re Viewcross Services Pty Ltd and Telstra Corporation Limited
[2003] AATA 1025
•10 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1025
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/985
GENERAL ADMINISTRATIVE DIVISION ) Re VIEWCROSS SERVICES PTY LTD Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Date10 October 2003
PlaceMelbourne
Decision 1. The Tribunal decides that the respondent is not required to undertake further searches in respect of s 24A of the Freedom of Information Act 1982 (“the Act”).
2. The Tribunal does not uphold the s 41 exemptions claimed for parts of documents in respect of the names and work telephone numbers of Telstra employees. In view of the fact that the applicant does not seek the names of Primus employees or the names of tenants of shops, the Tribunal decides that all documents claimed to be exempt under s 41 should be released in full, except for the names of Primus employees and tenants of shops.
(Sgd) Joan Dwyer
Senior Member
FREEDOM OF INFORMATION – adequacy of searches – whether all reasonable steps taken to find the document
FREEDOM OF INFORMATION – exempt documents – whether documents exempt under s 41 – whether documents contained personal information – whether disclosure of the parts of documents claimed to be exempt would involve the unreasonable disclosure of personal information about any person
Freedom of Information Act 1982 ss 3, 4, 17, 24, 24A, 41, 59 and 61
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Langer and Telstra Corporation Limited [2002] AATA 341
Re Beesley and Commissioner of Taxation [2001] AATA 476
Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55
Pfizer Pty Ltd v Department of Health, Housing and Community Services (1993) 30 ALD 647
Lalogianni v Australian National University [2003] FMCA 9
REASONS FOR DECISION
10 October 2003
Mrs Joan Dwyer, Senior Member 1. This is an application for review under s 55 of the Freedom of Information Act 1982 (“the Act”). The review is of a decision made on internal review under s 54 of the Act on 17 July 2002 (T12). That decision affirmed the initial decision made on 29 May 2002 (T9) which identified the documents covered by the applicant’s request of 21 March 2002 (T3), and granted access to certain documents, but claimed that other documents were either exempt in full or partially exempt. The issues at this hearing were first, the adequacy of searches undertaken by the respondent and secondly, whether some documents or some parts of some documents were exempt under s 41 of the Act.
2. At the hearing in Bendigo, Mr S Maiden of Counsel, appeared for the applicant. Evidence was given by Mr Cahill who is a solicitor and a director of the applicant company. Mr M Batskos, who is a solicitor and Executive Director of FOI Solutions, appeared for the respondent. The respondent lodged as an exhibit an up to date Schedule of Documents as to which s 41 exemptions were claimed. The respondent’s exhibits included outlines of evidence of Mr Sutton, the primary decision-maker, and of Ms Burden, the maker of the decision on internal review. The respondent also lodged statements of Mr Tucker and Mr Coulburn. At the request of the applicant, the respondent at a directions hearing on 28 May 2003 agreed to arrange for Mrs Ripper, Mrs Langton and Mr Overington, who are all Telstra employees to lodge affidavits and be available for cross-examination. Ms Burden swore an affidavit (R10), as to the steps taken pursuant to s 59A of the Act to advise individuals referred to in documents claimed to be partially exempt of these proceedings. The Tribunal directed that the exhibits to that affidavit which Ms Burden described as “Confidential Exhibits A, B, C and D” be kept confidential and not be disclosed to anyone other than those persons specified. The exhibits lodged on behalf of the applicant included a statement by Mr Cahill. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing. Evidence was given by Mr Cahill for the applicant and by Mrs Ripper, Ms Langton, Mr Overington, Mr Coulburn, Mr Tucker, Mr Sutton and Ms Burden, for the respondent.
GENERAL PROVISIONS OF THE ACT
3. It is relevant, in considering applications under the Act, to bear in mind the object of the Act, as set out in s 3 which provides as follows:
Object
(1)The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
4. Section 11 of the Act provides a general right of access to documents. It reads:
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
(2)Subject to this Act, a person's right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency's or Minister's belief as to what are his or her reasons for seeking access.
5. The onus of proof under in a proceeding before the Tribunal, is on the respondent. Section 61 provides:
Onus
(1)Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
. . .
ADEQUACY OF SEARCHES
6. The issue as to adequacy of searches arises under s 24A of the Act which provides as follows:
Requests may be refused if documents cannot be found or do not exist
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.
7. The applicant submitted that s 24A of the Act did not apply because:
(a)all reasonable steps have not been taken by the respondent;
(b)the documents sought existed, and there are grounds to believe that they may still exist; and
(c)further searches could reasonably have been undertaken to determine whether the information sought still exists, or has been destroyed or over-written.
8. Section 17 of the Act may be relevant to the matter of adequacy of searches. It provides as follows:
Requests involving use of computers etc.
(1) Where:
(a) a request (including a request of the kind described in subsection 24(1)) is made in accordance with the requirements of subsection 15(2) to an agency;
(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and
(c)the agency could produce a written document containing the information in discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or
(ii) the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.
(2)An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.
HISTORY OF THE MATTER
9. The applicant, made an initial request for access to documents on 21 March 2002 (T-docs p8). That request, so far as relevant, was in the following terms:
Further to the provisions of the Freedom of Information Act we require the following documents:
1. Documents relating to the existence of telephone supply as at the 1st of August, 1999 including availability of supply to the 8 lot subdivison at 17 High Street, Eaglehawk.
2. Documents relating to when supply was physically available to the premises.
3. . . .
4. . . .
5. Any other relevant documents pertaining to connection of phones to 17 High Street, Eaglehawk from the 1st August, 1999 until the 29th of January, 2000.
A primary determination was made on 29 May 2002 (T9 p17). A number of documents were identified. Many were released but some documents were not released or released with deletions.
10. On 20 June 2002 a request for internal review was received by the respondent (T10 p23). That request was in ambiguous terms in that it did not make it clear that the applicant contended that further documents should have been identified and released. Ms Burden, the internal review decision-maker, took the view that the only aspect of the primary determination which was in issue, was the exemption of parts of the documents which had been released. The decision on internal review was made on 17 July 2002. It stated that it related only to documents released with deletions. That decision affirmed the primary decision (T12 p26).
11. On 12 September 2002 the applicant lodged an application for review by this Tribunal.
12. During a telephone conference on 23 October 2002 Mr Cahill raised the issue of the adequacy of searches undertaken by the respondent.
13. Deputy President Forgie stated, at a telephone directions hearing on 5 February 2003, that the application covered the issue of adequacy of searches. Mr Cahill had been asked to clarify the documents he claimed should have been found, if adequate searches had been conducted. Mr Cahill wrote on 24 October 2002 (R5, NB7):
. . .
1. All documents relating to Telstra’s approval of the 8 lot plan of subdivision No. PS430906A at 17 High Street, Eaglehawk on the 25th day of August 1999.
2. All memorandums and engineering returns relating to the supply of phone lines to High Street Eaglehawk including lot 17 as at the 25th day of August, 1999. In particular the known fact that there were no physical line available to the 8 lot subdivision at 17 Hight Street on the 25th of August 1999 and for a period of 6 months thereafter.
We are instructed that these records are stored at your client company’s Short Street premises Bendigo we are further instructed these documents do in fact exist. We therefore suggest that your client corporation make a more diligent search for the documents relating to this specific request.
14. The respondent’s outlines of evidence to be given at the hearing, lodged on 14 March 2003, dealt with the question of adequacy of searches. At a subsequent directions hearing before me, on 28 May 2003, the respondent raised the issue whether the Tribunal had jurisdiction to consider the question of adequacy of searches. Subsequently the respondent advised that, if the Tribunal were satisfied that it had jurisdiction to consider that issue, the respondent would not challenge that view.
15. I am satisfied that a decision identifying and numbering 40 documents as the documents covered by the a request under the Act, does impliedly decide that there are no further documents. Thus it does give the Tribunal jurisdiction to consider the adequacy of searches.
16. In October 2002, Ms Burden commenced searches for further documents. She contacted Mr Overington, who is a Communications Officer with Telstra. He was referred to in an electronic mail message dated 24 November 1999 (A3). It is a significant document in this matter as it explains the action taken by Mr Overington to deal with Mr Cahill’s first complaint about the lack of telephone services to the subdivision. Mr Overington, in 2002, advised Ms Burden that he did not have any technical documents relating to his visit to the site in 1999. He suggested that she contact the personal assistants to Mr Coulburn, the Area Service Manager for Telstra, at the Short Street premises in Bendigo.
17. In spite of further searches, no further documents meeting the description given by Mr Cahill in his letter of 24 October 2002 were discovered, other than two documents, which it was considered were covered by the first request but not by the letter of clarification. They were not forwarded to Mr Cahill at that stage but have subsequently been released.
18. Acting on the basis of the advice in Mr Cahill’s letter of 24 October 2002, that the records were stored at the Telstra Short Street premises in Bendigo, Ms Burden, as well as arranging for other searches to be carried out, arranged for a search to be conducted at that address for documents relating to the subdivision at 17 High Street, Eaglehawk. She was advised on 12 November 2002, by Mr Coulburn, that the search had been unsuccessful.
19. On 7 November 2002, Ms Burden received six pages of documents from Mr Risdale, the Manager of a Telstra Central Planning Team. Those documents were correspondence between Telstra and the City of Bendigo about the subject land. On 3 December 2002 Mr Batskos sent Mr Cahill copies of those documents, which included a plan of the subdivision showing telephone cables and whether they were available or in use (NB 14). On 4 December 2002 Mr Cahill faxed a letter to Mr Batskos. So far as relevant it read as follows (NB18):
However, we note that the documents sought are not included. In particular we refer to the plan noted dated the 30th of June 1997 which appears to relate to the premises and states that there is a engineers report and memorandums at that date and thereafter relating to the fact that there was insufficient capacity to service the 8 lots at 17 High Street, Eaglehawk known as Canterbury Arcade and that those documents were in existence when Telstra proved the 8 lot plan of subdivision on the 25th day August 1999, see consent to issue permanent certification no conditions. We have reliable information that Telstra was well aware that there was insufficient capacity to meet the 8 lines as at the 25th August 1999 and there was documentation and memorandum to that effect. [emphasis added]
20. Ms Burden stated in paragraph 34 of her outline of evidence that she made enquiries about the allegation made by Mr Cahill in the highlighted passage set out in the preceding paragraph. She was told by an appropriate person within Telstra, that an engineer’s report was not part of the normal process involved in approval of subdivisions by Telstra. That was also the evidence given at the hearing by Telstra technicians.
21. Mr Cahill, in the preliminary hearings before the Tribunal, emphasised the inadequacy of searches aspect of the matter. Unfortunately, although he claimed that he had reliable information that further documents relevant to his request did exist, he failed to assist the respondent in locating further documents, even when invited to do so by Mr Batskos in correspondence or when directed to do so by the Tribunal.
22. On 6 December 2002 Mr Batskos faxed a letter to Mr Cahill (NB19) which read in part as follows:
In your letter of 24 October 2002 you described the documents your client now seeks as:
“1.All documents relating to Telstra’s approval of the 8 lot plan subdivision No. PS430906A at 17 High Street, Eaglehawk on the 25th day of August 1999.
2.All memorandums and engineering returns relating to the supply of phone lines to High Street Eaglehawk including lot 17 as at the 25th day of August, 1999.”
This is vastly different from the original request and is such that it should be treated as a fresh request under the Act. However, in order to attempt to resolve this matter, my client agreed to conduct searches for documents falling within these new parameters. You indicated during the telephone conference on 23 October 2002 and in your letter of 24 October 2002 that you had information from a Telstra staff member at Short Street that the documents now sought did exist.
Despite the unfounded and scurrilous allegation in your letter of 5 November 2002 that “information has been deliberately suppressed”, my client nevertheless conducted the further searches it agreed to in the spirit of co-operation and in a genuine attempt to address your client’s information needs in light of the fresh and newly formed request of 24 October 2002. The outcome was that 6 pages of documents were located and access provided in full to your client under cover of my letter of 3 December 2002. No other documents were found which fell within your client’s amended, new request. In particular I confirmed to you that no other documents were identified at the Short Street premises of Telstra as previously mentioned by you.
Despite that additional release of documents, your client continues to allege that further documents exist despite all reasonable steps being conducted by my client in conducting thorough and diligent searches in respect of your client’s requests. A summary of the steps taken by my client is attached for your information. My client has conducted searches of all relevant areas which one would expect might possess documents sought by your client.
However if, as you assert, you have reliable information that my client possesses more documents relevant to your client’s initial or new requests, I would invite you to provide full particulars of that.
23. Mr Cahill did not respond to that invitation, other than to make it clear that he was not prepared to divulge the substance of the information he claimed to have as to the existence of further relevant documents. At a telephone directions hearing he claimed that he could not divulge the identity of his informant because that could affect the informant’s employment. The Tribunal therefore directed on 2 June 2003:
(d)By Friday 20 June Mr Cahill, on behalf of the applicant, lodge with the Tribunal, and serve on the respondent, a statement setting out the substance of the information given to him by a Telstra employee, which leads him to believe that if further searches were undertaken, further relevant documents would be found. The statement need not identify the Telstra employee.
24. Mr Cahill’s response to that Direction was to lodge a statement (A1) stating as follows:
1.That I am a Director of the applicant company.
2.In or about December 1999 after having been advised by Telstra that there were no lines available for the 8 lot shopping complex at High Street, Eaglehawk, I made inquiries of a Telstra employee as to why there were no lines available for High Street, Eaglehawk. I was advised that Telstra would have been well aware of the fact that there were no lines available at the time the subdivision was approved in August 1999 as there was technical information available as to the state of the availability of lines at High Street, Eaglehawk, in August 1999.
3.Despite repeated requests of Telstra this technical information was not been produced apart from a plan relating to High Street, Eaglehawk, which indirectly refers to this information.
25. Because that statement provided no detail beyond what had already been given by Mr Cahill in correspondence and at Directions Hearings before the Tribunal, I asked that Mr Cahill give evidence at the commencement of the hearing. He repeated in his evidence that he had been told by a Telstra employee in a telephone conversation in December 1999 that Telstra would have known “there were no lines available to the subdivision property to the 8 lot shopping complex at lot 17 High Street Eaglehawk.” He said that he had been advised that there was in existence technical evidence as to the status of the lines in High Street Eaglehawk and he said that he had been told that Telstra would not be able to run a phone company without information as to the existence of physical supply to a property or of lines to service that property. He gave no further information which could assist the respondent in locating any further documents if they did exist.
26. Ms Burden continued with her attempts to locate any further relevant documents as set out in exhibit R5. On 3 March 2003 a microfiche plan relating to the relevant property was located. It shows the telephone cables to the property prior to the 1999 upgrade. That upgrade was undertaken by Mr Overington in response to the applicant’s complaints about the failure to provide telephone connections to some of the 8 shop premises. That plan was sent by Mr Batskos to Mr Cahill (NB 33) on 11 March 2003 (A2 p2). A copy of the similar plan showing the current position had been provided to the applicant on 3 December 2002, as explained in paragraph 19 of these reasons. Although the plan NB 33 is twice annotated “30/6/97” that is misleading. The evidence is that it is a “snapshot” of the lines to the property, not as at 30 June 1997, but after upgrading of the lines had been carried out by Mr Overington in December 1999.
27. When Mr Cahill gave evidence two matters were of surprise to the Tribunal. The first was that Mr Cahill said that after receiving the copy of the plan showing the position prior to the 1999 upgrade (pages 1 and 2 of A2), in March 2003, he had not shown those plans to any current or former Telstra employee. He said he could not decipher them and did not know whether they showed line capacity. In spite of that lack of understanding he had not asked his “reliable informant” or any other Telstra employee or retired employee to explain them to him. Secondly, Mr Cahill agreed that although he had written in his letter of 4 December 2002 to Mr Batskos (NB18), that the plan bearing the annotation “30/6/97” (NB33), “states that there is a engineers report and memorandums”, that was not the case. Mr Cahill said it was simply his assumption, from looking at the plan, that there would have been “a engineers report and memorandums.”
28. When the Telstra witnesses were made available for cross-examination there was no cross-examination of the sort one would have expected, if an employee within Telstra had informed Mr Cahill that memoranda and engineering plans relating to the supply of phone lines to the subdivision as at 25 August 1999 were in existence. Nor was there any cross-examination to the effect that Telstra had documents showing that it was aware that there was insufficient capacity to provide the eight telephone lines required as at 25 August 1999.
29. On the contrary Mr Maiden’s cross-examination related to matters which had become known to the applicant only through the affidavits and statements lodged by the Telstra witnesses prior to the hearing, and through evidence at the hearing. It related to the fact that Telstra employees use data bases to check the vacant line capacity of certain properties. The two data bases referred to in the evidence were the National Plant Assigning Management System (“NPAMS”) and the Cable Plan Records (“CPR”) which can be viewed on a read only basis called Plot File View (“PFV”).
30. The evidence as to those data bases was given by Mr Overington. He is the Team Leader, Supervisor, in charge of the Kyneton district. His responsibilities include the positioning of new lines and the maintenance of existing lines. He said that in late 1999 he was acting in a similar role in the Bendigo urban area. He was informed that complaints were being made of lack of phone connection for some of the shops in the eight lot sub-division at Lot 17 High Street, Eaglehawk. After speaking to somebody called Jo from Cahills, he went to the site and ascertained by a visual inspection that there were two phones connected, and capacity for three further phones to be connected. There was no further capacity for, as he said, the one further phone which was required to be connected. He said that he worked out what was needed while on a site visit, but then came back and looked at the two data bases, CPR and NPAMS. He said technical staff do have microfiche printouts of the CPR which are referred to as PFV in their vans, or they view the data through a microfiche reader in the van. After looking at the date bases he returned to the site and did the necessary cable upgrade.
31. Mr Overington explained the role of each of those data bases. He said NPAMS is a tool to ascertain whether there is plant, that is to say, whether there are Telstra lines available in a street. He explained “It is a data base which tells you what lines are connected in the street and what lines are vacant in the street”.. He said 99% of the time, lines are either connected or vacant, but NPAMS may occasionally have anomalies which only become apparent on a visit of inspection. He said a normal NPAMS output or screen would show ten lines of information relating to 10 phone lines for example, numbers ending in 41 to 50. He said “You can locate phone lines on NPAMS by address, by local knowledge or by the numbers of telephone lines”.. He explained that it is a data base which gives a current snapshot of the position and it does not, so far as he is aware, contain historical information.
32. The second data base which Mr Overington described is called Cable Plan Records (“CPR”). He said it shows the outline of Telstra cable routes in a particular area. It shows the cable that has been laid and the cable that has been connected and is vacant. He said PFV is a read only access to CPR.
33. Mr Overington explained exhibits NB33 and A2 p2. He said NB 33 is the current CPR printout and A2 p2 is a printout showing the position prior to the 1999 upgrade, which he carried out in order to provide more telephone lines to the subdivision. He explained what the annotations on those plans mean. It was apparent from his description that they are the plans from which technical staff work. He said there are never any other plans that could be described as engineering plans or memoranda, other than what he called the “mud plan”.. That is a plan made by technical staff who have changed cabling. It is made on site, or after returning from site, and then sent to those who input data into CPR, to show the change after new cabling has been installed.
34. Mr Overington explained that the annotations on Lot T179 on A2 p2 show that when he attended the site in 1999 there was a 10 pair cable into the lot, and 7 lines were used. Thus there were three lines left, which he connected that day. He then returned on another day and upgraded the cable into the property from a 10 pair cable to a 30 pair cable, as seen on NB33. He disconnected the previous 10 lines, and reconnected those lines onto the new cable, and made the further required connections. From the detailed description of all the annotations on the plans, it was apparent that the plans contained a wealth of information. To a lay person, it may have appeared that further engineering plans or memoranda would be required to know what line capacity Telstra had in a particular street, but that conclusion was not correct.
35. Mr Overington said he no longer had his 1999 diary, and neither did he have the “mud plan” which he would have sent into the data inputting section of CPR to show the work he had done about December 1999. He said that what he thought would have happened would have been that plan would have been sent to Ballarat after the CPR data had been updated to incorporate that plan. It would have been returned to him and he would have thrown it out, as he would have had no need to retain that “mud plan”.. He said all microfiche updates were done at Ballarat and updates used to be sent out annually. The outdated printed out pages were simply thrown out by the field staff when they received the replacements.
36. Mr Maiden referred Mr Overington to an email message (NB 10) from Mr Risdale, the Manager of the Central Planning Team. Mr Overington said he did not know where Mr Risdale got his information. Mr Overington said Mr Risdale’s account did not accurately set out the position at the relevant site when he did some work there in late 1999.
37. Mr Overington was the first witness to give substantive evidence as to what records are kept by Telstra relating to technical data as to cables laid and cable capacity. His evidence was very relevant because he was the technician who did the work on the lines when the complaint from Cahills was first made. It was also very helpful in deciphering the plans and as to Telstra work practices. Mr Maiden endeavoured to establish, that there would have been other engineering plans kept by Telstra. He was unsuccessful in that endeavour, as no Telstra witness agreed with his suggestion that there would at some stage have been engineering plans, other than the data bases referred to and the CPR microfiche printouts and the “mud plans” prepared by technical staff who change cabling.
38. Mr Maiden cross-examined the witnesses as to the location of the outdated microfiche printouts showing cable layout, which had been kept in the vans of technical staff. He was told they would have been discarded. He also questioned the witnesses as to the location of the “mud plans” which had been processed. Mr Maiden asked witnesses whether there may somewhere be back-up computer data for CPR and NPAMS showing the position current as at August 1999.
39. Mr Coulburn is the Telstra Field Services Manager for Bendigo. He said that outdated microfiche records are not usually retained, but he had located the plan (A2 p2) which shows the cable configuration at the subdivision prior to the 1999 upgrade, at the Castlemaine exchange. He explained that it is very difficult to find outdated plans as they are thrown out or destroyed or sent back to Ballarat or Tasmania. He had himself conducted searches at Ms Burden’s request and had also asked other staff including team leaders. By asking around he had found some documents which had not been destroyed.
40. Mr Coulburn said that capacity for a particular property is only worked out “when some orders hit the field”.. Someone then goes out and finds whether there is adequate capacity into the particular property. He said the technical staff would then rely on visual inspection, and on the NPAMS and CPR databases in dealing with the request that had been made.
41. Mr Coulburn’s evidence did not help Mr Maiden to establish that there is any site or database from which old documents or information can be obtained to show historical information as to line capacity to certain properties.
THE LAW AS TO ADEQUACY OF SEARCHES
42. Both Mr Maiden and Mr Batskos referred to Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 as setting out, at paragraph 19, the meaning of the concept of “reasonable steps to find the documents sought”.. In that matter Deputy President McDonald said, at paragraph 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", of which the following is, in the opinion of the tribunal, most appropriately applied:
.... 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate ME. b. Moderate in price; inexpensive 1667. 5. Of such an amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose. late ME. (b. Of a fair, average, or considerable amount, size, etc - 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.
43. Mr Batskos submitted at paragraphs 2.5 and 2.6 of the respondent’s submissions:
Deputy President Forgie has considered in some cases that it follows that the first limb of s24A requires that the agency take such steps as to discover the requested documents as are appropriate in the circumstances: Re Simmons and Secretary Department of Defence [2000] AATA 491 at para 48; Re Langer and Telstra Corporation Limited [2002] AATA 341 at para 95; Re Meschino and Centrelink [2002] AATA 611 at para 22.
In determining the scope of searches required to be undertaken by an agency the Tribunal has previously stated:
“There is no strict liability imposed on an agency to leave absolutely no stone unturned in attempting to locate a document. It is sufficient that the search has been reasonable in all the circumstances.” Re Beesley and Federal [sic] Commissioner of Taxation [2001] AATA 476 at para 69 per Senior Member Sassella.
44. Deputy President Forgie in Re Langer and Telstra Corporation Limited [2002] AATA 341 at paragraph 95 stated:
95. It seems to me that the first limb of s. 24A requires that the Department take such steps to discover the requested documents as are appropriate in the 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.
45. In deciding what steps are reasonable in this matter, evidence as to the practices of Telstra and as to the searches which have been made is of course essential. Further it is relevant to consider the attitude of the applicant when the respondent requested information to help in the search. It is also relevant to consider the document which was located by the respondent in March 2003 (A2 p2), and Mr Cahill’s attitude to that document when it was sent to him on 11 March 2003. It transpired from the evidence of Mr Overington that it contained a great deal of relevant information, but it required interpretation by someone familiar with Telstra work practices.
46. Mr Batskos, at paragraph 2.7 of his written submission, set out a list of circumstances he suggested are relevant in determining under s 24A of the Act, whether all reasonable steps had been taken to find documents. His list was as follows:
·The subject matter of the documents sought;
·The documents one would expect to exist given that subject matter and their expected location (see Re Hawke and Telstra Corporation Limited, Unreported, AAT, 27 August 1998 at paras 10 and 14; Re Meschino (above at para 28));
·The steps already taken to locate documents within the terms of the request;
·The age of the documents;
·Any practice of destruction or removal of documents of the kind sought in accordance with normal practices and procedures;
·The willingness or otherwise of the applicant to provide further information to facilitate a more targeted search;
·The willingness of the respondent agency to conduct further searches;
·The purpose for which the request for documents was made (contra s11(2) and 24(4)).
47. In his oral submission Mr Batskos submitted that the other commitments of the agency are also relevant. One circumstance which I consider unusual in this matter is the lack of willingness of Mr Cahill, for the applicant, to provide further information, if he had that information, to facilitate a more targeted search. Another is that I find from Mr Overington’s evidence that documents A2 p2 and NB 33, taken together, do provide the information the applicant has been seeking.
48. Mr Maiden submitted in paragraph 11 of his written outline of submissions:
A reasonable search would have involved determining which areas of the corporation are responsible for service provision to the relevant geographical area and inquiring of the appropriate people in that area what documents were available (whether in hard copy or electronically) relevant to that supply. This was never done.
49. In regard to the evidence as to databases, Mr Maiden acknowledged, in paragraph 21 of his submissions, that each of the respondent’s witnesses stated that to the best of their knowledge, no historical data was capable of being produced from NPAMS, CPR or PFV. He submitted that no reliable evidence was led as to the precise capacity of those data bases to retain or produce historical data. He submitted further in paragraphs 22 to 23 of his outline of submissions:
If it were determined that the databases did not include the information sought at the time of the Initial Request or thereafter, the applicant submits that a reasonable search would have extended to the corporation’s archives and any backups of those databases that might have existed. The evidence shows that no inquiry was ever made as to the existence, location, currency or scheduling as to any of the backups. In fact, no inquiry was made at any time as to who within Telstra was responsible for such archives or backups. While Mr Sutton deposed that backups would be done frequently and any previous backups would be over-written or destroyed frequently, he admitted to having no personal knowledge of the procedures involved, or even the department responsible, for backing up the databases. His evidence in that regard is of no use to the Tribunal.
The applicant submits that the failure to determine the relevance of NPAMS, CPR and PlotFileView and search them in response to the Initial Request, or to determine whether backups or archives of the data existed following the discovery of the systems’ relevance, means that all reasonable steps were not taken to find the information sought by the applicant.
50. Mr Batskos submitted that all the documents that one would expect to exist, in relation to the subject matter of concern to the applicant, have been found and provided to the applicant. He submitted that I should find that Telstra had conducted exhaustive searches “leaving absolutely no stone unturned”. He submitted that Telstra had exceeded the steps required to take “all reasonable steps in the circumstances”.
FINDINGS AS TO ADEQUACY OF SEARCHES
51. I find that the searches which had been conducted by Telstra as outlined in the statements and evidence before the Tribunal were exhaustive and included all reasonable steps. I find that Ms Burden took all steps which could be considered reasonable in attempting to locate documents meeting the applicant’s request. I note that, with assistance from Mr Risdale and Mr Coulburn, she did succeed in locating relevant emails and plans. By 11 March 2003, Mr Batskos had sent documents including the plan at A2 p2 to Mr Cahill. Although that plan does not contain any descriptive heading, it is a document which does provide the information Mr Cahill was seeking to obtain from his Freedom of Information request. It is perhaps unfortunate that its relevance was not explained by Mr Batskos in his letter of 11 March 2003 to Mr Cahill. The position might have been different if Mr Cahill had been less confrontational in his dealings with Mr Batskos. There may then have been a possibility of avoiding any necessity for a hearing. As things developed, it was probably only in the context of a hearing that Mr Overington would have been available to give evidence as to the interpretation of that document, and the current plan (NB 33). I find on the basis of Mr Overington’s evidence and that of the other Telstra employees that Mr Cahill has now received the only document in existence which meets his request.
52. I find that there is no realistic prospect of any further relevant old microfiches or mud plans coming to light as a result of the further searches suggested by Mr Maiden in paragraphs 11, 22 and 23 of his submission, and further that it would not be reasonable or appropriate to require Telstra to undertake any further searches.
53. I find under s 24A:
(a)that all reasonable steps have been taken to find documents answering the applicant’s request; and
(b)that no further documents answering the request do exist.
54. I do not accede to Mr Maiden’s submission that I direct that further searches be undertaken, as was done by the Tribunal in Re Beesley and Commissioner of Taxation [2001] AATA 476.
55. Further searches could be appropriate in a matter where the evidence established that documents which should be in existence could not be located. In this matter I find on the evidence that no further relevant documents other than a “mud plan” have ever been in existence, and that the “mud plan” has not been retained. I find that the further searches requested by Mr Maiden at paragraph 30 of his submissions would be inappropriate, as they would be time consuming and costly and would not locate any further relevant documentation. Further I find that the plans at A2 p2 and NB 33 taken together already provide the information which those searches would be intended to locate.
MATERIAL CLAIMED TO BE EXEMPT UNDER S 41(1) OF THE ACT
56. The second issue before the Tribunal concerns information deleted from documents already provided to the applicant. The exemption claimed in respect of that information is s 41(1) of the Act which, so far as relevant, provides:
Documents affecting personal privacy
(1)A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
57. The documents as to which personal information exemptions are claimed are set out in an amended schedule of documents lodged by the respondent on 30 June 2003. In writing these reasons for decision, I noticed that by error exhibit R1 was a schedule dated 29 June 2003, which was not the most up to date version. I have therefore added the version of the schedule dated 30 June 2003 to exhibit R1. That schedule (with some words deleted and some typographical corrected errors) is as follows:
Page Nos
Date From To Description No. Pages Exemption 17-19
13/12/99 – 31/01/00
Telstra staff
N/A
Held order report containing name of Telstra staff entering notes on system about discussions with customers and names of two customers other than the applicant
3
s.41 in respect of names of one Telstra staff member and names and location of two customers.
20-22
Ditto
Ditto
Ditto
Ditto
Ditto
Ditto
53-74
25/01/00 – 14/03/02
Various Telstra staff
N/A
Single complaint details report showing entries by staff in relation to dealing with complaint and summaries of action taken. Names of some staff . . . and direct telephone numbers withheld
22
s.41 in respect only of names and telephone numbers withheld.
Documents released in March 2003
Page Nos
Date From To Description No. Pages Exemption 18/8/99
Telstra
N/A
Prov/Trak Sequence 709131 – Application/Work
1
s.41 in respect only of two names – one Telstra employee and one Primus employee.
19/8/99 – 14/12/99
Telstra
N/A
Prov/Trak Sequence 709131 – Notes showing steps taken to address complaint of applicant in relation to premises. Pages 2 and 3 only remain in dispute.
3
s.41 in respect only of names of Telstra and Primus staff.
The Schedule stated that page 1 of the last document was not in issue as the applicant had previously indicated it did not seek access to it (see AAT directions 19 June 2003)
58. Mr Cahill said that he did not seek access to the names of Primus employees or of the tenants of the shops or their shop numbers. Pages 17 to 19 contain the name of one Telstra staff member which has been deleted and also the names of two tenants of shops in the complex at Lot 17. Thus in respect of that document I am looking at the name of one Telstra staff member only on pages 17, 18, 19. (They are the same as pages 20, 21 and 22). Confidential exhibit C to exhibit R10 is a Table prepared by Ms Burden which indicates that the staff member has replied to a letter under s 59A(3) of the Act objecting to release of the staff member’s name. That letter is in confidential exhibit D. I have read and taken note of the reasons expressed in that letter.
59. Pages 53 to 74 are pages of complaint details reports showing entries by staff between specified dates in relation to the applicant’s complaint and summaries of action taken. That document names a number of Telstra staff. They all received letters asking if they objected to the release of their name and, in some cases, their work telephone number. Twelve staff whose names are mentioned in the document advised that they had no objection to the release of their names and work telephone numbers. Six staff members replied advising that they did object to release of names and in some cases work telephone numbers. The letters of objection are in confidential exhibit D. I have had regard to the reasons given in those letters.
60. In regard to the further release of documents in March 2003, there are only three pages as to which exemptions are claimed under s 41(1) of the Act. The first page is identified as “Provtrak sequence 7091 31” (A2 p5). An exemption is claimed in respect of the name of one Telstra employee and one Primus employee. The relevant entry was created on 18 August 1999. As Mr Cahill did not seek access to the names of Primus employees, there is only one Telstra employee in issue in respect of that page. Confidential exhibit A to R10 shows that the name in the column headed “Complex” is that of the Telstra employee. That person wrote to Ms Burden on 17 April 2003 (R10 Confidential exhibit B) setting out reasons of which I have taken note, and asking that the person be advised in writing before information is released so that the person can “investigate it further”.
61. The next document consists of three pages, but there are only two pages in issue. Those two pages contain the names of four Telstra staff. Their written objections to release are in R10 Confidential exhibit B. I have read and taken note of those reasons. I note that one of those Telstra staff also asked for advice in writing before any release “so that I can investigate it further”.
62. Mr Maiden, in his submission, pointed out that names are not necessarily personal information within the definition of that term in s 4 of the Act. That definition is as follows:
“personal information” means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
63. Mr Maiden referred to Lalogianni v Australian National University [2003] FMCA 9. Federal Magistrate Raphael stated at paragraph 23:
23. The term "personal information" is more expansive than that of "information relating to personal affairs". The reason for making this distinction was set out in a Freedom of Information Memorandum issued by the Commonwealth Attorney-General's Department at the time the amendments were first made (Freedom of Information Memorandum No 92, 1991, p13):
"The main purpose of the change is to ensure that the privacy exemption is capable of applying to information regarding work performance, capacity or suitability of a person for appointment or promotion....In general `personal information' means any information about an identifiable individual. To fall within the definition it is not sufficient that a document contains a person's name or bears a person's signature; the information in the document must say something about the person."
Hence, what is central to the definition is the person's identity coupled with the personal nature of the information: see Re Pfizer Pty Ltd v Department of Health, Housing and Community Services (1993) 30 ALD 647 and Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55.
64. Raphael FM in Lalogianni concluded that what is central to the definition is the person’s identity coupled with the personal nature of the information. He cited as authority for that view Pfizer Pty Ltd v Department of Health, Housing and Community Services(1993) 30 ALD 647 and Kristoffersen v Department of Employment, Workplace Relations and Small Business[2002] FCA 55. In Kristoffersen, Kiefel J said at paragraph 27:
The definition in the current legislation makes clear that it is concerned with information which does identify a person, but the question arises whether more is then required; namely that something be said about them.
65. Mr Batskos conceded that the weight of authority on the issue is inconclusive and that there are cases going in each direction as to whether names constitute “personal information”.. He submitted that the better view is that names of individuals do comprise “personal information”.
66. Mr Batskos submitted that the correct approach is to take an expansive view of what is covered by the phrase “personal information”, and to then focus the inquiry on whether such information is exempt on the ground that disclosure would involve the unreasonable disclosure of personal information about a person.
67. I have decided that it is appropriate in this case to adopt that approach, without attempting to add to the debate as to whether a name alone, or a name associated with some innocuous information about a person’s employment, such as, that they took a phone call on a certain day, is “personal information”.
68. Thus I proceed to consider whether the disclosure of the names and telephone numbers of Telstra employees, which have been deleted in the documents as to which s 41(1) exemptions are claimed would involve the unreasonable disclosure of “personal information about any person”. The onus of establishing that fact is of course on the respondent.
69. I find that there is nothing in the nature of the information contained in the pages as to which deletions have been made which means that the disclosure of those names “would involve the unreasonable disclosure of personal information about any person”. The same applies to the disclosure of work telephone numbers. The information in the documents is all work related. There is nothing of a personal nature and nothing of such a character that its disclosure could create any embarrassment for the persons named.
70. I have considered the reasons in the responses received by Ms Burden to the letters she sent out in compliance with s 59A(3) of the Act. The responses are confidential exhibits before the Tribunal. None of those letters advance any reason which persuades me that the disclosure of the deleted material, “would involve the unreasonable disclosure of personal information about any person”.. There was no evidence at all that Mr Cahill had ever contacted any Telstra staff member in an inappropriate manner about this matter. There was no suggestion of any invasion of the privacy of any person in relation to this matter. I have considered whether, in view of the requests that two staff be advised in writing before their names are released, a stay should be granted as to the disclosure of those names. I have however concluded that in view of the completely innocuous nature of the reference to those people in the documents, no stay is necessary or appropriate.
CONCLUSION
71. As to the issue of adequacy of searches, I will decide that the respondent is not required to undertake further searches in respect of s 24A of the Act.
72. As to the claimed s 41 exemptions, I will not uphold the s 41 exemptions claimed for parts of documents in respect of the names and work telephone numbers of Telstra employees. In view of the fact that the applicant does not seek the names of Primus employees or the names of tenants of shops, I will decide that all documents claimed to be exempt under s 41 should be released in full, except for the names of the Primus employees and tenants of shops.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed: Nick Fletcher
AssociateDates of Hearing 7 and 8 July, 2003
Date of Decision 10 October 2003
Counsel for the Applicant Mr S Maiden
Solicitor for the Applicant Cahills
Solicitor for the Respondent Mr M Batskos, FOI Solutions
6
6
0