UGUR and AUSTRALIAN HUMAN RIGHTS COMMISSION
[2010] AATA 144
•26 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 144
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3353
GENERAL DIVISION ) Re HACI UGUR Applicant
And
AUSTRALIAN HUMAN RIGHTS COMMISSION
Respondent
DECISION
Tribunal Senior Member A K Britton Date 26 February 2010
Place Sydney
Decision The decision under review is affirmed ..............................................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – whether reasonable search was performed by agency – where parts of the request overlapped a previous request considered by a differently-constituted Tribunal.
PRACTICE AND PROCEDURE – circumstances in which the Administrative Appeals Tribunal is required to adjourn proceedings – circumstances in which the Tribunal is required to provide a person with an interpreter.
Freedom of Information Act 1982 (Cth) – ss 3, 4, 11, 18, 22, 24A, 41, 55, 56, 61.
Administrative Appeals Tribunal Act – ss 3, 20, 26, 39Dietrich v The Queen (1994) 177 CLR 292
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20
Commissioner of Taxation v La Rosa (2002) 196 ALR 139
Chu v Telstra Corporation Limited [2005] FCA 1730
Shu Uan Eao v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 992
Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75
Re Radar Investments Pty Ltd and Health Insurance Commission (2004) 80 ALD 733
Re Edelsten and Australian Federal Police (1985) 4 AAR 220
Ugur and Human Rights and Equal Opportunity Commission [2009] AATA 563REASONS FOR DECISION
Senior Member A K Britton 1. Mr Haci Ugur applies under the Freedom of Information Act 1982 (Cth) (the Act) for review of a decision made by the Australian Human Rights Commission (the HRC), in relation to his request for a copy of his “personal files”.
2. In March 2009, the HRC released a number of documents in answer to Mr Ugur’s request. Twenty-one had parts deleted. The HRC contends that those deletions were made because the documents were exempt from disclosure, because they contained personal information about HRC employees or third parties and/or information irrelevant to Mr Ugur’s FOI request.
3. Mr Ugur contends that the HRC failed to release all documents he had requested. He contends that the HRC’s claim to have conducted an adequate search was “entirely fabricated”.
4. The issue I am required to determine is whether the decision not to release documents to Mr Ugur on the ground that they do not exist, and to release certain other documents with deletions, is the correct and preferable decision.
5. In order to put Mr Ugur’s application and the issues he contends are relevant in context, it first is necessary to set out the statutory framework in which his application was made, and the background to his application to the AAT.
Scheme of the Act
6. The object of the Act is to extend as far as possible the right of the Australian community to access information in the possession of the Government of the Commonwealth by:
3(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
…
7. The Act gives individuals a legally-enforceable right to be given access to a document of an agency, other than an exempt document: s 11(1). A person’s right of access is not affected by their reason for seeking access or by the agency’s belief as to what his or her reasons might be: s 11(2).
8. The Act does not require an agency to give access to a document at a time when the document is an exempt document: s 18(2). The Act defines an “exempt document” to include a document which, by virtue of a provision of Part IV, is an exempt document: s 4.
9. Section 41(1) provides that a document is exempt if its disclosure under the Act would involve the unreasonable disclosure of personal information about any person (including a deceased person). “Personal information” is defined as information about an individual whose identity is apparent or can reasonably be ascertained from the information: s 4.
10. The HRC is an agency for the purpose of the Act. It bears the burden of proving that any determination it makes under the Act is justified: s 61.
Background to decision under review
11. In December 2008 Mr Ugur made a request to the HRC in the following terms:
I am requesting a copy of my personal files held by HRC concerning documents which related my personal affairs. For example:
1.1 Copy of my records about my situation in VIDC (from my last FOI request) and out of VIDC
1.2 I request my letters and responses by HRC and the HRC' s officers or lawyers report,’ notes, records and inquiries.
1.3 Other departments DIAC, AG Solicitor, Public Guardian, Legal Aid and their doctor or solicitors (who involve) responses or inquiries.
2. Inquiries made by the Federal Court, Supreme Court of NSW, Guardianship Tribunal or any other courts or tribunals concerning me and responses.
12. In January 2009, the HRC wrote to Mr Ugur and advised that he had already been provided with seven files that fell within the scope of his request, following his December 2007 FOI request and that, if he wished to obtain copies of those documents, he would be liable to pay a charge. Mr Ugur advised that he did not require copies of those documents. These documents are identified as Files One to Seven in Attachment A to these Reasons.
13. On 6 March 2009, HRC officer, Mr Brooke Hely, wrote to Mr Ugur and advised that in addition to the seven files mentioned above, a number of other files he had requested had been identified. These were (for convenience I will adopt the description of each file used by the HRC):
Ugur v HREOC, SYG 2014/2007 (File reference 2007/209)
ADJR Matter – Ugur v HREOC, NSD 2441/2007 (File reference 2008/14)
ADJR Matter, Ugur v HREOC, NSD 1907/2007 (File reference 2008/32)
Internal Review – Destruction of File (File reference 2008/196)
Administrative Appeals Tribunal – Review of FOI Decision (File reference 2008/239)
Electronic records relating to Files 9 -11 which do not appear on the hard copy of those files
A number of internal reports prepared by HRC’s legal section
14. Of those documents Mr Hely decided not to release those that in his opinion were subject to legal professional privilege, namely:
•Various documents held on File 12. [File 12 related to proceedings before the AAT and concerned Mr Ugur’s 2007 FOI request: Ugur and Human Rights and Equal Opportunity Commission [2009] AATA 563.]
• Internal legal reports prepared for the HRC’s Executive.
15. Mr Hely also decided to release 21 documents in redacted form under s 22 of the FOI Act that in his opinion would otherwise have been exempt.
16. In addition Mr Hely identified two files, Files FD 205420 and 2013722FC, that had been destroyed “in accordance with the Commission’s usual destruction policies”.
Internal review
17. On 14 April 2009 Mr Ugur wrote to the HRC requesting an internal review of Mr Hely’s decision. He wrote:
It is my understanding that HREOC (as the HRC then was) has more additional information than was sent to me previously. I hereby ask you to review Mr Hely’s decision and send me this additional information, so that I have a complete set of documents related to my situation
18. HRC officer, Ms Julie O’Brien, reviewed Mr Hely’s decision. She varied that part of it concerning some documents contained in File 12 but otherwise affirmed the decision. She decided that:
a. Mr Hely had identified all relevant documents held by the HRC that fell within the scope of his request.
b. The two files that Mr Hely decided could not be found, Files FD 205420 and 2013722FC, had been destroyed in accordance with the HRC’s usual procedures.
c. A small number of documents on File 12 over which Mr Hely had claimed an exemption were not subject to privilege and therefore should be provided to Mr Ugur. The balance were — as Mr Hely had concluded — subject to privilege and therefore not able to be released.
d. The information deleted from the documents provided to Mr Ugur was either personal information which it is unreasonable to release, or irrelevant material, or both.
Application to the AAT
19. On 17 July 2009 Mr Ugur lodged an application with the AAT for review of Ms O’Brien’s decision.
20. On 14 December 2009, HRC solicitor Ms Michelle Lindley wrote to Mr Ugur and advised that the HRC had decided to provide him with the remaining documents contained in File 12 which Ms O’Brien had identified as subject to legal professional privilege. She gave this reason for that decision:
That matter has now been finalised and you have not appealed the AAT’s decision. The Commission has reassessed the documents and decided that it should now waive privilege and provide you with the documents.
Reviewable decision
21. The decision I am required to review is the decision made by Ms O’Brien, as amended on 14 December 2009 by the decision to release additional documents to Mr Ugur: see s 26 of the Administrative Appeals Tribunal Act 1975 (the Tribunal Act), and s 56 of the Act.
Previous AAT proceedings
22. In December 2007, Mr Ugur made an FOI request to the HRC in the following terms.
All documents held by the Commission in relation to his complaints against the Department of Immigration and Citizenship, GSL (Australia) Pty Limited and the Commonwealth Ombudsman.
23. Mr Ugur had apparently lodged a complaint with the HRC claiming that these three organisations had unlawfully discriminated against him on the ground of race. The President of the HRC dismissed those complaints on the ground that they lacked substance.
24. The December 2007 request eventually became the subject of proceedings before the AAT, in which Mr Ugur asserted that the HRC had withheld a number of (unspecified) documents that fell within the scope of his request. The Tribunal, constituted by DP Walker, found that all reasonable steps had been taken to find the documents the subject of Mr Ugur’s request and affirmed the decision under review: Uger and Human Rights and Equal Opportunity Commission [2009] AATA 563.
Request for an adjournment
25. On the day of the hearing for this matter, 11 February 2010, Mr Ugur requested a three-month adjournment. That application was refused. I was unable to give reasons for that decision as Mr Ugur, who was apparently unhappy with that decision, interrupted my delivery. I therefore set out in these Reasons why I decided to accede to that request.
26. Mr Ugur argued that an adjournment should be granted because first, he had been unable to obtain legal representation; second, he was without an interpreter; third, a foreshadowed affidavit from the head of the HRC’s legal section had not been provided; fourth, the Tribunal would be unable to assess the adequacy of the search undertaken by HRC as seven officers, who he believed played a critical role in that search, were not available for questioning.
27. Legal representation Mr Ugur asserts that “the monitoring officer of Government obstructed me from receiving legal advice”. He suspects that the HRC is the culprit. The nature of these alleged interventions is unclear. In support of his contention that the HRC has prevented him from obtaining legal advice, he points to the alleged comments made by the HRC’s Counsel in the 2009 AAT proceedings —“You do not need legal advice”.
28. Mr Ugur argued that he would not be guaranteed a “fair trial” without representation, and therefore his request for an adjournment should be granted. He contends that he has been “subject to cruel and inhuman treatment without being formally charged and without being granted a trial”. He cited Dietrich v The Queen (1994) 177 CLR 292 as authority for the proposition that these proceedings must be adjourned until such time as he can obtain legal representation.
29. Mr Ugur’s reliance on Dietrich is misplaced. In that matter, the High Court by majority held that a court has jurisdiction either to adjourn or to order a stay of a criminal trial upon indictment, until such time as an indigent person charged with a serious criminal offence is provided with legal representation. The “Dietrich principle” does not, as Mr Ugur contends, extend into the field of administrative law. (see for example, Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 [17] and [18]; Commissioner of Taxation v La Rosa (2002) 196 ALR 139 [120], [122]).
30. Mr Ugur is not “on trial” as his submissions suggest. These proceedings are in the nature of an administrative review and, significantly, were initiated by him.
31. It is not clear what attempts have been made by Mr Ugur to obtain legal representation. There is no suggestion that s 57 of the Legal Aid Commission Act1979 (NSW) applies. Under that provision, a tribunal must grant an adjournment where a person has, or intends to, appeal against a refusal to grant aid and that appeal has not been determined.
32. In my view, Mr Ugur has had ample opportunity to arrange legal representation. Nothing in his submission gives me any confidence that he would be better placed to obtain legal representation if an adjournment is granted.
33. Failure to provide an interpreter Mr Ugur contends that an adjournment should be granted because he did not have available to him the services of an interpreter.
34. The pro forma Application for Review used by Mr Ugur to initiate these proceedings invited him to indicate if he required an interpreter. He did not complete that section of the application. On 5 November 2009, the Registrar wrote to Mr Ugur and asked him to advise whether an interpreter would be required at the hearing. He did not reply. Mr Ugur had also had an opportunity to indicate that an interpreter was required when he attended a case conference before a Case Conference Registrar on 16 October 2009. Again, there is no record of his doing so.
35. The Tribunal Act directs the Tribunal to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case: s 39.
36. There can be no argument that a party to proceedings before the AAT whose first language is not English could be denied a reasonable opportunity to present their case if not provided with the assistance of a competent interpreter: see for example, Shu Uan Eao v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 992. This is because that opportunity will be at best illusory if a party is unable to understand what is being said or make themselves understood because of language problems. As Kenny J observed in Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [24] the function of an interpreter is to redress this problem and :
… place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd (1988) 93 FLR at 425 per Samuels JA. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.
37. It does not automatically follow that a person whose first language is not English is denied a reasonable opportunity to present their case if not provided with the services of an interpreter. Whether this is the case will depend upon a number of factors including the person’s proficiency in spoken and written English and the nature of the proceedings. In must be acknowledged that a person whose first language is not English may have no apparent difficulty understanding, or making themselves understood, in a familiar environment, but may struggle to do so in proceedings before the Tribunal. As Kirby P observed in Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 77-8:
The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person's own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law. ... Those who, in formal public environments, of which courts are but one example, have struggled with their own imperfect command of foreign languages, will understand more readily the problem then presented. The words which come adequately in the relaxed environment of the supermarket disappear from recollection. The technical expressions cannot be recalled, if ever they were known. The difficulties cause panic. A relationship in which the speaker is in command ... is quite different from a potentially hostile environment of a courtroom. There, questions are asked by others, sometimes at a speed and in accents not fully understood.
38. In recent years, Mr Ugur has represented himself in proceedings before this Tribunal and the Federal Court without the assistance of an interpreter[i]. On a number of occasions when provided with an interpreter, he elected not to use their services[ii]. That Mr Ugur participated in proceedings in the past without the assistance of an interpreter is not determinative of the issue I must decide, namely whether he would be denied a reasonable opportunity to present his case in these proceedings, without the assistance of an interpreter.
39. Mr Ugur prepared detailed written submissions in support of his adjournment application. He also tendered copies of letters he had written to various parties. While these documents contain a number of colourful claims, they indicate that Mr Ugur is proficient in written English. Based on my observation of his participation in the hearing, I am satisfied that he was also proficient in spoken English. He spoke at length to his adjournment application; gave responsive answers to questions put to him; and, replied to submissions made by the HRC’s legal representative.
40. I also note that despite not being provided with an interpreter, Mr Ugur was apparently able to fully participate in the case conference held before hearing, and has not suggested otherwise.
41. While plain that Mr Ugur’s first language is not English, I am not persuaded that he was effectively denied a reasonable opportunity to present his case because he did not have available the assistance of an interpreter. I am not satisfied that the absence of an interpreter of itself constitutes sufficient reason to grant an adjournment.
42. HRC’s failure to lodge affidavit evidence Mr Ugur says he is disadvantaged because he was not provided with a foreshadowed affidavit to be prepared by the head of HRC’s legal team, Mr Jonathon Hunyar. He seeks an order from the Tribunal directing Mr Hunyar to prepare an affidavit.
43. It is agreed that at the case conference held on 16 October 2009, solicitor for the HRC, Ms Lindley, advised that the HRC intended to file an affidavit prepared by Mr Hunyar. Ms Lindley explained that the affidavit was intended to be used to explain the basis of the HRC’s legal professional privilege claim.
44. Mr Ugur’s argument that he would be disadvantaged by not being provided with the foreshadowed affidavit is misconceived. Once a decision was made to waive privilege over the disputed documents — a decision favourable to Mr Ugur — the foreshadowed affidavit became redundant.
45. HRC’s failure to provide seven witnesses for cross examination Mr Ugur requested that the Tribunal order that seven named HRC staff members be directed to attend the proceedings so he could cross-examine them about the searches undertaken in relation to his FOI request. He has not particularised what areas he intended to canvass in questioning. Nor has he explained why he did not make this request until the day of hearing.
Practice Direction on adjournment
46. The Listing and Adjournment Practice Direction (May 2005) Practice Note No. 12, made under s 20(2) of the Tribunal Act sets out the policy and procedures of the Tribunal relating to fixing matters for hearing and applications for adjournments of hearings. It is stated to apply equally to represented and self-represented parties. For convenience, relevant extracts of the Practice Note are set out below:
…
The Tribunal has a responsibility to manage cases so that they are brought to a conclusion at the earliest reasonable opportunity. Bearing in mind this objective, as well as the Tribunal's obligation to give parties a reasonable opportunity to present their case, the following policy will be applied by the Tribunal:
1. Cases will not be fixed for hearing unless the Tribunal is satisfied that they are ready for hearing or a fixed timetable or other arrangements are in place to ensure that each matter will be ready before the hearing date.
2. Matters are fixed for hearing on the basis that the hearing will proceed on the day fixed.
3. An application for an adjournment will not be granted unless there are good reasons to justify the adjournment.
…
7. An application for an adjournment must be made at the earliest possible opportunity. Application is to be made in writing addressed to the District Registrar. The application must set out the reasons why an adjournment is necessary and be signed by the person or representative seeking the adjournment. The application must be accompanied by any documents that support the reasons for seeking an adjournment.
…
9. An application for an adjournment made less than ten working days prior to the hearing date will not be granted unless there are particular and compelling reasons for the matter to be adjourned. Applications made the day of a hearing, even when advance notice has been given, will not be granted unless there are exceptional reasons.
Findings and Conclusions
47. It is not disputed that the Tribunal has power to grant an adjournment. The issue to be decided is whether that power should be exercised in the circumstances of this case.
48. In carrying out its functions, the Tribunal is directed to pursue the objective of “providing a mechanism of review that is fair, just, economical, informal and quick”: s 3 of the Act. This requires the balancing of what are at times competing principles. The Practice Direction provides that where, as in this case, an application is not made until the day of the hearing, there must be “exceptional reasons” before an adjournment is granted.
49. Mr Ugur filed his application for review in July 2009. He has been on notice of the date allocated for hearing for over three months. Prior to the hearing, he failed to apply for an adjournment; ask the Registrar to provide an interpreter; or take steps to arrange for those witnesses he believe critical to this matter to give evidence. He has not explained why he left these requests until the date of hearing.
50. For the reasons set out above, I am satisfied that Mr Ugur would not be denied a reasonable opportunity to present his case if the matter were to proceed without the benefit of an interpreter or legal representation .
51. I accept that other than costs, the prejudice the HRC would suffer if an adjournment were granted would be minimal. Nonetheless the HRC is entitled to the have the matter disposed of in a timely fashion without incurring unreasonable costs. Like any government agency, the HRC has many deserving calls on its finite resources.
52. I am not persuaded that there are compelling reasons which warrant the exercise of my power to grant an adjournment in this matter. Nor am I persuaded that Mr Ugur would effectively be denied a reasonable opportunity if the matter was to proceed as scheduled. For these reasons the application for an adjournment is refused.
review of decision
53. Two key issues fall to be determined:
1. Was the decision to release to Mr Ugur 21 documents with deletions the correct and preferable decision?
2. Did the HRC take all necessary steps to find the documents requested by Mr Ugur?
54. After being advised that his application for adjournment had been refused, Mr Ugur elected not to make any further submissions. His written and oral submissions in support of his adjournment application touched on some issues raised in his substantive application, and I have taken them into account in my decision.
A. Documents released with deletions
55. The HRC contends that 21 of the documents released to Mr Ugur were rendered exempt by the operation of s 41 of the Act, in that their disclosure would involve the unreasonable disclosure of personal information about HRC staff members and/or third parties. The HRC exercised its power under s 22 of the Act to release those documents to Mr Ugur after deleting “exempt matter” and/or information it regarded as irrelevant to Mr Ugur’s request.
56. Section 22 relevantly provides:
Deletion of exempt matter or irrelevant material
(1) Where:
(a) an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt document; 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) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
57. In respect of each document the following questions must be asked.
1. Does it contain information irrelevant to Mr Ugur’s request or personal information the disclosure of which would be unreasonable (exempt matter)?
2. If so, was it reasonably practicable to delete that material?
3. If so, was only exempt or irrelevant information deleted?
58. A list of the 21 documents and a summary of the deleted material is set out at Attachment B to these Reasons.
59. After examining each document in redacted and unredacted form, I conclude, for the reasons that follow, that they were either exempt documents or contained material irrelevant to Mr Ugur’s request.
60. Documents no 1,2,3,5,18 Each of these documents contain information about HRC staff or third parties, namely, staff mobile phone numbers (documents 1 and 5), contact details of people not employed by the HRC (documents 2, 5) and details about staff leave arrangements (document 18). In each case the information falls squarely within the definition of “personal information” — it is information of a personal nature about an individual whose identity is apparent from the document.
61. The HRC must also establish that the disclosure of this personal information would be unreasonable. In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 437-439, Lockhart J observed that public interest considerations are central to determining whether the disclosure of personal information is unreasonable.
62. In my view, it is likely that the individuals concerned would not wish the subject personal information to be disclosed and that, the public interest would not be advanced by disclosure of information of this type.
63. I therefore conclude that the disclosure of documents 1,2,3,5 and 18 would involve the unreasonable disclosure of personal information and that each document is exempt by the operation of s 41 of the Act.
64. Document no 4 This is a letter concerning litigation that is unrelated to Mr Ugur. It contains a summary of the background to that litigation and the name and contact details of the person involved. It is apparently used as a guide to letter writing by the HRC’s legal section.
65. This document contains personal information about the litigant and in my view it would be unreasonable to release that information. Accordingly it is exempt.
66. Documents no 6,7,8,9,10,11,12,13,14,15,16,17,18,19 and 20 These documents are internal reports prepared by the HRC’s legal section. The deleted material includes:
· Statistics and information on staff training and papers given by members of the HRC’s legal section
· Progress reports about the status of current matters unrelated to Mr Ugur in the form of either work records kept by individual lawyers, internal reports prepared for the HRC’s Executive and email exchanges between staff. The deleted material mostly relates to complaints lodged with the HRC by persons alleging unlawful discrimination.
67. The first class of material is clearly irrelevant to the class of documents requested by Mr Ugur.
68. The second contains personal information about the subject complainants who, in all cases, are readily identifiable. The integrity of the HRC’s complaint investigation and associated functions rests on public confidence that the personal information provided by complainants will not be disclosed for purposes other than the resolution of the complaint. In my view, it is not in the public interest to disclose this information.
69. I am satisfied that each of these documents is made exempt by the operation of s 41 of the Act.
70. Document no 21 The HRC’s legal section records the names and addresses of persons it sends mail via express post. Document 21 records Mr Ugur as having been sent express mail. The names and addresses of other recipients have been deleted from document no 21. The deleted material is self-evidently personal information and its disclosure would, in my view, be unreasonable. I am satisfied that the document is exempt.
Was it reasonably practicable to delete the exempt matter and /or irrelevant material?
71. I am satisfied that it is reasonably practicable to delete the irrelevant and exempt material, and that Mr Ugur would probably wish to have access to each document in redacted form.
was only exempt or irrelevant information deleted?
72. In my view the power conferred by s 22(1)(c) to delete matter from a document that falls within s 22(1)(a) extends only to exempt or irrelevant matter. After examining each of the 21 documents, I am satisfied that the material deleted was confined to exempt or irrelevant matter.
Decision
73. The decision to release the 21 documents listed in Table B of these Reasons with deletions under s 22 of the Act was the correct decision. I therefore affirm this part of the decision under review.
B. Adequacy of search
74. Mr Ugur contends that the HRC failed to conduct an adequate search for the documents he requested. He asserts that the HRC’s claim that a sufficient search had been conducted was “entirely fabricated”. Among other things he seeks an order that HRC “stop concealing the documents and continuing to corrupt its records”.
75. Section 24A of the Act provides that an agency may refuse a request for access if (a) all reasonable steps have been taken to find the document; and (b) the agency is satisfied that the document is in the agency's possession but cannot be found; or (c) does not exist. Section 55(5) provides that the Tribunal's power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.
76. The HRC bears the onus of establishing that all reasonable steps have been taken to find the documents requested: s 61 of the Act.
77. In Chu v Telstra Corporation Limited (2005) FCA 1730 Finn J stated at [35]:
A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised.
78. Mr Hely and Ms O’Brien in their respective decisions set out the steps they took to find the documents the subject of Mr Ugur‘s request. Ms O’Brien wrote:
Further searches – no further documents exist
For the purposes of this internal review, I have considered whether as at 19 December 2008 there were any further documents held by the Commission (beyond those identified by Mr Hely) falling within the scope of Mr Ugur’s request.
To this end, further searches have been conducted of the Commission’s records for documents created, held or previously held by the Commission that fall within Mr Ugur’s request. These further searches included searches of the database records of files held by the registry and the database records of files held by the complaint handling section.
I have also reviewed the searches conducted by Mr Hely for documents falling within Mr Ugur’s request. Mr Hely arranged for electronic searches of relevant email and document databases, as well as physical searches at relevant locations, for any other documents falling within Mr Ugur’s request.
Having reviewed both the fresh searches and the searches conducted by Mr Hely, I am satisfied that there are no further documents beyond those identified by Mr Hely, and summarised in Table One above.
79. It does not fall to Mr Ugur to establish that all reasonable steps were not undertaken but rather to the HRC to prove that they were. Nonetheless, it is necessary to consider Mr Ugur’s arguments on this point.
80. The documents that fall within the scope of Mr Ugur’s 2007 FOI request are a sub-set of the class of documents the subject of his most recent request. In broad terms, the later relates to Mr Ugur’s “personal files” in the HRC’s possession as at December 2008; the former, to documents concerning complaints made about the Department of Immigration and Citizenship, GSL (Australia) Pty Limited and the Commonwealth Ombudsman, in the HRC’s possession as at December 2007.
81. An issue raised by Mr Ugur’s current request is whether it is necessary to revisit the adequacy of the search undertaken in respect of the documents the subject of his 2007 request. In Uger and Human Rights and Equal Opportunity Commission [2009] AATA 563 DP Walker found that an adequate search had been undertaken. He gave detailed reasons for that decision. The proceedings involved a two-day hearing. There was extensive evidence before the Tribunal including oral evidence from three HRC officers, which was tested by Mr Ugur.
82. In written submissions, Mr Ugur contended that the HRC’s claim to have conducted an adequate search in relation to his 2007 FOI request was “entirely fabricated”. He alleged that the HRC destroyed files and that its witnesses gave untruthful evidence. He tendered a copy of a letter to the Chief Justice of the Federal Court in which he alleged that the AAT had “some agreement” to “cover up the HRC’s misconduct” and went on to allege that some members of the Federal Court were also implicated.
83. Mr Ugur has not provided a shred of evidence to support these arguably scandalous claims. Whether the doctrine of issue estoppel applies in proceedings before the AAT is not settled[iii]. Absent fresh and cogent evidence to support Mr Ugur’s claim that the search undertaken in relation to his 2007 FOI request was inadequate, in my view no useful purpose would be served in revisiting that issue.
84. Documents outside the scope of the 2007 request As I understand it, Mr Ugur also claims that some documents which fall outside the scope of his 2007 FOI request have not been produced. In written submissions, he asserted that the following documents were missing from the documents released to him:
Folder 9 File 11 p 92
Folder 9 File 125 p 508-520, p 534-534
CHARMS Record about File no 2108923
5 unspecified folders
Any note about Ms Simons meeting with counsel Ms Richardson on 10 September 2009
“There are no notes about Ms Simons meeting Mr Hunyar”
“There are no documents between HREOC and the Attorney General’s Department concerning me”
A document relating to a contact between Mr Hunyor and another HRC officer.
85. Before proceeding to consider this submission, it is necessary to dispose of two issues.
86. First, it will be recalled that in December 2009, after Mr Ugur had filed an application in the Tribunal, the HRC released to him a number of documents from File 12 (the 2009 AAT proceedings) over which it had previously claimed privilege. The balance of that file had been released to Mr Ugur in March 2009. Mr Ugur thinks it suspicious that the page numbers of the December documents are not sequential and believes that this reveals that an inadequate search was undertaken. In my view, there would appear to be a more innocent explanation — namely that the December documents had been extracted from the file by Ms O’Brien because in her view they attracted privilege. As a result, were not necessarily in sequential order.
87. Second, it is not within my power to determine whether an adequate search was conducted for documents which came into HRC’s possession after Mr Ugur made his current FOI request, 19 December 2008: see Re Radar Investments Pty Ltd and Health Insurance Commission (2004) 80 ALD 733, following Re Edelsten and Australian Federal Police (1985) 4 AAR 220. Therefore, any note made following a meeting between Ms Simmons and Ms Richardson on 10 September 2009, or any discussions between Ms Lindley and Mr Hunyar about the foreshadowed affidavit, fall outside the scope of Mr Ugur’s request.
88. With the exception of the purported note about the meeting between Ms Simmons and Mr Hunyar, Mr Ugur did not elaborate on what he led him to believe that the documents listed at [84] existed, or that an adequate search had not been conducted. I am therefore unable to consider his argument on this point.
89. Conclusion Having reviewed the documents released and the steps undertaken by Mr Hely and Ms O’Brien to locate them, I am satisfied that all reasonable steps have been taken to find the requested documents. In doing so, I have taken into account a number of factors, including:
The significant number of documents released
The diverse and different types of documents located
The range of sources from which the documents have been obtained
The fact that both electronic and physical records were undertaken
The fact that two searches were undertaken and by different people.
The fact that the search was conducted across all sections within the HRC
90. For these reasons I am satisfied that an all reasonable steps were undertaken to locate the documents the subject of Mr Ugur’s request.
Decision
91. The decision under review is affirmed. .
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
Signed: .....................................................................................
Associate to Senior Member BrittonDate of Hearing: 11 February 2010
Date of Decision: 26 February 2010
Counsel for the Applicant: The applicant was self-represented
Counsel for the Respondent: Ms M LindleySolicitor for the Respondent: Australian Human Rights Commission, Legal Section
Attachment “A”
1
Ugur v Department of Immigration and Multicultural and Indigenous Affairs and GSL Pty Ltd (File reference FC 2018239)
2
Ugur v Department of Immigration and Citizenship and Commonwealth Ombudsman (File reference FC 2019080)
3
Ugur v Department of Immigration and Citizenship and Commonwealth Ombudsman (File reference FC 2018908)
4
Ugur v Commonwealth of Australia, Administrative Appeals Tribunal (File reference FC2018285)
5
Ugur v DIMIA / GSL (File reference 2018923)
6
Files Destroyed 2008 (File reference 2008/202)
7
H E O Ugur – FOI Request (File reference F2007/12)
8
Ugur v HREOC, SYG 2014/2007 (File reference 2007/209)
9
ADJR Matter – Ugur v HREOC, NSD 2441/2007 (File reference 2008/14)
10
ADJR Matter, Ugur v HREOC, NSD 1907/2007 (File reference 2008/32)
11
Internal Review – Destruction of File (File reference 2008/196)
12
Administrative Appeals Tribunal – Review of FOI Decision (File reference 2008/239)
Electronic records relating to files 9 - 12 that do not appear on the files
Electronic records relating to files 9 - 11, and file 12. These electronic records do not appear on the hard copy of the files.
Legal reports to President and Commissioners
The legal section provides bi-monthly reports to the President and Commissioners to provide status updates on all ongoing matters. Certain of these reports relate to Mr Ugur and fall within his request.
Miscellaneous documents
Four documents from File 7 which had not previously been provided to Mr Ugur, namely:
- the file cover sheet;
- a sheet containing internal time-records for work done on the file;
- a handwritten note containing Mr Ugur’s address;
- print-out of an email from Jonathon Hunyor to Marcie Richards dated 3 January 2008 (which does not appear on the hard copy of the file).
Hand-written note containing Mr Ugur’s name and address that was located in a physical search of Commission offices.
Print-outs of electronic records containing Mr Ugur’s name that were located during electronic searches of relevant Commission email and document databases. These documents do not have a clear relevance to any particular file.
Relevant pages from the legal section registered mail logbook.
Destroyed files (files previously held by the Commission)
The Commission no longer possesses a copy of files FD 205420 and 2013722FC. These files were destroyed in accordance with the Commission’s usual document destruction policies.
Attachment “B”
Documents produced to Mr Ugur from which irrelevant and/or personal information was deleted
| AHRC Document No: | Description of document from which information was deleted | Nature of the information deleted |
| File 8, Folder 1, no. 208 | Email between officers of the Commission | Mobile phone number of a Commission employee |
| File 10, Folder 8, no. 207 | Email from the associate to His Honour Justice Gyles to numerous practitioners including Jonathan Hunyor advising of his retirement and his replacement forwarded to the senior lawyer with the conduct of the matter by Mr Hunyor | Email addresses of other solicitors emailed by the court |
| File 11, Folder 9.1, no. 22 | An internal Commission document entitled Practical FOI Tips with information regarding ‘Questions or Searches for Interstate files’ names and details of contacts in other states | Name and Phone number of FOI contacts in Victoria, WA and SA |
| File 11, Folder 9.1, no. 28-29. | An internal Commission document marked “Attachment A: Sample letter inviting Attorney-General or Commonwealth to play role in proceedings” and being a copy of a letter to another commonwealth department in relation to an unrelated proceeding against the Commission | The content of the letter relating to an unrelated proceeding against the Commission |
| File 11, Folder 9.1, no. 31 | Handwritten note of a telephone discussion between Mr Hunyor and another member of the Commission in relation to Mr Ugur's FOI complaint | Mobile phone number of a Commission employee |
| Miscellaneous, Folder 9.4, nos. 1 – 3 | Reports of the Legal Section to the Commission July 2007 | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 4 – 6 | Reports of the Legal Section to the Commission September 2007 | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 17– 11 | Reports of the Legal Section to the Commission November 2007 | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 12– 15 | Reports of the Legal Section to the Commission February 2008 | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 16– 17 | Commission meeting paper containing the Legal Section Report | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 18– 19 | Commission meeting paper containing the Legal Section Report | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 20– 22 | Commission meeting paper containing the Legal Section Report | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 23– 26 | Commission meeting paper containing the Legal Section Report | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 27– 30 | Copy of Commission meeting paper containing the Legal Section Report | Information relating to other Commission matters |
| Miscellaneous, Folder 9.4, nos. 31-32 | Commission meeting paper containing the Legal Section Report | Information relating to other Commission matters |
| Miscellaneous, Folder 9.7, no. 45 | Email exchange between the senior lawyer with the conduct of the matter to the director of the legal section regarding a meeting to discuss a number of matters including Mr Ugur’s | Information relating to other Commission matters |
| Miscellaneous, Folder 9.7, no. 46 | Email from the senior lawyer with the conduct of the matter to the director of the legal section regarding a meeting to discuss a number of matters including Mr Ugur’s | Information relating to other Commission matters |
| Miscellaneous, Folder 9.7, no. 50 | Email from the senior lawyer with the conduct of the matter to the director of the legal section regarding handling of matters including Mr Ugur’s while she was on leave and information regarding that leave | Information relating to other Commission matters as well as personal information of a Commission employee |
| Miscellaneous, Folder 9.7, nos. 53-5 | An internal Commission document entitled “Frances-Work Record-Last Update- 21 May 2008’ recording matters being conducted by the senior lawyer with the conduct of the Ugur matter | Work record entries not relating to Mr Ugur |
| Miscellaneous, Folder 9.7, nos. 57-9 | An internal Commission document entitled “Frances-Work Record-Last Update- 20 February 2008’ recording matters being conducted by the senior lawyer with the conduct of the Ugur matter | Work record entries not relating to Mr Ugur |
| Miscellaneous, Folder 9.8, pp 62-63 | An Account Book with a label “New Mail Book’ recording documents sent by the legal section to people outside the Commission by express post | Mail log entries not relating to Mr Ugur |
[i] Ugur v Police Service of New South Wales [2004] FCA 1032 (6 August 2004); Ugur v NSW Police Service [2005] FCA 48 (20 January 2005); Ugur v Human Rights and Equal Opportunity Commission [2007] FCA 1611 (23 October 2007); Ugur v Human Rights and Equal Opportunity Commission [2007] FCA 2066 (11 December 2007); Ugur v Human Rights and Equal Opportunity Commission [2008] FCA 1461 (26 September 2008); Ugur and Australian Federal Police [2009] AATA 405 (4 June 2009); Uger and Human Rights and Equal Opportunity Commission [2009] AATA 563 (31 July 2009); Ugur and Commonwealth Ombudsman [2009] AATA 695 (11 September 2009).
[ii] For example, in Uger and Human Rights and Equal Opportunity Commission [2009] AATA 563 (31 July 2009) and Ugur v NSW Police Service [2005] FCA 48 (20 January 2005), Mr Ugur was provided with an interpreter but did not use them for either submissions or evidence.
[iii] D Pearce, Administrative Appeals Tribunal (Second Edition), LexisNexis, Sydney, p. 201.
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