Stephenson and Centrelink
[2005] AATA 1199
•6 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1199
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/443
GENERAL ADMINISTRATIVE DIVISION ) Re RAYMOND STEPHENSON Applicant
And
CENTRELINK
Respondent
DECISION
Tribunal Dr KS Levy, Member Date6 December 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
. ........[Sgd]........
KS Levy
Member
CATCHWORDS
ADMINISTRATION LAW – Freedom of Information Application – applicant in receipt of age-pension – right of access to documents – documents lost or destroyed – decision affirmed.
Freedom of Information Act 1982 s 11, 24
REASONS FOR DECISION
6 December 2005 Dr KS Levy, Member Introduction and Background
1. The applicant made an application under the Freedom of Information Act 1982 dated 22 January 2004 for access to “job search allowance claim form dated approx. 26/03/1993”. That application was refused by letter dated April 2004, under section 24A of the Freedom of Information Act 1982. That section authorises refusal where all reasonable steps have been taken to find the documents requested and they either cannot be found or do not exist.
2. A subsequent application was made on 23 December 2004 for access to two documents. The application requested “copies of documents compiled by me and held on computer file:
1) “Job search allowance claim;
2) Newstart allowance claim. Refer attached copy of ARO report”.
3. The response to this request is dated 24 January 2005 and refers to a request for computer records of claims for Job Search Allowance (JSA), Newstart Allowance (NSA), Mature Age Allowance (MAA) and Age Pension (AGE). These are referred to as being included in an Authorised Review Officer (ARO) report. In processing this request, two computer reports were identified – Allowance/Benefit History (ABH); and a Pensions Status History (PSH). A copy of both of these reports were provided to the applicant with the letter dated 25 January 2005.
4. The applicant now seeks review of that decision under section 29(1) of the Administrative Appeals Tribunal Act 1975. He alleges that his original documents had been unlawfully removed from Centrelink’s official records.
5. The matter was heard in the Administrative Appeals Tribunal on 21 November 2005. The applicant was self represented. The respondent was represented by its advocate Ms Sarah Oliver.
Legislation
6. The decision in this matter requires consideration of the provisions of the Freedom of Information Act 1982 (“the FOI Act”).
7. Section 11 of the FOI Act sets out the applicant’s rights to obtain access to documents. The relevant provisions are:
“Sect 11- Right of access
(1) 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.”
8. Section 24A of the FOI Act deals with the authority to refuse documents of an agency that cannot be found. That section relevantly provides:
“Sect 24A - Requests may be refused if documents cannot be found or do not exist
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.
….”
Evidence
9.Both documentary and oral evidence were received by the Tribunal.
10.The following documents were admitted into evidence:
§Exhibit 1 Affidavit of Corrance Anne Stephenson dated 18 November 2005
§Exhibit 2 Witness Statement by Raymond Stephenson dated 16 November 2005
§Exhibit 3 Document prepared by the applicant entitled “Background information” (undated)
§Exhibit 4 T documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975
§Exhibit 5 Statement by Mr Michael Guest dated 17 October 2005
§Exhibit 6 Witness statement by Boris Georgieff dated 18 October 2005
§Exhibit 7 Witness statement of Les Ferguson dated 18 October 2005
§Exhibit 8 Copy of decision of Social Security Appeals Tribunal in relation to the applicant dated 23 July 2003
§Exhibit 9 File note of interview between Mr Guest and the applicant dated 4 October 2005
11. Since the decision of 24 January 2005 enclosing a copy of computer printout documents (see T documents, folios 9,10,11), the applicant telephoned Centrelink’s office on 8 February 2005 and indicated that he expected he would get copies of the actual or original JSA and NSA claim forms which he submitted (T9, folio 12). Subsequently Mr Stephenson requested a review of the Decision and alleged there was “unlawful removal” of the documents he has requested (see T10, folio 13).
12. Mr Stephenson then provided evidence on oath. Essentially, the applicant indicated that he and his wife had an interview on 23 October 2002 in the Maroochydore office of Centrelink with Mr Michael Guest. Between that date and when the matter went on appeal to the Social Security Appeals Tribunal on 18 December 2002, he alleges there has been removal of the documents which he now seeks under the Freedom of Information Act. His evidence was that these documents were on a file at Centrelink on the date of his interview but were not made available to the SSAT. These documents, he states, were critical to the case dealt with by the SSAT and relate to valuations of properties he held in 1993 and 1994.
13. The applicant was not cross-examined by the respondent. The Tribunal clarified with the applicant that there appears to be evidence that the documents have been removed but his evidence did not point to an “unlawful” removal of the documents concerned. No further evidence was available.
14. Ms Oliver submitted that while it is unfortunate that the records were not available, it was clear that a proper record system had not been kept over some period in the late 1990s and early 2000s in the regional offices of Centrelink. She stated that the record should not have been culled as the applicant was, at that time, still in receipt of benefits. Nevertheless, it would appear that the records which are not available would have been destroyed under the authority of the schedule under the Archives Act which allows destruction of documents where the file has been inactive for at least twelve months.
15. Mr Stephenson commented that also, the documents should not have been destroyed or removed as there was an appeal pending. The appeal was lodged after 2002.
16. Evidence was provided by Mr Michael Guest of Centrelink. He was referred to his statement of 17 October 2005 (Exhibit 5). He was asked why he referred the applicant’s file to the Prosecution section. He indicated that Centrelink had a policy that any debt over $5,000 was to be referred to prosecution for consideration. It was not a decision that he made in respect of the applicant personally or because of any malice towards the applicant. The applicant indicated the file which he had available at the time of the interview was a paper file. While Mr Guest stated that he had no recollection of the interview, he recalled the file being a pension file and not a file concerned with the JSA or NSA. He was referred to Exhibit 1 and in particular to paragraph 4 of his statement. While he could not remember the conversation, his evidence was that the claim forms shown to the applicant and his wife would have been forms for age pension and mature age allowance and not the forms for Job Search allowance or Newstart allowance. His evidence was that at the time the applicant submitted a claim for job search allowance, he would have been on that allowance for approximately twelve months and then transferred to the newstart allowance.
17. Under cross-examination by the applicant, Mr Guest stated he did make a record of the conversation with the applicant. His evidence was that a record could be changed after the event but there would be an audit trail in the computer system of any change made.
18. In relation to the destruction of documents, Mr Guest stated that they were probably destroyed two years after the applicant was placed on a mature age allowance, that is two years after he ceased to be on newstart allowance. The applicant ceased being on newstart allowance and went on to mature age allowance on 16 May 1996.
Submissions
19. Ms Oliver submitted that the applicant had been provided with copies of two documents (folios 10 and 11), which were the only documents the department has in relation to the application. In addition to being granted access to the documents mentioned above, the applicant was told that the documents he sought were not on file and it was explained the Department did not use scanning technology, at least at the time these documents appear to have been destroyed. It was mentioned that the Department has since adopted a system of amalgamating previous files with a pension file when an applicant subsequently is allocated an age pension.
20. She reiterated the documents should not have been destroyed as the applicant was receiving a pension at that time, however, she indicated that the documents appeared to have been destroyed when the separate files for job search allowance and newstart allowance were not active. Therefore she submitted it was an administrative error but there was no evidence of unlawful removal.
21. Mr Stephenson submitted that the forms appear to have been culled in October 2002, according to Mr Guest’s evidence. However, he questioned how Centrelink could raise a debt on 5 December, some two months later if the documents had been removed.
22. That question was answered by the respondent’s advocate and that a separate accounting system was maintained where relevant historical information could be identified.
Findings of Fact
23.The Tribunal makes the following findings of fact :
1)The processing of the request for documents by Centrelink have been considered properly and carefully;
2)The documents sought are unable to be found;
3)The documents have been destroyed at some time between 1998 and December 2002;
4)The destruction of documents has occurred as a result of grossly inadequate record management systems in the regional offices of Centrelink, at least in Brisbane, during the 1990s and extending to the early 2000s.
Consideration
24. The Tribunal has reached a decision in this matter after taking into account all of the documentary exhibits, the oral evidence, submissions and relevant legislation.
25. The Tribunal explained to the applicant that it cannot deal with matter relating to the substantive content of the appeal to the Social Security Appeals Tribunal. The application to this Tribunal is confined to matters related to the documents pertaining to his request under the FOI Act.
26. In considering the findings of fact above, it is apparent that the probable destruction of the documents requested has occurred due to inadequate systems then existing in Centrelink regional offices. The Tribunal has noted the statutory declaration of the applicant’s wife which was provided to the Tribunal and his evidence also on oath attesting to having cited the two documents requested at least in October 2002. It is understandable that the applicant would be distressed and aggrieved by what he believes to be a clear inadequacy in the administration of the Maroochydore office of Centrelink. The evidence of the Centrelink officer Mr Michael Guest, which while provided by telephone, appeared dismissive of the applicant and undoubtedly a source of further annoyance to him.
27. Nevertheless, the evidence of Mr Guest indicates that the documents are likely to have been destroyed two years after the applicant’s mature age allowance commenced, or some time in 1998 (approximately). The applicant and his wife maintain the documents were in existence in October 2002. While the Tribunal accepts the applicant was a witness of truth and prefers his evidence to that of Mr Guest, it appears the systems utilised by Centrelink involved separate paper files for the earlier allowances. The submission by Centrelink’s advocate stated that more recently, Centrelink has adopted a practice of amalgamating the earlier files with those of the person’s age pension records.
28. It is therefore possible that the documents existed in October 2002, but on separate files. Certainly by 2004 when an FOI request was initially made, the documents had been destroyed or could no longer be found by reasonable and diligent search. In the circumstances, while it is disappointing to the applicant, it is clear that there has been an administrative error and inadequate systems in place at Centrelink. It is clear also that the documents have been removed and probably destroyed, in keeping with the authority of a schedule under Archives legislation. As the applicant was in receipt of age pension, Centrelink’s policy has not been abided by with the destruction of those records.
29. While that is regrettable, there is no evidence of “unlawful” removal of the records concerned. I therefore find that the original documents, or copies of them as requested by the applicant, cannot be found and that there is no further remedy which this Tribunal can offer the applicant. The refusal of the applicant’s request under section 24A of the FOI Act was therefore properly made. The decision under review must be affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 21 November 2005
Date of Decision 6 December 2005
The Applicant was unrepresented
For the Respondent Ms S Oliver, Department Advocate
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