Von Eimin and Centrelink - FOI - [2002] AATA 710

DECISION AND REASONS FOR DECISION [2002] AATA 710

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/458

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ADOLF VON EIMIN
  Applicant
           And    CENTRELINK - FOI
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date12 August 2002
PlaceAdelaide

Decision      For the reasons giving orally at the Hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
FREEDOM OF INFORMATION – request for benefit payment records – whether records exist for period in question

Freedom of Information Act 1982 sections 11, 24A, 37, 50, 51

REASONS FOR DECISION

12 August 2002 Senior Member WJF Purcell

This is an application for review of a decision of a delegate of the respondent (the Department) of 1 September 2001, as affirmed by an Authorised Review Officer on 15 November 2001, to reject the applicant's request for amendment of Centrelink records, subject to section 50 of the Freedom of Information Act 1982 (the Act).
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the parties. The applicant appeared on his own behalf and gave oral evidence. Mr Kilderry represented the Department, and called Mr Belcher, Centrelink's Freedom of Information Officer, as a witness.
Section 24A of the Act provides:
"An agency or Minister may refuse a request for access to a document
if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i)is in the agency's or Minister's possession but cannot be found; or
(ii)does not exist."
Section 50 of the Act provides:
"(1)Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b)the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a)by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i)specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii)in a case where the agency or Minister is satisfied that the information is out of date - setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2) (a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment."
Section 51 of the Act provides:
"(1)Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must:
(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A (c); and
(b)subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.
(2)Paragraph (1) (b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
(3)For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided."
The applicant, who is 49 years of age, was born in Switzerland. He obtained a degree in Technology of Mining Products, and worked as a Mine Production Engineer in Bulgaria before he migrated to South Australia in 1981. He moved to Western Australia in 1984 and returned to South Australia in April/May 1985.
At birth and when he worked in Western Australia, the applicant's name was Veniamin Konstantin Brankov. He later changed his name to Veni Adolf Veneimin and on 12 December 2000, a South Australian Change of Name Certificate was issued evidencing that he changed his name to Adolf Von Eimin [Exhibit A1]
On 7 July 2000, the applicant attended a Centrelink office and said that he required proof that he had not worked since 1986. On 31 July 2000, a Departmental letter to the applicant reads, in part:
"We have been asked to confirm the period of time the abovenamed has been in receipt of Centrelink payments. According to Centrelink records the above named was granted a Newstart payment from 19/6/90 and continued to receive this payment till 17/6/91. He then claim[ed] Parenting Payment partnered from 6/7/95 up to the 21/10/99 where he claimed a Parenting Payment single – this payment is current at this point in time. To the best of our knowledge the above named had nil income.
…"
The applicant provided then a letter to Centrelink stating that he requires the information about the length of time he was in receipt of benefits from 1982 onwards.
On 30 September 2001 the applicant made a request, under the Act, for information pertaining to payments for the periods 22 February 1984 to 8 July 1984, 27 April 1985 to 11 September 1985, and 18 June 1991 to 2 February 1992.
On 5 October 2001 a printout of a Payment History was provided to the applicant for the years 1991/92, which indicated that he was paid for the period 18 June 1991 to 2 February 1992. Information confirming payment for the periods 22 February 1984 to 8 July 1984, and 27 April 1985 to 11 September 1985 could not be located. On the same day, the delegate placed a document on the applicant's computer records in relation to the missing periods, indicating the applicant had stated that he was on unemployment benefits during the periods [T23].
On 15 October 2001, a request for review of that decision was made and on 15 November 2001, the Authorised Review Officer responded, in part:
"…
I accept that from the information you provided, it is most likely that you were in receipt of payments during the periods stated. It is unfortunate that there is not a Benefit History record in existence which confirms this, however it is most likely the case. It is also unfortunately not possible to reconstruct the U&SB payment history record to reflect the receipt of the payments, because the detail cannot be ascertained or proven.
I have examined the computer record currently in existence and I am satisfied that Mr Jarrett has included a document which states that you believe that you were in receipt of payments for the periods listed above. The document provides adequate information about the dates and clearly states your view of the situation. This is the only possible outcome for your request and application for review, unless there is any further information you would like to see documented. …" [T19]
A further search was undertaken and it was confirmed by a letter from Mr Belcher, Centrelink's Freedom of Information Officer, on 3 April 2002 that the applicant was paid benefit for the period 27 April 1985 to 11 September 1985 under the name of Veniamin Brankov, whilst living in Kalgoorlie, Western Australia. The letter reads, in part:
"…
I have conducted another search of your entire Centrelink record, including searches of Microfiche held both in South Australia and Western Australia for any records about you for the periods 22/02/1984 – 08/07/1984 and 27/04/1985 – 11/09/1985 under the following names that you have used:
          Adolf VON EIMIN
          Veni VENEIMIN
          Veni-Adolf VENEIMIN
          Veniamin BRANKOV
I have managed to locate the following documents confirming that you were paid benefits under the name of Veniamin Brankov over the following periods from 1983 - 1986.
1983/4 USB Tax History Master file Western Australia – No Record of Payment
1984/5 USB Tax History Master file Western Australia 9 May 1985 – 20 June 1985
1985/6 USB Tax History Master file Western Australia 4 July 1985 – 12 September 1985
1983/4 USB Tax History Master file South Australia 1 July 1983 – 21 Feb 1984
1984/5 USB Tax History Master file South Australia No Record of Payment
1985/6 USB Tax History Master file South Australia 26 September 1985 – 19 June 1986
Copies of the relevant extracts form [sic] the Microfiche are enclosed.
I can now confirm you were paid unemployment benefit for one of the periods in question.
          27 April 1985 – 11 September 1985
You were paid under the name of Veniamin Brankov at the Kalgoolie office in Western Australia from 9 May 1985 to 12 September 1985.
I apologise on behalf of Centrelink for being unable to locate the documents earlier, however we were unaware that you had claimed benefits in Western Australia under the name of Brankov at the time in question as the different states maintained separate records at that time.
I have been unable to find any record of you having been paid benefits for the period 22 Feb 1984 – 8 July 1984 on any of Centrelink's Microfiche, here or in Western Australia.
However, when a Centrelink customer is partnered, payments may be paid to either member of the couple depending upon which one lodged a Centrelink Claim. The details of payments made would only be available on the record of the person who lodged the claim and not on the partners record.
…" [Exhibit R1]
The Department contends that section 11 of the Act provides a person with a legally enforceable right of access to all documents held in relation to the person; that section 37 of the Act provides an exemption where the release of the document could reasonably be expected to endanger the life or physical safety of any person. It contends also that all reasonable steps have been taken to locate documents relating to the applicant's request, and therefore as they cannot be found, or do not exist, they cannot be provided, in accordance with section 24A of the Act.
The applicant emigrated from Romania in 1981, and he gave evidence that, with the exception of a 9-month period between 9 July 1984 and 27 March 1985 when he was a labourer in a mine in Kalgoorlie, Western Australia, he has been in receipt of unemployment benefits. In his letter, he asserts also that during the period in question, his wife and son were his dependants and the Departmental cheques were in his name.
In his letter to Centrelink of 4 August 2000 the applicant stated that he was employed from 9 July 1984 to 26 April 1985 [Exhibit A3]. In his resume dated 9 June 1985 [Exhibit A2], however, he states that he was employed by Kalgoorlie Mining Association as an underground labourer from 27 March 1984 to 26 April 1985, a period of some 14 months. One would expect that his resume completed on 9 June 1985, less than 2 months after he ceased work at the mine, would be more accurate that his memory some 17 years later in 2002. Obviously, if he was in employment from 27 March 1984 to 26 April 1985, this would explain why there is no record of his receiving unemployment benefit between 22 February 1984 and 8 July 1984.
In any event, I accept Mr Belcher's evidence that every available search has been conducted, and accept also Mr Belcher's conclusion that in those circumstances the applicant had not received unemployment or sickness benefits in his name or under the names of Von Eimin, Veneimin, Konstantinov or Brankov for the period 22 February 1984 to 8 July 1984.
I am satisfied on the evidence that all reasonable steps have been taken to locate the documents relating to the applicant's request, and I am satisfied, in accordance with section 24A(b)(ii) of the Act, that the document recording payment of unemployment or sickness benefit to the applicant for the period 22 February 1984 to 8 July 1984 does not exist.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date of Hearing  12 August 2002
Date of Decision  12 August 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr R Kilderry
Solicitor for the Respondent    Admin Law Team