WAGDY HANNA and COMMONWEALTH OMBUDSMAN

[2009] AATA 481

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 481

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5112

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WAGDY HANNA

Applicant

And COMMONWEALTH OMBUDSMAN

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date30 June 2009

PlaceCanberra

Decision The decision under review is varied to the extent that access is granted to additional parts of Document 11 as set out in paragraph 16 of these reasons.

........(Signed)............................

Mr S. Webb, Member

CATCHWORDS

FREEDOM OF INFORMATION - searches - adequate searches conducted - irrelevant material – internal working documents – personal information of another party - decision varied

Freedom of Information Act 1982 ss 22, 24A, 36 and 41

Archives Act 1983

REASONS FOR DECISION

30 June 2009 Mr S. Webb, Member         

1.      This matter has a long and unfortunate history. Wagdy Hanna is an architect. In the course of his professional work, he lodged tenders for work, including with the National Library of Australia. That tender was not successful and Mr Hanna was unhappy with the process and the outcome, alleging breach of his intellectual property. He complained to the Commonwealth Ombudsman. The Ombudsman commenced an investigation into the complaints. Years passed. Mr Hanna perceived difficulties with the investigation and was concerned about the lack of clear resolution of his complaint. He lodged a request for access to information under the Freedom of Information Act 1982 (the FOI Act).[1] The Ombudsman asked him to narrow the scope of his request. No agreement was reached. Years passed.

[1] The document is not in evidence in these proceedings, having been dealt with in Mr Hanna’s previous application. The content is recorded in Re Hanna and Commonwealth Ombudsman [2008] AATA 562 at [3]. T4 and T5 refer.

2.      Mr Hanna attempted to reactivate his request, with the result that his request was refused on the grounds that it would require the unreasonable diversion of resources.[2] He applied to the Tribunal for review. I dealt with that application in Re Hanna and Commonwealth Ombudsman [2008] AATA 562: the tribunal had no jurisdiction as Mr Hanna had not applied for internal review. With the agreement of the Ombudsman, Mr Hanna requested an internal review and agreed to narrow the scope of his original request.[3] A number of documents were identified. The internal review officer decided that some of these documents, in whole or in part, were exempt under various sections of the Act.[4] Mr Hanna was not happy with this result, and he was convinced that additional documents existed that had not yet been identified or assessed. He again applied for review by the Tribunal.[5]

[2] T6 and T7 refer.

[3] T10.

[4] T12 and T13.

[5] T2.

3.      Prior to the hearing in these proceedings, the Ombudsman and Mr Hanna requested the tribunal to alter the decision under review in order to permit additional documents and parts of documents to be released. This was done.

4.      In sum, nine documents remain in dispute. The documents were handed up during the hearing and I ordered that access to them be restricted to members and relevant staff of the tribunal and relevant officers and representatives of the respondent.[6] 

[6] Exhibit R1.

5.      The issues for determination, therefore, are whether adequate searches have been conducted and whether the claimed exemptions in respect of the nine remaining documents are made out.

searches

6.      Mr Hanna asserts that a file concerning him has not been identified or included in the searches: Review File 2002-1778484.[7] This file, he says, contains information within the scope of his request. Mr Hanna also asserts that the documents released to him refer to other relevant documents that have not been identified or found in the searches conducted by the Ombudsman and have not been released to him. In Mr Hanna’s submission further searches should be conducted and the Ombudsman should be compelled to locate and address the contents of the missing review file.

[7] Exhibit A3 refers

7.      Mr Hanna’s submissions are not made out.

8.      In the course of proceedings I granted an adjournment in order to allow the Ombudsman to put on evidence concerning document storage and archiving procedures, and the searches that had been conducted in response to Mr Hanna’s request. Mr Coughlan provided an affidavit[8] and gave oral evidence. His evidence is that Review File 2002-1778484 was created in 2002 as a fresh matter, but was later relabelled as a part of Mr Hanna’s previously existing file: file 1999-20828. I examined the physical file in the course of the hearing and I am satisfied that the relabelling occurred as suggested by Mr Coughlan – the old label is visible under the more recent label. It appears, on Mr Coughlan’s evidence, that the electronic file records were also amended and a notation was recorded of the deletion of file 2002-1778484. I accept Mr Coughlan’s evidence and find that file 2002-1778484 was relabelled as a part of file 1999-20828 and electronic records were updated accordingly. It follows that there is no missing file as alleged by Mr Hanna.

[8] Exhibit R2.

9.      I note in passing that Mr Phillip Moss, a former Senior Assistant Ombudsman with responsibility for dealing with Mr Hanna’s matter in 2004, was called to give evidence by Mr Hanna. It is not surprising that Mr Moss could not recall the particular file number references or documents after the passage of several years. Nevertheless, Mr Moss gave evidence that he recalled a file concerning Mr Hanna’s matter being in existence in 2004 when he left the Ombudsman’s office, and that at that time Mr Hanna’s matter had not been concluded.[9] To that extent Mr Moss’ evidence is consistent with Mr Coughlan’s evidence.

[9] Exhibits A1 and A2 refer.

10.     With regard to Mr Hanna’s assertions concerning the existence of documents referred to in documents that have been released, the Ombudsman says that either no such documents presently exist or if they exist they cannot be found. I accept that submission on the basis of the sworn evidence given by Ms Agostino and Mr Coughlan concerning the searches that have been conducted for physical documents and electronic records. I am satisfied that those searches were proper, thorough and adequate. To go further would require the Ombudsman to audit all files, and such action is not reasonable in the circumstances. It follows for the purposes of s24A of the Act that this aspect of Mr Hanna’s request will be refused: all reasonable steps have been taken to find the documents that Mr Hanna asserts must exist and those documents either do not exist or cannot be found. I so find.

11.     I understand Mr Hanna’s consternation and sense of frustration concerning this matter, and I note his submissions dated 2 March 2009. His primary concern, oft repeated, is to obtain a clear decision and associated reasons in relation to the investigation of his original complaint. He says that no such decision or reasons have been provided to him in 10 years, even though he was informed many years ago in 2002 that the investigation was nearing completion.[10] It is reasonable to expect that a complainant such as Mr Hanna would be entitled to an explanation of the outcome of the investigation into his complaint. Nevertheless, it is not for me to comment upon the course or conduct of the investigation into Mr Hanna’s complaint.

[10] See Exhibit A2.

12.      It appears that Mr Hanna requested that his records be retained rather than destroyed in the usual manner under the Archives Act 1983, although it is not clear when that request was made. Mr Coughlan’s evidence is that Mr Hanna’s files were sentenced under the archive procedures to be retained permanently as his matter was under review. I accept that evidence.

13.     Mr Hanna may well be correct in his assertion that more documents must have been created and filed than those identified thus far in searches. For example, Document 64 contains icons for electronic documents that have not been identified in the searches. Mr Hanna also pointed to other document references in Documents 12, 66 and 69 and, generally, in other documents that have been released. On that basis, it can be accepted that some of the released documents point to the existence of other documents at some point in time. Whether or not those documents presently exist and, if so, their present whereabouts is far from clear. On the present evidence, all that can be said is that if such documents existed at some time in the past, they were not identified or found in the searches conducted in response to Mr Hanna’s request. Searches conducted for the purposes of these proceedings did not identify any further relevant documents. Mr Hanna’s submissions about the existence or the whereabouts or the fate of any such documents are speculative and do not persuade me that any further searches are reasonably required or justified.

14.     It follows that Mr Hanna’s request for access to documents other than those that have been identified in the searches that have been conducted are appropriately refused pursuant to s 24A of the Act.

exemptions

15.     The nine documents remaining in dispute are documents 11, 12, 65, 66, 67, 68, 69, 71 and 74 of file F/2005-2394479. All but documents 71 and 74 have been released with deletions.

16.     Document 11 is a minute concerning complaints about a tendering process. One paragraph is claimed to be exempt under s22, s36 and s41. The paragraph in question concerns a third party. I accept that the name of the third party is irrelevant to Mr Hanna’s request and may therefore be deleted pursuant to s22 of the Act. I am not persuaded, however, in the context of the parts of this document that have already been released, that the remaining words in the paragraph are exempt under either of s36, concerning internal working documents, or s 41, concerning personal information. The remaining words are not properly characterised as internal working documents or personal information of another party. Thus, I am satisfied that the only words in the last paragraph of point 5 that are exempt from release are those immediately following the word ‘suggestion’ in the first line and immediately preceding the word ‘that’ in the second line of that paragraph.

17.     Documents 12, 65, 66, 67 and 68 are file notes. The parts of the documents claimed to be exempt from release are simply references to a third party and associated third party information. These, I am satisfied, are irrelevant to Mr Hanna’s request and may be deleted under s22 of the Act.

18.     Document 69 is in the form of two tables. The first table comprises 4 pages and is headed “Complaint by Wagdy Hanna & Associates”. The only part of this table that is claimed to be exempt is one reference to a third party in the first line of row 3, column 2 on page 2. I accept that the reference to a third party is outside the scope of Mr Hanna’s request; it is irrelevant to Mr Hanna’s request and may be deleted.

19.     The second table comprises 3 pages and is headed “Complaint by UStow-It”. It appears that this table refers to a complaint by a third party of a similar character to the complaint made by Mr Hanna.  Nevertheless, this material is outside the scope of Mr Hanna’s request and I am reasonably satisfied that it can reasonably be regarded as irrelevant to the request for the purposes of s22 of the Act. It appears, however, this table has been released with only two deletions: references to a third party in the first line of row 3, column 2 on page 2 and the first line of row 1, column 1 on page 3. It appears that the table was released in error. The error does not render the remaining parts of the document, small as they are, within the scope of Mr Hanna’s request. Releasing these references would merely perpetrate the error that has been made. The references are not relevant to Mr Hanna’s request. The references, therefore, are to be deleted pursuant to s22 of the Act.

20.     Documents 71 and 74 make no reference to Mr Hanna, being documents relating to a third party. No explanation has been given as to why they were located on Mr Hanna’s file. I am satisfied that these documents, reasonably considered, are irrelevant and are outside the scope of Mr Hanna’s request.

conclusion

21.     It follows that the decision under review must be varied to the extent that additional parts of Document 11 are to be released as specified in paragraph 16 of these reasons.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ...................(Peter Strauch).....................
  Associate

Date of Hearing  30 April 2009 and 17 June 2009
Date of Decision  30 June 2009
Applicant  Self represented
Solicitor for the Respondent        Julia Agostino
  Commonwealth Ombudsman