"WAU" and CEO, Commonwealth Services Delivery Agency (Centrelink) - [2001] AATA 862

DECISION AND REASONS FOR DECISION [2001] AATA 862

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/229

GENERAL ADMINISTRATIVE DIVISION       )
           Re      "WAU"
  Applicant
           And    CHIEF EXECUTIVE OFFICER, COMMONWEALTH SERVICES DELIVERY AGENCY (CENTRELINK)
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member

Date15 October 2001
PlacePerth

Decision      The Tribunal has no jurisdiction in this matter and the applicant's Application for Review lodged with the Tribunal on 14 July 2000 is therefore dismissed.
  ...........(sgd S D Hotop).........
  Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – applicant requested access to documents under Freedom of Information Act 1982 ("FOI Act") – applicant did not receive notice of decision on request for access – applicant requested internal review of alleged "decision" on request for access – whether a decision that is reviewable by Administrative Appeals Tribunal under FOI Act.

Freedom of Information Act 1982 – ss11(1), 15(1), 54, 55

REASONS FOR DECISION

15 October 2001 Associate Professor S D Hotop, Senior Member

Background

By letter dated 23 November 1999 addressed to the Chief Executive Officer, Centrelink ("the respondent") and "WAU" ("the applicant") made the following request under the Freedom of Information Act 1982 ("FOI Act"):
"Please provide me with copies of any correspondence or any other documents, including notes, annotations, working or draft documents, records of phone calls or conversations, electronic, or any other type of communications, located at Centrelink's Canberra Office, Area Office, or anywhere else, of any possible relevance to:
(1)the investigation, referred to in your recent undated correspondence received on 10 November 1999, including full details of the evidence considered, the outcome of the investigation, and any recommendations.
(2)the decision to terminate my employment before such investigation was completed.
(3)the direction and delegation exercised by Mr Plant in his actions referred to in his correspondence to the Merit Protection and Review Agency dated 4 June 1999.
(4)all matters since my original correspondence to you dated 11 December 1998.
(5)any other matters in any way related to me.
(6)Also, please provide me with a copy of the 'administrative instructions' and 'directions in relation to the exercise of powers conferred on Secretaries by this Division' as stated in Section 76X of the Public Service Act 1922."
By letter dated 22 December 1999 the respondent notified the applicant that, inter alia, his abovementioned request for information had been forwarded to the Freedom of Information Officer, Centrelink.
On 7 January 2000 - by which date the applicant had not received notice of a decision on his abovementioned request for information - the applicant lodged with the Tribunal an Application for Review (No W2000/8) of a deemed decision refusing to grant access to that information.
In accordance with a Deed of Agreement dated 19 January 2000 between the applicant and the Commonwealth of Australia, the applicant withdrew Application for Review No W2000/8.
By letter dated 21 June 2000 addressed to the FOI Review Officer, Centrelink Compliance Office, the applicant requested an internal review of "the decision to provide me with no documents relevant to my 23 November 1999 FOI request, given the statement that 'Centrelink has provided you with all documents you requested under the Freedom of Information Act 1982'." The latter quoted statement appears in a letter dated 26 May 2000 from Gary Kent, Chief of Staff, Office of The Hon Larry Anthony MP, Minister for Community Services to the applicant responding, on behalf of the Minister, to two letters dated 4 April 2000 and 17 April 2000 written by the applicant.
By letter dated 5 July 2000 Ian Guthrie, FOI Review Officer, Centrelink Compliance Office responded to the applicant's abovementioned request for an internal review as follows:
"I refer to your 21 June 200 (sic) letter, and subsequent conversations you have had with Evlyn Greif of this office.
As the WA FOI review officer, my role is to review decisions made under the Act in WA. However I am not able to ascertain what decision you are requesting me to review. Mrs Greif has shown me the facsimiles you sent of documents signed by Gary Kent, of the office of the Minister for Community Services, and Marie Assenza of the People Management Team in Canberra. I understand that the FOI team in Canberra is currently responding to a request that you have made. I have had no involvement in these matters, and the most appropriate course of action for me is to refer your letters directly to the officers concerned. This I have done, and you will be contacted by the appropriate officers shortly."
On 14 July 2000 the applicant lodged with the Tribunal an Application for Review of Decision. In that Application 2 "decisions" were specified as the subject of the Application. Those 2 "decisions" were described by the applicant in the Application as follows:
"1. Centrelink decision of 14/1/2000:
'Centrelink has provided you with all documents you requested under the Freedom of Information Act 1982'
with respect to an FOI application dated 23/11/99.
2.Decision by FOI Review Officer dated 5/7/2000."

In an accompanying document headed "Reasons for Application" the applicant elaborated on the former "decision" as follows:

"That decision was made by Centrelink in a document by Ms Assenza dated 14 January 2000 stating at point 3 'The Respondent granted the Applicant full access to the documents he requested under Freedom of Information.' This decision was reiterated in 26 May 2000 correspondence, on behalf of Centrelink, as 'Centrelink has provided you with all documents you requested under the Freedom of Information Act 1982'."

At the hearing of this matter before the Tribunal, the applicant appeared in person without representation, and the respondent was represented by Mr S Ellis, a Centrelink advocate. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered by the applicant (numbered A1 - A16). There were no witnesses.
The Relevant Legislation
The relevant provisions of the FOI Act are as follows:
"PART III – ACCESS TO DOCUMENTS
Right of access
11. (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.
…
Requests for access
15. (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.
…
PART VI – REVIEW OF DECISIONS
…
Internal review
54. (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
(c)a decision to defer the provision of access to a document; or
(d)a decision under section 29 relating to imposition of a charge or the amount of a charge; or
(e)a decision under section 30A relating to remission of an application fee; or
(f)a decision to grant access to a document only to a qualified person under subsection 41(3); or
(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48;
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.
(1A) The application must be made:
(a)in the case of a decision of a kind mentioned in paragraphs (1)(a),(c), (d), (e), (g) and (h) – within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
(b)in the case of a decision of a kind mentioned in paragraph (1)(b), (ba) or (f):
(i)within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
(ii)within 15 days after the day on which the access referred to in that paragraph was granted;
whichever period is longer.
(1B) A decision by an agency to allow a further period for making an application may be made whether or not the time for making such an application has already expired.
…
Applications to Administrative Appeals Tribunal
55.(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
(b)a decision to defer the provision of access to a document; or
(c)a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or
(d)a decision under section 29 relating to imposition of a charge or the amount of a charge; or
(e)a decision under section 30A relating to remission of an application fee; or
(f)a decision to grant access to a document only to a qualified person under subsection 41(3); or
(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
(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.
…".

The word "request" is defined in s4(1) to mean "an application made in accordance with subsection 15(1)".
Consideration and Findings

The applicant made extensive written submissions in support of his Application for Review, many of which are not relevant for present purposes. In the Tribunal's opinion, those submissions made by the applicant which are relevant for present purposes may be summarised as follows:-

the applicant made a request to the respondent for access to documents under the FOI Act on 23 November 1999;
a decision was made by Ms Assenza on 14 January 2000 that:
"The Respondent granted the Applicant full access to the documents he requested under Freedom of Information"
and that decision constituted "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", within the meaning, and for the purposes, of,s54(1)(ba) of the FOI Act;
the applicant's request for an internal review, dated 21 June 2000, was not made within the time prescribed by subs (1A) of s54 of the FOI Act, but the respondent had, pursuant to subs (1B) of that section, allowed him a further period for making that request;
on 5 July 2000 the FOI Review Officer, Centrelink Compliance Office, made a decision on internal review which "satisfies the requirements of s55(2)" of the FOI Act;
the "Centrelink decision of 14 January 2000 is clearly a decision reviewable by the AAT in accordance with s55(1)(ab)" of the FOI Act.

Did Ms Assenza make a decision on 14 January 2000 that is reviewable under the FOI Act?

The statement by Ms Assenza, namely,
"The Respondent granted the Applicant full access to the documents he requested under Freedom of Information"

which the applicant submitted was "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", within the meaning of ss54(1)(ba) and 55(1)(ab) of the FOI Act, appears in a document (Exhibit A8) headed

"OUTLINE OF RESPONDENT'S ARGUMENTS IN RESPONSE TO THE APPLICATION"

in relation to a matter in the Australian Industrial Relations Commission between the applicant and Centrelink involving an application by the applicant to the Commission under s170CE of the Workplace Relations Act 1996. That document, which comprises 3 pages, is dated 14 January 2000 and bears the signature of Marie-Antoniette Assenza, People Management Team, National Support Office, Centrelink, Canberra. The abovementioned statement appears in paragraph 3 on page 3 of that document as one of a number of statements made in response to "the specific points raised by the Applicant". Paragraph 3 on page 3 of that document states in full:

"3.The Respondent refutes that Centrelink withheld documents from the Applicant. The Respondent granted the Applicant full access to the documents he requested under Freedom of Information."

Clearly, the above-quoted statement by Ms Assenza in the abovementioned document dated 14 January 2000 does not constitute a decision on a request for access to documents under the FOI Act. That statement, as the abovementioned context makes clear, was nothing more than a response on behalf of Centrelink to a specific point made by the applicant for the purposes of an application by him to the Australian Industrial Relations Commission under s170CE of the Workplace Relations Act 1996.
The Tribunal finds, therefore, that the statement
"The Respondent granted the Applicant full access to the documents he requested under Freedom of Information"

in paragraph 3 on page 3 of the abovementioned document dated 14 January 2000 (Exhibit A8) does not constitute a decision on a request for access to documents under the FOI Act, and, more specifically, does not constitute "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", within the meaning of ss54(1)(ba) and 55(1)(ab) of the FOI Act. Accordingly, that statement by Ms Assenza does not constitute a decision that is reviewable under the FOI Act.
Did Mr Guthrie, FOI Review Officer, Centrelink Compliance Office, make a Decision on 5 July 2000 that is reviewable under the FOI Act?

Although Mr Guthrie's letter of 5 July (T1, p3) – the text of which was set out in paragraph 6 above – was written in response to the applicant's request for an internal review under s54 of the FOI Act, it does not, in terms, constitute or represent a decision made on such a review. Nor does it, in substance, constitute or represent such a decision. The Tribunal finds, therefore, that Mr Guthrie's letter of 5 July 2000 does not constitute or represent a decision that is reviewable by the Tribunal under s55 of the FOI Act.
Conclusion
The conclusion of the Tribunal is, therefore, that neither of the matters specified by the applicant as the subjects of his Application for Review lodged with the Tribunal on 14 July 2000 is a decision which is reviewable by the Tribunal under the FOI Act and, accordingly, the Tribunal has no jurisdiction to deal with that Application for Review.
Decision
The Tribunal has no jurisdiction in this matter and the applicant's Application for Review lodged with the Tribunal on 14 July 2000 is therefore dismissed.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Signed:
.................................(sgd S Railton)................................
Associate
Date/s of Hearing  22 November 2000 and 21 February 2001
Date of Decision  15 October 2001
Counsel for the Applicant        In person
Solicitor for the Applicant
Counsel for the Respondent    Mr S Ellis
Solicitor for the Respondent    Advocacy and Admin Law Team, Centrelink

Actions

Download as PDF Download as Word Document

Citations

"WAU" and CEO, Commonwealth Services Delivery Agency (Centrelink) [2001] AATA 862

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0