Skruzny and Secretary, Department of Family and Community Service S

[2003] AATA 244

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 244

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/803

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VACLAV SKRUZNY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date3 March 2003

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd)  Joan Dwyer

Senior Member
FREEDOM OF INFORMATION – request for access to documents which are unable to be found – all reasonable searches have been conducted – decision affirmed

Freedom of Information Act 1981 s 24A

REASONS FOR DECISION

3 March 2003 Mrs Joan Dwyer, Senior Member

1. On 3 March 2003 I heard this matter and delivered an oral decision. The formal decision was sent to Mr Skruzny on 3 March 2003 together with a letter advising him of his right to apply under s 43(2A) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) for written reasons for the decision. On 11 March 2003, Mr Skruzny telephoned my personal assistant and advised her that he was applying for written reasons for my decision of 3 March 2003.

2.      These are my written reasons for the decision delivered on 3 March 2003.

3. At the hearing on 3 March 2003 Mr Skruzny appeared and gave evidence. Mr M Todd, an advocate with Centrelink, appeared for the respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the AAT Act and the exhibits tendered during the hearing. At the request and direction of the Tribunal, Mr Todd made arrangements for telephone evidence to be given by Mr Giles, an employee of Centrelink, who had made a statement which was before the Tribunal as exhibit R1.

4.      The T documents show that on 18 April 2002 Mr Skruzny made a request under s 15 of the Freedom of Information Act 1981 (“the FOI Act”) for access to documents which he described as follows (T4 p5):

Copy and questionair [sic] sent to Prague on the 20-4-1997, and the answer to the above received from Prague.

5.      By letter dated 24 May 2002 the Centrelink Freedom of Information Officer advised Mr Skruzny that his application was refused under s 24A of the FOI Act.  She wrote as follows (T7 pp8-9):

The facts on which I have based my decision are:

(1)You have requested access to a copy of a questionnaire sent to Prague on 20 April 1997.

(2)Searches of Centrelink records undertaken as a result of your request have failed to locate this document.

I have considered these facts in conjunction with Section 24A of the FOI Act.

Section 24A states that 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.

Searches of Centrelink’s records have failed to locate the document covered by your request.  I have therefore concluded that the document can not be located or no longer exists.

For these reasons I am unable to comply with your request and I have decided to refuse access to the documents under Section 24A of the FOI Act.

6.      On 6 June 2002 Mr Skruzny sought internal review under the FOI Act of the decision of 24 May 2002.  He explained that his reason was, "because of inadequate search".  Further searches were conducted and on 19 June 2002 the decision of 24 May 2002 was affirmed.  The notes of the person who made the decision on internal review are at T10 p13.  He wrote:

FACTS-   File received from Ringwood – No documentation on file received.

-   RMU [Records Management Unit] contacted, subsequent search by both staff failed to locate any documentation

-   Ringwood contacted search again failed to locate documentation

-   Any batches held back to 97/98 would have been destroyed

-    No record on file of questionnaire handed in or of any answers from Prague to this questionnaire or of any forms being sent to Prague

7.      Mr Skruzny lodged an application for review by the AAT on 24 July 2002.

8.      At the commencement of the hearing I asked Mr Skruzny why he believed a questionnaire had been sent to Prague on 20 April 1997.  He produced a four page letter sent to him by Centrelink dated 9 April 1997and signed by Mr Giles (A1), in respect of a matter concerning Mr Skruzny’s entitlement to age pension.  At the top right-hand corner of the first page of that letter, there is a hand written note saying, "Copy + questionnair [sic] sent to Prague 20-4-97".

9.      It was Mr Skruzny's evidence that when he received that letter it had that that pencil note on the top right-hand corner of the first page. The Tribunal suggested to him that was unlikely.  First, the note refers to a step said to have been taken on 20 April 1997, and the letter is dated 9 April 1997.  Further, public servants do not usually send out printed letters with pencil notes on the first page.  Secondly, the Tribunal suggested that the style of handwriting looked as if it were written by an elderly person, perhaps of European background.  The note seemed to be written in a quavering hand and the style of writing looked old fashioned and not common in Australia.  Although, as Mr Skruzny pointed out, he himself is elderly and of European background, the writing seemed to be quite different from his own handwriting.  He had written on the same page "I should like a copy of this V V Skrunzy".

10.     In a statement signed on 13 December 2002 (R1), Mr Giles had stated that he had no recollection whatsoever of Mr Skruzny's matter and that he had no electronic or hardcopy record of the case.  He had added that he could not remember, “ever (in nearly 25 years of employment) writing any thing in pencil on any letter being sent to a customer.  He stated, "it is not the sort of thing I would do and I do not believe I have ever done so".

11.     I considered that seeing the letter might assist Mr Giles' memory.  I also considered it appropriate that he inform the Tribunal whether the note referring to the questionnaire was in his handwriting.  I therefore directed Mr Todd to fax a copy of the letter to Mr Giles and arrange for him to give telephone evidence. 

12.     Mr Giles stated in evidence that, having seen the faxed copy of the letter, he was able to say that the note in the top right-hand corner was, "most definitely not mine".  He said that the style of writing appeared to him to be "a style taught at an earlier time", and his handwriting was, "more spidery and not that good".  He said that the writing did not resemble his writing and that, in particular, the style of the Capital “C” which has a loop at the top was quite unlike his Capital “C”.

13.     Mr Todd had also lodged a statutory declaration by Mr Swann, a Centrelink officer (R2), who at all relevant times was employed in the Records Management Unit responsible for files and documents lodged in the Sunshine Centrelink office with which Mr Skruzny had his dealings.  Mr Swann stated that he had no memory of having conducted a search in relation to Mr Skruzny.  But he added (paras 5,6 7 & 8):

5.On 20 May 2002 I was requested by K Maminski, Freedom of Information Officer, to conduct a search for a “copy of quetionnaire (sic) sent to Prague on 20/4/97 and the answer received from Prague”  On 14 June 2002 I responded that “Both Kevin and I have searched Metwest RMU for the file you requested but without success.”

6.In response to a request for a document lodged in early 1997, we would have searched for a file first, then a search would have been done for a “batch.”  A batched document is a document that has not been placed on a customer’s file but was stored with other documents lodged at the Sunshine office on the same day.  The most typical example of batched documents are the fortnightly Applications for continuation of Newstart Allowance.

7.It is Centrelink policy that batched documents are only held for 2 years.  The policy reflects the amount of documentation received by Centrelink.  Any documents that had been received by the Sunshine office in 1997 and not placed on a file would have been destroyed in 1999.

8.The likelihood of any single letter being created in early 1997, that was not attached to a file, being found in 2002 is remote.

14.     The T documents at T13 do include a copy of a Centrelink Manual Instruction relating to a March 1997 Release.  It explains that it was Centrelink policy to ensure that Centrelink pension recipients, who might have entitlements to pensions from foreign countries claim their entitlements from those countries.  Mr Todd acknowledged that it was possible that Mr Skruzny may have been asked to send a foreign pension claim to the Czech Republic enquiring about his entitlement to pension from that country.  That is the procedure suggested at bullet point 4 on T13 p24 in respect of a "non-Agreement country".  Mr Todd said there is no reciprocal social security agreement between Australia and the Czech Republic.

15.     However, Mr Todd pointed out that document T12 which is a printout from Centrelink International Services states that Czech Republic pensions are not payable abroad unless under reciprocal agreements.  He said that for that reason, in accordance with bullet point 3 of T13 p 24, no action may have been required of Mr Skruzny.  Mr Todd said that it appeared from the manual instruction that it was not the practice of Centrelink to itself send out questionnaires about Australian pension recipients to foreign countries.

16.     The relevant legislation is s24A of the FOI Act.  It provides:

4A. 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.

17.     I am satisfied on the evidence before me that all reasonable steps have been taken to find the documents to which Mr Skruzny has sought access and that they cannot be found.  I am satisfied on the balance of probabilities that the documents do not exist.

18.     The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member

Signed:         Grace Carney
  Personal Assistant

Date/s of Hearing  3 March 2003
Date of Decision  3 March 2003
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr M Todd