Uger and Human Rights and Equal Opportunity Commission
[2009] AATA 563
•31 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 563
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3701
GENERAL ADMINISTRATIVE DIVISION )
Re Haci UGUR
Applicant
AndHuman Rights and Equal Opportunity Commission
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date31 July 2009
PlaceSydney
DecisionThe decision under review is affirmed.
.....................[sgd].......................
Professor GD Walker
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request for access to documents – release of documents – whether all reasonable steps taken to find documents - documents destroyed - no further documents held – decision under review affirmed
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RELEVANT ACTS
Freedom of Information Act 1982 (Cth) (the FoI Act): ss 24A, 61
Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)
Archives Act 1983 (Cth)
…
CITATIONS
Ugur v Police Service of New South Wales [2004] FCA 1032
Chu v Telstra Corporation Limited (2005) 147 FCR 505; [2005] FCA 1730
Re Dimovski and Centrelink [2006] AATA 1003
Re Kapeen-Gangitano and Secretary, Department of Family and Community Services (2003) 76 ALD 157; [2003] AATA 1163
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
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REASONS FOR DECISION
31 July 2009
Professor GD Walker, Deputy President
Basic facts
1. On 7 and 19 December 2007, the applicant Mr Haci Ugur made a request to the respondent (or “the commission” or “HREOC”) under the Freedom of Information Act 1982 (Cth) (the FoI Act) requesting among other things a copy of all documents held by the commission in relation to his complaints against the Department of Immigration and Citizenship (DIAC), GSL (Australia) Pty Limited (GSL) and the Commonwealth Ombudsman.
2. On 10 January 2008, Ms Mimi Barbaro, a senior lawyer employed by the commission, responded to the applicant’s FoI request. She decided that he should be provided with a copy of all documents held by the commission in relation to his complaints but that he should not be provided with an additional copy of documents that had been provided to him previously in connection with proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).
3. On 17 January 2008 Ms Marcie Richards, an employee of the commission assisting Ms Barbaro with the applicant’s request, provided him with a copy of what Ms Barbaro understood to be all documents held by the commission concerning the applicant's complaints that had not previously been provided to him.
4. On 17 March 2008 the applicant requested an internal review of Ms Barbaro’s decision. On 7 July 2008, Ms Christine Fougere, deputy director of the commission’s legal section, made a decision in relation to the applicant’s request for an internal review. She decided to provide the applicant with all the documents that fell within the FoI request made by him on 7 December and 19 December 2007 that were in the possession of the commission.
5. On 11 August 2008, the applicant applied to this tribunal for review of Ms Fougere’s decision of 7 July 2008. In his application he stated that his reason for applying was that he felt he a right to know what was happening with his situation as he had been in Villawood Immigration Detention Centre for more than four years. He further stated that he would like to access all his files from HREOC.
6. When the matter came on for hearing on 4 May 2009, the applicant sought an adjournment on the ground that he objected to the interpreter provided by the tribunal and also that he had been unable to obtain legal advice because the respondent had failed to give its consent to his obtaining legal advice, a claim which he repeated throughout the proceedings.
7. An adjournment was granted to 5 June 2009 but the applicant was directed to provide the respondent within 48 hours a list of the names of all interpreters to whom he objected. It was also made clear that he did not need consent to seek legal advice and that favourable consideration would not be given to any further applications to adjourn.
8. At the adjourned hearing on 5 June, the applicant stated that he was still not ready to proceed, again objecting to the interpreter on the ground that he had asked for a female interpreter. He also stated that he needed to obtain legal advice but was unable to do so because the respondent had not given its consent to his obtaining it. He sought an adjournment until the respondent provided that consent.
9. An adjournment was refused on the basis that the applicant had repeatedly been told that he did not need the respondent’s consent in order to obtain legal advice, nor had he given any reason why a man could not interpret for him.
10. At the conclusion of the hearing on 5 June 2009, the matter was adjourned part heard to 2 July 2009. On that date, the applicant did not appear and the matter was adjourned again to 9 July 2009. On that day, the applicant submitted certain written submissions and attached documents (Exhibit A8) requesting a further adjournment “until respondent completed their search and to provide me all the documents and the information”. He stated that he had not appeared on 2 July 2009 because he had not received a letter from the tribunal confirming the date in time (it was not possible to contact him by telephone). He repeated his request for a HREOC consent order to allow him to obtain legal advice for the purposes of the tribunal proceedings. He also sought a direction that five named members of HREOC staff be called for cross-examination. This was refused as none of the persons named was a witness or had provided a statement in these proceedings.
11. At the hearing, the applicant appeared in person, while Ms Katherine Richardson of counsel, assisted by Ms Frances Simmons of HREOC, appeared for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave no oral evidence.
12. The tribunal provided interpreters at all hearings and direction hearings, but the applicant refused to make use of their services for his own submissions and questions. For that reason language problems made it difficult to be confident of understanding much of what he said in the course of the proceedings. On occasion he also objected to the use of an interpreter to translate witness testimony, but on other occasions objected that not all of the respondent’s submissions had been translated for him.
Issue
13. The issue to be decided is whether, for the purposes of s 24A of the FoI Act,
(a)All reasonable steps have been taken to find the documents sought by the applicant; and
(b)The tribunal is satisfied that the documents are within the respondent’s possession but cannot be found, or do not exist.
Applicable law
14. Section 24A of the FoI Act provides as follows:
…
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.
…
Respondent’s evidence
15. As the applicant was unrepresented, I offered him the choice of presenting his case first or having the respondent present its case first. He expressed a preference for the latter. That was more convenient also because the respondent bears the onus of proof under s 61 of the FoI Act.
16. Mr Jonathan Hunyor, director, legal services, HREOC: Mr Jonathan Hunyor, director of legal services at the commission, in his statement of 19 September 2008 which he adopted on affirmation at the hearing (Exhibit R1), outlined the applicant’s FoI request, the initial decision on 10 January 2008 by Ms Barbaro and the applicant’s request for an internal review of that decision.
17. He said that on 7 July 2008 Ms Christine Fougere, the deputy director of the legal section employed by the commission, made a decision in relation to Mr Ugur’s request for internal review. Ms Fougere decided to provide the applicant with all the documents that fell within the FoI request made by him on 7 December and 19 December 2007 that were in the possession of the commission.
18. Mr Hunyor was informed by Ms Fougere that she believed, at the time of her decision, that she was aware of all documents held by the commission in relation to Mr Ugur’s request based on:
(a)the material contained on the FoI File;
(b)her own inquiries to satisfy herself as to the destruction of file FD 205420; and
(c)a physical check of all material held by the legal section in connection with Mr Ugur’s litigation involving the commission to determine whether Mr Ugur should be provided with additional documents from those files in response to his FoI request.
19. Ms Fougere believed the following documents were in the possession of the commission:
(a)Ugur v Department of Immigration and Multicultural and Indigenous Affairs and GSL Pty Ltd (file reference FC 2018239);
(b)Ugur v Department of Immigration and Citizenship and Commonwealth Ombudsman (file reference FC 2019080);
(c)Ugur v Department of Immigration and Citizenship and Commonwealth Ombudsman (file reference FC 2018908);
(d)Ugur v Commonwealth of Australia Administrative Appeals Tribunal (FC2018285);
(e)Letter from Andrew Georgalla, HREOC, to Mr Ugur dated 31 August 2005;
(f)Submission to Ombudsman from Mr Ugur dated 5 March 2005;
(g)Letter from Mr Ugur to Chris Linton, DIAC, dated 5 November 2007;
(h)Report of Dr F Lowden dated 1 September 2007;
(i)Report of Dr Aladin Emin dated 15 August 2007;
(j)Report of Bestegul Tungandame dated 25 July 2007; and
(k)Correspondence re Commonwealth Ombudsman.
20. Mr Hunyor was informed by Ms Fougere that the additional documents numbered (e) to (k) in the previous paragraph (paras 11.5 to 11.11 of his statement) were located by a physical search of the material held in the legal section in connection with Mr Ugur’s litigation against the commission.
21. Ms Fougere refused Mr Ugur access to File FD 205420 on the basis that the file was destroyed in February 2008.
22. Attached to his statement under Tab 3 was a copy of the commission’s file destruction record relating to file FD 205420. The personal details of persons other than Mr Ugur had been removed. Page one of that record includes a notation “Lodgement files to be destroyed”. It also contains a further notation “Approved” followed by the signature of Karen Toohey, the director of complaint handling employed by the commission and the date of 11 January 2008.
23. He then set out the circumstances of the destruction of file FD 205420.
24. August 2005: Documents received from Mr Ugur – file FD 205420 created: In August 2005 Mr Ugur sent the commission a complaint form and documents in which he stated that he had been discriminated against because of his race by GSL and DIAC.
25. Andrew Georgalla, an employee of the commission’s complaint handling section, wrote to Mr Ugur on 31 August 2005. He told Mr Ugur that the commission could not assist him with his matter because it was not clear what he was, in fact, alleging. The commission therefore did not consider that his letter constituted a “complaint” under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). It was considered a “lodgement” of documents.Mr Ugur’s documents and Mr Georgalla’s letter were placed on file FD 205420. After Mr Georgalla wrote to Mr Ugur, file FD 205420 was closed (see para 17 of Mr Hunyor’s statement).
26. 2006: Complaints received from Mr Ugur: On 1 August 2006 the commission received from Mr Ugur further documents which were accepted by the commission as a complaint about his treatment by DIAC and GSL. The commission inquired into that complaint (“the first complaint”) and considered whether Mr Ugur’s human rights had been breached or he had been racially discriminated against. Mr Ugur provided the commission with a range of other material that was considered as part of the first complaint.
27. On 18 February 2007 the Commission received from Mr Ugur a further complaint about his treatment by the Commonwealth Ombudsman and DIAC. Mr Ugur complained of a breach of his human rights and racial discrimination and the commission treated this as a separate complaint (“the second complaint”). Mr Ugur also provided the commission with a range of other material that was considered as part of his second complaint.
28. On 8 June 2007 the first complaint was dismissed by the delegate of the HREOC president as “lacking in substance”.
29. On 9 August 2007 the second complaint was dismissed by the delegate of the HREOC president as “lacking in substance”.
30. Mr Hunyor believed from his inquiries that file FD 205420 was not accessed or considered as part of the first or second complaint and remained closed.
31. ADJR proceedings commenced by Mr Ugur: Mr Ugur has sought to challenge the commission’s decisions about his first and second complaints in proceedings before the Federal Magistrates Court and Federal Court under the ADJR Act.
32. The proceedings in relation to the first complaint were initially dismissed by Smith FM. On 16 September 2008 Mr Ugur’s appeal to the Federal Court against the decision of Smith FM (Matter no NSD 2441/2007) was summarily dismissed by Justice Edmonds.
33. The proceedings in relation to the second complaint were before Gyles J in the Federal Court (Matter no NSD 1907/2007).
34. Once Mr Ugur commenced ADJR proceedings, the files in relation to the first and second complaint were transferred to the legal section. File FD 205420 was not transferred to the legal section and remained in the Registry.
35. FOI request made: On 7 and 19 December 2007 Mr Ugur made a request to the commission under the FoI Act. FoI requests to the commission are handled by the legal section.
36. Ms Richards requested information about all complaint files held by the commission in relation to Mr Ugur from the commission’s registry which manages commission files generally and from the commission’s complaint handling section which manages commission files created in that section.
37. File FD 205420 was identified as falling within the FoI request and was obtained by Ms Richards from the complaint handling section in January 2008. On 17 January 2008, Mr Ugur was provided with all documents from file FD 205420 along with the other documents that Ms Barbaro decided should be provided to him.
38. File FD 205420 was then returned to the complaint handling section by Ms Richards. That was not the usual practice of the legal section in dealing with FoI files, but Ms Richards was not aware of that. Files relating to an FoI request are generally retained in the legal section until an applicant has had the opportunity to seek review of the decision.
39. File FD 205420 destroyed: File FD 205420 was destroyed some time after 17 January 2008 when it was returned to the complaint handling section. As was noted at para 22 above (para 14 of his statement), the file was authorised for destruction on 11 January 2008. An email from Ms Kay Russell, an employee working in the complaint handling section, to Ms Richards on 31 March 2008 states file FD 205420 was destroyed “in February”.
40. The Commission retains a CHARMS database record for FD 205420, which provides a summary of the information recorded on that file and other administrative details relating to the file.
41. The record describes the file as a lodgement for the reasons set out above at para 25 (see para 17 of Mr Hunyor’s statement). The lodger is noted to be ‘Ugur’.
42. The “current holder” is listed as registry Sydney (HREOC). Mr Hunyor was informed that this refers to the last holder of the file before it was destroyed. The date 17 January 2008 in the field next to the “current holder” refers to the date on which the file was received by the complaint handling section “registry”, having been returned by Ms Richards.
43. The file location is noted in the record as “D2007”. He was informed that this refers to the date after which the file should be destroyed under the commission’s records disposal authority (RDA) issued on 16 May 2003 by the National Archives of Australia.
44. He believed that file FD 205420 was considered by the complaint handling section to have fallen within entry 5222 of the RDA. Entry 5222 applies to:
Records documenting assessment of written inquiries and lodgements which do not constitute a complaint. Includes correspondence, assessment and acknowledgement.
45. For the reasons given in Mr Georgalla’s letter of 31 August 2005 set out at para 25 above, the material on file FD 205420 was considered by the commission not to constitute a complaint.
46. Entry 5222 requires that files be destroyed two years after information is provided to the commission. That two years therefore expired in August 2007.
47. Mr Hunyor believed from his inquiries that neither Ms Barbaro nor Ms Richards was aware that file FD 205420 was to be destroyed. He was also not aware that this file was to be destroyed, nor was Ms Fougere.
48. Mr Ugur’s request for a review of the decision by Ms Barbaro, dated 17 March 2008, was received on 18 March 2008. He was informed that none of the staff in the complaint handling section were aware of the possible need to retain file FD 205420 in the event of a request for review being made.
49. On 2 September 2008 Mr Ugur informed Mr Hunyor that he had received a copy of his “2005 file” which he understood to be a reference to file FD 205420 (the only commission file relating to Mr Ugur from 2005).
50. Destruction of file 2013722FC: On 22 July 2008, in connection with his ADJR proceedings against the commission, Mr Ugur expressed to Mr Hunyor his concern about the destruction of documents by the commission. He told Mr Ugur that he would look into the issue and particularly the circumstances of the destruction of file FD 205420. In the course of determining why file FD 205420 was destroyed, Mr Hunyor also became aware that commission file 2013722FC had also been destroyed.
51. The record’s summary of the file indicates that the file related to a complaint made by Mr Ugur about the New South Wales police.
52. The record describes the file as a “case” as it was accepted by the commission as a “complaint” and the “complainant” was noted to be “Ugur”.
53. The “current holder” is listed as registry Sydney (HREOC). As was noted above, he was informed that this refers to the last holder of the file before it was destroyed. The date 19 February 2004 in the field next to the “current holder” refers to the date on which the file was received by the complaint handling section “registry”, having been closed on that date. Another field entitled “Outcomes” refers to the complaint being “terminated” on that date.
54. The file location is noted in the record as “D2007”. As noted above, he was informed that this refers to the date after which the file should be destroyed under the RDA.
55. He believed that file 2013722FC was destroyed in accordance with entry 5221 of the RDA. Entry 5221 applies to:
Records documenting assessment of correspondence which constitutes a complaint. Includes correspondence, assessment and acknowledgement.
56. Entry 5221 requires that files be destroyed three years after the complaint is finalised. Those three years therefore expired in February 2007.
57. Attached to his statement under Tab 10 was a copy of the commission’s file destruction record relating to file 2013722FC. The personal details of persons other than Mr Ugur have been removed.
58. Page one of that record includes a notation “Agree”, followed by the initials of Ms Toohey, the director of complaint handling employed by the commission and the date of 8 January 2008. Mr Hunyor understood this notation to indicate that authorisation to destroy the documents was given on 8 January 2008.
59. He believed that the destruction of the files authorised for destruction on 8 January 2008, including file 2013722FC, took place in approximately late February (see email from Kay Russell to Frances Simmons date 4 August 2008, under Tab 8 of Mr Hunyor’s statement).
60. The record also contains a notation on a post-it note: “Kerry These files have been destroyed K”. From his inquiries he believed that “Kerry” was Kerry Zammit, a commission employee working in registry and the author “K” of the note was Ms Kay Russell, of the complaint handling section. The note was provided to Ms Zammit with the file destruction record, for filing.
61. Neither Ms Fougere nor Ms Barbaro provided Mr Ugur with a copy of the documents from file 2013722FC. From his inquiries and the material on Mr Ugur’s FOI file (see Mr Hunyor’s statement, pages 5-6, 49-55 and 61-3 of Tab 1), he believed that neither Ms Barbaro nor Ms Fougere was aware of its existence.
62. At the hearing Mr Hunyor pointed out that certain procedures at the commission had changed. Formerly they used to keep all FoI files in the legal section until the request was dealt with, but now the policy was to retain the file until the period for a possible appeal had expired.
63. Under cross-examination by the applicant, the witness reiterated the matters stated in his statement. He repeated that neither Ms Fougere nor Ms Barbaro was aware of the existence of file number 2013722FC but had meant to give the applicant all documents in the commission’s possession. They had been trying to identify the documents that he had given to the commission and Mr Hunyor did not know why they were not told about that file. He had no reason to believe that it constituted a deliberate omission.
64. The applicant then drew Mr Hunyor’s attention to the list of documents for destruction that included file number 2013722FC (Exhibit R1, tab 10; Exhibit R3). Asked about the various names and initials appearing on the first page of that document, Mr Hunyor repeated that “K” stood for Kay Russell, “Kerry” meant Kerry Zammit and “KT” was Karen Toohey, who was approving destruction of the documents.
65. File number FD 205420 was provided, and then subsequently destroyed. The applicant should have received it. The file had been created when the applicant sent certain documents to the commission in August 2005. Mr Georgalla had written that it was not clear what the applicant was alleging, so the matter was not treated as a complaint but as a lodgement. The file was then closed and sent to the registry. In August 2006, the applicant had made certain complaints after reviewing the respondent’s decisions. When he had commenced ADJR proceedings, the earlier lodgement file was not sent to Mr Hunyor’s section because the matter was not seen as a complaint.
66. Although none of the responsible officers was aware that file 2013722FC existed, they should have been, because it was recorded on the CHARMS database. The complaints section must have thought that the legal section had all the applicant's files because he was in litigation against them.
67. No problem had been seen with destroying file number FD 205420 because the complaints section did not normally have legal files. Nevertheless, it should not have been destroyed and for that reason the procedures manual had subsequently been changed. Mr Hunyor did not know why the applicant’s police file had not been given to him, but it should have been considered.
68. Asked why authorisation was given for destruction on 8 January 2008, Mr Hunyor said he assumed that it had been because staff had not connected the files because part of the process had broken down. They would have assumed that FoI documents were with the legal section. It was probably their first FoI request and they may not have been familiar with the procedure, but the destruction had not been on purpose to disadvantage the applicant in any way. Nothing had been destroyed for the purpose of hiding anything from him. It was not a matter of the commission not having a proper record system. The cause was a human error and was not intentional.
69. Ms Karen Toohey, director, complaint handling, HREOC: In her affidavit affirmed on 17 December 2008 (Exhibit R2), Ms Karen Toohey, director of the complaint handling section at HREOC, stated that she agreed with the statement of Mr Hunyor dated 19 September 2008.
70. Ms Toohey stated in her affidavit that on 8 June 2007, she finalised the applicant’s complaint against DIAC and GSL. He had complained that DIAC and GSL had breached his human rights. The applicant had also made a complaint of discrimination under the Racial Discrimination Act 1975 (Cth). These complaints were finalised on the basis that they were “lacking in substance”.
71. There were two complaint files opened in relation to the complaints finalised on 8 June 2007:
(a)Ugur v Department of Immigration and Multicultural and Indigenous Affairs and GSL (file reference FC 2018239). The cover of the complaint file indicates it was opened on 1 August 2006. It has four parts; and
(b)Ugur v Department of Immigration and Multicultural and Indigenous Affairs and GSL (file reference FC 2018923). This file is empty. It contains one document which states “please refer to file 2018239FC(H)”.
72. Ms Toohey was satisfied that all documents that relate to file FC 2018923 are located on file FC 2018239.
73. Complaints finalised on 9 August 2007: On 9 August 2007, she finalised the applicant’s complaint against DIAC and the Commonwealth Ombudsman as “lacking in substance”. He alleged that his human rights had been breached. Mr Ugur also alleged he had been discriminated against under the Racial Discrimination Act. These complaints were finalised as “lacking in substance”.
74. There were two complaint files opened in relation to the complaints finalised on 9 August 2007:
(a)Ugur v DIAC and Commonwealth Ombudsman (file reference FC 2019080). The cover of the complaint file indicates it was opened on 18 March 2007. It has three parts; and
(b)Ugur v DIAC and Commonwealth Ombudsman (file reference FC 2018908). The cover of this complaint file indicates it was opened on 18 February 2007.
75. Complaint finalised on 26 February 2007: On 26 February 2007, Jodie Ball, who was the delegate of the HREOC president in this matter, finalised the applicant’s complaint against the Administrative Appeals Tribunal.
76. The documents that exist in relation to the complaint are contained in Ugur v Commonwealth of Australia Administrative Appeals Tribunal (file reference FC 2018285). The cover of the complaint file indicates it was opened on 28 November 2006.
77. The decision of Ms Christine Fougere: On 7 July 2008 Ms Christine Fougere, the deputy director of the legal section at the commission, made a decision in relation to Mr Ugur’s request for internal review of the FoI decision made by Ms Mimi Barbaro, a senior lawyer at the commission.
78. Ms Toohey was satisfied Ms Fougere’s decision identified all the complaints files that related to Mr Ugur that were in the commission’s possession on 7 July 2008.
79. Ms Fougere refused the applicant access to lodgement file FD 205420 on the basis that the file was destroyed in February 2008.
80. Ms Fougere did not provide the applicant with a copy of file 2013722FC. As set out in paragraph 23 and 28 of her affidavit, this file was destroyed before 7 July 2008. For the reasons set out in paragraph 23 of her affidavit, Ms Toohey believed that at the time of Ms Fougere’s decision on 7 July 2008 she was not aware of the existence or subsequent destruction of file 2013722FC.
81. She then set out the circumstances in which file FD 205420 and file FD 205420 and file 2013722FC were destroyed.
82. Lodgement file FD 205420 destroyed: On 11 January 2008 she approved the destruction of lodgement file FD 205420. Annexed to her affidavit and marked “G” was the record of her authorisation of the destruction of file FD 205420. Page one of that record includes a notation “Lodgement files to be destroyed”. It also contains a further notation “Approved” followed by her signature and the date of 11 January 2008.
83. At the time she authorized the destruction of lodgement file FD 205420 she considered it should be destroyed in accordance with entry 5222 of the commission’s RDA. Entry 5222 applies to:
Records documenting assessment of written inquiries and lodgements which do not constitute a complaint. Includes correspondence, assessment and acknowledgement.
84. Entry 5222 requires that lodgement files be destroyed two years after information is provided to the commission. That two years therefore expired in August 2007.
85. The commission retains a CHARMS database record for FD 205420 which provides a summary of the information recorded on that file. The record describes the file as a lodgement for the reasons set out at paragraph 18 of the statement of Jonathon Hunyor.
86. At the time she authorised the destruction of file FD 205420 she did not consider the possible need to retain file FD 205420 in case a request for an FoI review was made. It was the practice of the legal section in dealing with FoI requests to retain all files relevant to the FoI request until the period for an FoI review was exhausted. As set out in paragraph 31 of Jonathon Hunyor's statement, in this case file FD 205420 was returned to the complaint handling section.
87. An email from Ms Kay Russell, an employee working in the complaint handling section, to Ms Richards on 31 March 2008 states file FD 205420 was destroyed “in February”.
88. Destruction of file 2013722FC: A copy of the commission’s CHARMS database record for 2013722FC was annexed to her affidavit and marked “J”. The record’s summary of the file indicates that the file related to a complaint made by Mr Ugur about the New South Wales police.
89. To the best of her knowledge, the existence of file 2013722FC was not brought to the attention of Ms Christine Fougere, Mr Jonathon Hunyor, Ms Marcie Richards, Ms Mimi Barbaro, or any other member of the legal section of the commission until after the file was destroyed in February 2008. Ms Toohey did not know why the existence of file 2013722FC was not brought to the attention of the legal section.
90. On 8 January 2008 she authorised the destruction of file 2013722FC. Annexed to her affidavit and marked “K” was a copy of the commission’s file destruction record relating to file 2013722FC. Page one of the annexure includes a notation “Agree”, followed by her initials and the date of 8 January 2008.
91. At the time she authorized the destruction of file 2013722FC she considered it should be destroyed in accordance with entry 5221 of the RDA. Entry 5221 applies to:
Records documenting assessment of correspondence which constitutes a complaint. Includes correspondence, assessment and acknowledgement.
92. Entry 5221 requires that files be destroyed three years after the complaint is finalised. That three year period expired in February 2007.
93. At the time she approved the destruction of file 2013722FC, she did not consider the possible need to retain file 2013722FC in case a request for an FoI review was made. Files that have been identified as relevant to an FoI request were usually retained by the legal section until the period for review had been exhausted. As set out in paragraph 23 of her affidavit, she did not know why file 2013722FC was not brought to the attention of the legal section.
94. She believed that the destruction of the files authorised for destruction on 8 January 2008, including file 2013722FC, took place in approximately late February. Annexed to her Affidavit and marked “L” was an email from Kay Russell to Frances Simmons dated 4 August 2008 stating that file 2013722FC was destroyed in “late February”.
95. At the hearing Ms Toohey explained the coversheet to file 2018239H (Exhibit R4), which also bore the file number 206008, by saying that initially it had not reached the threshold for a complaint and was treated as a lodgement only. The system had generated a six-digit number, 206008, simply for the purposes of tracking. After the applicant had provided further information, the file was converted to a complaint file on 29 November 2006, with the number 2018239H. All the documents were nevertheless kept on the same file.
96. In cross-examination Ms Toohey repeated that a new file had been opened after the applicant had sent further correspondence and that file had been converted to a complaint file in November 2006 as a race discrimination file. HREOC practice is to open several files for different types of discrimination, even when alleged in the same complaint, but all the documents were kept on the one file, in this case 20018239H. The other files were blank but contained cross-references to the principal file.
97. Asked why the file numbers differed widely even when files were opened on the same day or soon afterwards, Ms Toohey replied that the numbers are allocated by the database and are not necessarily sequential. The applicant put to the witness a number of times that she had fabricated records, concealed files and made false statements in order to protect HREOC from charges of misconduct, all of which the witness denied.
98. Ms Toohey explained that the practice in relation to destroying old files was that a list of files was generated from the database. Ms Toohey’s practice was then to read through it to check that the documents are in the range of dates that permitted them to be destroyed pursuant to the Archives Act 1983 (Cth). The list of documents approved for destruction then went to the HREOC registry to be retrieved and destroyed.
99. Ms Toohey conceded that she had not noticed that one of the files on the list in question was the subject of an FoI application by the applicant. This was the file relating to his complaints against the New South Wales police. She thought that staff may have thought that the file had already been destroyed because it had been approved for destruction some months before.
100. Ms Frances Simmons, lawyer with HREOC: This witness explained that her note on the 4 August 2008 email arose when she had been asked by Mr Hunyor to supply the dates of the applicant’s complaints. On complaint files there is a date of the complaint and a date of lodgement. She had included the date of lodgement only on the yellow lodgement form and had deleted the dates on which the complaint had been signed. The applicant put to Ms Simmons in cross-examination that she had entered the date 1 August 2006 wrongly, as the complaint had not been accepted until November 2006. The witness replied that the lodgement was converted into a complaint in November by the complaints handling section. She had not in any way altered or deleted the contents of any files.
Applicant’s evidence
101. In his affidavit affirmed on 16 March 2009, the applicant stated that during the time he was detained at Villawood between 2003 and 2008 he was subjected to torture and abuse by officials of DIAC, the Commonwealth Ombudsman’s Office (COO) and their contractors.
102. He had been supplied with an incomplete set of documents and information on 17 January 2009. He believed HREOC misled him and during that time intentionally destroyed and hid his files in order to fabricate new files in order to protect certain government departments. He also believed the directors of HREOC and its officers were guilty of misconduct and that the commission intentionally misled the Federal Court in 2007 and 2008.
103. It was his understanding that the Commonwealth government uses HREOC as “a factory to manufacture false diagnoses of mental illness (disabled people) through false doctors reports provided without consent or without examination of the person by the doctors who were under contract to a government agency”. Other government agencies including Legal Aid and the Office of the Public Guardian and the Guardianship and Administrative Decisions Tribunal assisted in covering up human rights abuses in Australia. The commission had also misled the International Human Rights Committee of the United Nations with their annual report about the situation in Australian immigration detention centres. He believed that Australia organised a system to establish HREOC and Legal Aid to misuse and abuse the victims and to gag them. The Commonwealth had no reason to establish HREOC without a human rights bill. He believed HREOC is corrupt and that his cases prove it.
104. After outlining the history of his 2005 complaint to the commission, the applicant concluded that HREOC had terminated his complaint because they wished to cover up racism and discrimination against detainees, migrants and Aboriginal people on the basis that their complaints were “lacking in substance”. The applicant then made further complaints in 2006 and 2007.
105. After outlining the handling and finalisation of those complaints, the applicant claimed that Ms Fougere, Ms Barbaro, Ms Bangash, Ms Davis and Ms Ball, as well as Mr Hunyor and Ms Toohey, knew about the destruction of file FD 205420, file 2013722FC and file 206008D, which were destroyed or hidden by the commission. HREOC released an incomplete set of the files to him on 10 January 2008 in response to his FoI request of 7 December 2007. Ms Toohey's affidavit of 17 December 2008 and Mr Hunyor’s statement of 19 December 2008 “read like fiction regarding my case”.
106. He believed that the same officers who prepared the response to his FoI request decided on the destruction of file FD205420 and file 2013722FC on 8 and 11 January 2007.
107. The commission had not provided him with file 206008. It was his understanding that the commission intentionally decided to destroy file 205420. There was no connection between that file and file 2018239. He had received no email, memorandum or documents about the destruction of file 205420 and file 2013722FC. He believed the commission should provide him with more documents in that connection.
108. He believed the commission had changed its decision on 28 November 2006 when Ms Davis spoke to COO, Ms Harlock, who gave information to Ms Davis that DIAC had forwarded an application to the Guardianship Tribunal to appoint a public guardian for him on 15 November 2006 and that DIAC had made an agreement with Dr Smith in relation to him, and that DIAC and COO decided to use false doctors’ reports in the Guardianship Tribunal for the purpose of having him deported.
109. Among the documents released to him on 17 January 2008 was a copy of the judgement of the Federal Court dated 6 August 2004 in Ugur v Police Service of New South Wales [2004] FCA 1032. That judgement was evidence that Ms Barbaro, Ms Richard, Ms Bangash, Ms Davis, Mr Hunyor and Ms Toohey knew of file 2013722FC but intentionally did not release it to him, and deliberately destroyed it.
110. The applicant’s affidavit of 14 April 2009 (Exhibit A2) stated that he had read the statements lodged on behalf of the commission and believed their contents to be false and inconsistent. He believed the commission intentionally misled the Federal Court in 2007 and 2008 because, he said, white people in Australia still control the justice system. The commission intended to mislead this tribunal about his case in order to cover up their misconduct. He believed Mr Hunyor and Ms Toohey were guilty of misconduct and requested that criminal proceedings be instituted against them.
111. He reiterated that while detained at Villawood he was tortured and abused by DIAC, the Commonwealth Ombudsman’s office and their contractors. He therefore complained to the commission to investigate his situation and to protect himself from continuing efforts by DIAC and its contractors to harm him in the detention centre.
112. HREOC did not, however, hear his complaint but discriminated against him and implied that he had a psychiatric condition that he does not have, with a view to protecting certain areas of government.
113. Following Ms Fougere’s decision of 7 July 2008, the commission failed to provide all documents that related to him. He believed the commission misled him, intentionally destroyed and hid his files and fabricated a new file to protect certain areas of government. They intentionally made their record system messy in order to cheat vulnerable people and the court so as to cover up human rights abuses in Australia.
114. Files 205420 and 2013722FC were both destroyed or hidden intentionally by the commission after his FoI request letter dated 7 December 2007.
115. There was no evidence that file 206008 was converted to file FC2018239 as the commission claimed. He had contacted the commission a number of times but had received no satisfaction. The commission refused to take more than 2,000 pages of documents he had submitted on two occasions in October 2006 and November 2006 through his Legal Aid solicitor, Mr Domaradzki. He believed that Ms Davis was guilty of misconduct in that respect. The claim that the complaints were finalised on the basis that they were lacking in substance was an amusing fraud.
116. He had received no communication about the destruction of files FD 205420 and 2013722FC and requested further documents about that matter. The commission had failed to provide to him copies of all his personal files.
117. He requested that HREOC arrange for a consent order to allow him to obtain legal advice for the purposes of the proceedings in this tribunal. He had not given permission to anyone to act on his behalf in his court proceedings. He had not given permission to DIAC or any other government or private organisation to use him as an experiment in Australia or any other country.
Applicant’s submissions
118. The applicant made extensive submissions at all stages of the proceedings, including in his affidavits and in the course of cross-examining the respondent’s witnesses. In large part his submissions consisted of complaints and accusations relating to the manner in which the respondent had handled his various complaints and his claims that he had been tortured at Villawood, apparently by being given electroshock therapy, and that he was being used as an experiment. His closing submissions consisted of, to a great extent, allegations of fact from the bar table.
119. At an early stage in his closing submissions, I asked the applicant to identify exactly which files or documents he was claiming the respondent had withheld. In the course of his reply and other submissions, the applicant did not answer that question.
120. He claimed that Ms Fougere had not signed her review decision of 7 July 2008 (Exhibit R1, tab 1) because she knew it was based on falsehood. The Post-it note appearing on the list of documents was not evidence. Records had been fabricated to conceal wrongdoing in HREOC and other departments. The disparity in the numbers given to the various files had not been explained. The respondent had not investigated his complaints and there was no evidence that Ms Fougere had conducted any kind of search for the documents he requested. Her decision was inconsistent with the evidence of Mr Hunyor and claims that files numbered 205420 and 2013722 had been destroyed were untrue. The registry had listed them for destruction but there was no evidence that they were actually destroyed, just a list of numbers. Ms Toohey had been unable to say exactly when the destruction had been carried out.
121. After the hearing had concluded and the decision had been reserved, a letter was received from the applicant dated 13 July 2009, addressed to the tribunal, enclosing certain documents and repeating some of his principal submissions. It also enclosed a CD which, the applicant said, contained information on “how I was treated at 5/41 Telepoa [sic] Street, West Homebush”. The tribunal’s equipment could not, however, open the CD.
122. The letter also called on me to recuse myself from the case on the grounds of bias as evidenced, in his view, by the manner in which the hearing was conducted. It is true that it proved impossible to conduct the hearing in quite the normal way as a result of the applicant’s continual interruptions of witnesses, the respondent’s representatives and the tribunal, his repeated disregard of directions, his inability to focus on the matter at hand and other problems.
123. The letter asserted that he had not been given an opportunity to make an opening statement although the respondent had done so. In fact the respondent made preliminary comments on procedural matters only at the start of the substantive hearing on 5 June and did not open its case as such. The applicant made two such preliminary submissions, dealing with such matters as his refusal to accept a male interpreter, his claimed inability to seek legal advice without a consent order from the respondent, his unreadiness to proceed, his freedom from current criminal problems and his wish for an adjournment to await the consent order referred to.
124. The letter repeated his claim that he needed a consent order from the respondent in order to seek legal advice and declared that his failure to challenge aspects of the respondent’s evidence did not mean that he accepted it, indicating that to suggest the contrary constituted bias.
125. The letter also made a number of other insinuations of inappropriate conduct which the digital audio record will show to be unsubstantiated. I have decided not to recuse myself from the case.
Consideration
126. The sole question for decision in this application is whether on the evidence the applicant’s request for access to certain documents may be refused within the meaning of s 24A of the FoI Act. Resolving that issue entails determining whether:
(a)All reasonable steps have been taken to find the documents; and
(b)The tribunal is satisfied that the documents do not exist.
127. Under s 61 of the FoI Act, the respondent bears the onus of establishing that a decision refusing the request is justified. As a result, most of the evidence adduced at the hearing came from the respondent.
128. As was noted above, when asked in the course of submissions to identify precisely which files, documents or categories of documents he believed existed but had not been produced, the applicant did not do so. It would appear, however, that his claim relates at least to file 2013722FC, file FD 205420 and his “personal files held by HREOC”.
129. The respondent’s evidence relating to those documents can best be understood by reference to a chronology. This chronology was relied on by the respondent at the hearing and was not challenged or disputed by the applicant, except that he states there is no evidence that files 2013722 and 205420 were in fact destroyed. Subject to that, the sequence of events is as follows:
…
DATE
EVENT
DOCUMENT
19.02.04
File 2013722 FC is closed. This file is related to a complaint made to Mr Ugur about the NSW police.
Statement of Jonathon Hunyor, [21], [22], [45]-[46], [48], [51], see tab 9
31.08.05
File FD 205420 is closed.
Statement of Jonathon Hunyor, [16]-[17], see tab 3
29.11.06
File 206008 is converted from a ‘lodgement file’ to a ‘complaint file’ and renumbered FC 2018239.
Commission statement of Facts and Contentions dated 30 March 2009, [26]-[27].
Feb 2007
File 2013722 FC can be destroyed at any time after Feb 2007 – being 3 years after it was finalised).
(See notation of “D2007” in tab 9)
Statement of Jonathon Hunyor, [50]-[53].
Statement of Jonathon Hunyor, at tab 9
Affidavit of Karen Toohey, [26].
26.02.07
Jodie Ball finalised Mr Ugur’s complaint (file ref: FC2018285) against the Administrative Appeals Tribunal alleging racial discrimination.
Affidavit of Karen Toohey, [10].
08.06.07
Karen Toohey finalised Mr Ugur’s complaint against the Department of Immigration and GSL Pty Ltd (companion complaint files FC FC2018239 and FC 2018923) alleging racial discrimination and human rights breaches. Note: all documents on file FC 2018923 are located on file FC 2018239.
Affidavit of Karen Toohey, [4]-[6].
09.08.07
Karen Toohey finalised Mr Ugur’s complaint against DIAC and the Commonwealth Ombudsman (companion complaint files FC 2019080 and FC 2018908).
Affidavit of Karen Toohey, [7]-[8].
Aug 2007
File FD 205420 can be destroyed at any time after Aug 2007 – being 2 years after it was finalised).
(See notation of “D2007” in tab 5)
Statement of Jonathon Hunyor, [39].
Statement of Jonathon Hunyor, at tab 5, 6
Affidavit of Karen Toohey, [18].
07.12.07
Mr Ugur lodges an FOI application with the Commission.
Letter from Mr Ugur to HREOC dated 7 December 2007 (p. 69, Tab 1 Statement of Jonathon Hunyor).
19.12.07
Mr Ugur writes to the Commission. He states ‘further to my letter dated 7 December 2007 … I request a copy of the documents relating to my case sent by Legal Aid or Legal Aid representatives Ms S. Ogden and Mr G. Domoradzky to the HREOC concerning me. I also request a copy of the documents which I sent to the HREOC with other people from VIDC’.
Letter from Mr Ugur to HREOC dated 19 December 2007 ( p 57, Tab 1, Statement of Jonathon Hunyor).
08.01.08
File 2013722 FC is authorised for destruction.
(NB. File 2013722 FC could have been destroyed at any time after Feb 2007 – being 3 years after it was finalised)
Statement of Jonathon Hunyor, [51], [53].
Statement of Jonathon Hunyor, at tab 9
Affidavit of Karen Toohey, [24].
10.01.08
Decision of Ms Mimi Barbaro in response to Mr Ugur’s FOI request.
Statement of Jonathon Hunyor, [4].
See Statement of Jonathon Hunyor at tab 1 pg 45
11.01.08
File FD 205420 is authorised for destruction pursuant to Commission policy.
Statement of Jonathon Hunyor, [13], [14], see generally [32]-[37].
Affidavit of Karen Toohey, [16]-[17].
17.01.08
Ms Richards provided a copy to Mr Ugur of the contents of files:
§ FC 2019080,
§ FC 2018285,
§ FC 2018908,
§ FC 2018239,
§ FD 205420.
Statement of Jonathon Hunyor, [6], see also [8], [9], [30], [32].
See Statement of Jonathon Hunyor at tab 2
File FD 205420 was then returned to the Complaint Handling Section.
See Statement of Jonathon Hunyor at [31]
Note: Mr Ugur acknowledged receiving a copy of FD 205420.
See Statement of Jonathon Hunyor at [42]
January -February 08
File FD 205420 is destroyed.
(The applicant disputes this.)
Statement of Jonathon Hunyor, [32]
Affidavit of Karen Toohey, [21].
February 08
File 2013722 FC is destroyed.
(The applicant disputes this.)
Statement of Jonathon Hunyor, [54] (see generally [43]-[56])
Affidavit of Karen Toohey, [28].
17.03.2008
Letter from Mr Ugur to Ms Richards requesting ‘a review of the decision of 17 January 2007’. It also asks Ms Richards ‘check your records and all documents relating to my situation with your document schedule’.
Letter from Mr Ugur to HREOC dated 17 March (p 39, Tab 1, Statement of Jonathon Hunyor).
02.04.08
Letter from Ms Marcie Richards to Mr Ugur in response to Mr Ugur’s letter of 17 March.
Letter from Ms Richards to Mr Ugur dated 2 April 2008 (p 29-30, Tab 1, Statement of Jonathon Hunyor)
25.05.08
Request by Mr Ugur for internal review of Ms Mimi Barbaro’s decision
Letter from Mr Ugur to HREOC dated 25 May 2008 (p 8,Tab 1, Statement of Jonathon Hunyor)
28.05.08
Letter from Mr Tristan Garcia (FOI officer) to Mr Ugur stating Mr Ugur’s request for internal review under the FOI Act was received on 28 May 2008.
Letter from Tristan Garcia to Mr Ugur dated 29 May 2008 (p 7, Tab 1, Statement of Jonathon Hunyor)
07.07.08
Decision of Ms Christine Fougere in response to Mr Ugur’s request for internal review of Ms. Barbaro’s decision.
Decision of Christine Fougere dated 7 July 2008; Statement of Jonathon Hunyor, [9]-[13], see tab 1 at pp 2-6
Aug 2008
Mr Ugur makes application to AAT for review of decision.
19.12.08
Mr Ugur makes a further FOI request seeking a copy of his ‘personal files held by HREOC’ concerning his personal affairs.
FOI request of Mr Ugur dated 19 December 2008
06.03.09
Decision of Brook Hely in relation to Mr Ugur’s FOI request of 19 December 2008.
Letter from Brook Hely to Mr Ugur dated 6 March 2009 attachment “C” to respondent’s statement of facts and contentions.
130. As will be apparent from the précis of the evidence set out earlier in these reasons, the applicant’s cross-examination of Mr Hunyor and Ms Toohey provided no ground for doubting the accuracy and veracity of their evidence or for accepting the applicant’s allegation of concealment, fraud and fabrication.
131. Ms Mimi Barbaro’s decision of 10 January 2008 on the applicant’s FoI requests of 7 December and 19 December 2007 was to provide him with copies of all the documents falling within the requests except for those that had already been provided to him on a previous occasion (Exhibit R1, tab 1, p5).
132. The applicant applied for review of that decision on the ground that he believed that some documents were missing.
133. Ms Christine Fougere’s decision of 7 July 2008 on the applicant’s request for an internal review (Exhibit R1, tab 1, pp2-6) recorded that she had caused a further search of the records held by HREOC to be conducted and found that certain additional files contained documents falling within his request. She concluded that all the documents should be provided to him, regardless of whether some of them had been furnished on a previous occasion.
134. Ms Fougere noted that, as the applicant was informed by letter dated 2 April 2008, file number FD 205420 had been destroyed in February 2008 as part of the commission’s scheduled file maintenance procedure. She therefore refused access to it under s 24A(b)(ii) of the FoI Act on the basis that the file did not exist. Although the letter of 2 April 2008 referred to a file number 2018923, her searches had revealed that it contained no documents, as they had all been transferred to file number 2018239.
135. It is true, as the applicant pointed out, that Ms Fougere’s decision on the internal review, or at least the copy of it before the tribunal, is not signed. There is no requirement under s 26 that it should be signed, however, and in any event, Ms Fougere’s authorship is plainly stated. The applicant’s claim that the absence of a signature constitutes an acknowledgment of fraud and concealment cannot be sustained.
136. The evidence shows that file 205420 was created when the applicant sent the commission documents and a complaint form claiming discrimination on the basis of race (Exhibit R1, paras 16-17). The respondent wrote to the applicant on 31 August 2005 stating that his correspondence did not constitute a complaint and that the commission could not assist him because it was not clear what he was alleging (ibid). File 205420 was then closed when the commission wrote the letter of 31 August 2005 (Exhibit R1, para 17). A copy of file 205420 was given to the applicant by Ms Barbaro on 17 January 2008 in accordance with his FoI request. The applicant acknowledged receiving it (Exhibit R1, para 42). After a copy of file 205420 had been given to the applicant on 17 January 2008, it was returned to the respondent’s complaint handling section (Exhibit R1, para 31).
137. The applicant’s affidavits did not deny that he had received a copy of file 205420, nor did he put it to the respondent’s witnesses in cross-examination that he had not received such a copy. In that sense file 205420 is not in issue, but in view of the way the applicant presented his case I will treat it as if it were. At times he acknowledged that it had been destroyed, but at other times claimed it had been hidden.
138. The file was authorised for destruction on or after 11 January 2008 in accordance with the respondent’s document retention policy (Exhibit R1, paras 14, 32). It was destroyed some time after the applicant had been given a copy of it on 17 January 2008, although the evidence does not show the exact date. For that reason Ms Fougere refused the applicant access to the file under s 24A(b)(ii) on the basis that it did not exist.
139. Ms Fougere also did not provide the applicant with a copy of file 2013722FC, which had also been destroyed by the commission. That file had been created to deal with a complaint by the applicant that in 2003 that New South Wales police had, on racial grounds, fabricated evidence and failed to take action when he had been assaulted (Exhibit R1, tab 9, paras 45 to 46).
140. The commission’s consideration of the complaint was concluded on 19 February 2004 and file 2013722 was accordingly closed on that date (Exhibit R1, tab 9, paras 48, 51).
141. In accordance with the respondent’s document retention policy, the file was due for destruction three years after the complaint was finalised, that is, in or after February 2007. Authorisation to destroy various files, including that one, was given on 8 January 2008 (Exhibit R1, para 53). File 2013722FC was then destroyed in about February 2008 (Exhibit R1, para 54), although the evidence does not show the exact date.
142. The file had not been located in searches conducted by Ms Barbaro or Ms Fougere in response to the applicant’s FoI request and its contents were not provided to the applicant. That resulted from an unintentional oversight by the commission. In oral evidence, Mr Hunyor expressed the view that none of the responsible officers was aware that file 2013722FC existed; perhaps they thought that the legal section had all the applicant’s files because he was in litigation against them.
143. The applicant made much of the copy of a Post-it note appearing on the copy of a list of documents for destruction that includes his New South Wales police file, number 2013722FC (Exhibit R1, tab 10; Exhibit R3). The note reads “Kerry – These files have been destroyed – K”. On the same page is a handwritten authorisation for destruction that reads, “Agreed. KT 8/1/08”.
144. Mr Hunyor in his affidavit and in cross-examination explained that “KT” was Karen Toohey, who approved destruction, “Kerry” was Kerry Zammit and “K” was Kay Russell.
145. The applicant submitted that the use of a Post-it note in those circumstances was clear evidence of an intent to deceive, presumably on the basis that it enabled commission staff to pretend that the file had been destroyed when in fact it had not. A more likely explanation is that it was an informal and convenient way of informing Ms Zammit that the destruction had been carried out, in circumstances in which a formal communication was not required. The respondent’s disclosure of the Post-it note in itself also negates any inference of concealment.
146. In his affidavit of 16 March 2009, the applicant claimed that the respondent had not provided him with file 206008. That file was created on 1 August 2006 when the applicant lodged material with the commission. At that time the material was not considered to constitute a complaint for the purposes of the legislation and the applicant was asked to provide more information. When he did so the file was converted from a lodgement file to a complaint file and renumbered FC2018239 on 29 November 2006.
147. Ms Toohey's evidence to that effect was the subject of cross-examination by the applicant, who repeatedly accused the witness of fabricating records, concealing files and making false statements in order to protect the respondent from charges of misconduct. Neither cross-examination nor the other evidence provided any foundation for those serious allegations. The applicant also suggested that large differences in file numbers even when files were opened on the same day or soon afterwards indicated misconduct, but Ms Toohey's explanation that the numbers were allocated by the database and were not necessarily sequential was plausible and not shown to be wanting in any way.
148. Ms Toohey also explained that the practice of destroying old files was that she would read a list of files generated from the database to ensure that they were in the range of dates that permitted them to be destroyed. The list of documents approved for destruction then went to registry to retrieve and destroy them. She had not noticed that one of the files on the list in question, the one relating to the applicant’s complaints against the police, was the subject of an FoI application. She believed that staff might have thought it had already been destroyed because it had been approved for destruction some months before.
149. The applicant also claimed that the respondent had not released to him his personal files concerning documents related to his personal affairs. He lodged a further FoI request on 19 December 2008 seeking such material.
150. By letter dated 6 March 2009, Mr Brook Hely, a senior lawyer with the respondent, noted that the applicant had withdrawn that request in part, but that in relation to the remainder, the documents requested were deleted, notwithstanding a possible claim for s 42 exemption subject to certain deletions of material of which disclosure would be unreasonable. The applicant did not dispute the propriety of those deletions at the hearing.
151. In Chu v Telstra Corporation Limited (2005) 147 FCR 505 at paras 34 to 36, [2005] FCA 1730, Finn J made it clear that the test laid down in s 24A(a) is a stringent one and that the respondent must satisfy the tribunal that it has done all that could reasonably be required of it to find the documents falling within the request.
152. In Re Dimovski and Centrelink [2006] AATA 1003, the tribunal when applying that test found that the respondent had complied with its statutory obligations when it appeared that officers made thorough efforts to find any relevant documents. In the course of the original handling of the case and the internal review, there had been several searches conducted by different experienced officers, including team leaders. The process was “eminently reasonable”, in the tribunal’s view, especially as the applicant (like the applicant in this case) could not give any clear account of what he believed to be missing.
153. In Re Kapeen-Gangitano and Secretary, Department of Family and Community Services (2003) 76 ALD 157 at paras 13 to 15; [2003] AATA 1163, the tribunal accepted that s 24A had been satisfied by affidavit evidence from a responsible officer indicating that relevant documents had been destroyed in accordance with the respondent’s records disposal authority. Searches had been undertaken and the tribunal was satisfied that all reasonable steps had been taken to find the documents to which the applicant had sought access and that they could not be found as they did not exist.
154. In the present case the affidavit and oral evidence shows that thorough searches were conducted by several different officers, some of them senior, and that the additional documents sought could not be found. The evidence also showed that they had been approved for destruction in accordance with the respondent’s standard practice, and although the evidence did not show the date on which destruction had been carried out, there are no grounds for doubting that it was.
155. Further, in some circumstances evidence of a general practice or custom in a business or government department may give rise to an inference that the usual system was followed in the particular case: Connor v Blacktown District Hospital [1971] 1 NSWLR 713. That principle applies in the present case.
156. On all the evidence I am satisfied that the respondent has in the manner described above complied with the applicant’s requests, that all reasonable steps have been taken to find any other documents falling within the request, but that such documents do not exist.
157. The applicant clearly remains of the view that he is a victim of a conspiracy within HREOC, and possibly including one or more other federal government departments, to conceal documents in order to cover up official misconduct and perhaps to treat him as some kind of experiment. Those serious allegations find no support in the evidence. The decision under review must be affirmed.
I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ......................[sgd]......................................................
AssociateDates of Hearing: 5 June and 9 July 2009
Date of Decision: 31 July 2009
Solicitor for the Applicant: Self-represented
Respondent representative: Ms F Simmons, HREOC
Respondent counsel: Ms K Richardson
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