Siavash Khorramdel and Department of Human Services
[2012] AATA 707
•12 October 2012
[2012] AATA 707
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0488
Re
Siavash Khorramdel
APPLICANT
And
Department of Human Services
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 12 October 2012 Place Sydney Decision The decision made under s 22 of the Freedom of Information Act 1982 (Cth), to delete from document KHO.001.001.0278 “irrelevant material”, is affirmed.
The decision to refuse to grant access to documents KHO.001.001.0324, KHO.001.001.0325 and KHO.001.001.0330 on the ground that each is an exempt document under s 42 of the Freedom of Information Act 1982 (Cth), is affirmed.
The decision made under s 24A of the Freedom of Information Act 1982 (Cth) to refuse to grant Mr Khorramdel access to any further documents on the ground that they cannot be found or do not exist, is affirmed.
The decision to refuse to release to grant access to documents KHO.001.001.0169, KHO.001.001.0251, KHO.001.001.0253, KHO.001.001.0262, KHO.001.001.0286, KHO.001.001.0327 and KHO.001.001.0329 is set aside and in substitution of that decision Mr Khorramdel is granted access to those documents.
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Senior Member A K Britton
CATCHWORDS
FREEDOM OF INFORMATION — exemptions –– could not be found or do not exist – proper search — all reasonable steps — legal professional privilege — irrelevant material
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) s 42D(3)(b)
Freedom of Information Act 1982(Cth) ss 22(1)(a)(ii), 22(1)(b), 22(1)(c), 24A , 41(1), 42, 61(1)CASES
Re Khorramdel and Department of Human Services [2011] AATA 803
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543Click here to enter text.
REASONS FOR DECISION
Senior Member A K Britton
In August 2010 Mr Siavash Khorramdel made a request to the Secretary of the Department of Human Services for documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). The requested documents related to an investigation conducted by Centrelink which resulted in Mr Khorramdel’s conviction for dishonesty offences. In answer to that request the Secretary granted Mr Khorramdel access to over 3000 documents but refused access to others on the ground that having taken all reasonable steps to find the documents requested, they “could not be found or do not exist” (s 24A of the FOI Act).
On review, the Tribunal affirmed that decision in part, but set aside and remitted to the Secretary for reconsideration, the decision to refuse to grant access to some documents on the ground that they could not be found or do not exist (Re Khorramdel and Department of Human Services [2011] AATA 803). In these reasons I will refer to that decision as the “first decision”.
After undertaking further searches as directed by the Tribunal the Secretary located a number of additional documents and granted Mr Khorramdel access to those documents. The Secretary asserted that all reasonable steps had now been taken to find the requested documents.
Dissatisfied with that decision Mr Khorramdel elected to proceed with review of the varied decision (s 42D(3)(b) of the Administrative Appeals Tribunal Act 1975 (Cth)). In March 2012 consent orders were entered requesting the Secretary to review the steps undertaken by the original decision-makers and, if necessary, undertake further searches in respect of the documents the subject of Mr Khorramdel’s request.
Further searches were undertaken and an additional 48 documents located. On 17 July 2012, the Secretary decided to:
Grant Mr Khorramdel access in full to 37 documents
Grant Mr Khorramdel access to three documents after deleting parts of each document on the ground that they contained material irrelevant to Mr Khorramdel’s request (s 22(1)(a)(ii) of the FOI Act) or personal information that would be unreasonable to disclose (s 41(1) of the FOI Act).
Refuse to grant access to eight documents on the ground that they were exempt on grounds of legal professional privilege (s 42 of the FOI Act).
Following that decision the Secretary discovered that a number of the documents for which an exemption had been claimed had previously been released to Mr Khorramdel and properly conceded any claimed exemption could no longer be justified.
The issues that remain to be determined are:
Whether “all reasonable steps” have been now taken to find the requested documents (s 24A of the FOI Act)
Whether document KHO.001.001.0278 contains “information that could reasonably be regarded as irrelevant” to Mr Khorramdel’s request (s 22 of the FOI Act)
Whether documents KHO.001.001.0324, KHO.001.001.0325 and KHO.001.001.0330 are exempt on the ground of legal professional privilege (s 42 of the FOI Act)
The Secretary bears the burden of proving that the decisions made in relation to the requested documents were justified (s 61(1) of the FOI Act).
ADEQUACY OF SEARCH
Section 24A of the FOI Act provides that an agency 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 is satisfied that the document is either in the agency’s possession but cannot be found, or, does not exist. As noted in the first decision at [25], s 24A sets a high hurdle. It is not enough that reasonable steps are taken but all reasonable steps must be taken to find the requested documents.
Since the first decision was handed down in November last year the following additional steps have been taken to locate the requested documents:
The officer based in the Serious Non-Compliance division who conducted the original fraud investigation into Mr Khorramdel was contacted and asked whether she held any documents in relation to Mr Khorramdel. After outlining her record management practices the officer advised that she no longer held any documents relating to Mr Khorramdel.
The officer who compiled the brief of evidence relating to Mr Khorramdel was contacted and asked whether she held any documents in relation to Mr Khorramdel. The officer advised that she did not keep hard copies of correspondence and had uploaded all documents on to the Fraud Investigation Case Management System (FICMS) — an on-line record management system used by members of the Serious Non-Compliance division, at the time the subject investigation was conducted.
A search of the FICMS system for any documents relating to Mr Khorramdel was conducted.
A search of the “Redfern S Drive”, a local hard drive used by members of the Serious Non-Compliance division, was conducted by entering Mr Khorramdel’s name and variations thereof.
In addition to the search of FICMS and Redfern S drive, an extensive search of Centrelink’s electronic data base was conducted.
A further search of Centrelink’s paper files was conducted.
These searches revealed that a number of additional documents relevant to Mr Khorramdel’s request were held in the FICMS system, Redfern S Drive and Centrelink’s paper and electronic files.
In the first decision I acknowledged that significant resources had been expended to locate the requested documents and a large number of documents had been provided to Mr Khorramdel in answer to his request (at [20], [21]). I found that the original decision-maker and internal review officer had been diligent in their respective attempts to locate the requested documents (at [21]). Nonetheless I was not satisfied that the Secretary had discharged the onus of establishing that all reasonable steps had been undertaken:
23. The assessment of whether “all reasonable steps” have been undertaken is difficult given the limited evidence before me about Centrelink’s record management practices and importantly, the extent to which they are observed. The only evidence about the latter was that given by the original decision-maker who believed from her own experience that most officers followed the policy of forwarding all documents to the records management unit. Whether all reasonable steps have been undertaken turns largely on whether all files relevant to the applicant’s request have been identified and the likelihood that all requested documents were placed on the relevant file. Without some cogent evidence about the steps taken by the unit to compile the list of files provided to the original decision-maker and the reliability of the information used by the unit, I am unable to conclude that “all reasonable steps” have been undertaken. In addition, scant evidence has been provided of the nature of the search undertaken of Centrelink’s electronic database.
24. In the absence of such evidence, I cannot be satisfied that the Secretary has discharged the onus of establishing that all reasonable steps have been undertaken. It seems to me, as suggested by the applicant, that a reasonable further step might include asking all teams who might reasonably be expected to have had some dealings with the documents the subject of the applicant’s request whether they hold any further documents or files, apart from those that have already been located. A further reasonable step might be a further search of the Department’s electronic database and an examination of the methodology employed to conduct that search.
Since the first decision was handed down two further searches have been conducted on behalf of the Secretary. Each search was overseen by different people. Notably the FICMS and Redfern S Drive which had not previously been searched, apparently because each are security protected and were not accessible to the original decision-makers, have been examined resulting in additional documents being located. Centrelink’s current and archived electronic data bases have now been exhaustively searched, as has its paper based file systems.
While I do not agree with Mr Khorramdel’s somewhat colourful assessment that the search has been characterised by “gross failures and faults”, there can be no argument that the search that has now been conducted was more comprehensive and exhaustive that that conducted by the original decision-maker and the decision-maker on remittal. The issue however is not whether there were any shortcomings in those searches but whether all reasonable steps have now been taken to locate the requested documents.
Mr Khorramdel contends that because some officers who participated in the most recent search had not read the first decision, or the March 2012 consent orders, their efforts to locate the requested documents must be flawed. For the purpose of that search the Secretary directed a number of officers to search discrete parts of Centrelink’s records. That search was overseen by the Secretary’s external legal advisors, who were plainly familiar with the shortcomings identified by the first decision and the March 2012 consent orders in relation to the original search and the search conducted on remittal. That some of the officers involved in the most recent search might have been ignorant of the reason for, or background to, the search they undertook in my opinion is irrelevant. What is relevant is whether they conducted a thorough search of the area they were requested to search. I am satisfied on the evidence that this occurred.
Mr Khorramdel also believes it to be relevant that some of the officers who participated in the most recent search had not sighted the list of documents he had requested (see first decision at [8]) but instead conducted their respective searches on the basis that they were requested to locate all documents relating to him. Had a search been conducted for a narrower class of documents than that requested by Mr Khorramdel, the quality of the search might have been compromised. It is unclear to me how a search for all documents relating to Mr Khorramdel could adversely impact on the quality of the search.
Significant resources have now been expended to locate the requested documents. As Mr Khorramdel acknowledges, in the most recent search, the equivalent of at least 10 staff days have been expended. Taken together with the resources already spent on the original search and the search conducted on remittal, I am unable to agree with Mr Khorramdel’s contention that the efforts to locate the documents were perfunctory. The evidence of the significant resources deployed to locate the documents is supportive of the Secretary’s claim that an exhaustive search has now been undertaken.
Consistent with the principles of sound public administration the Secretary has addressed the shortcomings in the original searches identified on external review. She has adduced detailed evidence about Centrelink’s record management practices and systems which has enabled a proper assessment of the quality of the searches to be undertaken. I appreciate that Mr Khorramdel believes that the Secretary may still hold some documents that fall within the scope of the documents he has requested. While not possible to exclude that possibility, I am satisfied that the Secretary has discharged the onus of establishing that all reasonable steps have now been undertaken to locate the requested documents. I am satisfied that any further documents could either not be found or do not exist, and therefore affirm the decision to refuse the request for access under s 24A of the FOI Act.
LEGAL PROFESSIONAL PRIVILEGE EXEMPTION
Eight documents have been located which the Secretary claims are exempt under s 42(1) of the FOI Act. Section 42 exempts a document from disclosure “if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”.
At hearing the Secretary announced that it had been discovered that copies of all but three of these documents had been released to Mr Khorramdel and therefore the claim for privilege in relation to those documents had been abandoned.
The three remaining documents are draft witness statements apparently prepared for the prosecution proceedings relating to Mr Khorramdel. Each statement was plainly prepared for use in actual legal proceedings and therefore attracts legal professional privilege notwithstanding that they are in draft form (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, at 550 per McHugh J; Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [44] per McHugh J).
I am satisfied that the claim of legal professional privilege is justified in relation to documents KHO.001.001.0324, KHO.001.001.0325 and KHO.001.001.0330. Privilege has been waived in respect of the balance of the documents for which the claim was made and therefore the correct decision is to grant Mr Khorramdel access to those documents.
DELETION OF IRRELEVANT MATERIAL
The Secretary has refused to grant Mr Khorramdel access in full to document KHO.001.001.0278 (the disputed document) on the ground that it contains material irrelevant to his request.
Section 22 applies where a decision-maker decides that to grant a request for access to a document that “would disclose information that would reasonably be regarded as irrelevant to that request”. Having made that initial assessment the decision-maker must then consider whether it is possible to make a copy of the document with such deletions so that the copy would not disclose such information, and whether it is reasonably practicable to do so (ss 22(1)(b) and 22(1)(c)).
The disputed document is a table, which lists persons selected by Centrelink staff for prosecution for social security fraud. Apart from two single line entries it contains no information relating to Mr Khorramdel. The table has been released to Mr Khorramdel after the deletion of all but those two entries.
The deleted information is plainly irrelevant to Mr Khorramdel’s request. It follows that the decision to release to Mr Khorramdel document KHO.001.001.0278, after deleting all but the two entries that relate to him, is the correct and preferable decision.
DECISION
Being satisfied that all reasonable steps have now taken to find the documents the subject of Mr Khorramdel’s request and, that four of the 48 documents are either exempt on the ground of legal professional privilege, or, contain irrelevant information, I make the following orders:
The decision made under s 22 of the FOI Act, to delete from document KHO.001.001.0278 “irrelevant material”, is affirmed.
The decision to refuse to grant access to documents KHO.001.001.0324, KHO.001.001.0325 and KHO.001.001.0330 on the ground that each is an exempt document under s 42 of the FOI Act, is affirmed.
The decision made under s 24A of the FOI Act to refuse to grant Mr Khorramdel access to any further documents on the ground that they cannot be found or do not exist, is affirmed.
The decision to refuse to release to grant access to documents KHO.001.001.0169, KHO.001.001.0251, KHO.001.001.0253, KHO.001.001.0262, KHO.001.001.0286, KHO.001.001.0327 and KHO.001.001.0329 is set aside and in substitution of that decision Mr Khorramdel is granted access to those documents.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ...................[SGD].....................................................
Associate to Senior Member A K Britton
Dated 12 October 2012
Date(s) of hearing 5 September 2012 Solicitors for the Respondent Jan Cumming
Clayton Utz
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