Simmons and Department of Defence
[2000] AATA 500
•21 June 2000
CATCHWORDS – FREEDOM OF INFORMATION – whether Department took all reasonable steps to find documents – whether documents exist – documents do not exist – decision affirmed.
Freedom of Information Act 1982 – Ss 11, 12, 13, 24, 24A, 61
Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138
DECISION AND REASONS FOR DECISION [2000] AATA 500
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1999/1224
GENERAL ADMINISTRATIVE DIVISION ) Q1999/1302
Re GARY SIMMONS
Applicant
And SECRETARY, DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Date 21 June, 2000
Place Brisbane
Decision The Tribunal:
1.affirms the decision of the respondent dated 28 October, 1999 in file No. Q1999/1224; and
2.affirms the decision of the respondent dated 17 November, 1999 in file No. Q1999/1302.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 8 November, 1999, the applicant, Mr Gary David Simmons, applied for review of a decision of a delegate of the principal officer of the respondent, the Department of Defence ("the Department") dated 28 October, 1999 (Q1999/1224). On 2 December, 1999, Mr Simmons applied for review of a decision of the Department deemed to have been made on 17 November, 1999 (Q1999/1302). The applications were heard consecutively on the same day.
At the hearing, Mr Simmons appeared on his own behalf and the Department was represented by its legal representative, Mr Belcher. Mr Simmons referred at the outset to a number of issues. He did not wish to be interrupted in doing so. I will summarise the essential elements of those issues.
Mr Simmons referred to the hearing of his earlier application (No. Q1999/1004). In that hearing, he said, Mr McLackland's affidavit was not an effective affidavit as it had the wrong oath. Mr Simmons' affidavit, on the other hand, had been read out at the hearing and read out under oath. Furthermore, the contents of his affidavit had not been challenged. In his view, the hearing of these applications was but a continuation of the game and charade begun because he had been involved in several clandestine acts during his service in the Navy. It could not be denied, he said, that excessive authority was being administered over him. If there were not such excessive authority, there would not be affidavits with the wrong oath.
He had been told, he said, that he had done something excessively well and that there was a "Yank order" on him. He was to be left alone and he indicated that he should have been prosecuted but had not been. Furthermore, he added, he had been told that a medical experiment had been performed on him when he underwent an operation. After 27 years, he was now being de-programmed as part of that experiment and he could now write and spell. Evidence in a CAT scan, Mr Simmons said, showed what had happened in that operation and it was ignored. If he were speaking garbage, why was it that he could not spell the word "love" and his daughter's name, he asked.
Mr Simmons said that he was entitled to be paid but someone had held his money back. Someone had better find his money, he continued, and he was not playing games any more. He would "cross the line" unless someone sorted it out.
Mr Simmons said that the evidence that he had given in his affidavit at the earlier hearing applied equally to these hearings. He stated that "30" means that it is top secret, "P" means personal, the numbers "351" indicate that the matter is a security file and the letters "NOL" refer to a naval operation.
Mr Simmons also referred to a complaint that he had made to the District Registrar in Brisbane. He had yet to receive an answer to it. He also referred to his earlier complaints made to the Australian Federal Police and set out in my reasons for decision in Q1999/1004. The summons, he said, needed investigation as did the CAT scan. Both showed that an excessive amount of control was being exercised over him. He has been totally cut out of society, he added.
Mr Simmons rose to leave the hearing room at the conclusion of his statement. I advised him that, if he were to leave, I would continue with the hearing. Mr Simmons left. In reaching my decision, I took into account the issues he had raised in requesting that the hearing Q1999/1004 be suspended and my reasons for refusing his request. I also took into account that, under s. 61(1) of the Freedom of Information Act 1982 ("FOI Act"), the Department had:
"… 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."
As Mr Simmons had referred to his affidavit, which was sworn on 11 November, 1999 and which had been admitted in the earlier proceedings, I admitted that in evidence even though he had left. I also admitted in evidence the bundle of papers, which were entitled "Appeal Papers", which Mr Simmons had prepared and which had also been admitted in evidence in the earlier hearing.
Also admitted in evidence were the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 in each application ("T1224 documents" and "T1302 documents"), a record book with the numbers "351/30 1901-2081" on the cover, a movement card headed with the number "351-30-1987", a card with the heading "Series 351/30 Card No. 53", a movement card headed with the number "351-30-3681" and two affidavits sworn by Mr Wayne Owen Reginald Dalton on 12 May, 2000. Oral evidence was given by Mr Dalton.
THE REQUESTS
Q1999/1224
In a letter dated 12 September, 1999, Mr Simmons made the following request to the Department:
" It's a fact that I have been denied my Civil Rights and Natural Justice for the past 30 years. This is clearly demonstrated by the way 'our' Federal Attorney-General discriminates against me by ignoring all of my affidavits and evidence.
The cause (or curse) of this could only stem from the notation 'NOL351/30/1998 dated 12 Sept '68' found on the inside of the front cover of my 'original' Navy Service file (R95040) which is held by me.
As shown in the notation of 'NOL351/30/1998', the 30 years expired 12 months ago today so I now exercise my right under the Freedom of Information Act for the following:
This request being for:
(A)Copies of: Documents and file that this notation 'NOL351/30/1998 dated 12 Sept '68' refers to regarding Navy Diver GARY DAVID SIMMONS.
…" (T1224 documents, page 10)
Q1999/1302
In a letter dated 15 October, 1999, Mr Simmons made the following request to the Department:
" During the past 28 years I have endured injustices and denial of my rights because of an Authority being administered against me.
Owing to the fact that I have been unable to write or spell after a Naval operation performed on my throat and also with little or no help obtained from others, it has taken me all of this time to realize a vital fact I have overlooked in the past.
I refer to a Navy Office letter (18 November, 1971) sent to me with my unsigned discharge paper and the attached letter did not use my Official Number but the reply quote: 351/30/3697P which is a file number.
As I have been told that my details are not kept with normal Sailors' Records, this file number would explain why my original Navy Service file shows 28/29 September, 1967 as the last recorded entry except for a file recorded in longhand—'NOL351/30/1998 dated 12 Sept '68'.
This shows the file 351/30/3697P being started on or before completion of my Clearance Diver's Course, 28 Sept., 1967 when I was only 17 years and 9 months old … a file which would contain information like: (1) the use of a second Official Number (2) the other 351 file dated '68 and (3) the true purpose of the operation to my throat.
I now exercise my right under the F.O.I. Act and the fact that I was underage at that time for the following document to be released: request being for a copy of the file 351/30/3697P that is shown to be the Personal File on GARY DAVID SIMMONS—Navy Diver." (T1302 documents, page 10)
THE DECISIONS
Q1999/1224 and Q1999/1302
In respect of both requests, a delegate of the principal officer of the Department decided to refuse access to the documents pursuant to s. 24A of the FOI Act on the basis that they no longer existed.
THE EVIDENCE
Mr Simmons submitted a document entitled "A FACTUAL SUMMARY OF EVENTS INDICATING AN ILLEGAL AUTHORITY BEING EXERCISED AGAINST Gary D. Simmons" and dated 6 October, 1999 in relation to his earlier request (T1224 documents, pages 19-22). The material in that document is reflected in my earlier reasons. I have also reflected in those reasons the material in his affidavit and appeal papers and also his complaints to the Australian Federal Police and the District Registrar.
Mr Dalton gave evidence both orally and by way of affidavit. He is the Acting Manager, Records and Information Management, in the Department. As part of his duties, he is required to provide information and documents to those persons who are authorised in the Department to make decisions under the FOI Act. He gave evidence relevant to both applications.
Q1999/1224
In relation to the earlier request, Mr Dalton stated in his affidavit:
"4. On receiving the request I conducted a search of the Defence Archives Records for the Department of Navy series 1959 to 1974. I discovered that the control records for file 351/30/1998 indicate it had been destroyed. I have been unable to identify a particular disposal authority and class under which this record was sentenced and destroyed.
5.During my investigations I confirm that according to the Defence Lexicon (then the Department of Navy 'Control Manual') from which the file number would have been drawn on creation, the '351' series of files would be concerned with 'Forces Personnel – Alphabetical' and that the sub-set '/30' indicates 'miscellaneous'. The sub-sub-set '1998' is simply the 1,998th file of the series. The actual title of the 351/30/1998 was 'queries re promotions on form AS161 for 1968'." (Exhibit 7)
Mr Dalton could not say to what the letters "NOL", which preceded the number, referred. File 351/30/1998 referred to a miscellaneous range of personnel matters. While there may have been a document on the file relating to Mr Simmons, the file did not refer to him specifically.
He went on to say that he had ascertained that the file had been created in 1968 and in approximately January of that year. He could tell that from the registration booklet for series 351/30 files (Exhibit 3). It recorded files numbered from 1901 to 2081. An examination of the booklet shows that it recorded information in the booklet including the file number, prior and subsequent files, date of registration, from whom received and the nature of the file. An examination of the booklet shows the date of 2 January, 1968 against the number 1998. It also shows the nature of the file as "Queries re promotions reported on form AS161 for 1968". Various file movements are shown in pencil under the headings.
Mr Dalton said that reference also had to be made to a movement card. That movement card showed "351-30-1987" at the top of a movement card (Exhibit 4). Underneath the number were further consecutive numbers listed one under the other. The first was 1987 and the last was 2000. Against the numbers 1987, 1988, 1990-1992, 1996 and 1998-2000 appeared the word "DESTROYED". No entries appeared against the numbers 1989 and 1993-1994. Other numbers appeared against the numbers 1995 and 1997.
Mr Dalton said in his oral evidence that the system of file management changed in 1968. Rather than keeping the booklet with the associated movement card, a smaller card recorded a smaller group of files. Again, there was an associated movement file.
Mr Dalton said that, although the records indicated that file number 351/30/1998 had been destroyed, he searched the repository in which series 350 files were normally kept. He could not find it but was not surprised at his lack of success because a file relating to general enquiries would only be retained for a maximum of 6 to 10 years. As file number 351/30/1998 related to general enquiries, he expected that it would have been destroyed in 1978 at the latest; that is, ten years after its creation.
Q1999/1302
In relation to the later request, Mr Dalton stated in his affidavit:
"4. On receiving the request, I conducted a search of the Defence Archives records for the Department of Navy series 1959-1974. Departmental records indicate that the file was destroyed. These records indicate the title of the file 351/30/3697 is 'Issue of Discharge Certificates – November 1971'.
5.I then undertook a further search at Defence Archives of all relevant records but was unable to identify a particular disposal authority and class under which the record was sentenced and destroyed." (Exhibit 8)
In his oral evidence, Mr Dalton said that the letter "P" appearing in the file reference of 351/30/3697P given by Mr Simmons did not mean anything. The number "351" again refers to personnel and the number "30" to miscellaneous. A card headed "Series 350/30 Card 53" shows file numbers 3691 – 3700. Against each number was a date and a file title. Against the number "3697" was the date "20/8/71" and the file title "Issue of Discharge Certificates". Underneath it appeared: November 1971". Against all but the number 3692, appears the word "DESTROYED". (Exhibit 5) Mr Dalton said that he believed the reference to 20/8/71 was a reference to the date of the file's creation.
The movement card headed with the number "351-30-3681", shows the numbers 3681-3714 (Exhibit 6). File number 3710 showed another number. File numbers 3684, 3687 and 3692 did not contain any entry against them. All other files had the word "DESTROYED" against them. That included the file numbered 3697. No other file reference had been included against that file number. Mr Dalton said that a file such as file numbered 351/30/3697 would normally have been destroyed 6 years after its creation and, if not then, 10 years at the most.
Mr Dalton said that he assumed that the file related to discharge certificates. File 351/30/3697 was a generic file relating to matters such as requests for copies of discharge certificates and information about the processing of discharge certificates. It would have related to all people discharged in 1971.
Mr Dalton said that "351" files were not marked top secret. It could have been restricted but most personnel files were unclassified to protect them from unauthorised disclosure.
LEGISLATIVE FRAMEWORK
Section 11(1) of the FOI Act provides that:
"Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document."
The words "Subject to this Act" appear in the provision for a person's right is qualified by other provisions of the FOI Act. Section 12, for example, provides that a person is not entitled to certain documents which it then specifies. The right is qualified when s. 13 provides that a document held in certain collections is not "a document of an agency". When an agency is satisfied that its resources "would substantially and unreasonably divert the resources of the agency from its other operations", the agency may refuse to grant access to documents in accordance with the request. It may do so without having processed the request (s. 24(1)(a)). None of these qualifications is relevant in this case. That which is relevant in this case is found in s. 24A which provides:
"An agency or Minister may refuse a request for access to a document if:
(a)all reasonable steps have been taken to find the document; and
(b)the agency or Minister is satisfied that the document:
(i)is in the agency's or Minister's possession but cannot be found; or
(ii)does not exist."
As I said in my earlier reasons, in reviewing a decision made under the FOI Act to refuse access to certain documents, I am not able to consider whether or not the material in those documents is accurate. I am not able to consider the relevance, if any, of those documents to any actions which a person may think that he or she has against an agency. The focus of the review is entirely upon whether or not a person is entitled to access to documents. In a case such as this, that means that I must focus upon s. 24A and not upon many of the matters which Mr Simmons addressed in his evidence. As my consideration is necessarily limited by the FOI Act, I am not able to make, and do not make, any findings in relation to the issues he has addressed in so far as they fall outside that legislation.
Section 24A requires the consideration of two matters. The first requires a consideration of whether the Department has taken all reasonable steps to find the document. If it has done that, the second requires a consideration of whether the documents are in the Department's possession but cannot be found or whether they exist. The first limb has been applied in several cases but only Deputy President McDonald considered the elements of the first limb in any detail (Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138). He said:
"(19) The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the Agency but cannot be found or, alternatively, does not exist. The Shorter Oxford English Dictionary provides a number of meanings for the verb to 'find', the most apt of which for present purposes is 'to discover or attain by search or effort'. The Macquarie Dictionary similarly provides amongst the meanings given to the verb 'to learn, attain or obtain by search or effort'. The Shorter Oxford English Dictionary provides five meanings for the word 'reasonable', 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." (page 145)
Bearing in mind the meaning of "all", "reasonable" and "find", it follows that the first limb of s. 24A requires that the Department take every step to discover the requested documents that is appropriate in the circumstances. The circumstances of this case include the manner in which files are created and their creation and destruction are recorded.
On the basis of the evidence of Mr Dalton, both oral and written, and after examining the file cards and books, I find that the Department maintained a file management system. That file management system, both before and after 1968, recorded the opening of each file and its movements. As part of that system, I am satisfied that files are destroyed from time to time. In the context of this case, I am satisfied that personnel files relating to miscellaneous matters or personnel files relating to generic subject matters are likely to be destroyed at some time between 6 and 10 years after their creation.
Although I accept that Mr Simmons believes that the letters "NOL" have some meaning and accept that he had access to some files during his service and holds files relating to himself, I prefer Mr Dalton's evidence that they have no meaning. I do so on the basis that Mr Dalton's knowledge extends to all of the Department's filing systems. It is not limited in the number of files to which he has access and relates both to current and past practices. In view of that conclusion, I have also concluded that the file of NOL351/30/1998 sought by Mr Simmons is in fact file 351/30/1998.
Based on the evidence, I am satisfied that file number 351/30/1998 was first opened on 2 January, 1968. It related to queries regarding promotions reported on form AS161 for 1968 and was a generic file. While it may have contained a document referring to Mr Simmons, I am also satisfied that it did not relate specifically to Mr Simmons. I am satisfied that the records show that it was destroyed in accordance with the normal practices of the Department and, on the balance of probabilities, would have been destroyed many years before Mr Simmons' request for access was received by the Department.
Again, I accept that Mr Simmons believes that the letter "P" has some meaning and accept that he had access to some files during his service and holds files relating to himself, I prefer Mr Dalton's evidence that it has no meaning in the filing system of the Department. I do so for the reasons I have set out above (see paragraph 33 above). In view of that conclusion, I have also concluded that the file of 351/30/3697P sought by Mr Simmons is in fact file 351/30/3697.
Based on the evidence, I am satisfied that file number 351/30/3697 was first opened on 20 August, 1971. It related to queries regarding the issue of discharge certificates and was a generic file. While it may have contained a document referring to Mr Simmons, I am also satisfied that it did not relate specifically to Mr Simmons. I am satisfied that the records show that it was destroyed in accordance with the normal practices of the Department and again, on the balance of probabilities, would have been destroyed many years before Mr Simmons' request for access was received by the Department.
In the case of both file 351/30/1998 and file 351/30/3697, I also accept Mr Dalton's evidence that he searched for the files and that he did so in those repositories where they would have been stored if they existed. I also accept his evidence that he could not find the files in the Department's records.
In examining the relevant records in the file management system and in Mr Dalton's undertaking a search, I am satisfied that the Department has taken all reasonable steps to find the files. Taking into account the notations in the file management system that the files had been destroyed and the unsuccessful search undertaken by Mr Dalton, I am also satisfied that the files do not exist. In view of those findings, the requests for access may be refused pursuant to s. 24A of the FOI Act.
It follows that I:
1.affirm the decision of the respondent dated 28 October, 1999 in file No. Q1999/1224; and
2.affirm the decision of the respondent dated 17 November, 1999 in file No. Q1999/1302.
I certify that the thirty-nine preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ...........................................
Dates of Hearing 17 May, 2000
Date of Decision 21 June, 2000
Applicant In Person
Solicitor for the Respondent Mr M Belcher
Australian Government Solicitor
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