Shafran and Secretary, Department of Veterans' Affairs (Freedom of information) - [2023] AATA 39

Shafran and Secretary, Department of Veterans' Affairs (Freedom of information) [2023] AATA 39 (19 January 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Numbers: 2021/4812, 2021/9443
Re:Geoffrey Shafran
APPLICANT

AndSecretary, Department of Veterans' Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:19 January 2023
Place:Perth

The Reviewable Decision in application 2021/4812 is affirmed.
The Reviewable Decision in application 2021/9443 is also affirmed.
..........[Sgd]..............................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
FREEDOM OF INFORMATION – Applicant made two separate freedom of information requests seeking evidence relevant to a report (first request) and a guideline document (second request) from the Department – report prepared under s 137 of the Veterans’ Entitlements Act 1986 (Cth) (VEA) provided to the Applicant in full prior to the first FOI request and in part after the first FOI request – Applicant contended a reasonable search was not undertaken because he should have been provided with less pages of this document or nothing – Applicant’s second request was for a guideline or policy as to what constitutes “evidence” for the purpose of compiling reports under s 137 of the VEA – after searching for the guideline or policy the Department advised no such document existed – draft guideline was subsequently developed and provided to the Applicant – other related documents provided to the Applicant to assist him – whether a reasonable search undertaken in response to the first and second FOI requests – both Reviewable Decisions affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 35(3)
Evidence Act 1995 (Cth)
Freedom of Information Act 1982 (Cth) ss 4, 15(1), 24A(1), 55D(1)(a)
Veterans’ Entitlement Act 1986 (Cth) ss 15, 135(1), 137, 137(1)(a), 137(1)(b), 137(2)
CASES
Chu and Telstra Corporation Limited [2007] AATA 1748
Chu v Telstra Corporation Limited [2005] FCA 1730
De Tarle and Australian Securities and Investments Commission [2015] AATA 770
‘KE’ and Cancer Australia [2016] AICmr 87
Langer and Telstra Corporation Ltd [2002] AATA 341
‘OP’ and Department of Home Affairs [2018] AICmr 43
‘PI’ and Department of Human Services [2018] AICmr 62
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (combined February 2022)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
19 January 2023
overview

These proceedings concern two freedom of information (FOI) requests made by Mr Shafran to obtain documents from the Department of Veterans’ Affairs (Department) under the Freedom of Information Act 1982 (Cth) (FOI Act).
In summary, s 15(1) of the FOI Act provides that a person who wishes to obtain access to a document of an agency can request access to the document. Indeed, every person has a legally enforceable right to obtain access to certain documents including a document of an agency, other than exempt documents, in accordance with the FOI Act.
Section 4 of the FOI Act provides that “a document is a document of an agency if … the document is in the possession of the agency, whether created in the agency or received in the agency …”.
The two FOI applications that are before me arose in the context of Mr Shafran making an application to the Repatriation Commission on 3 April 2018 for an increase in his pension based on several medical conditions, namely concussion, fractured tooth, and contusion to lip (Various Medical Conditions) and abrading upper right canine and abrading right lower central incisor (Dental Conditions).
Mr Shafran claimed for the increase in his pension under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (VEA). That section provides that a veteran in recipient of a pension can apply for an increase in their rate of pension if their incapacity has increased since the pension was assessed or last assessed.
On 13 September 2018, a delegate at the Department accepted Mr Shafran’s claim for the Various Medical Conditions but rejected his claim for the Dental Conditions. The overall result was an increase in Mr Shafran’s pension.
Mr Shafran appealed the decision to the Veterans’ Review Board (Board) pursuant to s 135(1) of the VEA, in an application dated 8 October 2018 that was received by the Board on 16 October 2018.
Section 137 of the VEA provides that within six weeks after an application being made under s 135(1) of the VEA, the Secretary of the Department shall “cause to be prepared a report referring to the evidence under the control of the Department that is relevant to the review”. As I explain below, the first FOI request made by Mr Shafran concerned the s 137 report that was prepared for his appeal to the Board.
First FOI Request (evidence relevant to the section 137 Report)
The first FOI request was made by Mr Shafran by email on 9 June 2020. It forms the basis of application 2021/4812 and related to the report prepared under s 137 of the VEA. I will generally refer to this document as the Report. Mr Shafran’s FOI request was for (what I have paraphrased as) evidence relevant to the Report, as can be seen from the wording of his FOI request.
Specifically, Mr Shafran’s first FOI request was worded as follows (Ex 1, T3/13):
… it is clear the 137 report … , as prepared by [staff member name omitted] contains both evidence and other material. I request to be provided, in isolation, the “evidence under the control of the Department that is relevant to the review” in relation to this matter, that is material which conforms with the requirements of VEA s137(1)(a).
I appreciate and understand that there might be some pages which contain evidence and other material, in these instances I request that the non evidence, or other material be redacted.
(As original.)
Review of the First FOI Request
On 3 July 2020 the Respondent decided to grant Mr Shafran full access to the document falling within the scope of his FOI request. That is, informed by the scope of the request which referred to “evidence … relevant to the review”, the decision-maker removed any material they thought was not relevant to the request, resulting in seven pages (of what was identified as an 88-page Report) being provided to Mr Shafran (Ex 1, T6/24, para [13]). I will refer to this as the Original Report Decision.
Mr Shafran sought review of the Original Report Decision on 4 July 2020 (Ex 1, T7). He raised concerns about whether the Department was complying with s 137(1)(a) of the VEA and made submissions about the Evidence Act 1995 (Cth).
On 3 August 2020, a legal officer who undertook the internal review affirmed the Original Report Decision (Internal Report Decision), also noting that Mr Shafran had already been provided with a full copy of the Report on 17 May 2019 (Ex 1, T9).
In an email dated 3 August 2020, Mr Shafran sought review in the Office of the Australian Information Commissioner (OAIC) (Ex 1, T10/49). He again expressed concerns about whether the Report complied with s 137(1)(a) of the VEA and what constituted “evidence” for the purpose of that provision. He stated:
I hereby apply to the OAIC for a review of this decision. I also request that this matter be considered for an accelerated review on the basis it seems to rather hinge on a legal question of whether the opinion of the contracted medical advisor can be considered evidence for the purposes of VEA s137(1)(a) when it is not accompanied with a Evidence Act s177 Certificate of Expert Evidence, and I would suggest the appropriate business area at DVA have not appropriately or fully considered this.
It is worth noting that the report originally compiled in accordance with VEA s137(1)(a), and that this matter relates to (see attached) consisted of 84 pages, the FOI request effectively rendered the 137 Report down to seven pages. Clearly if DVA can't compile a report consistent with s137 in the first instance, there may be veracity in any contention that the appropriate business area might not also have it correct on review. And it is my contention that these remaining seven pages do not comply with VEA s137(1)(a) as well.
I would highlight the note at the bottom of Evidence Act s5 “Australian court is defined in the Dictionary to cover all courts in Australia. The Dictionary, Part 1—Definitions includes, “persons and bodies that take evidence or that are required to apply the laws of evidence”.
On 7 March 2021, the Australian Information Commissioner (AIC) affirmed the Internal Report Decision (Ex 1, T2). This is the Reviewable Decision in application 2021/4812.
On 18 July 2021 Mr Shafran sought review of the Reviewable Decision in this Tribunal (T1). The application was made outside of the 28-day timeframe for making applications. The Respondent did not oppose an extension of time being given to Mr Shafran. Accordingly, the Tribunal granted the extension of time, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), on 3 August 2021.
Second FOI Request (guideline)
Mr Shafran made a second FOI request on 4 August 2020. It concerned whether there was a Departmental policy or guideline on the meaning of “evidence” for the purpose of compiling s 137 reports. I will refer to this requested document as the Guideline.
This request forms the basis of application 2021/9443 and was as follows (Ex 2, T10.a/116). I have added the emphasis in bold to highlight what was being requested.
I have made an earlier FOI requesting the reference for evidence for decision making and compiling 137 repors [sic], and I was supplied the VRB's 137 Practice Direction. Justice Logan in Shafran v Repatriation Commission was critical of the practice and the VRB itself stated, “The Federal Court has handed down a decision today that has the effect of making our “Section 137 Practice Direction” on the VRB website illegal, The document must be removed as a matter of urgency to avoid public reputational damage and the risk of further legal action.”
In essence DVA were compiling 137 Reports in accordance with the illegal practice direction, FOI 36850 [the Internal Report Decision] has effectively eliminated all but 7 pages as being evidence, as a process of deduction it now seems these remaining 7 pages are evidence for reasons other than complying with the 137 Practice Direction. By my way of thinking a Delegate can’t arbitrarily decide that the Contracted Medical or Dental Advisors opinion constitutes “evidence”, there must be a point of reference. policy document, evidence act or even a definition etc.
Under FOI I request the document that the delegate has used as the basis, or the document allows the delegate to determine or define the opinion of Mark contained within the remaining 7 pages constitutes “evidence”.
In response to a request from the Department for an extension of time to comply with the FOI request, Mr Shafran provided further clarification as to the document he was seeking in an email dated 28 August 2020 (Ex 2, T6/22). Again, I have added the highlighting in bold to clarify the documentation that Mr Shafran was seeking access to.
I feel it’s reasonable to believe that now the VRB’s 137 Practice Direction has been determined to be effectively illegal, an alternative policy guidance or suchlike must have been created for the purposes of identifying what material is to be included in the VEA s137(1)(a) report. If this is not the case then Departmental Officers must have some arbitrary power to determine what is evidence and what is not evidence, and I struggle to believe this, because if this were the case then my 137 Report would not have been rendered down to 7 pages.
On the basis of the above I feel it’s reasonable to consider that the Department must have created a new or updated policy guidance or suchlike that they provide Departmental Officers as to what constitutes evidence for the purpose of compiling reports in accordance with VEA s137(1)(a).
Review of the Second FOI Request
In a decision dated 3 September 2020, a decision-maker from the Department stated that the Department had undertaken a reasonable search of its records and had identified four documents relevant to Mr Shafran’s request which they released to him in full (Ex 2, T7a). These documents were titled, “Veterans’ Review Board (VRB) Hearings”, “The Role of Medical Advisors”, “VEA Section 119 – Commission not bound by technicalities” and “Choosing a doctor to advise the Delegate” (T7a/37). I will refer to this as the Original Guideline Decision.
In an email to the OAIC dated 6 September 2020, Mr Shafran requested a review of the Original Guideline Decision by the AIC (Ex 2, T8). In his request, he clarified the document he was seeking (Ex 2, T8/38):
In effect I am after the document that allows the officer that prepares reports IAW [in accordance with] VEA s137(1)(a) to determine or define what is evidence evidence [sic], I contend any documents provided in this FOI which relate to the Commission or the Board are irrelevant is relation to how the Department conducts its business under 137.
On 1 December 2021, the Acting FOI Commissioner affirmed the Original Guideline Decision (Ex 2, T2). This is the Reviewable Decision in application 2021/9344.
The Applicant sought review of the Reviewable Decision in this Tribunal on 4 December 2021 (Ex 2, T1).
the issue in these applications
The parties have informed me that there are separate Federal Court proceedings on foot (that do not concern the FOI Act) that were instituted by Mr Shafran whereby the definition of “evidence” under s 137 of the VEA is in issue.
My impression from the hearing was that Mr Shafran was attempting to use the scope of the FOI requests, and how they were interpreted by the Department, to highlight issues regarding the Department’s interpretation of “evidence” to be included in the report under s 137 of the VEA. These issues were apparently relevant to his Federal Court proceedings. This impression was confirmed in Mr Shafran’s written closing submissions (page 8), where he stated:
I hold the view that in order to conduct a reasonable search for information which meets the terms of my FOI request, it must first be decided what the definition of “evidence” is for the purpose of VEA s137(1)(a), and without this definition, I fail to see how any reason for decision the AAT hands down in this matter will not be seen as inadequate or reasonable.
However, the issues in the FOI applications currently before me concern the FOI Act and do not require a determination of the meaning of “evidence” under s 137 of the VEA. Rather, the issue is whether a reasonable search has been undertaken to locate the documents, pursuant to s 24A(1) of the FOI Act. To require the public servant searching for a document requested under FOI to first engage in statutory interpretation of a related statute is unnecessarily technical and burdensome and could result in documents not being provided in response to the request that should be. In that sense, imposing a legalistic and technical burden on public servants is contrary to the government transparency and openness which the FOI Act seeks to promote.
The issue before me is whether the Respondent took all reasonable steps to find the documents in accordance with s 24A(1) of the FOI Act. That subsection provides:
Document lost or non-existent
(1) 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.
(My emphasis.)
Pursuant to s 55D(1)(a) of the FOI Act the Department bears the onus of establishing that the decision is justified.
The Assistant Secretary of the Business Improvement and Quality Assurance Branch within the Client Benefits Division of the DVA (Assistant Secretary) gave evidence at the hearing about the Department’s record keeping practices and the searches conducted in relation to both of Mr Shafran’s FOI requests.
the meaning of “all reasonable steps”
In ‘PI’ and Department of Human Services [2018] AICmr 62 at [28]; ‘OP’ and Department of Home Affairs [2018] AICmr 43 at [12]; and ‘KE’ and Cancer Australia [2016] AICmr 87 at [10], the Australian Information Commissioner explained:
Section 24A of the FOI Act requires an agency to take ‘all reasonable steps’ to find a requested document before refusing access to it on the basis that it cannot be found or does not exist. Whether ‘all reasonable steps’ have been taken is a question of fact in the individual case to be decided having regard to matters such as the terms of an applicant’s request, the document creation and retention practices in an agency and the steps taken by the agency to identify and locate documents requested by the applicant.
(Footnote omitted.)
These decisions then refer to the OAIC, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines). The FOI Guidelines provide guidance for decision-makers exercising powers and functions under the FOI Act (see para [1.2]).
The paragraphs from the FOI Guidelines that are relevant to the current applications, and specifically, the meaning of “all reasonable steps”, are as follows:
3.85An agency or minister may refuse a request if it has taken ‘all reasonable steps’ to find the document requested, and is satisfied that the document cannot be found or does not exist (s 24A(1)). There are two elements that must be established before an agency or minister can refuse a request for access to a document under s 24A:
•    the agency or minister must have taken all reasonable steps to find the document, and
•    the agency or minister is satisfied that the document cannot be found or does not exist.
3.86It is not enough for an agency or minister to simply assert that the document cannot be found or does not exist before taking any demonstrable steps to try and find the requested document.
…
3.88The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.
3.89Agencies and ministers should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:
•    the subject matter of the documents
•    the current and past file management systems and the practice of destruction or removal of documents
•    the record management systems in place
•    the individuals within an agency or minister’s office who may be able to assist with the location of documents, and
•    the age of the documents.
…
3.91Agencies and ministers are responsible for managing and storing records in a way that facilitates finding them for the purposes of an FOI request. The steps taken to search for documents should include the use of existing technology and infrastructure to conduct an electronic search of documents, as well as making enquiries of those who may be able to help locate the documents.
…
(Footnotes omitted.)
In Chu v Telstra Corporation Limited [2005] FCA 1730, Finn J, at [34], emphasised that s 24A requires the Tribunal to ask whether “all reasonable steps” have been taken to locate a document (not just “reasonable steps”). Finn J further explained, at [35]:
A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question.

Finn J remitted the application back to the Tribunal for a re-hearing in accordance with the law. The resultant decision was Chu and Telstra Corporation Limited [2007] AATA 1748 in which the Tribunal made the following observations about “all reasonable steps”, at [103]:
The Modern Oxford Dictionary states that all followed by a comparative (in this instance reasonable) is to be interpreted as to the extent. Reasonable, as an adjective, is defined as moderate; not absurd; not greatly less or more than might be expected. The Tribunal concluded that in a FOI enquiry the noun steps was qualified by the predeterminer all – to the extent of - and the adjective reasonable – not greatly less or more than might be expected.
(Emphasis in original.)
In De Tarle and Australian Securities and Investments Commission [2015] AATA 770 (De Tarle), at [19], the Tribunal cited Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 at [19] which referred to Dictionary definitions when considering the meaning of “reasonable” in s 24A of the FOI Act:
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 in De Tarle, at [20], cited the following passage from Deputy President Forgie’s decision in Langer and Telstra Corporation Ltd [2002] AATA 341 where the learned Deputy President explained the steps that an agency must take to comply with s 24A of the FOI Act:
(94) Section 24A of the [FOI Act] requires the consideration of two matters. The first requires a consideration of whether the department has taken all reasonable steps to find the documents. If it has done that, the second requires a consideration of whether the documents are in the department’s possession but cannot be found or whether they exist...
(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.
I now turn to the specific issue in these applications.
did the respondent take all reasonable steps to find the requested documents?
FOI request for evidence relevant to the Report
Mr Shafran has received a copy of the Report in full (including evidence in the Report) on two occasions and seven pages of evidence from the Report on one occasion. Specifically:
(a)Mr Shafran was given an unredacted copy of the Report on 9 November 2018 as part of the Board’s review process (Ex 3, para [8]). This was in accordance with s 137(1)(b) of the VEA which provides that a copy of the Report shall be served on the applicant (unless, subject to s 137(2) it refers to anything confidential or that may be prejudicial to the physical or mental health or well-being of the applicant).
(b)Mr Shafran was given an additional unredacted copy of the Report on 17 May 2019 as part of a previous FOI request, FOI28139 (Ex 1, T6/24, para [11]).
(c)As I explained above, Mr Shafran was then given seven pages of the Report on 3 July 2020 after making this FOI request (Ex 1, T6/22).
At the hearing I asked Mr Shafran whether he thought the Department would find more documents if they conducted a further search. Mr Shafran confirmed: “They will not find more documents” (transcript/44).
Mr Shafran submitted at the hearing that the searches undertaken by the Department were not reasonable. Specifically, “a reasonable search would have identified no documents” (transcript/73). He further submitted that the search that produced seven pages was also not reasonable because “a reasonable search would have - in the same way that eliminated 70 pages, it would have eliminated those 7 pages also” (transcript/73).
The following exchange provides further clarification (transcript/74):
SENIOR MEMBER: … If you were successful today and I was to find in your favour, what is the decision that you would be asking me to make?
MR SHAFRAN: I would be asking you to make a decision that a reasonable search had not been conducted and for the Department to go back and consider the methodology that it used to determine what constitutes evidence for the purpose of [s] 137, because I actually quoted that in my FOI request.
Mr Shafran explained his concerns in more detail later in the hearing (transcript/76):
If I make an FOI request and request the other information in accordance with 138(2)(b), then a side-by-side comparison should demonstrate the issue, here; it is that the Department is routinely as a matter of course polluting these reports, and I appreciate that this is hanging on - I knew this in advance. My FOI request highlighted that I knew that the Department were doing this. When I got this 137 report, here, I made an FOI request to provide that point of delineation. I needed to know what is the evidence because when I go to the Review Board, I don’t know what is the evidence. The Review Board may not know what is evidence. No one knows what is evidence. The legislators created a process whereby evidence goes onto 137 and other materials go to 138.
What I am saying is that I believe that the FOI request should actually have provided me with not 7 documents, not with 77 documents or 87 documents, but with zero documents, and there is no explanation as to why I didn’t receive zero documents.
…
I think a reasonable search doesn’t only necessarily extend to finding more documents, but I think the reasonable search has to hone in on whether documents I have been provided actually meet the terms of my FOI.
Mr Shafran expressed concern that the Assistant Secretary did not contact the Departmental officer, “Trevor”, who undertook the search for the Report and identified the seven pages of evidence in the s 137 Report being relevant to the request (Ex 1, T5/18-21). Mr Shafran submitted that Trevor should have been asked if he had used a specific document to determine the definition of “evidence” in the Report. He suggested that “all reasonable steps” could not have been undertaken without Trevor having been contacted.
The Assistant Secretary’s evidence was that Trevor had left the Department or had moved to a different position in the Department at the time of Mr Shafran’s FOI request. Further, the Assistant Secretary stated that “the search was conducted within the business area that Trevor worked in prior to him moving on, so there would have been a retention of corporate knowledge in that business area, which I think would have provided the sufficient expertise to conduct the later search” (transcript/81-82).
With respect to Mr Shafran, I do not think that “all reasonable steps” required Trevor to be consulted about the specific search process he undertook (including any documentation that he referred to or the key words he used in conducting his search) or to ascertain Trevor’s familiarity with the FOI Guidelines. Given the lateness of the request (which was made at the hearing) to locate and call Trevor as a witness, and the fact that there was adequate evidence already before me about the searches that were undertaken, I did not allow an adjournment to facilitate calling Trevor as a witness (assuming he could be located). There was more than sufficient information before me about the Department’s search processes (which I discuss below) without the need to call the public servant who conducted the search or their supervisor.
My view is that the Assistant Secretary had sufficient direct Departmental knowledge and experience to be able to give evidence about the search processes undertaken. A workforce such as the public service is somewhat dynamic in that employees will come and go (including taking leave, leaving the Department altogether or being transferred, promoted, or seconded to different positions within the Department or another Department). Operationally, there may be different public servants involved in determining FOI requests from time to time, or several people involved in various stages of the same FOI request. It is often not operationally practicable, nor do I think it necessary, to contact the person who conducted the search or indeed any other public servant involved in the decision-making process. Rather, as referred to by the Assistant Secretary in his evidence, there should be sufficient corporate knowledge (including record keeping systems and search processes) to ascertain whether all reasonable steps were taken to locate a document requested under FOI without reference to the person who initially conducted the search or any Departmental decision-maker.
As I have already indicated, the consideration of the meaning of “evidence” in s 137 of the VEA and whether the Department is properly or adequately complying with s 137 is beyond the scope of my review. My review concerns whether all reasonable steps were taken by the Department to find the document requested.
As I mentioned above, the Assistant Secretary gave evidence at the hearing about the Department’s record keeping and search procedures. Mr Shafran questioned the veracity and credibility of the Assistant Secretary’s evidence (pages 1 - 4 of Mr Shafran’s closing submissions). I find that there is no logical basis upon which to do so. My impression of the Assistant Secretary was that he was an honest and reliable witness who gave evidence to the best of his recollection. He made concessions when he did not have specific knowledge to be able to answer certain questions and was patient and respectful to Mr Shafran during Mr Shafran’s cross-examination of him.
During a directions hearing on 20 September 2022, the Respondent expressed a general concern that Mr Shafran may make public comment about a witness (the Assistant Secretary) in this application. I reminded Mr Shafran that the proceedings were not concluded and that it would not be appropriate to make public comment about a witness’s evidence or their credibility. After the substantive hearing, on 1 November 2022, the Respondent informed the Tribunal that Mr Shafran had made social media posts to a Veterans’ Facebook Group with over 33,000 members. This included posting part of an affidavit sworn by the Assistant Secretary from these proceedings and commentary about the Assistant Secretary’s evidence in these proceedings. Consequently, on 2 November 2022, I made an order pursuant to s 35(3) of the AAT Act, that the publication or other disclosure of the name, address or any other information tending to reveal the identity of the Assistant Secretary or information otherwise concerning the Assistant Secretary is prohibited. This order remains in place.
In his evidence in these proceedings, the Assistant Secretary explained that the main record management system used by the Department is HPE Content Manager 9 (known as TRIM). He further attested that: “All files, information, or other materials relevant to client compensation matters are required to be stored and managed in their unique HPE Content (TRIM) container” (Ex3, para [9]). This is to ensure “that there is a single and comprehensive record of the clients compensation business should any relevant parties need access to it in the future” (Ex3, para [16]).
He further attested that the Department has a record keeping policy and that: “Compensation staff are trained in these record keeping practices to ensure that a client’s HPE Content container remains the single source for information, evidence and any other relevant files”. Further, “since 2017, where a file existed in hard copy/ paper, have been digitised and saved into the client’s HPE Content container” (Ex 3, paras [10]-[11]).
The Assistant Secretary also confirmed (Ex 3, para [13]) that:
Reports prepared under s 137 of the VEA are compiled using the client’s HPE Content container to identify relevant documents or material. The s 137 report is then compiled using PDF software before being emailed to the claimant and ultimately digitally uploaded to the Veterans Review Board. As all relevant files and information relating to a claimant’s compensation business is uploaded to the HPE Content folder, I would not expect there to be any reason to consider any other source when preparing a s 137 report (and as a consequence, I would not expect there to be any reason or need to look elsewhere to identify documents relevant to the applicant’s FOI request).
The Assistant Secretary further confirmed that all material relevant to the FOI request would have been saved in Mr Shafran’s HPE Content container (Ex 3, paras [15]- [16]).
This Reviewable Decision concerns the provision of seven pages of evidence from the Report to Mr Shafran on 3 July 2020 in accordance with his request of 9 June 2020. After receiving Mr Shafran’s FOI request on 9 June 2020, a public servant from the Department (presumably “Trevor”) would have interpreted the scope of Mr Shafran’s request, and then accessed Mr Shafran’s HPE Content container to find documents that fell within that scope.
As the FOI Guidelines explain, at para [3.89], “a flexible and common sense interpretation of the terms of the request” is required. This exercise involves a degree of subjective judgement as to the parameters of the documents that fall within the scope of a request. Consequently, it is possible that there could be differences in the way different public servants could interpret the same FOI request. This may have happened here. That is, I note that Mr Shafran was provided with a complete copy of the s 137 Report on 17 May 2019 as part of a previous FOI request but was subsequently provided with only seven pages in response to this FOI request. However, Mr Shafran being provided with part (or even the whole) of the Report instead of no documents does not indicate that the search was unreasonable.
Based on the Assistant Secretary’s evidence which I accept as credible, I find that the Department has adequate record keeping systems. It is evident that those systems were accessed effectively to provide Mr Shafran with the seven pages he received which were interpreted by the public servant as being within the scope of his request.
I find that all reasonable steps were taken by the Department to find the document requested by Mr Shafran in his first FOI request. Consequently, the Reviewable Decision in application 2021/4812 should be affirmed.
FOI request for the Guideline
The Assistant Secretary’s evidence was that the Guideline sought by Mr Shafran did not exist at the time of his FOI request (Ex 4, para [6]).
Although it did not exist at the time of the FOI request, the Department subsequently developed a set of guidelines on preparing a s 137 Report and provided a copy to Mr Shafran (Ex 4, para [7]). The Assistant Secretary’s evidence at the hearing was that he asked for guidelines to be developed after Mr Shafran’s FOI request because he recognised there was a gap in the documentation because no such guideline was in existence (transcript/104).
In this regard, the Department complied with para [2.34] of the FOI Guidelines which explains that:
The right of access applies to documents that exist at the time the FOI request was made. An applicant cannot insist that their request cover documents created after the request is received. However, the agency or minister could consider whether to include documents that were created after the request was received. This could be more administratively efficient because the applicant might otherwise submit a new request for the later documents.
The Assistant Secretary also gave the following evidence about where the Department would store the Guideline if it existed and the searches that were conducted to find documents that fell within the scope of Mr Shafran’s FOI request (Ex 5):
5.Based on my experience, a document falling within the scope of the applicant’s request (if it existed) would be located in the Department’s Consolidated Library of Information and Knowledge (‘CLIK’). This is reflected in the FOI minute I personally signed off at Tribunal document T10.d. CLIK is a central repository of guidance and policy documents relied upon by the Department in performing its work, including under the [VEA].
6.I note that the Department also undertook additional searches when notified of the review by OAIC (see Tribunal document T10.i). These searches included searches of a number of other locations in an effort to try and further assist the applicant. …
7.I cannot think of any other searches the Department could reasonably undertake to find documents falling within the scope of the applicant’s request. … based on my working knowledge and experience in preparing reports under s 137 of the VEA, I am satisfied that no document as requested by the applicant existed on 4 August 2020 when the FOI request in this proceeding was received.
The “other locations” referred to in para [6] of this extract is a reference to three other sections or teams of the Department. That is, after the Department received Mr Shafran’s FOI request, the Information Law Section of the Department prepared a minute addressed to the Client’s Benefit Division business section asking them to undertake searches in response to Mr Shafran’s request (Ex 2, T10.d). The Department’s Statutory Interpretation team and Litigation and Dispute Resolution team were also asked to determine whether any other documents fell within the scope of the request (Ex 2/T10.a, paras [13] and [17]).
Although the Guideline requested by Mr Shafran did not exist at the time of his FOI request, based on the searches undertaken, the documents that were released to Mr Shafran on 3 September 2020 were those that “most closely approximated documents relevant to his request” (Ex 4, para [5]).
This evidence, which I accept, indicates that the Department’s record keeping practices were well organised with relevant policies and guidelines in existence being stored in the CLIK database. Additionally, I find that a thorough search was undertaken. Relevant sections and teams of the Department that could locate documents falling within the scope of Mr Shafran’s FOI request were consulted. I do not think that there was anything more that the Department could have reasonably done to locate the requested Guideline. All reasonable steps were taken to locate it.
Mr Shafran suggested during the hearing that the search undertaken by the Department in response to his FOI request was not wide enough because he should have been provided with sections of the VEA or other Acts or documents relevant to the definition of “evidence” (transcript/57-58). I note that one of the documents provided to Mr Shafran was s 119 of the VEA in an effort by the Department to assist him (Ex 2, T7a/37; transcript/108). However, a “document” for the purpose of the FOI Act “does not include … material maintained for reference purposes that is otherwise publicly available” such as legislation (s 4 of the FOI Act).
In summary, I find that all reasonable steps were taken by the Department to locate the Guideline. I am also satisfied that the Guideline did not exist at the time of Mr Shafran’s FOI request. Consequently, the Reviewable Decision in application 2021/9443 should be affirmed.
Decision

The Reviewable Decision in application 2021/4812 is affirmed.
The Reviewable Decision in application 2021/9443 is also affirmed.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...........[Sgd]..........................................................
Associate
Dated: 19 January 2023

Date of hearing:

Date final submissions received:

23 August 2022 and 27 October 2022

12 December 2022

Representative for the Applicant: Self-represented

Representative for the Respondent:

Ms V Long-Droppert, instructed by Ms Arduca and Ms Futol of The Australian Government Solicitor