Vincent O'Donoghue and Migration Review Tribunal
[2013] AATA 29
•22 January 2013
[2013] AATA 29
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/3732
Re
Vincent O'Donoghue
APPLICANT
And
Migration Review Tribunal
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop Date 22 January 2013 Place Perth The Tribunal varies the decision under review by determining that access to the document referred to as "electronic file note dated 22 September 2009" and the document referred to as "electronic record of a request for advice dated 11 December 2009” in para 20 of the affidavit of Uma Devi Smiley, dated 30 March 2011 (Exhibit R1), be given to the applicant pursuant to the Freedom of Information Act 1982 (Cth). In all other respects the decision under review is affirmed.
.........................[sgd].........................................
S D Hotop, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request by applicant for access to documents – access to documents given to applicant – transfer of documents and request for access to another agency – documents subsequently identified as also falling within scope of applicant’s request for access – all reasonable steps now taken to identify and locate documents – access to documents subsequently identified and located should be given to applicant – decision under review varied
LEGISLATION
Freedom of Information Act 1982 (Cth), s 3, s 11, s 15, s 16, s 54, s 55 and s 61(1)
REASONS FOR DECISION
Deputy President S D Hotop
22 January 2013
Introduction
Vincent O’Donoghue (“the applicant”) has applied to the Tribunal for review of a decision of a “FOI Delegate” of the Migration Review Tribunal (“the respondent”) made on 16 February 2010, following an internal review, under s 54 of the Freedom of Information Act 1982 (Cth) (“FOI Act”).
At the commencement of the hearing of this matter on 17 December 2012 the applicant stated that he proposed to make an application for the adjournment of the hearing, adding that, if that application were refused, he would immediately withdraw from the hearing. The Tribunal then informed the applicant that, if his application for an adjournment were refused, the Tribunal would proceed with the hearing either in the presence, or in the absence, of the applicant, as the case might be.
The applicant made an application for the adjournment of the hearing. That application was opposed by the respondent. The Tribunal formally refused the applicant’s adjournment application. The applicant then withdrew from the hearing.
The respondent then made an application for dismissal of the applicant’s application for review, pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), on the ground that the applicant had failed, within a reasonable time, to proceed with his application for review. The Tribunal formally refused the respondent’s dismissal application.
The Tribunal then proceeded with the hearing of this matter.
The Evidence
The evidence before the Tribunal comprised:
·the “T documents” (T1–T31, pp 1–59) lodged by the respondent on 6 October 2010 in accordance with s 37 of the AAT Act;
·affidavit of Uma Devi Smiley, dated 30 March 2011 (Exhibit R1); and
·affidavit of Uma Devi Smiley, dated 31 August 2012 (Exhibit R2).
The Relevant Legislation
The FOI Act, as in force at all material times, relevantly provided as follows:
“ …
3 Object
(1)The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(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
(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
…
11Right of access
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
(2)Subject to this Act, a person’s right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
…
15Requests for access
(1)Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
…
16Transfer of requests
(1)Where a request is made to an agency for access to a document and:
(a)the document is not in the possession of that agency but is, to the knowledge of that agency, in the possession of another agency; or
(b)the subject-matter of the document is more closely connected with the functions of another agency than with those of the agency to which the request is made;
the agency to which the request is made may, with the agreement of the other agency, transfer the request to the other agency.
…
(4)Where a request is transferred to an agency in accordance with this section, the agency making the transfer shall inform the person making the request accordingly and, if it is necessary to do so in order to enable the other agency to deal with the request, send the document to the other agency.
(5)Where a request is transferred to an agency in accordance with this section, the request is to be taken to be a request:
(a)made to the agency for access to the document that is the subject of the transfer; and
(b)received by the agency at the time at which it was first received by an agency.
…
54Internal review
(1)Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:
(a)a decision refusing to grant access to a document in accordance with a request; or
(b)a decision granting access to a document but not granting, in accordance with the request, access to all documents to which the request relates; or
(ba)a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
…
the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.
…
55 Applications to Administrative Appeals Tribunal
(1)Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a)a decision refusing to grant access to a document in accordance with a request; or
(aa)a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
(ab)a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
…
(2)Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
…
(5A)The Tribunal’s power to make a decision on a review of a decision of a kind mentioned in paragraph (1)(ab) includes a power to require the agency or Minister concerned to conduct further searches for the document.
…
61Onus
(1)Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
…”
Factual Background
The following background facts are found by the Tribunal on the basis of the T Documents.
On 21 September 2009 the applicant applied to the respondent for review of a decision of a delegate of the Minister for Immigration and Citizenship, made under s 65 of the Migration Act 1958 (Cth) (“Migration Act”) on 26 August 2009, refusing to grant an Employer Nomination (Residence) (Class BW) visa to the applicant and visas to his wife and children.
On 7 November 2009 the applicant made a request, under s 362A of the Migration Act, to the respondent for access to a copy of all written material held by the respondent in relation to his application to the respondent for review. (T2, T3)
By letter dated 12 November 2009 an officer of the respondent wrote to the applicant as follows:
“ I am writing about your request for access to documents relating to your applications for review in relation to decisions to refuse to grant Employer Nomination (Residence) (Class BW) visas.
The relevant documents in the Tribunal’s possession are:
·folios 1 to 85 on the Migration Review Tribunal (MRT) file 0907660;
·folios 1 to 160, two un-folioed pages on the Department of Immigration and Citizenship (DIAC) file CLF2005/4528. This file also contains two financial documents at folios 27 and 28 which are 40 pages and 20 pages in length respectively; and
·folios 1 to 117 and three un-folioed pages on the Department of Immigration and Citizenship (DIAC) file CLF2009/111874.
Please find enclosed copies of all disclosable folios from the above files.
A copy of MRT file 0907660 has been released to you in full.
Folios 124-130, 134-137, 148-152, and 155-158 on the DIAC file CLF2005/4528 are excluded because they are subject to a certificate made by DIAC under section 375A of the Migration Act which certifies their disclosure to be contrary to the public interest.
Parts of the financial documents at folios 27 and 28 on the DIAC file CLF2005/4528 are partially excluded from disclosure under section 14, Information Privacy Principle 11 of the Privacy Act 1988 as they contain information of a personal nature about a third party and the Tribunal is not satisfied that the specific person would be reasonably likely to have been aware that his or her personal information would be disclosed to you and the person has not yet consented to that information being disclosed to you. Edited versions of folios 27 and 28 have been released to you in which the information relating to other persons has been deleted.
A copy of DIAC file CLF2009/111874 has been released to you in full.
…” (T5)
On 11 December 2009 the applicant made a request to the respondent for access to documents pursuant to the FOI Act. In that request the applicant described the documents to which he was seeking access as follows:
“ All that & those the documents, papers, letters, emails, faxes, notes, memoranda & all & any other written records, howsoever arising & whensoever arising and whether directly & or indirectly arising in regards to this matter, including though not limited to Commonwealth agencies, State agencies, and overseas agencies and all other third parties, and Courts & Govt Depts.” (T16, p 29)
On 14 December 2009 an Authorised FOI Officer of the respondent telephoned the applicant for the purpose of clarifying the scope his request under the FOI Act. The officer’s note of that telephone conversation states as follows:
“ I telephoned the RA today to clarify the scope of his FOI request. His request asks for a copy of everything relating to his DIAC and MRT review application, however most of these documents were released to him under s362A last month. I asked whether under FOI, he was seeking access to the exempted documents or another copy of both the DIAC and Tribunals files? He explained that he wanted access to everything. The RA is under the impression that DIAC have withheld documents from the Tribunals (sic), which he believes will impact the Members decision. I informed him that under FOI, I could make a decision on the Tribunal file, but that I would need to transfer the request to DIAC for action on the DIAC file. He was very upset about this and told me that we were doing him an injustice by sending the work back to DIAC, who he calls the protagonists.
I explained to him that under 362A we were able to make a decision on the department file (which was released him (sic)), but under FOI, as we are a separate statutory agency to DIAC, I would need to transfer his request for access to his DIAC files to DIAC. I explained that under FOI, DIAC will not be able to withhold documents unless there is good reason and it is in line with the Act and that if he was not happy with the decision he can seek a formal review with the Commonwealth Ombudsman. He told me he would and asked for all of my contact details as he wants to report me (the Tribunals (sic)) to the Commonwealth Ombudsman as well, as he believes that my transferring the request back to DIAC is against the law and a great injustice to him. I tried to explain that everything we were doing was in line with the Law and I informed him that he was more than entitled to do this, but at present, I would be transferring his request to DIAC for access to DIAC files and that I would make a decision on his Tribunal file for him.
He asked whether I would make note of this conversation and I informed him I would. I told him he could call me anytime with regard to his current FOI request. The call ended.” (T17)
On 15 December 2009 the respondent affirmed the decision of the delegate referred to in paragraph 9 above.
By letter dated 16 December 2009 the Authorised FOI Officer (referred to in paragraph 13 above) wrote to the applicant as follows:
“ I am replying to your Freedom of Information (FOI) request received on 11 December 2009, seeking access to documents relating to your review application.
The statutory period for processing your request commenced on 14 December 2009, the date that I clarified the scope of your request.
Your request for documents on the Department of Immigration and Citizenship (the Department) file has been directed under Sub-section 16(1)(a) of the FOI Act for assessment to the Department. Your request for documents on the Migration Review Tribunal (MRT) file will be processed by a tribunal officer and you will be notified of a decision shortly.
You will be notified of any charges in relation to your request and of a decision as soon as practicable.
…” (T21)
By letter dated 17 December 2009 a FOI Delegate of the respondent notified the applicant of the decision in relation to his request for access to documents as follows:
“ I am replying to your Freedom of Information (FOI) request received on 11 December 2009, seeking access to documents relating to your review application.
I have remitted the application fee under Section 30A of the FOI Act, therefore no fee is payable in relation to this request.
The documents relevant to your request are:
·Folios 1 to 149 on MRT file 0907660;
·file cover; and
·3 pages of screen copies from the Tribunal’s computerised Case Management System.
As an officer authorised under the FOI Act to make decisions on access, I have decided to release these documents in full.
…” (T22)
By fax dated 31 December 2009 the applicant wrote to the abovementioned FOI Delegate as follows:
“ I refer to the above with enclosed copy papers dated 17 December and received 24 December 2009.
Can you confirm that this represents all of the documents in the possession of the Tribunal at all times?
…” (T25)
The FOI Delegate responded, by letter dated 22 January 2010, as follows:
“ I am writing about the applications for review made by you in relation to decisions to refuse to grant Employer Nomination (Residence)(Class BW) visas.
In your letter dated 31 December 2009, you enquired whether the documents released to you under the Freedom of Information Act 1982 represented all documents in the possession of the Tribunals (sic) at that time. I can confirm in writing, that every document in the Tribunals possession relating to your review was released to you without any exemptions on the 17 December 2009.
…” (T27)
By fax dated 27 January 2009 (sic) to the respondent, the applicant requested an internal review of the FOI Delegate’s decision of 17 December 2009 (see paragraph 16 above). (T28)
By letter dated 16 February 2010 another FOI Delegate of the respondent notified the applicant of the internal review decision as follows:
“ I am writing to you about your request of 27 January 2010 to conduct a formal internal review, under the Freedom of Information Act 1982 (FOI Act), of a decision of 17 December 2009. You have asked for confirmation that the decision represents all of the documents in the possession of the Tribunal when you lodged your FOI application.
The documents which are relevant to your request are folios 1 to 149 on MRT file 0907660, the file covers and 3 screen prints from the Tribunal Case Management System. These were the only documents available to the FOI officer at the time of your request and they have all been released in full to you.’.
...”(T29)
By fax dated 11 March 2010 the applicant notified this Tribunal that he “wish(ed) to appeal” the internal review decision of 16 February 2010, and, on 19 April 2010, the applicant lodged with the Tribunal an application for review of that decision. (T1, pp 4–5, 2–3)
Evidence Tendered by the Respondent
The respondent tendered in evidence an affidavit of Uma Devi Smiley, dated 30 March 2011, which states as follows:
“ …
1.I am employed at the Migration Review Tribunal (the respondent) and Refugee Review Tribunal in Melbourne. Since 9 March 2006, I have been the Registry Manager within the Tribunal Services Unit of the Victorian Registry.
The review application and release of documents under s 362A of the Migration Act 1958
2.On 21 September 2009, Mr Vincent O’Donoghue (the applicant) applied to the respondent for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse the grant of an Employer Nomination (Residence) (Class BW) visa (the visa review).
3.On 7 November 2009, the applicant made a request to the respondent pursuant to s 362A of the Migration Act 1958 (Cth) (the Migration Act). By that request, the applicant sought access to all written material given or produced to the Tribunal for the purpose of the visa review.
4.On 7 November 2009, a Tribunal officer authorised to release documents under s 362A of the Migration Act released to the applicant copies of:
a.all documents on the respondent’s file number 0907660;
b.all folios of DIAC file CLF2009/111874;
c.all folios on the Department of Immigration and Citizenship (DIAC) file CLF2005/4528, with the exception of:
i.folios 124-130, 134-137, 148-152 and 155-158, which were not released on the basis that they were subject to a certificate issued under s 375A of the Migration Act; and
ii.parts of folios 27-28 on the basis that they were protected under the Privacy Act 1988 (Cth).
5.On 15 December 2009, the applicant made a request to the respondent for a hard copy transcript of the hearing held before the respondent on 9 December 2009. The applicant’s request was made on the basis that he did not have facilities to allow him to transcribe a recording of the hearing previously provided to him.
6.On 16 December 2009, the respondent wrote to the applicant providing a transcription of the hearing held on 9 December2009.
The Freedom of Information Request
7. On 11 December 2009, the applicant lodged an application to the respondent under the Freedom of Information Act 1982 (Cth) (the FOI Act) for:
All that and those the documents, papers, letters, emails, faxes, notes, memoranda and all and any other written records howsoever arising and whensoever arising and whether directly and or indirectly arising in regards to this matter, including though not limited to Commonwealth agencies, State agencies, and overseas agencies and all other third parties and Courts and Government Departments.
A copy of the FOI application can be found at T16 of the documents produced to the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (the Tribunal documents).
8.On 14 December 2009, Ms Tone Doyle (the primary decision maker) of the respondent telephoned the applicant to clarify the scope of the FOI request. The applicant informed Mr (sic) Doyle that he was seeking all documents relating to his visa and review application.
The decision on the visa review
9.On 15 December 2009, the respondent made a decision affirming the visa decision of the delegate of the Minister for Immigration and Citizenship. A copy of the respondent’s decision can be found at T18 of the Tribunal documents.
The transfer of the request for DIAC documents
10.On 15 or 16 December 2009, the respondent returned to DIAC all DIAC files in its possession in respect of the applicant.
11.On 16 December 2009, the primary decision maker wrote to DIAC advising of the FOI request and seeking to transfer that part of the request which related to documents held on DIAC file to DIAC. This transfer was made pursuant to s 16(1) of the FOI Act.
12.Also on 16 December 2009, the primary decision maker wrote to the applicant advising that his request for documents held on DIAC files had been transferred to DIAC for assessment pursuant to s 16(1)(a) of the FOI Act. A copy of this notification can be found at T21 of the Tribunal documents.
The Primary Decision
13.On 17 December 2009, the primary decision maker made a decision to:
a.remit the application fee payable under s 30A of the FOI Act; and
b.release in full all relevant documents in the Tribunal’s possession (the primary decision).
A copy of the primary decision can be found at T22 of the Tribunal documents.
14.Pursuant to the primary decision, copies of the following documents were released to the applicant:
a.folios 1 to 149 of the respondent’s file number 0907660;
b.the cover of file number 0907660; and
c.three pages of screen copies from the respondent’s computerised Case Management System.
The internal review
15.On 27 January 2010, the applicant applied to the respondent for internal review of the primary decision. A copy of the applicant’s application for internal review can be found at T28 of the Tribunal documents.
Searches undertaken as part of the internal review
16.The respondent’s practice is to create a single file with a unique matter number for all review applications. The title for such files includes the name of the review applicant. All correspondence, cases notes and other documents in relation to a review application are placed on the file created for that review application.
17.I was the authorised officer for the internal review. As part of the internal review, I undertook searches of the respondent’s Casemate database for files which featured the applicant’s name. Casemate is the respondent’s electronic data management system and Casemate records are meant to mirror the records on the respondent’s hard copy files. My searches produced:
a.one file belonging to the respondent, being the respondent’s file number 0907660; and
b.DIAC files CLF2005/4528 and CLF2009/111874.
18.At the time of my searches, DIAC file CLF2005/4528 and CLF2009/111874 were not in the possession of the respondent, having been transferred to DIAC on 16 December 2009. I was satisfied that the primary decision maker’s transferral to DIAC under s 16(1) of the FOI Act of the request so far as it related to documents contained on DIAC files CLF2005/4528 and CLF2009/111874 was appropriate.
The internal review decision
19.On 16 January (sic) 2010, I made a decision to confirm the primary decision on the basis that the documents that were released to the applicant represented all of the documents that were relevant to the FOI request that were in the possession of the respondent at the time of the FOI request. A copy of my letter notifying the applicant of this decision can be found at T29 of the Tribunal documents.
Searches undertaken in response to the application for review of the FOI decision
20.In response to the application for review of the internal review decision, I have undertaken further searches for documents in the possession of the respondent as at 11 December 2009 which would fall within the scope of the FOI request. Pursuant to those searches:
a.I searched the respondent’s Casemate database and located one document that was not also stored on the respondent’s hard copy file, and therefore not released to the applicant. That document is an electronic file note dated 22 September 2009. Now produced and shown to me marked ‘UDS-1’ is a copy of the electronic file note dated 22 September 2009.
b.I spoke to the officer responsible for maintaining the respondent’s file during the review, and was informed that the respondent’s administrative practices for managing the file have been correctly applied. I could not locate any further notes, including notes by the presiding member.
c.I made inquiries of the respondent’s Legal Services Branch and Country Advice and Information Service to ascertain whether they held any documents falling within the scope of the FOI request. I was informed that one document falling within the scope of the FOI request was held on the database maintained by the Legal Services branch as at the date of the FOI request. That document is an electronic record of a request for advice dated 11 December 2009. I was informed that no relevant documents are held by the Country Advice section. Now produced and shown to me marked ‘UDS-2’ is a copy of the electronic record dated 11 December 2009.
d.I made further inquiries of the respondent’s information technology section about whether any metadata reports existed at the time of the FOI request. I was informed that no such metadata reports were in existence at the time of the FOI request.
21.I have found no other documents falling within the scope of the FOI request.
…” (Exhibit R1)
The respondent also tendered in evidence an affidavit of Uma Devi Smiley, dated 31 August 2012, which states as follows:
“…
1.I am employed at the Migration Review Tribunal (the respondent) and Refugee Review Tribunal in Melbourne. From 9 March 2006 I have been a Registry Manager with the respondent.
2.This is a further affidavit to that provided by me to the Administrative Appeals Tribunal (the Tribunal) on 30 March 2011 (the first affidavit).
3.I provide the following additional information that I believe is relevant to the matter currently before the Tribunal.
Further request made under the Freedom of information Act 1982
4.On 11 April 2012, the respondent received a request made under the Freedom of Information Act 1982 (the FOI Act) from Mr Vincent O’Donoghue (the applicant) for access to documents held by the Tribunal (the second FOI request).
5.This was the second Freedom of Information (FOI) application made to the respondent by the applicant. The first being the FOI request made by the applicant on 21 September 2009 (sic) (the first FOI request). The first FOI request is the subject matter of the proceedings currently before the Tribunal (NO 2010/3732).
6.On 10 May 2012, the FOI officer, Ms Narnie Saliba (the primary decision maker), made a decision in relation to the applicant’s second FOI request.
7.On 5 June 2012, the applicant applied for internal review of the decision of the primary decision maker in relation to the second FOI request. I was the Internal Reviewer assigned to the second FOI request.
8.On or about 5 June 2012, I was advised by Mr Denny Hughes, an acting Senior Legal Officer with the respondent, that following a request from the primary decision maker for him to produce all documents that fell within the scope of the second FOI request, he had identified one email (the 2009 email) in his personal files that likely fell within the scope of the first FOI request, but had not been identified or assessed as part of the first FOI request. The email was between Mr Hughes and a former registry officer of the respondent, Mr Richard Collett.
9.In identifying this document, Mr Hughes advised me that this lead him to search an internal database maintained by the Legal Services section of the respondent in which that section makes records of advice requests.
10.Mr Hughes explained that he searched the database for records of any advices between himself and Mr Collett made at or about the date of the 2009 email. In doing so he identified four electronic records (the electronic records). The electronic records are records of oral and email legal advice provided to Mr Collett by Mr Hughes at or about the time of the 2009 email. The electronic records contain limited information relating to when the advice requests were received and finalised, by whom and the broad topic of the advice.
11.Mr Hughes advised that the electronic records do not contain the substance of any advice. They also contain no reference to the applicant, the file number related to the applicant’s matter before the respondent or any other matter that would otherwise indicate these electronic records related to him.
12.As Mr Collett was no longer employed with the respondent, Mr Hughes could not confirm whether the advices to which the electronic records related were requested in respect of the applicant. No other records were identified that detailed the contents of these electronic records. Although not conclusive, Mr Hughes considered that their proximity to the 2009 email, in terms of the dates of the records and the reference to the same broad subject matter, suggested the electronic records were likely related to the 2009 email and should be provided to the primary decision maker. The primary decision maker assessed the electronic records and 2009 email as falling within the scope of the second FOI request.
Searches during first FOI request
13.Mr Hughes advised me that as the electronic records contained no reference to the applicant or any of his files held by the respondent, they would not have been identified in the earlier searches undertaken as part of the Internal Review of the first FOI request completed by me on 16 January (sic) 2010. As the relevant electronic records were not identified, there were also no records that pointed to the existence of the 2009 email.
Internal Review of the second FOI request
14.On 12 July 2012, I made a decision in relation to the applicant’s request for Internal Review of the primary decision maker’s decision in relation to the second FOI request. In making that decision, I agreed with the primary decision maker and decided that the 2009 email and the electronic records fell within the scope of the second FOI request and were exempt under s 42 of the FOI Act as they were subject to legal professional privilege.
15.As part of the processing of the second FOI request, other than the 2009 email and the electronic records, no further records or documents were identified that would have fallen within the scope of the first FOI request other than those previously identified and considered.
…” (Exhibit R2)
The Tribunal notes that, before the applicant withdrew from the hearing of this matter (see paragraphs 2–3 above), the respondent’s representative had informed the Tribunal in the hearing (in the presence of the applicant) that Ms Smiley would be available (by telephone) for cross-examination by the applicant. Following the applicant’s withdrawal from the hearing, the Tribunal received Ms Smiley’s abovementioned affidavits into evidence and did not require her to be called to give oral evidence.
Consideration and Findings
The Tribunal accepts the contents of Ms Smiley’s abovementioned affidavits of 30 March 2011 and 31 August 2012 and, on the basis thereof, it is satisfied, and finds, that:
·all reasonable steps have now been taken by the respondent to identify and locate all documents which fell within the scope of the applicant’s request for access under the FOI Act, dated 11 December 2009, and which were in its possession on that date;
·in addition to the documents which were identified as falling within the scope of that request by the primary decision maker on 17 December 2009 (see paragraph 16 above) and by the internal review decision maker (Ms Smiley) on 16 February 2010 (see paragraph 19 above), the following documents also fell within the scope of that request:
- the “electronic file note dated 22 September 2009” referred to in subpara 20a of Ms Smiley’s affidavit of 30 March 2011;
- the “electronic record of a request for advice dated 11 December 2009” referred to in subpara 20c of Ms Smiley’s affidavit of 30 March 2011;
- “the 2009 email” and “the electronic records” referred to in paras 8–12 of Ms Smiley’s affidavit of 31 August 2012;
- Department of Immigration and Citizenship (“DIAC”) files CLF2005/4528 and CLF2009/111874 referred to in paras 4 and 17–18 of Ms Smiley’s affidavit of 30 March 2011;
·no other document falling within the scope of that request was in the respondent’s possession as at the date of that request.
As regards the “electronic file note dated 22 September 2009” and the “electronic record of a request for advice dated 11 December 2009” referred to in para 20 of Ms Smiley’s affidavit of 30 March 2011, the Tribunal determines that access to those documents should be given to the applicant pursuant to the FOI Act. The Tribunal notes that a copy of each of those documents was provided to the applicant in the form of an annexure to Ms Smiley’s affidavit of 30 March 2011 which was served on him by the respondent for the purpose of this proceeding.
As regards “the 2009 email” and “the electronic records” referred to in paras 8–12 of Ms Smiley’s affidavit of 31 August 2012, the Tribunal notes and accepts the information provided in that affidavit to the effect that:
·on 11 April 2012 the applicant made a further request to the respondent for access to documents pursuant to the FOI Act;
·on 12 July 2012 Ms Smiley made an internal review decision under the FOI Act that “the 2009 email” and “the electronic records” fell within the scope of that request but that each of those documents was an “exempt document” under s 42 of the FOI Act in that it was subject to legal professional privilege.
It was, of course, open to the applicant to make a timely application to the Tribunal for review of Ms Smiley’s internal review decision of 12 July 2012 but the Tribunal is unaware as to whether he has done so. In any event, Ms Smiley’s internal review decision of 12 July 2012 is not before the Tribunal in the present proceeding. In these circumstances, it is not appropriate for the Tribunal, in this proceeding, to make a determination as to whether access to any of those documents should be given to the applicant pursuant to the FOI Act.
Finally, as regards DIAC files CLF2005/4528 and CLF2009/111874 relating to the applicant, the Tribunal finds, on the basis of paras 10–11 of Ms Smiley’s affidavit of 30 March 2011, that:
·the respondent returned those files to DIAC on or about 16 December 2009;
·on 16 December 2009 the respondent notified DIAC of the applicant’s request of 11 December 209 for access to documents under the FOI Act and sought to transfer that request, insofar as it related to documents on the abovementioned DIAC files, to DIAC pursuant to s 16(1) of the FOI Act.
The Tribunal infers (in the absence of any evidence to the contrary) that that transfer was made with the agreement of DIAC (as required by s 16(1) of the FOI Act).
The Tribunal notes that:
·the respondent, by letter dated 16 December 2009, informed the applicant of that transfer in accordance with s 16(4) of the FOI Act (T21 – see paragraph 15 above);
·pursuant to s 16(5) of the FOI Act, following that transfer, the applicant’s request for access to documents in the DIAC files is taken to have been made to DIAC on 11 December 2009.
The Tribunal also notes that, in any event, on 14 December 2009 the applicant made a request to DIAC for access to documents under the FOI Act in broad terms similar to the terms of his request of 11 December 2009 to the respondent, and that that request is the subject of a separate review application by the applicant to the Tribunal (No 2010/4007) which was heard by the Tribunal at the same time as the present matter.
Decision
For the above reasons, the Tribunal varies the decision under review by determining that access to the document referred to as "electronic file note date 22 September 2009" and the document referred to as "electronic record of a request for advice dated 11 December 2009” in para 20 of Ms Smiley's affidavit of 30 March 2011 (Exhibit R1) be given to the applicant pursuant to the FOI Act. In all other respects the decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ........................[sgd].........................................
Administrative Assistant
Dated 22 January 2013
Date of hearing 17 December 2012 Applicant Self-represented Representative of the Respondent Mr A Gerrard
Office of the Australian Government Solicitor
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