Ugur and Australian Federal Police

[2009] AATA 405

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 405

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4666

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HACI UGUR

Applicant

And AUSTRALIAN FEDERAL POLICE

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date4 June 2009

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

.....................[sgd].........................

Ms N Isenberg
  Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – request for documents – refusal to grant access to documents – “reasonable” steps taken to locate documents – documents exempt because “irrelevant”

RELEVANT ACT

Freedom of Information Act 1982 (Cth), ss.22, 24A, 55

CASE LAW

Apple and Pear Australia Limited and Department of Agriculture Fisheries and Forestry [2004] AATA 1368
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; 12 ALD 468
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683
Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645

REASONS FOR DECISION

4 June 2009	Ms N Isenberg, Senior Member
BACKGROUND

1.      The Applicant, Haci Ugur, seeks review of a decision made by the Respondent, the Australian Federal Police (AFP), to refuse access to documents under the Freedom of Information Act 1982 (FOI Act).

2.      Mr Ugur made his FOI request in a letter dated 26 May 2008 in the following terms:

…

I am requesting access to all my files held by the Australian Federal Police concerning documents which relate to my personal affairs.  I also require a copy of my files.

…

3.      Some documents were provided to Mr Ugur intact, and some were redacted on the basis that they contained irrelevant material.

4.      On 12 September 2008 the Respondent issued an internal review decision in which it affirmed the original decision that Mr Ugur had been granted access to all documents held by the AFP relevant to the request.

5.      On 11 November 2008 Mr Ugur and the Respondent participated in a preliminary conference, at which the Respondent agreed to conduct further searches and to provide an affidavit outlining the results of those searches.  A further document, a diary entry by Federal Agent Succar was located and provided, in redacted form, to Mr Ugur.

6.      Mr Ugur contends that the whole of the material held by the AFP about him has still not been produced.

LEGISLATION

7. Section 22(1) of the FOI Act, so far as is relevant is reproduced as follows:

22.     Deletion of exempt matter or irrelevant material

(1)Where:

(a)   an agency or Minister decides:

(i)… or

(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b)   …

8. Section 24A of the FOI Act, so far as is relevant is reproduced as follows:

24A   Requests may be refused if documents cannot be found or do not exist

An agency … 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)…

(ii)does not exist.

ISSUES

9.      The issues in this case are:

(a)Whether all reasonable steps have been taken by the Respondent to locate the documents subject to the request: s.24A FOI Act; and

(b)Whether parts of documents located are exempt from production because they are irrelevant: s.22 FOI Act.

CONSIDERATION OF THE EVIDENCE

Whether further documents exist

10.     The Respondent provided two affidavits by Ms Jacqueline Matan, Team Leader, Freedom of Information Legal Team, the first of which was dated 19 December 2008, (the First Affidavit) outlining the additional searches for information regarding Mr Ugur which had been carried out following the preliminary conference.  Ms Matan said that on 21 November 2008, searches had been conducted in the “person” and “text” fields of the Australian Federal Police's investigation management system (PROMIS), the Correspondence Management System (CMS), Records Management, the State file registries, the archives files and the archive database (MNIFTY) for the name “Ugur”.  She said that her colleague, Lavinia Gracik, had previously conducted similar searches following Mr Ugur's initial FOI request received on 24 June 2008.  Ms Matan’s searches did not locate any further documents relating to Mr Ugur.  Regrettably, the search results (described as Annexure C) were omitted as an annexure to the affidavit.  Mr Ugur was very concerned about this omission and was dissatisfied that the Respondent had described it as an “administrative error”.

11.     On 20 March 2009, the Respondent filed Ms Matan’s supplementary affidavit (the Supplementary Affidavit) annexing a copy of the contemporaneous additional searches carried out by the Respondent.  Ms Matan had again caused searches to be conducted in the same manner as before but this time, they also included entries up to and including the date of the Supplemantary Affidavit.

12.     While I appreciate that Mr Ugur may be concerned that Annexure C was missing, I do not consider the omission to be any way sinister: simply, an error was made by the deponent in failing to annex it to her affidavit.  Mr Ugur did not appear to appreciate that the searches were completely redone and the Supplementary Affidavit prepared, thereby bringing the search information completely up-to-date.

13.     The solicitor for the Respondent explained that PROMIS, and its predecessor (before 1998), MNIFTY, are online information management systems in which Federal agents log their investigations.  Some hard copies are held in records management; essentially, if there is no hard copy, then a person is not one ”of interest” to the AFP.  CMS is an administrative system for managing correspondence or contacts from the public.  Ms Matan explained that where the information relates to a person known to the AFP, that information is linked to that person, and if unknown, a new entry is created for the person.  The solicitor for the Respondent noted that for Mr Ugur, links were made to his “virtual file”, and those documents were provided to him.  No other reference was found to Mr Ugur

14.     Although it was the Respondent’s position that all relevant material has been provided to Mr Ugur, Mr Ugur maintains the documents provided were incomplete.  He contended that there were at least two documents missing, and had referred to these in his affidavit of 8 April 2009.  He said he believed the AFP was monitoring him while he was making his affidavit and that there was a deliberate attempt to omit relevant documents.

15.     I observe that documents have been provided to Mr Ugur in respect of all the contacts with the AFP to which he referred in his affidavit, with two exceptions.  Mr Ugur contended in his affidavit that in February 2005 he had been visited while in detention by two (named) NSW police officers.  One of the officers had told him that he had been experimented on and assaulted while in detention, and that they would report the matter to the Federal Police.  Also, he said, in June 2005, while still in detention, he reported an “incident” to the NSW police and was told (by the named sergeant) that the matter had been reported to the Federal Police.

16.     As Mr Ugur has raised whether the totality of the contents of his file have been provided, it is open to me to enquire whether any documents to which access should have been given do exist and whether there is any ground on which the Respondent might have denied access: Apple and Pear Australia Limited and Department of Agriculture Fisheries and Forestry [2004] AATA 1368.

17. Section 24A was the subject of analysis by Deputy President McDonald in Re Cristovao and Secretary, Department of Social Security (1999) 53 ALD 138. The section was said to have a twofold operation, namely, that reasonable steps must be taken to find the document and that the document is in the possession of the Agency but it cannot be found or, in the alternative, it does not exist. The Deputy President decided that the word “find” (using a Dictionary interpretation) meant “to discover or attain by search or effort”. Additionally, the Dictionary interpretation of the word “reasonable” was applied and it was decided that the word should mean either “not going beyond the limit assigned by reason or not extravagant or excessive; moderate or judged to be appropriate or suitable to the circumstances or purpose”. Re Cristovao was followed in Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645.

18.     The Respondent contended that, in response to Mr Ugur’s request, all reasonable steps were taken to locate and identify the documents requested.  It conducted physical and electronic searches of its holdings in relation to Mr Ugur in order to identify documents that fell within the scope of his request.  I note too that for the purposes of these proceedings, the Respondent had Ms Matan, an officer not previously involved in dealing with Mr Ugur’s request, review the searches and conduct further searches on two separate occasions.  As is evidenced in her affidavits, Ms Matan decided to have all the searches redone on two separate occasions.  As a result, one further document was identified – Mr Succar’s note – and that was released to Mr Ugur to the extent that it relates to his request. I accept that Mr Ugur was concerned as to the reliability of the search process when a further document, Mr Succar’’s note, was located, apparently only because the search was redone.  However, I observe that that document was located after Ms Matan’s first search and that no further documents were located in the course of her second search.

19.     The information in Ms Matan’s Supplementary Affidavit satisfies me as to the breadth of that search.  Documents were diligently extracted and provided to Mr Ugur and no further documents could be located: Re Cristovao.  On balance therefore, I am satisfied that “reasonable” steps have been taken to “find” all of the documents the subject of Mr Ugur’s request.

20.     Specifically, in relation to the two reports which Mr Ugur said are missing (February and June 2005), I note that Mr Ugur was unable to show that the NSW police officers in fact reported either matter to the Federal Police.  Again, having regard to the breath of the search, I find that documents relating to those matters do not exist.

DELETIONS FROM THE DOCUMENTS PRODUCED

21. Section 22(1)(a)(ii) of the FOI Act permits the deletion of information that would be “reasonably be regarded as irrelevant” to the request.

22.     Deputy President Forgie in Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683, considered the expression “would reasonably be regarded” with reference to the Full Federal Court’s decision in Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; 12 ALD 468 and stated at [32]:

… it seems to me that I must consider whether disclosure of certain information might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request for access made under the Act.

…

23.     I was provided with an unredacted version of all the documents provided to Mr Ugur.  It is clear from the face of the partial exemptions claimed over those documents, including the note by Federal Agent Succar, that they related to other non-related policing duties.  I am satisfied that the deleted information from the material provided to Mr Ugur is “reasonably regarded” as irrelevant to his request.

DECISION

24.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed:         .........[sgd].............................
  Associate

Date of Hearing   29 May 2009            
Date of Decision   4 June 2009             
Appearance for the Applicant                     Self-represented      
Appearance for the Respondent              Ms V Kanellopoulos,
  Australian Federal Police Legal