Simmons and Department of Defence

[2000] AATA 491

CATCHWORDS – FREEDOM OF INFORMATION – whether Department took all reasonable steps to find requested documents – whether documents exist.
   - PRACTICE AND PROCEDURE whether hearing should be proceeded with where allegations have been made against members and staff of the Tribunal in relation to another application – decision affirmed.

Freedom of Information Act 1982 - Ss 11, 12, 13, 24A

A v Hayden (No. 2) (1984) 56 ALR 82; (1984) 156 CLR 532; (1984) 59 ALJR 6
Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138

DECISION AND REASONS FOR DECISION [2000] AATA 491

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/1004
GENERAL ADMINISTRATIVE DIVISION      )

Re                  GARY DAVID SIMMONS

Applicant

And                SECRETARY, DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)

Date  21 June, 2000

Place  Brisbane

DecisionThe Tribunal affirms the decision of the Respondent made on 14 September, 1999.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 6 September, 1999, the applicant, Mr Gary David Simmons, applied for review of a decision of a delegate of the principal officer of the Department of Defence ("the Department") dated 14 September, 1999.  That decision was to refuse Mr Simmons access to a file he had requested on the basis that it did not exist.

1. At the hearing, Mr Simmons represented himself and the Department was represented by its solicitor, Mrs Bishop.  Various documents were admitted in evidence.  On behalf of Mr Simmons, a summary of Mr Simmons' submission, two letters from Ms Dorothy Pratt MLA to the Hon. Senator Amanda Vanstone dated 24 February, 2000, a letter dated 16 December, 1999 from Mr Simmons to the Deputy Registrar of the Tribunal, an affidavit of Mr Simmons sworn on 11 November, 1999 and a bundle of papers entitled "Appeal Papers" were tendered and admitted in evidence. On behalf of the Department, the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were tendered and admitted together with an affidavit of Mr Keith McLackland sworn on 1 March, 2000.  Mr Simmons gave oral evidence in support of his case and Mr McLackland gave oral evidence in support of the Department's.

THE ISSUES

1. There were two issues in this case.  The first was whether the hearing should have been proceeded with on the day.  The second, which related to the substance of the decision, was whether the Department has taken all reasonable steps to find the service file of Mr Simmons with the official number R93040 as shown on both Divers History and Service sheets.

THE REQUEST

1. In a letter dated 4 May, 1999, Mr Simmons requested access to certain documents.  His letter began:

"As an ex Naval Clearance Diver and holder of my original Service File that shows 'R95040' to be my official number.  This same file contains my R.A.N. Clearance Divers History sheet and also my Record of Clearance Diving Service Sheet both show my official number as 'R93040'.

It is now requested under the Freedom of Information Act for the following:

1.(a)Service file of GARY DAVID SIMMONS ex-Navy Clearance Diver, official number 'R93040', as shown on both Divers History and Service sheets.

OR

(b)Acknowledge this file exists.

OR

(c)Acknowledge this file is a part file that belongs to the file of GARY DAVID SIMMONS ex-Navy Clearance Diver, official number 'R95040'.

This is a straight forward request as the following facts show a separate file is held." (T documents, page 14)

1. Mr Simmons then set out the material upon which he relied to show that a file with the number R93040 existed.  He referred to the same material and drew the same conclusions at the hearing:

"(A)     Service file obtain February 1971 shows transferred file January 30, 1970 to a computer file and contains the following:

1.Last recorded entry April 27, 1968 then has See C.D. History Sheet.

2.Last Commanding Officer to sign December 31, 1967.

3.Last viewed by me January 30, 1968.

4.Clearance Divers History sheet shows Official number 'R93040' with no recorded entry after September 28, 1967.

5.Record of Clearance Diving Service shows Official number 'R93040' with no recorded entry after September 29, 1967.

(B)Staff in Confidence [Service Record] obtain September 1994, contain the following:

1.Shows Security Clearance being Top Secret.

2.Joined July 9, 1967 – when 'joined July 9, 1965'.

3.Discharge Unsuitable – when 'Discharged as Honourable'.

4.No mention of conduct – when 'conduct assessment was Very Good'.

5.Employment and Billets do not start until October 28, 1968.

(C)As a member of the Diving Branch that had a complement of 70 to 75 divers excluding officers mistakes are not made by Navy Office with Official Numbers when your security clearance is Top Secret.  The front cover of the Service file states no alteration without proper authority and this shows authority was not given to change my other Official number 'R93040'.

(D)October 1, 1971 the Navy had sent me to see Consultant Cardio-thoracic Surgeon Dr. Harry Windsor.  The report is unsigned and mentions only chronic bronchitis and shows Official number 'R93040' with x-ray he ordered on the same day October 1, 1971.  The x-ray report states enlarged heart and shows Official number 'R95040'.

The only way 'R93040' could appear on Dr. harry Windsor unsigned report is from Navy Office as my Service file is already held by me that has 'R93040' on my Diving papers and Medical people do not see Service files.

(Security – need to know basis)

(E)I am the holder of 3 different Naval medical files all purported to be copies of the original file.

(F)C.T. Scan obtained March 5, 1997 disproves Naval operation to my throat for removal of glands performed at Prince Henry Hospital Sydney February 3, 1971, then spent the next 27 years unable to write or spell.

(G)The administrative Rule or Law or Practices that followed and blocked my Affidavit April 22, 1998 in Queensland proves another file is held by the Defence Department.

My F.O.I. request is only for number 1(a) or (b) or (c) with the above Facts (A) to (G) only used to prove another file is held by Defence and if needed we will leave Facts (A) to (G) to the Court that has no restriction imposed on it leaving only the High Court." (T documents, pages 15-16)

THE DECISION

1. In response to Mr Simmons' request, Commodore Christie decided to give him "… complete copies of Mr Gary David Simmons R95040 personal file (S/95040), Computer Historical Record and Record of Service Card for release to him." (T documents, page 17)

1. Commodore Christie then made the following decision in relation to Mr Simmons' request for access to records with the service number R93040:

"… Service number R93040 was issued to L.R. Jenkins, date of birth 23 Oct 44, who entered the RAN in 1960.  As this information forms part of another sailor's personal record access is denied in accordance with sub-section 41 part 1 of the Act." (T documents, page 17)

1. Commodore Christie then considered the other matters raised by Mr Simmons in his letter when he said:

"3.       It would appear that Mr Simmons' 'Clearance Divers History Sheet' and 'Clearance Diving Service Sheet' have been annotated at the time of creation with the wrong service number which is not unlikely given the similarity between the numbers 3 and 5.  As the documents held by Mr Simmons are original documents, Navy Records are unable to amend or annotate corrections.  However, should Mr Simmons wish to forward these docuements to Navy Records action will be taken to amend them accordingly.

4.        Mr Simmons should also be advised that his 'Service Certificate', issued to him during February 1971, and his 'Computer Historical Record' must be read in conjunction with each other.  Additionally, he should be advised that his date of entry has been amended, in his 'Computer Historical Record', to reflect 9 July 1965.

5.        With regard to his discharge Mr Simmons was discharged 'Unsuitable' effective 5 November 1971 and that this form of discharge is a 'Honourable Discharge'." (T documents, pages 17-18)

1. Mr Simmons was advised of Commodore Christie's decision in a letter dated 17 June, 1999.  In a letter dated 23 June, 1999, Mr Simmons told the Department that the letter of 17 June had not answered his request to give him his "…'other' Navy Service file that is held by the Defence Department." (T documents, page 21)  On 14 September, 1999, Mr Coldrey, the Director of the Freedom of Information Section in the Department wrote to Mr Simmons.  He told him of Major General Dunn's decision on his request for an internal review of Commodore Christie's earlier decision:

"3. Major General Dunn personally examined the Record of Service Card that has the Official Number R93040 and found that it is entirely about a person other than yourself who has names other than your own. He found the Record of Service Card contains no information whatsover about a person with the name Gary David Simmons. Therefore Major Dunn found that file R93040 about Gary David Simmons did not exist and that it came within the meaning of section 24A of the FOI Act. Section 24A exempts documents from disclosure if they cannot be found or do not exist. On the basis of his finding Major General Dunn decided to refuse you access to the file that you described, Navy service file of Gary David Simmons ex-Navy clearance diver, official number R93040, because it was exempt by section 24A of the FOI Act from disclosure. He made a 'technical' refusal of access because he found the file that you described did not exist. His decision is actually a certification as to the non-existence of the file." (T documents, page 32)

CONSIDERATION

Mr Simmons' request that the hearing be suspended

1. At the outset, Mr Simmons stated that the hearing was suspended because he had made a complaint to the Australian Federal Police.  He also "demanded" that he be given a copy of the decision why the hearing had been suspended.  I decided at the hearing that the hearing was not "suspended" and that I would proceed to hear it.  Reasons were given at the time but, as Mr Simmons requested reasons for suspending the hearing, I will give written reasons for deciding to proceed with it.

1. Mr Simmons' complaint is set out in the two letters written by Ms Pratt to Senator Vanstone.  The substantive paragraphs of the first letter read:

"Mr Simmons is lodging a complaint through my office via this letter to you and the Australian Federal Police to investigate the following complaint.

Mr Simmons alleges:-

1.That:-

Deputy Registrar, Peter Stirk, of the Brisbane Administrative Appeals Tribunal with Mr. Richard Melville of the Australian Government Solicitors 'fraudulently' served a summons on Prince Henry Hospital, Sydney, on 15th November 1996

2.This is supported by the 'fact' of the unsigned and undated cover note from Prince Henry Hospital Sydney, which answers the alleged summons.

3.The unsigned/undated cover note proves a conspiracy was committed to obstruct the administration of justice by the following:-

a)Senior members of the appeals Tribunal, Mr. Mulder and Mr. Beddeo.

b)Deputy Registrars of the Administrative Appeals tribunal, Mr. Peter Stirk and Ms Foggarty.

c)Australian Government Solicitors Mr. Richard Melville and Ms Anna Bishop, and with the knowledge of the Defence Department.

Supporting evidence enclosed

1)Mr. Simmons affidavit dated 11th November 1999

2)Summons to produce documents

3)Cover note from Prince Henry Hospital.

Also enclosed is a copy of a High Court ruling for your perusal

I would appreciate it if you could confirm the receipt of this complaint and provide me with your interpretation of it." (Exhibit A)

The supporting evidence was not attached to the letter tendered or admitted in evidence but is found in Exhibit D and at pages 38 and 39 of Exhibit E in these proceedings.

1. The second letter read:

"My constituent, Mr. Gary Simmons is lodging a complaint with the Australian Federal Police through my office.

Mr. Simmons wishes to bring to your attention that the evidence he holds, which is supported by his CT scan obtained March 1997, proves the operation performed to his throat while a Navy Diver was recorded incorrectly. This now makes the operation illegal and a possible conspiracy committed by the Navy, Prince Henry Hospital and Federal Government to conceal the 'true' purpose for the operation.

Enclosed is supporting evidence.

1.Mr Simmons affidavit dated 11 November 1999

2.CT Scan photo of October 1996 and report of March 1997

3.Prince Henry Hospital operation report which also shows the drain tube data has been changed from 7 to a 4

4.Naval medical Report No. 40 and 41 (same report) with page 2 stating removal of glands from left jugular chain (This report shows wrong discharge date) The first page of Report 38 shows the correct discharge date.

Enclosed also is a copy of a High Court Ruling that you will find interesting.

I would appreciate it if you would address this matter as soon as possible.  While the issue is complex, there has been a cruel injustice perpetrated on Mr. Simmons if his evidence is correct." (Exhibit B)

1. Mr Simmons said that it was his right to have a fair hearing and that he could not have a fair hearing when the law had been broken.  He could not surrender as there was too much at stake and he had suffered horrible injustices.  Mr Simmons relied upon the case of A v Hayden (No. 2) (1984) 56 ALR 82 (Gibbs CJ, Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ). He cited several passages from the report of the judgements delivered in that case. I have set out in square brackets words added by Mr Simmons and indicated passages he had omitted:

"… Per Gibbs CJ, the other Justices observing similarly: It is fundamental to our legal system that the executive has no power to authorize a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer." (Headnote, page 83)

"… [It is] the duty of the officer… of the Commonwealth to comply with the law of the land …" (per Gibbs CJ, page 86)

"… If, for example, the executive itself sought, on the grounds of national security, to withhold documents or information required for the purpose of the administration of justice, the court and not the executive would decide whether the national security required that the documents or information should not be produced. …" (per Gibbs CJ, page 91)

"…'…All writers upon the law agree in this, no polluted hand shall touch the pure fountains of justice. …'…" (per Mason J, page 95)

"…'Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.'
           No agency of the Executive Government is beyond the rule of law. …" (per Brennan J, page 122)

"… ASIS is neither established by statute nor recognized by the common law; …" (per Brennan J, page 118)

"…'It is admitted, that any contract or engagement having a tendency, however slight, to affect the administration of justice, is illegal and void.' …" (per Wilson and Dawson JJ, page 109)

1. In A v Hayden, the High Court considered whether the names of eleven people should be revealed to the Victorian Police, who were investigating whether crimes had been committed during the course of a training exercise at the Sheraton Hotel in Melbourne.  Those eleven people had participated in that training exercise conducted by the Australian Secret Intelligence Service ("ASIS").  Each was given a card showing that he or she was on a Commonwealth exercise and he or she was instructed to show it if questioned about his or her activities.  Each held an honest belief that anything that he or she was authorised to do by ASIS had the authority of the Commonwealth Government.  There was no suggestion that anything the eleven people had done, had been done otherwise than pursuant to instructions given to him or her by an officer of ASIS who was apparently acting within his authority.  Each followed orders believing that any authority or consent that was needed to make his or her actions lawful had been obtained.  The Court found that the authority or consent required to make their activities lawful had not been obtained and, in the absence of statutory authority, was probably not in the power of any person or persons to give. 

1. It was a term of the contract that each person had with the Commonwealth that their identities would be kept confidential and that nothing would be disclosed to reveal their having worked with ASIS.  The majority found that the term could not be construed as creating a qualified obligation of confidentiality which did not prevent the Commonwealth from disclosing the persons' identities to the Victorian police in the course of their investigations (per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ, Murphy J dissenting).  A differently constituted majority decided that, to use the words of Deane J:

"… the courts of this country will not lend their aid to enforce a promise not to disclose information where the circumstances are such that enforcement or insistence upon observance of the promise would obstruct the due administration of the criminal law of Australia, whether Commonwealth or State.  The rationale of that proposition is that, apart from the exceptional case (such as that of a professional legal adviser) where the overall administration of the law itself requires that confidentiality be maintained, it would be contrary to public policy for the courts to enforce a right on the part of one person to insist that another person fail or refuse to disclose relevant information to assist those entrusted with the ordinary administration of the criminal law in the proper investigation and prosecution of criminal activity: the enforcement by the courts of such a private right to insist that another fail or refuse to disclose relevant information would involve the courts in the due administration of the criminal law which is a mainstay both of the rule of law which they exist to serve and of the very existence of effective private rights.  For the purposes of that proposition, the investigation of actual or reasonably apprehended criminal activity by a regular law enforcement agency of the Commonwealth or of a State is part of the administration of the criminal law.  Whether enforcement or observance of a term of a particular promise of confidentiality would obstruct that administration is a question which must be determined in the circumstances of the particular case.  Plainly enough, the enforcement of such a promise by an order forbidding a threatened voluntary disclosure to the Commissioner of a State Police Force of the identity of the participants in joint activity which involve actual or reasonably apprehended offences against the criminal law of that State would involve obstruction of the due administration of that criminal law." (page 128, and see also Mason CJ, Murphy, Wilson, Brennan and Deane JJ)

1. The principles set out in A v Hayden are equally applicable in this case but, in my view, they do not lead to the conclusion that the hearing should be "suspended" pending the investigation of the complaints made by Mr Simmons.  The circumstances of each case must be considered to determine whether or not the administration of the law will be obstructed by the enforcement of certain private rights. 

1. Mr Simmons' complaints relate to an earlier application lodged in the Tribunal by Mr Simmons.  In it, he sought review of a decision of Comcare dated 7 August, 1996 affirming an earlier decision that it was not liable to compensate Mr Simmons for heart and lung conditions.  That application is not joined with this application and the two have not been considered together.  If the Tribunal is found to be in error in relation to the other application, it does not affect this application.  My hearing this application neither affects nor obstructs the appropriate persons from properly considering his complaint in relation to the earlier application.  It is not a case, therefore, in which the principles in A v Hayden require me to desist from hearing his case.  Even so, I offered to attempt to reconstitute the hearing so that it was heard on the same day but by a member who was not the subject of his complaint.  Mr Simmons did not accept the offer and indicated that the Tribunal, however constituted, should not hear it at all. 

1. As any investigation of Mr Simmons' complaint would not be obstructed by my hearing the application, the balance of the parties' interests favoured my not adjourning the hearing.  In that regard I took into account that Mr Simmons had not raised any other disadvantage he would suffer if the hearing were to proceed.  Against that, the application had been listed for hearing and notices of the hearing sent on 9 December, 1999.  Mr Simmons was aware that he had made the allegations before 24 February, 2000 when Ms Pratt wrote to Senator Vanstone.  Despite that, he had not sought an adjournment of the hearing at the time he had made the complaints but had waited until the day of the hearing.  As a result, the Department had been incurred the expense of flying a witness from Canberra to Brisbane. 

The legislative framework

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

"Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)a document of an agency, other than an exempt document; or

(b)an official document of a Minister, other than an exempt document."

1. 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."

The evidence

1. Mr Keith McLackland is the Staff Officer Enlistments and Discharges in the Department.  He has sworn an affidavit on 1 March, 2000 and that was admitted in evidence after he confirmed that it was his affidavit (Exhibit 1).  Mr Simmons submitted that the affidavit had not been properly sworn.  It was a document that set out Mr McLackland's name and went on to state that he "MAKE OATH AND SAY".  He signed it above a statement that "SWORN by the abovenamed deponent in Canberra this day of 1 March 2000 before me:-".  Beneath that statement were typed the words "Solicitor/A Justice of the Peace".  The word "Solicitor" had been struck out with a single line in what appears to be blue biro and a signature appeared to the right of the words "Justice of the Peace".  Beneath the signature was a stamp in red ink.  It depicted a coat of arms with "ACT" below and, to the side, a dotted line below which were the words "NEIL PHILLIPS Justice of the Peace # 2008".  In giving oral evidence, Mr McLackland said that, when he had sworn his affidavit, he had "affirmed" on the Bible in front of Mr Neil Phillips that the information he had stated in it, was true and correct.

1. An affidavit is:

   "A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation. State v Knight, 219 Kan. 863, 549 P. 2d 1397, 1401. …" (Black's Law Dictionary, 6th edition, 1990)

1. Section 186(1) of the Evidence Act 1995 provides that:

"(1)     Affidavits for use in:

(a)an Australian court (other than a court of a Territory) in proceedings involving the exercise of federal jurisdiction; or

(b)…

may be sworn before any justice of the peace, notary public or lawyer without the issue of any commission for taking affidavits."

1. An "Australian court" is defined in Part 1 to the Act to mean, among others:

   "a person or body authorised by an Australian law … to hear, receive and examine evidence;" (Part 1, paragraph (e)) 

1. Section 40(1)(a) of the Administrative Appeals Tribunal Act 1975 provides that, for the purposes of reviewing a decision, the Tribunal may take evidence on oath or affirmation.  It follows that an affidavit in the Tribunal is properly sworn if it has been sworn before a justice of the peace.  As Mr McLackland's affidavit has been sworn before a person who states that he is a justice of the peace and as there is no evidence that he is not a justice of the peace, I am satisfied that Mr McLackland's affidavit has been sworn before an appropriate person.  Mr McLackland's evidence as to the manner in which he confirmed the contents of his affidavit was not challenged.  It satisfies me that it was properly sworn before the justice of the peace.

1. In his affidavit, Mr McLackland said that, from 26 April, 1994 until 1 July, 1999, he was responsible for the management of all sailors' records. Since 1 July, 1999, all sailors' records have been managed by the Corporate Support Section of the Department but ownership and responsibility for the interpretation of those records remained with him. Mr McLackland said that he is also responsible for providing information and documents to those officers in the Department who are authorised to respond to requests under the FOI Act.

1. When Mr Simmons' request was referred to him, Mr McLackland said, he:

"… conducted a search of the Numerical Ledger, which lists information sorted by the person's service number.  I found that service number R93040 was issued to a person other than Gary Simmons.

5.I then undertook a search of the Record of Service Cards.  I perused the Record of Service Card of the person allocated service number R93040, which recorded that his date of birth was 23 October 1944 and he entered the Royal Australian Navy in 1960.  I then perused the Record of Service Card of Gary Simmons, which recorded that Mr Simmons' service number is R95040, he was not born in 1944 nor did he enter the Royal Australian Navy in 1960.

6.I could find no records held under service number R93040 which related to Gary Simmons.

7.I therefore concluded that the person allocated service number R93040 was a different person to the person allocated service number R95040.  I advised the Director General Career Management – Navy of my findings in this regard." (Exhibit 1)

1. In response to Mr Simmons' questions during cross-examination, Mr McLackland said that the two of them had some 6 (but not 25 as suggested by Mr Simmons) conversations over an 18 month period.  They talked "a lot".  He said that Mr Simmons is recorded on the "normal" Naval computer and denied that he was not on that computer's records or that he was only on "his" computer.  Mr McLackland said that someone had told Mr Simmons that his name was not on the computer but, when he keyed in his name, he "came out".  His computer was the Navy's computer. 

1. Later, Mr McLackland denied that he had told Mr Simmons that he "could get so far" and that his details were "locked in the computer".  He also denied that he had told Mr Simmons that he had to "stay within the guidelines" or "they would kick my butt".  All that he could say was that he was not the person with the service number R93040 but was the person with the number R95040.

1. When asked by Mr Simmons as to the meaning of the letters "TS", Mr McLackland said that it meant "Top Secret" and that was the meaning given in the security manual.  He denied that he had told Mr Simmons that his file was top secret with restricted access and that was why he could only get access to his file on his computer and not on the Department's normal computer.  Mr McLackland denied that "TS" meant that a person was an operational diver.  When Mr Simmons said that he was referring to past, and not current, practice, Mr McLackland responded that he could not say as he was not about.

1. Mr Simmons said that, if the Navy had given him a top secret classification when he was 17 years and 9 months of age, it needed something to make him 4 years older.  That is the "double play" in this matter.  It was to hide an underage person.  Mr McLackland responded that this was not possible.  When Mr Simmons said that the Navy does not make mistakes, Mr McLackland said that "lots" of mistakes were made. 

1. Mr Simmons suggested to Mr McLackland that a person could not start a diving course in the Navy until he or she had received a security clearance.  Mr McLackland said that he "imagined so".  Mr Simmons said that he was top secret and that he had been told that it was high.  Mr McLackland said that he recalled telling him that he was top secret.  He was unable to comment upon Mr Simmons' statement that he could not have had a top secret classification as an operational diver as he was under 21 years of age at the time.  Mr McLackland said that he had no expertise in security.  When Mr Simmons later said that he was made 41/2 years older because he was involved in a clandestine operation, that the "Yanks" had paid for his operation and therefore that there had to be another file, Mr McLackland said that his search did not find one.

1. Later, Mr Simmons said that Mr McLackland had explained how a "D notice worked" and had asked him why they "were screwing me".  Mr McLackland said that he had never heard of a D notice but agreed that Mr Simmons had told him that his life was "screwed up".

1. Mr Simmons asked Mr McLackland why nothing had been recorded for the day he qualified as a clearance diver in 1967 until the day he signed off.  Mr McLackland replied that between 1965 and 1968, the Navy transferred to the Naval Personnel Establishment Management System which is a computer system.  It holds all sailors' records.  Those records were the service certificate, the records by the ships' officers and the record of service held in Canberra.  Very few records in the computer go back beyond 1968.  In reply to Mrs Bishop, Mr McLackland said that the paper records and the computer records must be read in conjunction with each other.  One should stop and the next should start.  There was no record in Mr Simmons' diving file from 29 September, 1967 to October, 1968 as the record was no longer kept.

1. Mr Simmons referred to an interchange between himself and Captain Keane, a member of the Tribunal, during the hearing relating to his application for review of a decision made by the Repatriation Commission (application No. Q96/544) on 1 April, 1997:

"What was your service number?---95040.

Well, that is what that says, it is not?---Yes.  But the one Harry Windsor - - -

DR MORLEY: You see - - -

CAPT KEANE: That is your service number – but wait a minute.  Are you saying that someone has tampered with your service number, they have given you the wrong service number?---I've got two files.

Yes.  Are you talking about the service number?---Serial number, yes, sir.

No – service number?---Service number, serial number is the same thing, sir.

No, it is not.  You are talking about your service number, are you not?---Well my service number is 95040, and my serial number is 95040.

Well, it is not – it is the service number.  All right.  Now all you are saying is someone has made a mistake in your service number on some documents; right?---No, sir.  I'm saying I have got my original service documents here.  I have a history sheet of diving, and it has got '930' on it – '930' – a man with a security clearance and top secret, you don't make mistakes in their serial numbers.  Nothing is written into it from 28th – 28th of the 9th '67.  No-one wrote any more information in my service file.  It used to get locked – it used to get locked up in a safe, and it used to be stapled.  Bill Roberts gave me this.  The last time I ever signed for it was 30th of the 1st.

All right. Who – what are you – what are you showing there? ---My diving clearance log and history sheet.

And what service number does that show?---'93040'.

Well, which is correct?---'95' is correct.

Well, are you saying that – that has got nothing to do with your medical thing, has it?---No. But what I'm trying – what I'm trying - - -

Well, have you got – no, just a minute?---Yes.

Just – if someone can make a mistake in that, they can just as easily make a mistake on these other things, can they not?---But, sir, you don't make mistakes with a high classification and - - -

Well, perhaps – perhaps they should not. But that is – but all we are trying to find out now - - -?---There is nothing written in here.

Just a minute?---My service stops.

We – look, just keep quiet a moment, will you, and stop talking over the top of us all the time. We quite understand that you are having trouble, and you feel that someone in – someone is trying to – or you are trying to put before us that someone has been fiddling with your records. As far as we are concerned, it is a straightforward case. You have got a service number – I do not know which it is, whether it is '93' or '95', it does not really matter, as far as we are concerned. People can make mistakes one way or another. It is regrettable if they do, but we accept that they do make mistakes. All we are interested in is your medical condition, and whether or not you dispute the statements concerned with your medical condition. That is all we are interested in. We are not interested in about whether people might make a mistake in your service numbers.  Now do not – so please do not put that forward to us again.  That has got nothing to do with the case.  You are here - - -?---Okay.  But the possibility I have got two medical files, sir." (Exhibit E, pages 70-71)

1. Mr Simmons suggested to Mr McLackland that Captain Keane had said that there was a difference between a service number and a serial number.  Mr McLackland said that he could not answer for how Captain Keane saw the matter.  He said that a service number is issued to a person on his or entry to the Navy.  It is called a service number.  It is also called a personnel number.  What the number is called depends upon the service to which a person belongs.  Service numbers were issued in blocks to each State.  The recruiting office in each State issued each person with a service number.  Mr Jenkins "fits in quite nicely" with the State he comes from, Mr McLackland said.  A person could join in New South Wales and another person could join in Victoria on the same day and their numbers could be thousands apart.  Mr Simmons did not agree with that as another sailor from Western Australia had entered the Navy when he did and their numbers were quite close.  Consequently, he said, there could not be a block allocation of serial numbers.  Mr McLackland said that it did "not necessarily" follow.

1. Mr McLackland did not agree with Mr Simmons' statement that there would be ongoing reports about a person each couple of months if he or she had a security clearance of top secret.  He could not comment on what would have happened in the 1970s.  Further, he could not comment on Mr Simmons' statement that, if he had an ongoing record, there would have to be an entry on his diving record.

1. Mr McLackland confirmed that he believed that the reference to "93040" on some documents was an error.  He hoped that the computer record was accurate and that it recorded all service and postings of sailors.  In response to Mr Simmons' question, Mr McLackland said that 9 July, 1967 was shown as his date of joining the Navy as it had been amended to reflect the correct date.  The amendment had been made in response to a request from Mr Simmons to amend his personal record.  Mr Simmons denied that he had never done so but Mr McLackland said that he had done so in his original request.  It had been amended and he had been advised of it.  Mr Simmons said that he had not received any correspondence.

1. Mr Simmons referred to a document headed "Certificate of Discharge" he had included in his "Appeals Papers" (Exhibit E, page 19).  That document has a box for the "Signature of Recipient".  He said that it was in error in that he had not signed it.  Mr McLackland agreed that it was unsigned but said that was because Mr Simmons had not signed it.  A letter was sent to Mr Simmons on 18 November, 1971 stating that:

"A Certificate of Discharge, form PH100 showing details of your service in the RAN is forwarded for your retention." (Exhibit E, page 20)

Mr McLackland said that PH100 referred to the form number on the Certificate of Discharge.  The number 351 appearing at the top of the letter might refer to the discharge file but he did not know.

1. Mr McLackland said that the file reference of 4/95040P appearing on the letter to Mr Simmons dated 18 November, 1971 showed that the letter was about leave and allowances.  That letter read:

"1.       Receipt is acknowledged of your claim for payment in lieu of extended leave.

2.        The regulations governing payment in lieu of extended leave provide that this payment is made to members who are discharged on medical grounds after completion of four years admissible service and to members who are discharged on compassionate grounds after completion of ten years admissible service.

3.        As you entered the Royal Australian Navy on 9th July 1965 and received an unsuitable discharge on 5th November 1971 you failed to qualify for payment in lieu of Long Service Leave." (Exhibit E, page 21)

1. Mr McLackland rejected Mr Simmons' suggestion that the number "4/" referred to Queensland.  The number 1/ meant, he continued, that the file related to service details, 2/ to transfer of category, 4/ leave and allowances, 9/ welfare and 10/ promotions.  Mr Simmons said that this was not correct and invited Mr Lackland to read the substance of the letter.  It referred to his being discharged as unsuitable.  Despite that, Mr McLackland said, the letter was concerned with leave and allowances.  He said that the expression "discharged as unsuitable" is no longer used and that now adopted is "retention is no longer in the interests of the Navy".  When Mr Simmons asked why he was discharged as unsuitable when his performance had been rated as "very good", Mr McLackland said that it might have been his immaturity or that he would not get on.  He did not know.

1. Mr McLackland rejected Mr Simmons' suggestion that 4/95040P referred to his operational service file.  He agreed that the letter "P" normally referred to personnel.  Some 10 to 15% of entries contained errors.

1. When Mr Simmons asserted that the records relating to his operation were incorrect (Exhibit E, pages 27-33), Mr McLackland said that the records were not Naval records.

1. Mr Simmons said that the coat of arms on the letter of 18 November, 1971 had been defaced.  He had enlarged it on a photocopier and he said that the results were in his Appeals Book (Exhibit E, page 22).  The letters "BMcN BS" appear.

1. Mr Simmons read his affidavit into the evidence (Exhibit D).  H was not cross examined upon it.  It expanded upon the matters addressed by Mr Simmons in his request for access to documents (see paragraph 4 and 5 above) and I will not set it out.

Has the Department taken all reasonable steps to find the documents or do the documents exist?

1. 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 have access to the requested 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.

1. 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 considered and applied in several cases but only Deputy President McDonald considered the elements of the first limb in any detail (Re Cristovao and Secretary, Department of Social Security (1998) 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)

1. It follows 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 of this case include the manner in which each person is assigned a service number upon his or her recruitment.  On the basis of Mr McLackland's evidence, I am satisfied that each person is given a number, and only one number, upon his or her being recruited.  I am also satisfied that he or she is not allocated a second number during his or her service.

1. Having examined the documents released to Mr Simmons, I am satisfied that he was assigned the number of R95040.  That number is shown on some documents (e.g. the Certificate of Service, Exhibit E, page 2 and see also page 10, and the Ratings Record of Service Card, Exhibit E, page 6) as the Official Number.  In the Service Record maintained on the computer, it is shown as the Personal Number (Exhibit E, page 7).  On the out-patient records to which I refer in the next paragraph, the number is shown as the service number (Exhibit E, pages 15-16).

1. I agree with Mr Simmons that the Record of Clearance Diving Service and the R.A.N. Clearance Diver – History Sheet both show Mr Simmons' name and his official number as R93040.  That number is repeated on one page of the out-patient records showing Mr Simmons' referral first to Dr McGeorge and then to Dr Windsor.  The first two pages, which are copies of each other, record the notes of Dr McGeorge who then referred Mr Simmons to Dr Windsor.  Those two pages show Mr Simmons' number as 95040.  The next two pages record the referral and Dr Windsor's opinion.  On these pages, Mr Simmons' service number is shown as 93040.

1. On the basis of the evidence of Mr McLackland and from examining all of the documents admitted in evidence, I am satisfied that the service number R93040 has been assigned to Mr Jenkins.  It does not relate to Mr Simmons.  I am also satisfied that there is a file that bears that number and that it relates to Mr Jenkins and does not concern the affairs of Mr Simmons.

1. Having examined the correspondence and heard the evidence of Mr McLackland and of Mr Simmons, I am satisfied that the references on correspondence addressed by the Department to Mr Simmons were references to general files kept by the Department.  That is to say, they were not limited to Mr Simmons but related to a subject matter, such as certificates of discharge or leave and allowances, applicable to members of the Navy including, but not limited to, Mr Simmons.

1. Although I accept that Mr Simmons believes that there is a file that relates to him and that it bears the number R93040, I am satisfied that the Department has taken all reasonable steps to locate such a file.  In reaching that decision, I have taken into account the system for the allocation of service numbers, however described, the existence of a file with the number R93040 but relating to a person other than Mr Simmons and the checks that have been made.  I am satisfied the reference to the number R93040 on Mr Simmons' Record of Clearance Diving Service and the R.A.N. Clearance Diver – History Sheet and in two pages of the out-patient records are errors.  They are most unfortunate errors but, as there is a file bearing that number but relating to Mr Jenkins, I am satisfied that they are errors all the same.  Although Mr Simmons is correct in thinking that errors should not happen in the Navy, the Navy comprises people who are human and all humans make errors from time to time.   That conclusion is supported by Mr McLackland's evidence.  The same evidence leads me to conclude that a file bearing the number R93040 and relating to Mr Simmons does not exist.

1. Pursuant to s. 24A, therefore, the Department's decision to refuse access to the documents requested by Mr Simmons was correct and I affirm the decision made on 14 September, 1999.

I certify that the fifty-four preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President) 

Signed:          ..........................................

Date of Hearing  13 March, 2000
Date of Decision  21 June, 2000
Applicant   In person
Solicitor for the Respondent        Mrs A Bishop
  Australian Government Solicitor