether Telstra had made appropriate searches and also whether to require it to make further searches involved a substantial and unreasonable diversion of Telstra's resources from its other operations.

A CROSS SECTION OF PERSONS INVOLVED IN THE PROCEEDINGS

1. There have been a number of people involved in the case over the years and, together with a brief statement of their role in either these proceedings or in the projects about which Mr Langer seeks information or the position they held at the relevant time, they are:

Mr John Armstrong Counsel Customer Affairs at Telstra.
Mr Frank Blount     Chief Executive Officer, Telecom.     
Mr Stephen Burdon Group Managing Director, C& G, I. 
Mr Ian Campbell     Managing Director, Network Products.        
Mr David Clayworth           Senior IT Consultant for Corporate E-mail, Telstra.
Professor Peter Gerrand     Professor of Telecommunications and Chief Executive Officer of Melbourne Information Technologies Australia Pty Ltd, which is owned by the University of Melbourne and established for the purpose of commercialising the University's expertise in information technology, telecommunications and multi media.  He worked for Telstra from 1963 until 1993 when he resigned as the General Manager, Network Strategy, with Telstra.         
Mr Peter Gretton     Formerly Manager, Intellectual Property and FOI Coordinator, Telecom Research Laboratories; resigned 28 June, 1996.          
Mr Malcolm Hedges Formerly National FOI Manager, Telstra; resigned on 31 July, 1994.        
Mr Brian Kelly        Technology Leader, Network Applications and Management, Telstra.  In December, 1993, he was given responsibility for the development of the EBN project in Telstra.  He and project moved to Fast Packet Services Branch in 1993.  That branch was involved in RDN-CRC discussions but Mr Kelly cannot recall whether he played any part in them.   
Mr Graham Kennelly          Account Manager for AAR Net.         
Mr Albert Langer     Applicant.       
Ms Elizabeth Lee     Solicitor for Telstra.   
Mr Ray Liggett         Former Director of Research, Telecom Research Laboratories.      
Mr Neil Littler          Manager LAN Support, NPAMS Project, Telstra.     
Mr Peter Livingstone           Information Technology, Service Delivery, LAN Support, Telstra.   
Mr Jamey Lythe      Regional Manager, Victoria and Tasmania, Service Delivery and Acting Manager with respect to the retention of  back-up tapes.    
Mr Owen Malone     Formerly General Manager, Intellectual Property & Information. Telecom Research Laboratories.  Represented Telstra in RDN-CRC negotiations.      
Mr Peter Raymond Meggs   Manager for Electronic Messaging, Telstra since 1995.  Mr Meggs was responsible for developing Telstra's internal electronic mail service in various capacities.            
Mr Paul Rumble      Manager, Corporate Affairs Canberra, AOTC.        
Mr Denis Mullane     Group Product Manger, Business Access Network Products, Telecom.       
Mr John Frederick O'Callaghan     Since 1988, Chief of Division of Information Technology of the Commonwealth Scientific Industrial and Research Organisation ("CSIRO").         
Mr Frank O'Rourke General Manager, Federal Systems Group. 
Mr Jim Park  Director of Research, Telecom Research Laboratories.       
Ms Susan Rayner-Laver     Senior Solicitor, Legal and Regulatory, Telstra, with responsibility for the care and conduct of this matter within Telstra.     
Mr John Rutley        Information Technology Manager, LAN Support, Telstra.    
Mr Dominic Scally    Solicitor, Telstra's Legal Directorate; resigned 27 March, 1997.    
Mr George William Sutton  FOI Coordinator, Freedom of Information Unit, Legal Directorate, Telstra.           
Dr Noel Francis Teede         Now retired but formerly General Manager, Customer Services and Systems Branch, Telstra.  The main function of that branch is to research the demands and requirements of Telstra's customers and potential customers and to develop new telecommunications systems to meet those demands and requirements.  In 1994, the branch was involved in research and new product development in areas such as broadband services, pay-television, multi-media transmission, speaker activated services and artificial intelligence.  With respect to broadband services, the branch carried out research and development work with respect to the EBN.  On behalf of Telstra, Dr Teede was closely involved in negotiations and activities in connection with the EBN and the CRC program. 
Mr Geoffrey Willis    Senior Manager, External Strategies, Telecom Research Laboratories.      
Mr Henry (Harry) Wragge  Formerly Director of Research, Telecom Research Laboratories.   

BACKGROUND

AAR Net

1. The Australian Academic Research Network ("AAR Net") is a program of the  Australian Vice-Chancellors' Committee and CSIRO.  It interconnects Australian universities and other research bodies (including CSIRO, National Library of Australia, Telecom Research Laboratories and BHP Research Laboratories) for the purpose of furthering Australian research activities.  Electronic mail, file transfer, database enquiries and some tele-conferences are available.  The mail services are used by some 150 commercial enterprises.

1. AAR net is managed from Canberra and consists of main intercity trunks and tail loops to each member organisation.  In 1992, AAR Net had an estimated user population of 350,000 through 49,000 nodes connected in Australia.  At the time, AAR Net was connected to over 1.4M host systems through a link to the United States of America.

1. AAR Net was funded by a set proportion of Commonwealth operating grants to each university.  Usage was limited only by access and was not charged directly to each user.  Affiliate organisations were charged for a port access to the AAR Net network and were required to provide their own local loop to that port on the AAR Net.  AAR Net hubs were located on university campuses in the mainland capital cities.

The Cooperative Research Centres Program – Outline

1. Based on the evidence of Dr Teede in his affidavit sworn on 26 May, 1994, I make the following findings in relation to the Cooperative Research Centres Program ("CRC Program").  It began in 1990 and offered Commonwealth funding for collaborative scientific research projects undertaken by bodies likely to make commercial use of the results of the research.  Those bodies could be publicly funded, such as universities, or privately funded bodies engaged in business or industry. 

1. Conditions attached to the funding.  One of those conditions was that Commonwealth funding be matched, or exceeded, by funding commitments from the participating bodies.  Applicants for funding were required to submit detailed information about both themselves and the nature of their proposed research.  In so far as the research was concerned, those details included methodology, outputs and timing, the extent of private or other funding and their plans to make commercial use of the research. 

The Cooperative Research Centres Program – Third Round

1. In January, 1992, the Department of Prime Minister and Cabinet ("PM&C") issued a publication entitled "Guidelines for Applicants" for the Cooperative Research Centres Program – Third Round.  That program had been launched in May, 1990 and was intended to fund up to 50 Cooperative Research Centres ("CRCs").  Total funding was to rise to $100 million per year by 1995.  The publication stated that there were three major elements of the government's strategy for science and technology.  They were to ensure that the basic infrastructure for research and education in higher education institutions, CSIRO and other government laboratories was as strong as possible; to improve competitiveness of industry through higher levels of research and development; and to strengthen the interaction between government research organisations and the private sector.

1. A Cooperative Research Centres Committee ("CRC committee") was appointed by the Prime Minister to advise generally on the operation of the CRC Program, the selection process and those applications which should be supported.  The committee would consider applications for funding and recommend the conditions to apply to successful applicants.  It might also take a pro-active role in the development of CRCs by seeking to bring together research groups as it considers appropriate, or calling for applications in specific research areas.  The membership of the CRC committee included members of the Prime Minister's Science Council, senior representatives of industry and the chairs of certain other Commonwealth grant-giving bodies.  Two expert panels were appointed by the CRC committee to assess applications and to advise it upon the applications which should be supported.

1. The Guidelines for Applicants stated that the number and types of organisations participating in a CRC should reflect the objectives both of the CRC Program and of the particular CRC concerned.  Organisations participating in a CRC had to include at least one higher education institution among its core participants.  Applications for funding needed to identify those organisations which were core participants i.e. those which would make a major and concrete contribution to the work of the CRC in terms of the performance of its activities and provision of its resources.  Core organisations would be required to enter a contract with the Commonwealth should the CRC be supported.  Organisations other than core organisations might be supporting organisations.

1. It was expected that CRCs would vary considerably in size and equal consideration was to be given to applications regardless of the size of the proposed CRC.  The final number of CRCs would be determined by the size of the CRCs and the funding available.  Initial funding of a CRC would generally be for five to seven years but shorter periods would be considered.  Funding was to be provided through renewable contracts between the Commonwealth Government and the core participating organisations.  It would be provided on a quarterly basis.  Through that funding, the Government would provide a maximum of 50% of the total cost of establishing and operating each CRC.  The remainder of the funding for each CRC was to be provided by the participating organisations.  The Guidelines for Applicants stated:

"Before Government funding is provided, the participating organisations involved in a Centre will have to demonstrate that sufficient resources will be provided by them to meet the remainder of the establishment and operating costs.  These resources may be provided as cash or 'in kind' contributions.
The participating organisations will be expected to provide the firmest possible commitments of resources for each year in the first funding contract period." (T documents, page 119)

1. Assessment and selection in the CRC Program took place through three selection rounds.  Lack of success in earlier rounds did not preclude an application being made in the third round.  Applications were due by 1 July, 1992 and late applications would not be accepted.  The Committee, however, reserved the right to invite an application at any time (T documents, page 119).  Program funding was contingent upon the participating organisations' providing at least 50% of the establishment and operational costs of the CRC for each year of its operation.  Participants were required to value in dollar terms all resources they were prepared to commit over the period of the grant and the commitment had to be firm and not merely anticipated based on past performance in obtaining contracts (T documents, page 120).

Establishment of Research Data Network Cooperative Research Centre

1. In a press release dated 14 December, 1992, the Prime Minister and the Minister Assisting the Prime Minister announced that the third and final round of selection for the CRC Program had been completed that day.  The Ministers announced that a further 17 centres had been selected in addition to the 34 previously established, that two CRCs established in 1991 had been expanded and that a Research Data Network Cooperative Research Centre ("RDN-CRC") had been established.  These centres were listed in an attachment to the press release. 

1. In relation to the RDN-CRC, the press release stated:

"As announced in the Government's recent White Paper on Science and Technology, 'Developing Australian Ideas', a Research Data Network CRC is to be established.  It will conduct research into telecommunications and computing technologies and services, and have access to experimental broadband facilities essential for the development of the next generation communications networks.
The Centre's research nodes are located in Brisbane, Canberra, Sydney, Melbourne and Adelaide.  The CRC for Broadband Telecommunications and Networking announced today is also expected to collaborate in these developments, thus adding a node in Perth to the network.
The Research Data Network CRC will also provide $3.4 million for the immediate upgrade of the existing research data network [i.e. AAR Net], which links up researchers (including universities) throughout Australia.
This initiative will address one of the major needs for research infrastructure identified by the Australian Science and Technology Council in its report on national research facilities.  The importance of the establishment of a high speed data network for innovative R&D in advanced systems engineering, computing software and telecommunications, for use by researchers, was recommended by an expert group to the Prime Minister's Science and Engineering Council earlier this year." (Exhibit 10, Attachment "NFT2")

1. Further details of the RDN-CRC were given in Attachment E to the press release.  Based on that document and on Dr Teede's affidavit, I find that the RDN-CRC comprised four research programs:

   Two programs, the Distributed Interactive Multimedia Information Services program ("DIMMIS") and the Distributed High Performance Computing program ("DHPC"), were established as demonstration projects of the CRC for Advanced Computational Systems ("ACSys").  The former program would focus on systems architecture, tools and techniques for interactive multimedia access and navigation.  The latter program would integrate the high performance computing resources of Australia through broadband connections and the management of data on the distributed computer network. 

   The Resource Discovery program would be developed to resource discovery prototypes enabling users to access information scanned in repositories in Australia and elsewhere.  It was an additional program of the CRC for Distributed Systems Technology.

   The Network Performance program would involve research and development into the utilisation and performance of high speed telecommunications network technologies such as ATM. 

2. The focus of the CRC for ACSys, for which DIMMIS and DHPC were developed as demonstrator projects, was to establish an internationally competitive research capability in high-performance advanced computational systems for the benefit of Australian industry.  That capability was, in turn, focused on three areas: hypermedia systems to provide high-speed analysis and navigation of large, multi-media data bases; a visualisation demonstrator project to prototype systems for use in the mining industry and in environmental management to process more quickly and effectively geophysical and environmental data and to develop faster and more effective modelling tools and interpretative facilities; and a command support demonstrator project to explore the analysis and presentation of information in an interactive terrain-based environment, together with support for decision-making through special reasoning, planning and scheduling (see Attachment D to the press release).

1. While not all participants were involved in each of the four research programs, the participants in the RDN-CRC included the CRC for Advanced Computational Systems, the CRC for Distributed Systems Technology, CSIRO, Macquarie Joint Research Centre for Advanced Systems Engineering, the Department of Parliamentary Reporting Staff, the South Australian Centre for Parallel Computing, Microsoft Institute, Thinking Machines Corporation, Australian Supercomputing Technology, Softway, Film Australia, CSIRO Division of Information Technology, Fujitsu Australia, Australian and Overseas Telecommunications Corporation Limited
    ("AOTC"), Siemens and the Australian Computing and Communications Institute.  The Australian Vice Chancellors' Committee and AOTC were expected to participate in the Management Committee in connection with their role as network service providers (Press release, Attachment E).  This was underlined in the CRC proposal for ACSys when Telstra's contribution as a supporting participant was described as:

"Telecom will provide extensive local and interstate Public Network networking access to ACSys, to interconnect it with various Supporting Participants and other organisations." (Exhibit 10, "NFT 3" page 16)

1. The press release of 14 December, 1992 also announced the CRC for Broadband Telecommunications and Networking, with which the RDN-CRC was expected to collaborate (Attachment C).  The core participants of the CRC for Broadband Telecommunications and Networking were the Australian Telecommunications Research Institute, Curtin University of Technology, OPSX Communications Ltd, ERG Electronics Ltd and the Department of Computer Engineering at the Edith Cowan University.  The mission of the CRC was to provide research and development support that will assist the creation of an Australian design infrastructure in broadband telecommunications and networking.  Both generic research and design of a range of technical solutions would be undertaken.  In addition, the CRC would engage in continuing education and research training programs with the aim of creating and maintaining a specialised skill base in telecommunications and network design.

1. Both digital networks and limited distance wireless communication (e.g. in underground mines) would be considered by the CRC.  In relation to broadband networking, the CRC would create concepts and systems models, develop technology and study performance issues.  The short term aim was to develop a consumer backbone network based on forthcoming public telecommunications network standards.  In relation to wireless, the aim was to develop appropriate transmitter, receiver and antenna systems and protocols.

Support of AAR Net

1. Based on the affidavit evidence of Mr Kelly, I find that the Fast Packet Services Branch ("FASTPAC Services Branch") within Telstra provided particular transmission services to the Australian Vice Chancellors' Committee to support AAR Net.  Mr Kelly worked in FASTPAC Services Branch as its manager and Mr Graham Kidd as its Operations and Maintenance Manager in 1993.  Mr Kidd left his position in approximately December, 1993 but Mr Kelly continued to work in that branch.  Mr Kelly did not have any involvement with the RDN-CRC proposal.  Again on the basis of Mr Kelly's evidence, I find that FASTPAC Services was the precursor of ATM and was available to any research bodies in Australia or overseas.

Development of the EBN

1. Again on the basis of Mr Kelly's evidence, I find that he was given responsibility for the development of Telstra's Experimental Broadband Network Project ("EBN Project").  He was appointed to the position of Project Director but did not have any direct staff.  Officers in other areas of Telstra and from the Telstra Research Laboratories contributed to the work of the project.  After approximately six months, Mr Kelly became the section leader of the switching section in the Telstra Research Laboratories and the EBN Project transferred with him to become part of the work of that section.  The EBN became operational in November or December, 1995 when its first customers were connected and remained operational until it was turned off in December, 1997.  By that time, it was regarded as redundant.

The Federal Court proceedings

1. On 29 December, 1997, Mr Langer filed an application in the Federal Court.  That application sought review of a decision said to have been taken by the then Prime Minister, the Honourable Paul Keating MP, the Minister Assisting the Prime Minister and Minister for Science and Technology, the Honourable Ross Free MP, Professor Ralph Slatyer, Chair of the Cooperative Research Centres Committee and Professor Ian Ross, Chair of the Engineering and Physical Sciences Panel Advisory to the Cooperative Research Centres Committee for the third round.  The decision, as described by Mr Langer was a:

"... decision of the respondents to select and establish a 'Research Data Network Cooperative Research Centre' ('RDN-CRC') that is not a centre of any kind at all but consists of funding for four separate Research and Development programs, a subsidy for operational costs of a private computer network and a provision for funding of access to a hypothetical future network, as announced in a joint media statement about the Cooperative Research Centres program by the Prime Minister and the Minister Assisting the Prime Minister, dated 14 December 1992." (T documents, page 7)

On 30 April, 1993, Mr Langer's application was dismissed with costs by the Federal Court.

The request

1. After referring to the Federal Court proceedings in his request of 3 January, 1993, Mr Langer then asked Telstra:

"Please take immediate and effective action to ensure that any evidence that may be required for these proceedings is physically secured against destruction or other unlawful disposal.
Also please note that the Auditor-General has been asked to conduct an audit of the Cooperative Research Centres Program and in particular the 'Research Data Network CRC' process, and the Director-General, Australian Archives has been asked to ensure that all relevant documents, including any that may not be required for legal proceedings or otherwise released to the public within the next 30 years, are at least preserved for posterity." (T documents, page 3)

1. Mr Langer then sought access to:

"Information concerning the third round of the 'Cooperative Research Centres' program administered by the Office of the Chief Scientist in the Department of the Prime Minister and Cabinet and/or the related proposals for upgrading AARNet and/or establishing a 'Research Data Network CRC' - including any documents relating to the ASTEC report on national research facilities and the recommendations made by an expert group to the Prime Minister's Science and Engineering Council, as mentioned in the Budget White Paper No 6, tabled in Parliament on 18 August 1992 and referred to in the joint media release of 14 December 1992 by the Prime Minister and the Minister Assisting the Prime Minister (copy enclosed), and any documents relating to the working party convened by Mr Tony Henshaw announced by the Honourable Ross Free in the enclosed news releases.
I do not seek access to documents which relate only to specific CRCs or proposed CRCs that were not considered in the third round or were not in the broad field of research: 'Information and Communications Technology', unless they also relate to the upgrading AARNet and/or the 'Research Data Network CRC'." (T documents, pages 3-4)

1. Mr Langer then went on to set out the priority which Telstra should give in its search for the documents.  That order was:

"1.       Upgrading AARNet and/or the Research Data Network CRC including those documents mentioned above;

2.        CRC for Advanced Computational Systems (ACSys);

3.        CRC for Broadband Telecommunications and Networking;

4.        Proposed 'GIANTS CRC';". (T documents, page 4)

1. Mr Langer also offered Telstra assistance in locating the documents to which he sought access when he wrote:

"To help you to identify the documents I want I offer the following - reference to these documents and the individuals mentioned in them will lead you to most of the documents required:

1.Letter from Andreas Dubs to me of 13 November including the list of submitted outline proposals.  Note especially submissions 1,2,4,5,6,8,10,11 and the AVCC submission (copy enclosed).

2.Letter of 27 October from R O Slatyer, Chair of the Cooperative Research Centres Committee, to Peter Gerrand (and others) with 5 pages of attachments listing existing and proposed CRCs and responses to Telecom Australia's 'call for expressions of interest'.

3.Letter of 20 October from Professor Slatyer to Professor Don McNicol with CC to Peter Gerrand, General Manager, Network Stategy, Telecom Australia, and Dr John O'Callaghan, CSIRO, which mentions consultations with the CRC Committee and Professor Ian Ross and correspondence with the Honourable Ross Free.

4.Letter of 23 October from Professor Slatyer not released as a result of threat of legal proceedings, and any drafts of that letter.

5.Fax to me (and others) dated 27 October (transmitted 30 October) from Peter Gerrand with item 2 as attachment, which mentions liason contacts Dr Teede of Telecom and Dr Lloyd of CSIRO.

6.'Invitation for proposals:  Research Data Network Cooperative Research Centre' (undated, between 8 and 14 October) from N.F. Teede, General Manager, Customer Services and Systems, Telecom Research Laboratories.

7.Letter from Peter Gerrand to Simon Pelling of 6 October re 'Proposal for a Research Data Network CRC' which mentions Mr Melfyn Lloyd of CSIRO Division of Information Technology and CC to Dr John O'Callaghan of CSIRO and Professor Don McNicol, AVCC.

8.Letter from Peter Gerrand to Tony Henshaw dated 1 October re 'Advice of offer to develop the RDN CRC proposal', on behalf of Dr John O'Callaghan, CSIRO and others." (T documents, pages 4-5)

1. Mr Langer then dealt with the manner in which he was to be given access to the documents he sought.  With regard to the documents identified in the preceding eight numbered paragraphs, Mr Langer said that "Copies of the documents referred to in or related to the documents mentioned above should be posted ..." to him (T documents, page 5).  Other documents were to be made available for inspection so that he could select the items he needed to be copied.  He asked Telstra to "... provide an estimate of the cost of copying and/or otherwise providing access to documents that are held in the form of video or audio recordings, computer databases or other special media, including backups of wordprocessor, email or other computer systems." (T documents, page 5).  Mr Langer also asked for an estimate of the cost of processing documents which were claimed in part to be exempt.

1. With regard to fees, Mr Langer asked that his application fee of $30.00 be waived and returned to him and that all other fees be waived.  The basis of his request for waiver was that his request was in the general public interest and in the interest of substantial sections of the public.  He intended to distribute the documents and the information derived from them widely through the media, members of Parliament, Parliamentary Committees and the like.

The course of the request – claims for exemption and decisions to grant access to documents

1. On the basis of the evidence of Ms Rayner-Laver, I find that, apart from herself since 27 March, 1997, three officers of Telstra have had responsibility for the care and conduct of Mr Langer's request.  From 3 January, 1993 until 28 June, 1996, it was the responsibility of Mr Gretton although Mr Hedges had care and conduct of the matter while he made a decision on internal review between 10 April, 1993 and 10 June, 1993.  Mr Scally had care and conduct for the request from 28 June, 1996 to 27 March, 1997.

1. After preliminary matters had been dealt with, Mr Gretton wrote to Mr Langer in a letter dated 11 February, 1993.  He forwarded a number of documents relating to the third round of the Cooperative Research Centres program.  Twenty documents were released to Mr Langer.

1. In a further letter dated 11 February, 1993, Mr Gretton advised that there might be in excess of 150 documents relevant to his request. Of those documents, Mr Gretton advised that a substantial number would require consultation with third parties pursuant to s. 27 of the FOI Act and others would require careful review within Telstra itself. He indicated that Telstra intended to levy the full costs of retrieving, reviewing, copying and despatching the documents and would send an estimate of the costs (T documents, pages 17-18). In an earlier letter dated 10 February, 1993, Mr Gretton had indicated that the fees would not be remitted as disclosure was not considered to be in the public interest even if the documents might contain information of interest to the public (T documents, pages 14-15).

1. In a letter dated 2 March, 1993, Mr Gretton advised Mr Langer that he estimated that the fees would total $1,836.00.  Those charges were to be paid before the documents would be released.  Mr Gretton went on to advise Mr Langer that access to various documents which he grouped into 25 categories was refused.  Exemptions were variously claimed under ss. 45(1), 36 and 43(1)(b) as well as Schedule 2 Part II (T documents, pages 20-24).

1. On 12 March, 1993, Mr Gretton again wrote to Mr Langer.  He advised of his decisions in relation to a further 25 categories of documents.  Again, exemptions were variously claimed under ss. 45(1), 36 and 43(1)(b) as well as Schedule 2 Part II in relation to those documents (T documents, pages 26-29).

1. On 6 April, 1993, Mr Gretton wrote again to Mr Langer and advised him that he would be granted access to documents such as internal memoranda, notes of internal and external meetings, correspondence with the Office of the Chief Scientist and documents already in the public domain.  In addition, a number of third parties had been consulted and had agreed "... to make at least some documents available ..." to Mr Langer.  The documents would be forwarded promptly on receipt of his cheque for $1,836.00 (T documents, pages 32-33).

1. Mr Langer sought internal review of the charges levied on his application for access. Mr Hedges, the National Manager, FOI, for Telstra, affirmed Mr Gretton's earlier decision. That affirmation decision was made on 20 May, 1993. At the same time, Mr Hedges advised Mr Langer that he was continuing to review the decisions refusing him access to certain documents (T documents, pages 35-36). On 10 June, 1993, Mr Hedges advised Mr Langer that he had completed his internal review of the earlier decisions and, while varying the specific exemptions claimed, affirmed that they were exempt from disclosure under the FOI Act (T documents, pages 39-40). In response to a request by Mr Langer for reasons to be given to him in accordance with s. 26(1)(a) of the FOI Act, Mr Hedges gave him those reasons (T documents, pages 46-52).

1. On 9 March, 1994, Mr Hedges referred to an agreement reached between Mr Langer and Telstra's legal representatives regarding the release of documents following a conference held by the Tribunal. He acknowledged receipt of a cheque for $2,000.00 that had been sent by Mr Langer in respect of the amount levied as FOI charges. He enclosed three groups of documents: documents received by Telstra from a third party which had consented to their release; Telstra's documents to which partial access was given and from which material claimed to be exempt had been deleted pursuant to s. 22 of the FOI Act; and Telstra's documents to which Mr Langer was to be given access without deletion. The first group comprised 7 documents from the 50 documents to which Mr Langer was initially refused access, the second comprised 6 of those documents and the third 19.

1. On 9 June, 1994, Mr Gretton wrote to Mr Langer advising that the extent of his request had originally been misconstrued.  In order to clarify the scope of the request, he set out his understanding of it:

"… I understand now that you do seek documents concerning plans or proposals for ACSys itself, because it was part of the third round of the CRC program; but not any documents relating to the CRC for Distributed Systems Technology (DST), which hosts the Resource Discovery Program of the RDN-CRC, because the CRC for DST had been approved in the second, not the third, round of the CRC program.  (Of course, any documents relating to the Resource Discovery Program itself, as part of the RDN-CRC, would be included.)  I understand now that, in addition, you seek access to any documents relating to plans or proposals for the CRC for Broadband Telecommunications and Networking and any documents relating to plans or proposals for the proposed 'GIANTS' CRC, insofar as such documents (in either category) were connected with the third round of the CRC program.
Recent discussions with Telecom's AARNet Account Executive suggest that we also have a large number of documents relating to AARNet itself.  As you would be aware, Telecom provides a substantial amount of communications infrastructure for AARNet, and there is a continuous process of upgrading that infrastructure.  However, I understand that you do not seek access to information relating to this routine upgrading process or to Telecom's supplier/client relationship with the AVCC.  As far as AARNet is concerned, I understand that you seek only documents containing information concerning the particular proposals for the upgrading of AARNet which were developed in connection with the third round of the CRC program in 1992." (Exhibit 7, "STL18A")

Mr Gretton concluded his letter by asking Mr Langer to advise whether he agreed with his interpretation of the request.  If he did not respond, Mr Gretton would assume that Mr Langer concurred with his interpretation and would continue to process documents on that basis.  Ms Rayner-Laver's searches of Telstra's files did not reveal any response from Mr Langer to Mr Gretton's letter (Exhibit 8).

1. On 12 August, 1994, Mr Gretton wrote to Mr Langer regarding a further 61 documents that had been discovered in connection with his FOI request.  Of those, 36 documents were released to him in full.  In relation to the remaining 25 documents, Mr Gretton either undertook consultations with third parties or with officers in Telstra.  Those remaining 25 documents were released to Mr Langer on 2 September, 1994.

1. Also on 2 September, 1994, Telstra's solicitors wrote to Mr Langer and advised him that Telstra no longer wished to claim exemptions in relation to 15 documents from the original 50 documents claimed to be exempt and to claim only partial exemptions in relation to a further two documents.

1. During 1994 and 1995, Mr Langer became involved in other matters but, in a letter dated 5 July, 1995, he raised two main issues.  The first was that there should be e-mail messages and audio and video recordings in addition to the documents already released.  The second was that the EBN would have required such a high level of commitment of resources, including funds, from Telstra that he would expect there to be further documentation about it.

1. On 24 December, 1996 and after the Tribunal had made a direction to clarify its position in relation to the exemptions claimed, Telstra advised Mr Langer that it had reviewed those documents which it had previously released to him in part.  It had decided to release 8 such documents and did so "outside the provisions of the FOI Act" (Released documents, volume 6).

1. On 8 May, 1998, Mr Langer was directed to specify the documents that he sought in his request and that he claimed had not been released to him.  He was also directed to describe the documents by reference to documents in his possession and to provide copies to those documents to the Tribunal and to Telstra.  Mr Langer responded on 23 June, 1998 when he specified:

   "(a)    Documents relating to the Experimental Broadband Network which Telstra offered as its contribution to the funding of the RDN-CRC.

   (b)Indexes to the relevant files held by the units of Telstra involved in the RDN-CRC and related EBN and the documents not so far released referred to in those indexes.

   (c)Relevant email and other computer files of the people whose involvement in the RCN-CRC fiasco is confirmed in the documents already provided by Telstra."

1. On 15 September, 1998, Telstra wrote again to Mr Langer advising him that additional documents, which appeared to be within the scope of his request, had been located.  Another 10 documents fell into that category and were enclosed.

THE EVIDENCE

Telstra's involvement in the RDN-EBN

1. Dr Teede stated in an affidavit that he had understood Mr Langer's request to encompass documents relating to the EBN only if those documents related also to the CRC/AAR Net matter (Exhibit A, document 2, paragraph 5).  He went on to explain why there are fewer documents on that subject than Mr Langer might have expected for the following reasons:

"The apparent lack of documentation to which Mr Langer refers may also be due in part to the short time frame for proposals from the Government.  By the time Telstra had received proposals (now released to Mr Langer) under the original process, the process was changed by the CRC committee publicly issuing a request for submissions for an RDN CRC through existing and proposed communications oriented CRCs.  The need for formal action within Telstra was overtaken by external events and there was little formal documentation of the original process.  Telstra subsequently agreed to be a contributor to the distributed RDN CRC at the invitation of several university applicants.  Several discussions held within Telstra discussing the latter phase related mainly to design and cost issues for the broad band network and culminated in informal documents on costing and design previously released to Mr Langer." (Exhibit A, document 2, paragraph 8)

1. On 6 October, 1992, Mr Campbell wrote a minute to Mr Blount and copied it to Mr Liggett and Mr Wragge.  He began by noting that Network Products in Telecom had been "proceeding with the development of a business case for the establishment of an Experimental Broadband Network" for use with strategic partners and university based researchers to develop applications that will stimulate the market.  Mr Campbell then referred to the opportunity that had arisen to position Telstra strategically as the dominant industry partner in the RDN-CRC for which the government had allocated $13M over the next two years.  That was seen as representing an additional $13M that could be made available to support broadband applications development as well as FASTPAC and the proposed EBN.  As the business case investment in EBN would exceed his delegation, Mr Campbell sought a meeting with Mr Blount (Exhibit A, document, 25).

1. On 28 October, 1992, the Network Products, Internal Management Board of Telstra prepared an information paper on the EBN ("the paper").  The paper reported on Telstra's progress in developing a business case for investment in an EBN in 1993/94 and the then current strategic positioning of the proposal with the Federal Government.  The background to Telstra's work in the area was said to be:

"Of the major growth areas in telecommunications for this decade, the broadband market has only just started, with the launch of Fastpac 10 services on 30.9.92.  Commercial Broadband ISDN switches will become available in early 1994, supporting user access at up to 155 Mbit/s.  However network investment to capture the potential Australian Broadband Market estimated to be worth $120-$280M in revenues over all business sectors in 1996/7 (including $97M for Telecom Fastpac revenues, but excluding Pay TV), and rising to $450-$900M by Year 2002 – will be highly risky without market research, which cannot be adequately carried out in the absence of a number of trial broadband user applications at speeds greater than Fastpac 10's 10 Mbit/s.
Promising applications areas in the Broadband Market include:

·Multi-media for the mass market: interactive video database retrieval, known as "video on demand" or "video dial-tone", for business and entertainment uses.

·Visualisation aids for specialists:  e.g. medical imaging, engineering design, and scientific research in general.

·High quality image transfer:  for the primary information sector, including publishing, education, etc.

·Supercomputing networks:  providing remote access to supercomputers, and supporting load sharing and disaster recovery." (Exhibit A, document 11)

1. A Gate 0, or concept, paper had been endorsed on 6 July, 1992 and the development of the business case was, at that time, scheduled for completion on 6 December, 1992.  It was noted in the paper that a proposal was in the course of development to position Telstra with CSIRO as the leading participants in a consortium to win the CRC in high-speed Research Data Networks with other industry participants and universities.  This proposal was being developed in response to a "surprise" announcement in the August Federal Budget of an allocation of $13M for that CRC with the aim of upgrading the AAR Net.  At the time, AAR Net spent approximately $2M each year on Telstra services.  Most of that amount was spent for Megalinks in order to provide a Private Network for electronic mail, file transfer and other data services among universities and research centres and, it was understood, some 150 Australian companies.

1. The manner in which Telstra's contribution would be made was described in the following passage in the paper:

"Telecom's contribution would be 'in kind' capacity on the EBN, valued at between $14 and $20M over 5 years, plus R&D contributions via TRL and NP.  The current Telecom negotiating position is that $9M of the Commonwealth $13M should be made available to fund broadband applications R&D, using Telecom's EBN and Fastpac as the network platforms, with $2M earmarked to enable AARNET to upgrade its capabilities using Fastpac services, and the remaining $2M to subsidise the R&D participants' use of the EBN.  By this tactic, the revenue side of the EBN business case will be improved, Fastpac's revenues will be increased by at least $2M, and an additional $9M will be spent (over 5 years) on applications to stimulate the broadband market." (Exhibit A, document 11, paragraph 3)

1. The progress that had been made up to 28 October, 1992 was:

"The draft business case, based upon conservative cost estimates of network infrastructure and operational support, indicates a negative NPV of between ($16M) and ($22M), depending upon how far the EBN will need to be extended to support R&D groups across the nation.  These figures can be significantly reduced by taking into account R&D tax credits and subsidies by strategic suppliers, but the NPV is still expected to exceed ($10M).  Work is still proceeding, dovetailed with preparation of the CRC submission, to scope the potential usage of the EBN and the implied revenues.  It has never been expected that the EBN will break even; it represents a strategic investment to open up the post-1995 broadband market, and it, together with roll-out of Fastpac, will position Telecom to enter early into the national broadband market, with a number of strategic partners." (Exhibit A, document 11, paragraph 4)

1. Actions that had to be undertaken to meet the deadline of 23 November, 1992 set for the submission of the CRC proposal included a special meeting with Telstra's Chief Executive Officer in early November, 1992 to obtain endorsement in principle "of a given envelope of commitment" and the development of Memoranda of Understanding and agreements with several prospective partners on the research and development programs and the management structure.

1. Telstra prepared a further paper entitled "Telecom's Experimental B-ISDN Establishment Plans" as part of the submission to the RDN-CRC selection panel ("second paper").  A note appeared on it indicating that it was submitted to the RCN-CRC Selection Panel on 7 December, 1992.  The introduction to the second paper began by stating that:

"Telecom Australia is considering the development of an Experimental Broadband Integrated Services Digital Network (E-B-ISDN) to be available for customer use by 4Q 1994." (Exhibit A, document 15, paragraph 1)

The paper then went on to discuss the aim of the E-B-ISDN and what it would offer both in the development of new telecommunications services and products and in providing a fully integrated network infrastructure to support a full range of service capabilities across voice, data, image and video.  The key technology elements of a B-ISDN are optical fibre and SDH transmission, ATM switching and ISDN control.  The paper included a diagram entitled "Possible Scenario for Experimental Network Architecture" (Exhibit A, document 15, Figure 1).

1. The paper proposed that the initial Melbourne/Sydney network would be available in September, 1994 and, depending upon demand, would become available in Canberra, Adelaide and Brisbane.  By the fourth quarter of 1994, ATM Interface, FASTPAC interworking, connectionless data support, permanent virtual channel support and switched virtual channel support (proprietary signalling) would be available.  By the fourth quarter of 1995, ISDN interworking, Sb Interface and Standard signalling would be available.

1. In providing the proposed network, Telstra's contribution would, in NPV figures over a full five year term and assuming full network deployment over five cities by 1995, be:

Transmission   $45,740,000   
Switching       $5,370,000     
Operations      $4,780,000     
Total    $56,074,000   

(Exhibit A, document 15, paragraph 12)

1. On 9 November, 1992, a minute was written by Mr O'Rourke to Mr Burdon.  He advised that CRC activity within Telecom was coordinated by Professor Wragge and Dr Teede and that Professor Gerrand had been keeping Mr Campbell up to date with all developments in this matter through his contact with the National Science Council, AAR Net and Network Strategy.  AAR Net sought funds from the National Science Council to establish a research/educational High Speed Experimental Network.  Telecom had concerns that AAR Net would become a potential carrier.  It appeared that, of the $13M announced in the Federal budget in August, 1992, $4M would be allocated to AAR Net directly to upgrade the existing Network.  The balance would be allocated to five to eight CRCs that had information technology or communications needs.  Submissions on that were sought by 23 November, 1992. Mr O'Rourke understood that some of the funds would go to the AAR Net for Fastpac 10 conversion and the rest to EBN.  Dr Teede and Professor Gerrand would approach the five to eight CRCs to indicate that Telecom would match their bid requirements dollar for dollar.  The purpose of doing so was:

"… to ensure that the amounts allocated to the CRC's are plowed [sic] back into setting up the experimental Broadband Network in order that we 'control' or influence applications development and not have to fund the total cost ourselves." (Exhibit A, document 26)

1. The funding process was the subject of questions to Mr Kelly.  He said that the paper prepared 28 October, 1992 had been prepared in order to gain approval for the project.  The Gate 0 paper prepared on 6 July, 1992 had been required to obtain approval for expenditure to proceed to the preparation of a gate paper.  Once the project had obtained approval, the gating process approved expenditure.  The gating process was not required for all expenditure in Telstra.  Certain factors would come into play to determine whether the gating process was required but Mr Kelly said that, as a technology manager, he was not in a position to know what they were.  If there were a Gate 0 paper, Telstra could not proceed without a Gate 1 paper but Mr Kelly repeated that not all projects went through the gating process.  A Gate 0 paper indicated a commitment to proceed to a further level of commitment.  It was not the case that a Gate 1 paper was required for all expenditure over $10M. 

1. Mr Kelly said that he had seen no evidence of a Gate 1 paper in December, 1992.  There was a Gate 1 paper several months later.  It followed that there was no commitment of expenditure on the EBN in December, 1992.  Mr Kelly said that he would expect a Gate 1 paper to have attachments.  Expenditure is not necessarily denied when a Gate 1 paper is not approved.  It is usually sent back for re-working or further information.  Had the EBN project been gated, Mr Kelly said that he would have expected to find a minute or record of some sort recording that approval.  There was no such record in or around December, 1992.  In the press release dated 14 December, 1992, there is no reference to the EBN but there is a reference to putting aside money to purchase broadband capability from someone.

1. Mr Kelly said that the diagram entitled "Possible Scenario for Experimental Network Architecture" (Exhibit A, document 15, Figure 1) is a diagram of an EBN system that would work.  He said that a lot of thought had gone into the system at that stage.  It was not in the form in which it was later implemented as he could not buy the appropriate switches and substituted ISDN switches.

1. A note from Professor Gerrand to Mr Rumble dated 22 December, 1992 stated that Telstra had offered to contribute 155 Mbit/s worth $56M to the RDN-CRC.  It was not a case of the Federal Government paying for research work that it could have funded itself.  Telstra would waive usage fees for the EBN for bona fide researchers and would charge only installation fees for Optical Fibre access where necessary and access rental charges.  Access charges were necessary to avoid the EBN's being abused by researchers wishing to by-pass the AAR Net, FASTPAC and other commercial network services or to obtain free network usage for non-bona fide researchers.  The RDN-CRC budget contains provisions for funds which the CRC researchers can spend on the use of the EBN (i.e. installation and access charges) up to $3M over five years.  If all that is spent, Telstra's contribution would be $53M (Released documents, document 31).  A document setting out the detailed costing of the proposed EBN was prepared in November, 1992 showing the projected expenditure of $56M over five years (Released documents, volume 2, document 43).

The search for documents by Mr Gretton – up to September, 1996

1. Ms Rayner-Laver said that the initial searches for documents were carried out by Mr Gretton.  His searches were detailed in a memorandum he prepared on 26 May, 1994 (Exhibit 7, "STL16").  On receiving the request, he said, he had consulted Mr Malone who advised him that Dr Teede and Professor Gerrand were closely involved with the RDN-CRC proposal and were the most likely sources of documents relating to the request.  Mr Gretton consulted both Dr Teede and Professor Gerrand, who were still employed by Telstra at the time.  Dr Teede advised him that it was very unlikely that anyone would possess documents of which neither he nor Professor Gerrand had a copy.  Consequently, Mr Gretton confined his search to the files of Dr Teede and Professor Gerrand.  Professor Gerrand, either directly or through Mr Livingston-Hall sent Mr Gretton a copy of documents that he held and that were related to the request.  That list was sent by e-mail on 10 February, 1993 and were said by Ms Rayner-Laver to have been released in their entirety to Mr Langer (Exhibit 7, paragraph 5 and "STL1").

1. Initially, Mr Gretton understood Mr Langer's request to relate primarily to the specific proposal to establish an RDN-CRC and its relationship with the then proposed upgrading of the AAR Net.  He understood that references to other CRCs such as ACSys did not relate to the request but, after there were various discussions, he understood that a broader range of documents came within the request than had originally been understood.

1. Mr Langer had named a number of Telstra's officers but many had left its employ by May, 1994.  Mr Gretton said that his searches were hampered by that to some extent.  They were further hampered by various re-organisations that had taken place within Telstra in the previous 12 to 18 months.  Despite that, Mr Gretton obtained files from Mr Malone, relating to negotiations on the GIANTS CRC proposal that had been unsuccessful.  On the same matter, he obtained from Mr John Costa, files previously held by Professor Gerrand.  Mr Costa undertook a further search of files held in the unit to capture, among others, documents previously held by Mr Kidd.  On information received from Mr Paul Kirton, Mr Jim Park and Mr Peter Richardson, all of the Networks Research Laboratory of the Telecom Research Laboratories, Mr Gretton was able to locate files relating to the GIANTS proposal.  He also located a number relating to the Switched Networks Research Centre established at the University of Wollongong.

1. Mr Gretton also located a number of files by contacting Mr Geoffrey Willis, the Senior Manager External Strategies at Telecom Research Laboratories relating to a variety of CRC proposals.  Mr Willis "inherited" these files from Mr Ray Liggett who was the former Director of Research.  Mr Liggett, in turn, had inherited them from Mr Wragge who had previously held the position.

1. Mr Gretton also made enquiries of Mr Mullane's personal assistant, Mr Verco's personal assistant, Mr Kennelly, Mr Campbell and Ms Dot Slattery with regard to the GIANTS proposal.  Mr Mullane responded to the effect that the General Manager Management of the former Advanced Network Products Group had retired and that the Manager, Business Management had moved.  On both occasions, their documents had been destroyed and the destruction had been duly documented (Exhibit 7, "STL17").

The search for documents by Mr Scally – up to September, 1996

1. During September, 1996, Mr Scally sought information from Mr Littler, Mr Clayworth, Mr Lythe, Mr Livingstone and Mr Rutley with respect to Telstra's policy on e-mail retention.  He discussed e-mails with Mr Mullane in October, 1996.  Mr Scally later contacted Mr Blount, Mr Sutherland, Mr Liggett, Mr Wragge, Mr Kidd, Dr Teede, Mr Perkins, Mr Hedges, Mr Brennan, Mr Freeman, Professor Gerrand and Mr Mullane to confirm that they had given to the FOI Unit of Telstra all documents, including e-mails, regarding the third round of the CRC program. 

The search for documents by Mr Armstrong – up to December, 1996

1. In its letter of 24 December, 1996, Mr John Armstrong, Counsel Customer Affairs at Telstra, advised Mr Langer that he had, pursuant to the Tribunal's directions, made enquiries as to whether e-mails had been provided in response to Mr Langer's request.  Mr Armstrong had approached 19 people bearing the names of the 15 people named in Mr Langer's request.  Of those 19, all but 4 were no longer employed by Telstra.  Three stated that they had understood the FOI request to include E-mail records and, at the time of the request, had provided all documents in their possession.  One person did not understand the request to extend to such records.  He had provided all other documents in his possession and had not retained his E-mail records.  Four persons understood the request to include those records but had no documents that were relevant to the request.  Five persons had no knowledge or memory of the FOI request and held no records of any sort relating to the request.  Six persons, who were former employees of Telstra, did not respond to Telstra's enquiries or were unable to be located (Released documents, volume 6).

The search for documents by Ms Rayner-Laver – up to April, 1997

1. In April, 1997, Ms Rayner-Laver wrote to Dr Teede, Mr Sutherland, Professor Gerrand, Mr Mullane and Mr Kidd asking whether they had regarded audio, video and computer files as encompassed by Mr Langer's request and whether they had provided all documents, including them, to Telstra.  In July, 1997, Ms Lee made similar enquiries of Mr Brennan, Professor Gerrand, Mr Gretton, Mr Liggett, Mr Sutherland, Mr Teede and Mr Wragge.  Mr Brennan indicated that he had not understood the request to include computer, video and audio documents and Professor Gerrand had not been clear that it had done so.  The others had understood that those documents were included in the scope of the request.  Whether they were aware of the scope of the request or not, each indicated either that he did not hold any further documents or that he was not aware of any further documents.

1. In cross-examination, Ms Rayner-Laver said that she had contacted Mr Kelly after mention had been made at a directions hearing of the Fast Packet Services Branch.  She had not seen the relevance of that branch from the file notes.  Ms Rayner-Laver said that she had been told how the RDN-CRC would be set up but had no knowledge of how it worked.  There was no-one left in Telstra who went back to that time and no-one left in Telstra management who knows. 

The search for documents by Ms Lee – up to 1997

1. Ms Elizabeth Lee, Telstra's solicitor in more recent years, attempted to contact a number of people in relation to audio, video and computer documents (Exhibit 6).  She did so in July, 1997.  With regard to Mr Hedges and Mr Ray Freeman, attempted contacts were unsuccessful.  Mr John Brennan stated that, while he was not aware that the original request included computer, video and audio documents, this did not change his original view that he was not aware of any further documents.Mr Gretton was not aware of the nature of the documents at the time of the request and now did not know of any such documents in existence. 

1. Professor Peter Gerrand told Ms Lee in July, 1997 that he was not clear at the time of the request that it included computer, video and audio documents.  He told her that "In respect of computer documents … nothing in relation to Mr Langer and the CRC proposal was in existence that he was aware of." (Exhibit 6, page 1)  Professor Gerrand had been aware that Mr Langer had sent e-mails to Telstra but he had not been a recipient of them.  In his affidavit, Professor Gerrand stated that e-mail was used in Telstra during the period covered by Mr Langer's request but that the e-mail system was not capable of attaching or sending formal documents.  He stated that it was not his practice to keep e-mail messages for significant periods of time but that he would have printed and kept a copy of any e-mail of continuing importance.  All of his written correspondence with colleagues outside Telstra was sent either by letter or facsimile message.  All of his written correspondence with colleagues inside Telstra was sent in memoranda that were either delivered or sent by facsimile. 

1. Mr Ray Liggett, Mr Scott Sutherland, Dr Noel Teede and Mr Harry Wragge all told Ms Lee that they understood the request to include computer, audio and video documents.  Mr Liggett said that he did not have any further documents and did not have any further knowledge of any further documents in existence.  Mr Scott Sutherland had nothing to add to what he had said in the past.  Dr Noel Teede told Ms Lee that he had submitted all documents that he had at the time.  Mr Harry Wragge stated that he had nothing of the kind at all.

The search for documents by Mr Sutton – up to 1998

1. In or about June, 1998, Mr Sutton searched for further documents in response to the three categories of documents identified by Mr Langer in response to the Tribunal's direction on 8 May, 1998 (see paragraph 45 above).  As a result of his further searches, Mr Sutton said, he found 10 further documents and released them to Mr Langer under cover of a letter dated 15 September, 1998.

Telstra's email

1. Mr Meggs stated that he had been employed in Telstra's Information Technology Branch for the last 15 of the 30 years he has worked for the organisation.  Since 1991, he has been responsible for the development and management of its e-mail, or electronic mail service in various capacities.  In his affidavit, Mr Meggs described technical issues relating to the storage and retention of e-mails:

"4.     Within Telstra email and word processing documents may be stored either on the individual employee's desk top personal computer ['PC'] or on the Local Area network ['LAN'].  In Telstra it is general practice to store email and word processing documents on the LAN.

5.A LAN consists of a group of up to several hundred PC's cabled to a common file server.

6.The file server allows connected PC's to share disk storage space, data, computer applications, software and facilities for printing.

7.Each night changes to the data stored on the LAN are recorded on back up tapes.  A full back up may be performed at the end of each month or such other period as the local LAN administrator determines.  There is no corporate policy requiring the back up of the LAN at specified intervals.  The system of backing up data is part of Telstra's disaster recovery strategy.  If there is some unforeseen file server failure in which data is destroyed the data can be recovered from the most recent back up tapes.

Email Retention

8.Telstra has never had an archiving strategy for LAN-based data.  The storage and retention of email has always been a matter for the individual sender and recipient of the email.  If a sender or the recipient deletes the email on the day it is sent or received, the messages will not appear on the back up tapes when the back up is done that night.

9.In 1992-1993 there was no policy as to how long back up tapes were held.  The length of time depended on the particular practice adopted by each LAN administrator.  I believe that generally back up tapes were held for approximately 12 to 18 months.  After this time, the back up tapes were recycled or destroyed.  In my opinion it is unlikely that Telstra has retained any back up tapes from 1992-1993.

10.If back up tapes still exist it would be time consuming and technically difficult to restore the data from the tapes.

11.In December 1993 the local LAN file servers doubled as email post offices.  At that time there were approximately 460 "post offices" where data was backed up.  The relevant post office for each employee or former employee would need to be identified and the tapes retrieved from the off site storage facilities.  Once the tapes had been located, the following procedure would have to be followed to access email or other data:

11.1A second file server needs to be available to load the tapes into.  The file server cannot be an existing server which is in use because the back up tapes may over-write existing mail boxes of existing users on the file server;

11.2The back up tapes are then loaded onto the server.

11.3The pass words for the relevant users either need to be reset or obtained.  If the email is from a former employee, the LAN administrator can reset the pass word to that employee's mailbox.  This allows the administrator access to the employee's mailbox.  If the employee is a current employee then pursuant to Telstra policy the LAN administrator must obtain the consent of the employee or the employee's manager to access that employee's mailbox.

11.4The back up tapes are then loaded onto the file server and a search of each tape conducted.  It is not possible to merely extract the email files of each particular user and then search their email.  Each mail file needs to be opened and reviewed to determine who the mail box belonged to.  This is a time consuming and labour intensive exercise." (Exhibit 5)

1. In giving oral evidence, Mr Meggs said that he was not the appropriate person within Telstra to state definitively that Telstra did not retain back up tapes.  Mr Meggs said that, in 1992, there was no policy on this matter.  Each section made its own decision on the manner in which it would preserve its information.  There was no requirement that information be retained.  Retention of information on back up tapes was driven by technical reasons to preserve data if there were a breakdown of the system but not for any other reasons, Mr Meggs said.  When asked whether he had ever been asked if back up tapes containing information regarding Mr Langer's request had been put aside, Mr Meggs replied that he had not been asked about that.  He had never been asked to make enquiries on the matter and had no knowledge of the matter.  As the manager responsible for Telstra's e-mail service, his view was very much an overview of a system servicing 30-40,000 people spread over 460 locations in December, 1993.  In 1992, there would have been over 400 locations.  Each location had its own strategy for back up and storage of information.  It was not possible for him to know, Mr Meggs said, the status of information at any particular site at any particular time.

1. Later, Mr Meggs said that he believed that back up tapes were made incrementally each night and that there was also a weekly back up.  There was no policy on the retention period for those back up tapes.  The practice in Telstra was to retain them for 12 to 18 months.  Even if the back up tapes could be found, it would be a significant issue in technological terms to reload them given the changes in tape technology.  That would involve significant costs.  Each tape would comprise thousands of messages from 100 users and it would have to be loaded on to a server not attached to the network. 

1. Mr Meggs said that the e-mail system started in Telstra in 1991.  If those in senior management requested connection, they were given priority over other employees but, generally Mr Meggs said, they were suspicious of it and saw it more as a toy.  As a consequence, it was generally deployed to lower level officers before the senior officers.  In 1993, Telstra's email systems varied from location to location.  Some were Unix, some Microsoft and some Apple Macintosh.  Telstra purchased 30,000 licences for the use of Microsoft e-mail.  The facsimile capability of Microsoft e-mail was not utilised in Telstra but documents could easily be attached to a Microsoft e-mail.  It was not always possible to attach documents to e-mails as there was, for example, no interface between Unix and Microsoft word processing systems.  Keylink was used in Telstra but documents could not easily be attached to it. 

1. Were he now to receive a request similar to that made by Mr Langer, Mr Meggs said that he would expect either to find e-mails before they were destroyed or, if they were destroyed, to find them in paper form. 

File indices and locations

1. In giving evidence, Mr Sutton said that he had made various enquiries as to whether there were any file indices in Telstra at the relevant time and, if so, the form in which they were kept.  He was advised that, if they existed, they existed at the discretion of the local manager of Telstra.  He was unable to locate any such indices.  Files at the corporate level, such as minutes of the corporation, are maintained in a central registry.  Indices are maintained in relation to files in the Legal Directorate.  Mr Sutton said that he was not surprised to find that there were no indices in relation to the matters that were the subject of Mr Langer's request as there was no standard practice in Telstra.  There is no central database in Telstra, Mr Sutton said.  There is no general practice to keep an index of each file.

1. Ms Rayner-Laver also said that each area of Telstra maintains its files in its own way and there is no single system.  She relies on people in Telstra retaining the corporate knowledge.  If a document had gone to Mr Blount, though, it would have been traced.  Mr Blount is the only senior manager who remains with Telstra, she said.

1. Mr Kelly said that he was aware of the difficulties in locating FASTPAC Services Branch files but no-one had suggested to him that the files had been destroyed.  It was difficult for him to answer Mr Langer's statement that, he had no reason to believe that the files had been destroyed.  The FASTPAC Services Branch went into a decline as a group, Mr Kelly said.  It reduced in numbers to a small group of technical personnel and lost its infrastructure.  In 1995, the technical personnel moved to other locations within Telstra.  Customer records and those required by law to be kept would have been kept, Mr Kelly said.  There was no reason to keep a compactus full of documents for a service now discontinued.

Further searches for files

1. Mr Sutton said that he had not personally compared the documents released to Mr Langer with the files listed in the list prepared by Mr Livingston-Hall.  He assumed that the comparison had been made at an earlier time.  It was highly unlikely that any further files would have been found in Mr Blount's office.

CONSIDERATION

Legislative framework

1. Section 11(1) of the Freedom of Information Act 1982 ("FOI Act") provides that:

"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."

1. 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".  That word is defined in very broad terms:

"(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;" (s. 4(1))

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.  They are broad enough to encompass drawings and graphs as well as records of text or script.

1. The right of access to documents is given in s. 11 is only to those documents that are not exempt documents.  An "exempt document" includes documents that are exempt by virtue of a provision of Part IV of the FOI Act (s. 4(1)).  Although various exemptions were initially claimed by Telstra in respect of many documents, no claims are presently made.

1. The words "Subject to this Act" appear in s. 11 for a person's right is qualified by other provisions of the FOI Act. Section 12, for example, provides that a person is not entitled to certain documents specified in that section.  The right is qualified when s. 13 provides that a document held in certain collections is not "a document of an agency".  When an agency is satisfied that the request "would substantially and unreasonably divert the resources of the agency from its other operations", the agency may refuse to grant access to documents in accordance with the request.  It may do so without having processed the request (s. 24(1)(a)). A further qualification is found in s. 24A.  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 scope of Mr Langer's request

1. I have already set out terms of Mr Langer's request (see paragraph 27 above).  Mr Langer submitted that his request related to documents concerned solely with the EBN as well as to documents that were concerned with the other matters touched upon by his request.  Mr Cavanagh submitted that his request did not extend to documents relating to the EBN unless they were relevant to the third round of the CRC program.  As the RDN-CRC was not dreamed of until August, 1992, the request could not refer to documents dating prior to that time. 

1. It seems to me that Mr Langer's request focuses on documents containing three broad categories of information.  One category is the third round of the CRC program.  The second is the category of related information regarding proposals to upgrade the AAR Net.  The third regards the establishment of the RDN-CRC.  The next part of Mr Langer's request refines the categories of information sought.  It does so by specifying that they are to include any documents relating to the ATSEC report on national research facilities and recommendations made by an expert group mentioned in the Budget White Paper No 6 referred to in the press release dated 14 December, 1992 and the documents relating to the working paper convened by Mr Henshaw.  Mr Langer then went on to narrow the terms of his request.  He specifically excluded documents relating only to CRCs not considered in the third round or did not relate to the upgrading of the AAR Net and/or the RDN-CRC.

1. Having regard to the whole of Mr Langer's request, it seems to me that documents relating to the EBN come within its terms if they also related to the third round of the CRC program, the proposed upgrading of the AAR Net or the work of either the expert group or the working group referred to in the request.  There seems to be no suggestion by either party that the EBN had any relationship to the work of the expert group or of the working group.  Equally, there is no suggestion that the EBN had no relevance in the RDN-CRC or in the proposal to upgrade the AAR Net.  It seems to me that the crucial question in identifying the documents that are covered by the request is the time at which the RDN-CRC proposal and the proposal to upgrade the AAR Net came into being. 

1. The paper dated 28 October, 1992 points to the upgrade of the AAR Net being a "surprise" proposal.  That paper was prepared by Telstra but the press release prepared on behalf of the Prime Minister and the Minister Assisting him also points to the proposals' being new proposals.  It appears from the paper dated 28 October, 1992 that Telstra was positioning itself to promote its EBN as the foundation of the upgrade of the AAR Net and to fund its research and development work of its EBN by using funds from the RDN-CRC.  It proposed that it would receive $9M of the $13M proposed to be made available while AAR Net would receive $2M to upgrade its capabilities and other participants would receive the remaining $2M to subside their use of Telstra's EBN.  In Telstra's mind at that stage (and its attitude seems to have changed at a later stage when regard is had to Professor Gerrand's later minute to Mr Rumble), the whole funding revolved around the development of its EBN and others' use of that EBN.  That would advantage it in the market place.  Its contribution to the RDN-CRC would be in allowing the participants to use the EBN over five years and that would be valued at between $14 and $20M over those 5 years.  The documents suggest that the role of the EBN in any proposal to upgrade the AAR Net was not contemplated until the time of the Federal Budget in August, 1992.  Detailed costings relating to the EBN took place in the context of the RDN-CRC.

1. In view of the way in which I understand Mr Langer's request, it follows from this that only documents that relate to the EBN in the context of the RDN-CRC or the upgrading of the AAR Net and that came into existence after the Federal Budget are within the terms of Mr Langer's request. 

Has Telstra taken all reasonable steps to find documents?

1. The position adopted by Telstra in this case is that it has taken all reasonable steps to find the documents sought by Mr Langer and Mr Langer's position, on the other hand, that there must be more documents than those revealed to date by Telstra.  Telstra relies on the efforts that it has made over the years to find the documents.  Mr Langer is of the view that Telstra has not made sufficient efforts.

1. 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 in s 24A that 'all reasonable steps' (emphasis added) are to be taken to find any requested document." (page 145)

1. 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.

1. Taking first the file management systems in Telstra, it is generally expected that Commonwealth agencies will have a file management system governing the orderly maintenance and retention of their files.  No evidence was given as to the principles governing such a filing system in 1993 when Mr Langer made his request.  At the time, the Archives Act 1983 ("Archives Act") was in operation and it continues to be in operation. That legislation relates to the preservation and use of archival resources of the Commonwealth. Among the functions of the then Australian Archives (and now the National Archives of Australia) ("Archives") is the provision of assistance to Commonwealth institutions in training persons responsible for keeping current Commonwealth records (s. 5(2)(c)).  Included among "Commonwealth records" are those that are the property of the Commonwealth or of a Commonwealth institution (s. 3(1)).  A "Commonwealth institution" includes a "an authority of the Commonwealth" and that in turn includes an incorporated body established for a public purpose (s. 3(1)).

1. In recent years, and long after Mr Langer made his request of Telstra, there have been a number of changes in record management to meet the changing media in which information is commonly conveyed and stored.  Archives endorsed the Australian Standard AS 4390-1996, Records Management for use by all Commonwealth agencies and, on 12 May, 1999, has since recommended the use of Keyword AAA: Thesaurus of General Terms to encourage improved and consistent terminology and so enhance the accessibility of Commonwealth records.  Hand in hand with consistent systems and consistent terminology in records management within a Commonwealth authority is a system of retention and destruction of records.  Such a system is required if the authority is not to be overburdened with records.  The power to authorise the disposal or destruction of Commonwealth records rests with Archives (Archives Act, s. 6(1)(h)). Pursuant to s. 24 of the Archives Act, a person shall not destroy or otherwise dispose of a Commonwealth record unless certain circumstances apply. Among those circumstances is that Archives has given its permission or destruction is in accordance with a normal administrative practice of which Archives had not notified its disapproval (s. 24(2)(b) and (c)).  In January, 1998, Archives set out the categories of material that could be destroyed as a normal administrative practice (Archives Advice 18 issued January, 1998).  It observed that such destruction normally occurs because records are duplicated, unimportant or for a short-term use only.  Included among the categories of documents were rough drafts of reports, correspondence and routine, or rough calculations and routine statistical and progress reports compiled and duplicated in other reports.  Documents destroyed with Archives' permission are deemed to have no value for the business purposes of the Commonwealth authority and to be not worthy of retention as part of the archival resources of the Commonwealth.

1. In February, 1998, Archives issued Archives Advice 20 entitled "Email is a record!" and stating that e-mail messages created using Commonwealth government systems are Commonwealth records. As such, they had to be managed in accordance with the Archives Act and were subject to the FOI Act, the Privacy Act 1988 and the Evidence Act 1950 (now the Evidence Act 1995).  Archives recognised that e-mails were of two types.  One provided evidence of business activities required for ongoing business and are to be retained in accordance with Archives record disposal authorities.  The other are records with a business context but not part of a business transaction such as notification of a meeting or a message containing an attached document as well as personal and social messages.  These are considered records of ephemeral value and are destroyed under normal administrative practice.

1. Archives Advice 48 was issued with effect from 1 June, 2000 and dealt with electronic record keeping of digital data created from 1 June, 2000.  It stated that the standard for electronic record keeping and archiving is the e-permanence suite of best practice standards.  E-permanence was the subject of Archives Advice 45 issued in November, 2000 covering record management in all media.

1. Returning to Telstra's record management, it seems in 1992 to have been piecemeal at best.  The evidence consistently supports my finding and I do find, that there was no one file management system maintained across the whole of Telstra in the period covered by the request.  Furthermore, I find that there was no consistent policy for the maintenance of files or for their destruction and no evidence of any person or persons having responsibility for the record management of Telstra.   This is based on evidence that was given by Mr Sutton, Mr Kelly and Mr Meggs.  As an FOI Co-ordinator, Mr Sutton was in a position to know the practices across Telstra.  Mr Kelly was in a position to know the practices of the Fast Packet Services Branch to which responsibility for the EBN project was transferred.  Mr Meggs knew the policies regarding the management and retention of e-mails and there were none, he said.  The evidence of Mr Sutton, Mr Kelly and Mr Meggs is supported also by the manner in which Telstra has approached the task of finding documents.  It has relied in large measure on approaching the individuals who were involved in the RDN-CRC proposal to ascertain what they have retained and where the documents would have been kept rather than using such approaches as adjuncts to a search of Telstra's general filing system. 

1. The conclusions pointed to by the evidence have caused me concern. While recognising that the Archives' recommendations and directions to which I have referred are of more recent times, I do not think that it requires direct evidence for me to find that Archives approved destruction schedules in earlier times. Commonwealth records could only be destroyed in accordance with those destruction schedules prepared in respect of each authority of the Commonwealth. In preparing those destruction schedules, Archives was acting in accordance with its statutory responsibilities under s. 24 of the Archives Act.

1. For all of that and for all of what was the right and proper thing to do, I have concluded that Telstra did not have a homogenous system of record maintenance and retention.  I have reached that conclusion after concluding that each of the witnesses was a person of integrity who had tried his or her best to find the documents sought by Mr Langer.  They have made many efforts over the years to locate them and not all are recorded in these reasons.  In the course of their searches, there has been no indication of any such homogenous system.  Had there been a glimmer of one, I am satisfied that they would have followed its lead in their search for the documents. 

1. I accept that there was no attempt to search for e-mails until more recent years.  That was an oversight given the very broad definition of a "document" as it appears in the FOI Act. It was also an understandable oversight given that there was far less familiarity with e-mails in 1993. I find on the basis of the evidence of Mr Meggs that it was not available throughout Telstra at the time and that it was less common among the more senior officers in Telstra than among the more junior officers who adopted it more readily.

1. Over the years, Telstra officers have pursued a number of leads in searching for relevant documents.  I am satisfied that they have contacted officers involved in the proposal to become a participant in the RDN-CRC in order to obtain documents held by them or to ascertain the location of documents they once held.  They have searched for documents in those locations.  They have searched file indices in so far as they have been available but, given the piecemeal record keeping system, I am satisfied that they have not been comprehensive.  Over the years, the various officers allocated to the task have found various documents at various times.  That in itself gives the unfortunate impression that the searches were not adequate in the first place.  However, rather than blaming those carrying out the searches, it seems to me that any blame rests with Telstra's record management system. 

1. Putting to one side the e-mails to which I will return, I have concluded that Telstra has taken all reasonable steps that it can take on this occasion to find documents meeting Mr Langer's request.  In reaching that conclusion, I have taken into account not only the searches to which I have just referred but also to the substance of the documents (contained in six volumes measuring some 18cm in all) revealed by those searches.  From their face, they give the impression that Telstra's proposed participation in the RDN-CRC was a last minute decision.  They give the impression that Telstra planned to use the RDN-CRC as an opportunity to build upon its previous work on the EBN.  Having done that, the other participants would use the EBN and their use, which would be supported by Telstra, would then be translated into dollar terms and so into Telstra's contribution to the RDN-CRC.  In essence, the papers give the general impression that the goal was to acquire the grant of money and to put it into research and development of the EBN. 

1. The impression is consistent with the evidence of Mr Kelly that there was no firm commitment regarding the EBN prior to August, 1992.  It is consistent with the evidence that there was no Gate 1 paper until after December, 1992 and also consistent with Mr Kelly's evidence that a lot of work had been done on the EBN at that stage.  That follows from the existence of the gate 0 paper for it makes sense that some considerable amount of work would need to have been done in order to achieve gate 0 status.  That status had been achieved by 6 July, 1992.  Given Telstra's focus upon either using the RDN-CRC to further develop its previous work on the EBN or, if the later estimate of $56M is a more accurate guide, using the EBN-CRC as a catalyst for its furthering its work on the EBN, it follows that there would be little need to generate further work or papers on the EBN for the purposes of Telstra's developing its position on the RDN-CRC.

1. That brings me to the second step required by s. 24A in relation to the documents other than e-mails.  Given the searches that have been made and the subject matter of the request that I have already addressed, I am satisfied that, on the balance of probabilities, there are no further documents that are in Telstra's possession and that come within the terms of the request.  It follows that Telstra's decision to refuse Mr Langer's request was the correct decision in so far as it related to documents other than e-mails.

1. The e-mails are a different matter.  I am not satisfied that all reasonable steps were taken to locate them at the time of the request in 1993.  No steps were taken because they were overlooked for the reasons I have already given and no steps of any note have been taken since.  On the basis of the evidence of Mr Meggs, I am satisfied that Telstra has never had a policy for the retention of e-mail correspondence.  It has regularly backed up its computer data but, in 1992-1993, these tapes were retained for a period of only 12 to 18 months.  I am satisfied that any tapes from that period would have been destroyed by mid 1994.  They would have been destroyed either before or shortly after the time of the commencement of this hearing.  The issue of e-mails was not addressed at all at that time for the hearing was adjourned long before the level of detail of e-mails was reached.  It is most unfortunate that the e-mails were destroyed given the express request by Mr Langer that Telstra takes steps to ensure that documents were not destroyed and referred specifically to e-mails and computerised records in his request.  At one level, there is no excuse for Telstra's having destroyed the documents but, at another, its error must be seen in the context of a time when e-mail was not common place within Telstra. 

1. Whatever the rights and wrongs of the situation, I am left with no choice as to the decision I must make on this aspect in reviewing the decision under the FOI Act. As I am satisfied that the back up tapes have been destroyed, I am satisfied that the decision to refuse access was correct in so far as it related to e-mails.

Would the work involved in searching for e-mails be a substantial and unreasonable diversion of Telstra's resources?

1. Although I have reached the conclusion that the back up tapes of the e-mails would have been destroyed, I have also considered e-mails on the basis that the back-up tapes have not been destroyed.  In that context, I have considered whether or not Telstra should make further searches in relation to e-mails and other documents held on individual computers.

1. Mr Cavanough referred to a number of authorities regarding the practical application of s. 24 of the FOI Act. Each referred to documents held in traditional paper format and not to those electronically held but the principles expressed in each are applicable whatever the medium. The first is that the agency must make some estimate of the amount of work that would be involved in processing the request. In the case of paper files, that would involve an estimate of the number of documents encompassed by the request. As the Tribunal said in Re Swiss Aluminium Australia Ltd and Department of Trade ((1986) 10 ALD 96 (Deputy President Todd, Dr Renouf, Senior Member and Mr Lock, Member):

"… In the Tribunal's opinion, where the work involved in giving access primarily revolves around identification of documents that answer the terms of the request, as opposed to the location or collation of those documents, a basic requirement, before s 24(1) can be satisfactorily answered, will be that the agency make some count of the number of folios contained in files which could potentially contain material answering the terms of the request.  Such a task should not require the involvement of staff having experience with the subject matter of the files.  Knowing the number of folios potentially relevant will not remove all uncertainty involved in the estimate, but it should provide a sufficiently sound basis upon which to consider the issue raised in s 24(1).  In our opinion such an approach strikes a balance between pure conjecture (which is unsatisfactory to an applicant) and certainty (which can only come about by engaging on the very task from which s 24(1)(b) allows dispensation), and accords with the language employed in s 24(1)(b)." (page 101)

1. Since Re Swiss Aluminium Australia Ltd and Department of Trade was decided to the contrary, s. 24(4) of the FOI Act has provided that any reasons that a person might have for requesting access to documents are not to be taken into account in considering whether the diversion of an agency's resources would be "unreasonable" (s. 24(4)(a)).  Equally regard must not be had as to what might be thought to be his or her reasons (s. 24(4)(b)).  It would follow that regard must not be had to the identity of the person requesting access to documents. 

1. The repeal and substitution of s. 24 in 1991, after Re Swiss Aluminium Australia Ltd and Department of Trade was decided, does not detract from the other matters that it identified as being weighed with workload considerations to decide what is a substantial and unreasonable diversion of an agency's resources.  It is inherent in the ordinary meaning of the word "unreasonable" that all relevant considerations must be weighed (Re Swiss Aluminium Australia Ltd and Department of Trade, page 101).  It is also relevant to have regard to information that is available to an applicant through other means.  In SRB and SRC and Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 (Deputy President McMahon, Professor Johnston and Mr Standford, Members), for example, access was sought to documents concerning the manufacture of treatments derived from human pituitary hormones. The six applicants were among some 2,100 people who had received either pituitary growth hormone or human pituitary gonadatrophins under the National Pituitary Hormone Program. It was subsequently discovered that receipt of the substances placed them at risk of developing a rare and fatal disease of the nervous system or brain. Personal files were released but there were a further 600 files containing information relevant to the request. The Tribunal took into account that release would be consistent with the public interest, the fact that the applicants would be granted access to their personal files, that the Minister had established an enquiry into the use of pituitary derived hormones (and the issues to be canvassed in that enquiry and the material to be made available to it) and that the applicants had obtained access to substantial numbers of documents through the discovery process in collateral legal proceedings.

1. Before a request may be refused under s. 24, the work involved must not only unreasonably divert the agency's resources from its other operations.  It must do so substantially as well.  In considering s. 40(1)(d), which requires a consideration of whether disclosure of a document could have a substantial adverse effect on the proper and efficient conduct of the operations of the agency, I considered the meaning of the word "substantial":

40.    The phrase "substantial adverse effect" and in particular the word "substantial", have been considered in a number of cases. The word "substantial", is not one of clear meaning.  There are at least two alternative senses in which it may be used, on the one hand it may mean large or weighty or of considerable amount, on the other, it may mean real or of substance as opposed to nominal or illusory.  In Palser v. Grinling (1984) 1 All ER 1 Viscount Simon held that in the context in which he had to consider it the word "substantial" meant "considerable, solid or big".

41.    In Tillmanns Butcheries Pty Ltd v. Australasian Meat Employees Union & Ors (1979) 27 ALR 367 Bowen CJ and Deane J considered the words "substantial loss or damage".  Bowen CJ at page 374 said:

"The word 'substantial' would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v. Grinling [1984] AC 291 at 316-7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word implores a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business."

42.Deane J at page 382 said

"The word 'substantial' is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision.  In the phrase 'substantial loss or damage', it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal.  It can also mean large, weighty or big.  It can be used in a relative sense or can indicate an absolute significance, quantity or size.  ...  As at present advised, I incline to the view that the phrase, substantial loss or damage, in s45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal.  It is, however, unnecessary that I form or express any concluded view in that regard, since the ultimate conclusion which I have reached is the same regardless of which of the alternative meanings to which reference has been made is given to the word 'substantial' in s45D(1)."

43.    In Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551, Beaumont J considered whether reports of an independent review of the Legal Department of the respondent were exempt within the meaning of paragraph 40(b) of the Act.  Beaumont J said that it is possible that the reports could embarrass those charged with supervising or reviewing the operations of the Legal Department but went on to say on page 564:

"However, I am not persuaded that any such effect, even if adverse, could fairly be described as 'substantial' in its impact.  In my view, the insertion of a requirement that the adverse effect be 'substantial' is an indication of the degree of gravity that must exist before this exemption can be made out."

Beaumont J was considering section 40 as it existed before it was replaced in 1983.  The particular words which he considered, however, have not been varied and are still relevant.

44.    Muirhead J has also considered the expression "substantial adverse effect" as it appears in section 40 in the case of Marco Ascic v Australian Federal Police (1986) 11 ALN N184.  Muirhead J considered the passage from the Harris case to which I have referred above and said:

"The reference to 'gravity' in that dictum (and I say so with respect) causes me some difficulty. 'Substantial' is a word of common usage which can stand on its own feet and the work ascribed to it in statutory interpretation will depend on the statute and of course the issues under consideration. Deane J gave detailed consideration to the word in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 27 ALR 376 at 382. Whilst the court there was considering an application under s.45D of the Trade Practices Act which refers to 'substantial loss or damage' his Honour's words that 'substantial loss or damage ... includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal' appear to me to be appropriate to most circumstances and closer to the plain meaning of the word and its dictionary interpretations." (page N185)

45.    This Tribunal, presided over by Beaumont J, has considered paragraph 40(1)(c) in Re Williams and Registrar of the Federal Court of Australia (1985) 8 ALD 219 (Mr McMahon, then Senior Member and Dr Renouf, Member). Beaumont J said at page 222 that the difficulties in establishing that "substantial adverse effects" will occur are formidable. This was referred to by the Tribunal in Re Dyrenfurth and Department of Social Security (1987) 12 ALD 577 (Deputy President Todd, Senior Member Balmford and Mr Cohn, Member). The Tribunal said:

"If we had been approaching the present matter in, as it were, a vacuum, we might have been tempted to think that the difficulties were not so formidable.  But the fact is that the practice of the respondent agency is stated to be what we might call a generous one.  We have already set out the agency's guidelines.  It is perfectly true that in general terms this Tribunal is not bound by an agency's guidelines, but that is not the point here.  We are uncertain to what extent they are applied (see T26), but they exist as a fact, and their existence in that form seems to us to undermine the suggestion of substantial adverse consequence."  (page 585)

46.    Finally, I will refer to the conclusion adopted by the Tribunal in Re Thies and Department of Aviation (1986) 9 ALD 454 (Deputy President Thompson, Senior Member Hallowes and Mr Trinick, Members) that a "substantial adverse effect" "connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person" (page 463).

47.    While in the case of Morris and others and Australian Federal Police (unreported, Decision No. 10120, 7 April, 1995), I said that the differences among the cases might be more illusory and real and that I would follow Thies, I have thought further about the matter.  It seems to me that the ordinary meaning of the words "substantial adverse effect" leads to a conclusion that something more than "concern" is required before the adverse effect can be said to be a substantial adverse effect.  Concern may be generated by matters of many differing degrees of gravity.  What is required by the exemption in paragraph 40(1)(d) is made out is an adverse effect that is real or of substance and not that which is insubstantial or nominal.  That is consistent with the judgements of Federal Court in Ascic and in Tillmans Butcheries by both of which I am bound." (Re Bayliss and Department of Health and Family Services, unreported, Decision No. 12277, 10 October, 1997)

This was the interpretation of the words "substantial adverse effect" adopted by Deputy President McMahon in Re Connolly and Department of Finance (1994) 34 ALD 655.

1. Returning to s. 24 of the FOI Act, it seems to me that the work involved in processing a request will only substantially and unreasonably divert the resources of an agency if the work is real or of substance and not insubstantial or nominal and if it is unreasonable having regard to factors, such as workload and those to which I have referred above.

1. While these considerations remain relevant, electronic storage of e-mails and other computerised records brings with it another set of difficulties. Issues relating to location and retrieval, for instance, require consideration not only in terms of the workload of staff not having experience with the subject matter of the request but in terms of the workload of staff having expertise in the retrieval of computerised records where the officer creating the records is no longer available, or is unable, to retrieve them from his or her computer. The need to consider skilled staff arises from the nature of the medium. Unlike paper files (perhaps with the exception of older archived materials that are more likely to be considered under the Archives Act) that may be located and handled by staff with no special expertise, computer records that are stored and not retrievable simply by searching the files on a particular computer require particular skills.

1. This is such a case.  The evidence is that the officers concerned have not retained computer records.  I am satisfied that they are not accessible simply by searching individual desk top computers be they linked to a network or not.  On the basis of the evidence of Mr Meggs, I am satisfied that the computer information would have been held in 1992 in any one or more of over 400 locations.  Each location had its own strategy for back up and storage of information.  While the hours of work were not estimated by Mr Meggs because his evidence was that the back up tapes had been destroyed, he did address the work that had to be undertaken.  It involved individual checking of each message after being processed on a server standing apart from the network system.  I am satisfied that it would be a very time consuming and labour intensive process.  On the basis of the evidence of Professor Gerrand, I am satisfied that he would have printed any paper of consequence had it been e-mailed to him.  On the basis of Mr Meggs' evidence, I am satisfied that some of the e-mail systems in use in Telstra in 1992 were not capable of forwarding an attached document. 

1. All of these factors must be weighed in the balance.  I am satisfied that the workload involved in checking individual computers and the back up tapes would be substantial.  Also relevant is the fact that Professor Gerrand printed out copies of any papers of consequence.  There is no evidence that any other officer did the same but, at the time, he was General Manager of Network Strategy with Telstra.  He was in a position to see any papers of consequence and it can be expected that he printed or retained copies of any papers of consequence in relation to the CRC program.
   Taking all of these matters into account, I am satisfied that the work involved in searching for e-mails and computer stored information would be a substantial and unreasonable diversion of Telstra's resources.  Consequently, I have concluded that Telstra was correct in deciding to refuse access to any e-mails and any other computerised information that comes within Mr Langer's request and that may or may not be held by Telstra.

1. For the reasons that I have given, I affirm the decision of the respondent dated 10 June, 1993.

I certify that the one hundred and nineteen preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President),

Signed:          …………………………………..
  Paul Paczkowski      Associate

Dates of Hearing  27 May, 1994, 3 and 4 April, 2000
Date of Decision  10 May, 2002
For the Applicant  self
Counsel for the Respondent        Mr Cavanough SC
Solicitor for the Respondent        Clayton Utz