Way and Centrelink

[2007] AATA 2076

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2076

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N  2006/0651

GENERAL ADMINISTRATIVE DIVISION		)
Re		CAMERON WAY

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date20 December 2007

PlaceArmidale

Decision

The Administrative Appeals Tribunal:

· Has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints that Centrelink deliberately delayed making a decision in response to his FOI request.

·     Affirms the decision of Centrelink that Mr Way was provided with his complete Centrelink file.

....................[sgd]..........................

Ms N Isenberg, Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – reviewable decision – jurisdiction of the Administrative Appeals Tribunal – documents already produced – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 – section 25
Freedom of Information Act 1982 – sections 55, 56

CASE LAW

Apple and Pear Australia Limited and Department of Agriculture Fisheries and Forestry [2004] AATA 1368
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138

REASONS FOR DECISION

20 December 2007 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1.      A deemed refusal by Centrelink to provide Mr Way with documents by its failure to respond to a request for access to personal records within the legal time frame of 30 days under the Freedom of Information Act 1982 (‘the FOI Act’).

BACKGROUND

2. It was not disputed that, on or about 1 March 2006, Mr Way lodged an application to access personal documents held by Centrelink under the FOI Act, although Centrelink has no record of the application.

3.      On 25 May 2006, when no response had been received, Mr Way lodged the present application for review on the basis that Centrelink had failed to comply with his request for access to personal documents within 30 days.

4.      Upon receiving the application for review, steps were taken by Centrelink to provide Mr Way with his personal documents, and on 19 June 2006 Mr Way was provided with his documents.

LEGISLATION

5. Section 56 of the FOI Act relevantly provides as follows:

56 Application to Tribunal where decision delayed

(1) Subject to this section, where:

(a) a request has been made to an agency or Minister in

accordance with section 15; and

(b) the period of 30 days, in relation to the request, mentioned

in paragraph 15(5)(b), or that period as extended under

subsection 15(6), has expired since the day on which the

request was received by or on behalf of the agency or

Minister; and

(c) notice of a decision on the request has not been received by

the applicant;

the principal officer of the agency or the Minister shall, for the

purpose of enabling an application to be made to the Tribunal

under section 55, be deemed to have made, on the last day of that

period, a decision refusing to grant access to the document.

…

(5) Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the

application, a decision is given, other than a decision:

(a) to grant, without deferment, access to the document in

accordance with the request; or

(b) to amend or annotate the record of personal information to

which the application relates;

the Tribunal may treat the proceedings as extending to a review of

that decision in accordance with this Part.

CONSIDERATION OF THE EVIDENCE

6.      In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

7.      Mr Way had two main concerns: 

Centrelink accountability

8. Firstly, Mr Way was concerned that there was a lack of accountability by Centrelink by its failure to comply with the 30 day timeframe specified in section 56 of the Act. He said that, as a Centrelink customer he was subject to ‘spot checks’ and had to comply immediately, but Centrelink was able to disregard the time limits required of it. He thought that, because he was becoming ‘politically dangerous’ because of agitation about youth and aged care affairs, the delay by Centrelink might have been to suppress his ability to continue his ‘whistleblower’ activities. He had ‘an intuition’ that his file might be tampered with during the period of the delay. Notwithstanding that Centrelink purported to provide his entire file, he said that the uncertainty remained. He said the stress had exacerbated his chronic fatigue syndrome.

9.      The Centrelink advocate conceded that, if Mr Way had lodged his FOI request on 1 March 2006 as alleged, then Centrelink had not complied with the legislation.  However, it was noted that a Centrelink FOI request form has a tear off receipt.  The request form could not be located despite extensive searches, and Mr Way had not produced the receipt.  The advocate noted that as soon as Centrelink became aware of the FOI request, as a result of the application for review to this Tribunal, the request was actioned and the following material was provided to Mr Way:

·Centrelink paper file, containing 42 (numbered) medical documents;

·Electronically held file notations from the On-line Document Recording (ODR) System. These are divided into current, historical & archived documents; and 

·Electronically held letter text from the On-line Advice (OLA) System.

10. Mr Way, in expressing his concerns about accountability, effectively asked me to review the decision ‘not to make a decision’ within the 30 day timeframe specified in the FOI Act.

11.     The Administrative Appeals Tribunal Act 1975 does not of itself set out the decisions that may be reviewed by the Tribunal. Instead, section 25, states that an enactment may provide for review of decisions made in the exercise of powers conferred under that enactment or conferred by an instrument such as rules, regulations or by-laws made under that enactment. The Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. The Freedom of Information Act does not provide for review as Mr Way requests.

12.     I accept that Mr Way has been frustrated with his dealings with Centrelink in the past and that Centrelink’s delay in responding to his FOI request no doubt further disappointed him.  However, as I discussed with Mr Way at the hearing, a timeframe for compliance of 30 days may not always be an adequate timeframe for large government agencies which hold a lot of material.  For example, the documents attached to the Respondent's statement of facts and contentions demonstrate the number of avenues that were explored in order to collate Mr Way's documents.

Is the file complete?

13.     Secondly, although Mr Way said his file appeared to be complete, he was concerned that there was no way to be sure.

14. In considering this aspect of his application, I needed also to be satisfied as to jurisdiction. The FOI Act enables me to review a decision subsequently made, albeit belatedly, in response to an FOI request, unless access has been granted to ‘the document’ sought: section 56(5). As Mr Way has raised whether the totality of the contents of his file have been provided, it is open to me to enquire whether any documents to which access should have been given do exist and whether there is any ground on which Centrelink might have denied access: Apple and Pear Australia Limited and Department of Agriculture Fisheries and Forestry [2004] AATA 1368.

15.     In response to Mr Way’s contention that his file may have been tampered with, the advocate said this would be revealed on examination of the computer records.  Not only is each member of Centrelink staff instructed to make a notation whenever a customer’s file is accessed but the computer automatically generates a record as to which officer has accessed the file, the date and time of the access and what part (‘screen’) of the file was accessed.  This is a security measure in order to preserve the integrity of the Centrelink data.  Mr Way then expressed concern that the Information Technology Department of Centrelink may have accessed his file.  The advocate restated that every time a record is accessed there is an automatic notation.

16.     Mr Way did not specify what documents he was seeking, nor did he assert what documents, if any, were missing from his file.  In fact, he conceded that his file appeared to be complete.

17.     The extent of the documents attached to the Respondent's statement of facts and contentions leads me to the view that Centrelink officers diligently extracted Mr Way’s personal documents and provided them to him: Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138. Furthermore, there was no evidence whatever that Mr Way’s Centrelink file had been tampered with.

DECISION

18.     The Administrative Appeals Tribunal:

· Has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints that Centrelink deliberately delayed making a decision in response to his FOI request.

·     Affirms the decision of Centrelink that Mr Way was provided with his complete Centrelink file.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER
Signed:         ...........[sgd].....................
  Associate

Date of Hearing  3 December 2007
Date of Decision  20 December 2007
Appearance for the Applicant        Self-represented
Appearance for the Respondent    Andrea Garcia