Webb and Chief Executive Officer, Services Australia (Freedom of information)

Webb and Chief Executive Officer, Services Australia (Freedom of information) [2021] AATA 1825 (21 June 2021)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/5077
Re:Gayle Webb
APPLICANT

AndChief Executive Officer, Services Australia
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:21 June 2021
Place:Sydney

The decision under review is affirmed.
........................[sgd]............................
Chris Puplick AM, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – Office of Australian Information Commissioner declined to undertake further review under 54W of the Freedom of Information Act 1982 (Cth) – remittal of decision under s 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – freedom of information decision under review by the Tribunal – whether respondent has taken all steps to find documents within the scope of the applicant’s freedom of information request – whether conditional exemptions in 47E and 47F of the Freedom of Information Act 1982 (Cth) properly applied – relevant documents provided by the respondent – conditional exemptions properly applied – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member

Ms Gayle Maree Webb (the Applicant) has been seeking the release of certain documents pertaining to her interactions with Services Australia (the Respondent) from that organisation under the provisions of the Freedom of Information Act 1982 (Cth) (the Act).
The Respondent, over a period of time and through a series of decisions, has released some documents to the Applicant, either in full or in part and has claimed that certain other documents being sought are either not in its possession or cannot be located.
The Applicant is dissatisfied with some of the initial decisions made by the Respondent, the manner of the release of certain documents, the redactions in others and the alleged absence of certain files.
The matter has been on foot since the Applicant’s original freedom of information (FOI) request was made on 8 October 2018 and has generated extensive correspondence between the parties. Several decisions were made by the Respondent, the most recent of which was on 22 February 2021.
Although the Applicant had appealed to the Tribunal on 21 August 2020 for a review of a decision by the Office of the Australian Information Commissioner (OAIC), circumstances, as explained below have overtaken that determination and the matter before the Tribunal is the 22 February 2021 FOI decision.
The matter came before the Tribunal for hearing on 1 June 2021 where the Applicant appeared in person and the Respondent on the Microsoft Teams platform.
It is necessary to set out a brief summary of those interactions and to address a matter of exactly what jurisdiction this Tribunal has to review various decisions which have been made through the process.
THE ORIGINAL REQUEST
By letter dated 8 October 2018, received by the Respondent on 18 October 2018, the Applicant made a request for access to certain documents. The parties engaged in some discussions which resulted in the Applicant submitting a revised request on 22 November 2018 (received by the Respondent on 27 November 2018) seeking access to the following documents:
(i)Whole Centrelink department files for customer reference number [redacted number] involving Gayle Maree Webb, from 1 January 2011 to 8 October 2018;
(ii)All over payment and debt documents generated by Centrelink for customer reference number [same redacted number] involving Gayle Maree Webb;
(iii)Copy of the last “debt screen” showing dates and values;
(iv)All Centrelink documents listing health conditions for customer reference number [same redacted number] involving Gayle Maree Webb;
(v)List of all concession student transport cards issued to customer reference number [same redacted number] involving Gayle Maree Webb for the period 1 February 2016 to 30 June 2016;
(vi)List showing Newstart and Austudy benefits dates commenced and end dates for the period 1 January 2011 to 8 October 2018 for customer reference number [same redacted number] involving Gayle Maree Webb;
(vii)List of recorded assets and savings accounts for customer reference number [same redacted number] involving Gayle Maree Webb for the period 1 January 2011 to 8 October 2018;
(viii)All ‘employment placement plans’, ‘Job Capacity Assessments’ (JCA) and ‘Employment Services Assessments’ (ESAs); and all call logs showing date, times and comments for calls made between the following three parties: Centrelink, Olympus Solutions and customer reference number [same redacted number] involving Gayle Maree Webb for the period 1 January 2015 to 23 November 2018;
(ix)All documents sent to and received from NSW Health, Queensland Health, the Commonwealth Bank and ANZ Banks for customer reference number [same redacted number] involving Gayle Maree Webb for the period 1 January 2011 and 1 July 2018; and
(x)All documents showing all tertiary and undergraduate university enrolments for customer reference number [same redacted number] involving Gayle Maree Webb for the period 1 January 2015 to 23 November 2018.
THE RESPONDENT’S RESPONSES
Section 15(2)(b) of the Act is cast in such a way as to ensure that requests for access to documents are sufficiently precise as to allow the Department to identify clearly what is requested. In the event that this precision is absent and the request is too unspecific, vague or voluminous, the Act empowers a decision-maker to refuse the request because it would be impractical for the decision-maker to meet the request as it stands (section 24AA(1)(b)).
On 11 December 2018, the Respondent made such a determination (a practical refusal).
The Applicant then sought the assistance of the OAIC which on 26 February 2019 notified the Respondent that a review of their practical refusal decision had been sought (section 54Z).
This triggered an “IC Review” (Information Commissioner Review) the result of which was that the Respondent made an offer under section 55F of the Act to process the Applicant’s request confined to items (2) to (9) of the request as set out above. On 27 March 2019, via the Information Commissioner, the Applicant rejected this offer.
On 14 October 2019 the Respondent made a revised decision (section 55G) and wrote to the Applicant advising that it had agreed to her request for release of documents[1] and was hence no longer relying on the previous practical refusal decision. It supplied the Applicant with access to 21 documents totalling some 807 pages. Some documents were supplied in full and others in part. On 22 October 2019, the OAIC advised the Respondent that the Applicant wished to pursue a further review of the section 55G decision.
[1] Tribunal Documents, revised Volume 2 at [2].
On 5 August 2020 the OAIC decided not to continue to undertake further reviews in this matter (section 54W decision) and advised the Applicant of her right to have the matter heard directly in this Tribunal.[2]
[2] Tribunal Documents, Volume 3 at [46].
On 21 August 2020 the Applicant lodged such an application with the Tribunal.
While all of this was proceeding within the framework of the Act, the Respondent had made an administrative decision to release certain documents to the Respondent. It did this on 23 April 2019 by sending a letter to the Applicant[3] which in part reads:
I refer to your request received by the Department of Human Services (department) on 18 October 2018 for access to documents, under the Freedom of Information Act 1982 (FOI Act), registered as LEX 40337.
In response to OAIC review MR19/00038, the department has identified some documents within scope of your FOI request LEX 40337 that can be released to you through the department's administrative access arrangements.
The department has identified the enclosed documents and released them to you through these administrative access arrangements.
[3] Tribunal Documents, Volume 1 at [60].
The Respondent had previously advised the OAIC of its intention to release these documents (18 April 2019) and subsequently advised that it would no longer rely on its practical refusal reasons to deny access to the Applicant.
Before the matter came for hearing in the Tribunal, there was further correspondence between the parties and a matter was brought to my attention requiring the holding of a directions hearing which took place on 29 January 2021. The Respondent advised the Tribunal that additional documents had been identified and so both parties applied for the matter to be remitted to the Respondent for further consideration under section 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
Consequently, on 1 February 2021, I remitted the matter, by consent of the parties, to the Respondent directing that a revised decision be made by or on 22 February 2021.
The Respondent made yet a further revised decision on 22 February 2021 that it would release to the Applicant, as part of its formal response to her FOI request, all the material which it had previously supplied (23 April 2019), plus some others which it had subsequently identified.
In all, it released 825 pages which it had identified in 24 documents[4] falling within items (2) to (9) of the original request.
[4] It had previously released 21 documents of some 897 pages.
These were contained in 7 documents to which access was granted in full and 17 documents to which access was granted in part.
The deletions/redactions from the 17 documents were of a highly limited nature, and all that was withheld was information which:
(1) would involve the unreasonable disclosure of personal information of other people and release would be contrary to the public interest (s 47F(1) of the Act);
(2)would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the Respondent and release would be contrary to the public interest (s 47E(d) of the Act);
(3) would or could reasonably be expected to have a substantial adverse effect on the management and assessment of personnel by the Respondent and release would be contrary to the public interest (s 47E(c) of the Act).[5]
[5] Respondent’s Statement of Facts, Issues and Contentions at [16b].
It should be noted that the material released on 22 February 2021 and that released on 23 April 2019 is in the main identical save only that there are 2 additional documents of some 18 pages in the February release.
The other formal difference is that the former constitutes a formal FOI release and the latter a release by administrative determination.
JURISDICTION
The Respondent has correctly set out the jurisdictional issues in this application. The Tribunal, with acknowledgement, restates them as presented.[6]
19. The Tribunal has jurisdiction to review the revised decision though the operation of s 57A(1)(b) of the FOI and s 42D(3)(a) of the AAT Act.
20. Pursuant to s 57A(1)(b) of the FOI Act the Tribunal had jurisdiction to review the s 55G decision made on 14 October 2019, which the OAIC found was inappropriate for review under s 54W(b) of the FOI Act. The s 55G decision was an “access refusal decision” (s 53A(b) of the FOI Act) which was an “IC reviewable decision” (ss 54K and 54L(2)(a) of the FOI Act).
21. On 1 February 2021, the Tribunal remitted the s 55G decision to the Respondent for reconsideration under s 42D(1) of the AAT Act. This resulted in the revised decision dated 22 February 2021, which varied the s 55G decision. Pursuant to s 42D(3)(a) of the AAT Act, the application before the Tribunal is now an application for review of the revised decision.
22. The decision under review is therefore the revised decision. The Tribunal’s task on review is to decide whether the revised decision is the correct or preferable decision and to either affirm, vary or set aside that decision: s 43 of the AAT Act.
[6] Respondent’s Statement of Facts, Issues and Contentions.
The only matter which now lies before this Tribunal for review is the decision of the Respondent dated 22 February 2021.
That decision has three elements:
(i)Item (1) of the Applicant’s original request;
(ii)Items (2) to (9) of the Applicant’s original request;
(iii)Item 10 of the Applicant’s original request.
Item (1) sought all details contained in the Respondent’s files specifically related to a CRN (customer reference number) in the name of the Applicant with a specified time period of 1 January 2011 to 8 October 2018.
The Respondent puts to the Tribunal that a great deal of material which was identified in this file was released to the Applicant and may be found within the 825 pages supplied both on 23 April 2019 and 22 February 2021.
It supports this with evidence in a Statutory Declaration sworn by Louise Hamilton dated 14 May 2021. Ms Hamilton is a long-serving and senior member of the Department of Human Services and is currently the National Manager for the Smart Centres East Branch, a role which places her in charge of several centres which handle a variety of social security payments for the Commonwealth.
She attests that every effort has been made to identify all relevant documents falling within Item (1) of the Applicant’s request and that all documents which have been so identified have been provided to the Applicant. The Tribunal accepts that this is the case.
In the hearing before the Tribunal the Applicant raised a number of items which she expected to see in the documents and, on a closer examination, a number of those were identified in the released material. The Applicant also enumerated a number of other items which she believed should have been present, but in discussion it became apparent that these fell outside the timeframe specified in the request, that is after 8 October 2018.[7]
[7] The Applicant’s original application specifying the timeframe: Tribunal Documents, Volume 1 at [14].
The Tribunal is thus satisfied that the documents requested under Item (1) have been supplied in full, or if they have not been, it is because they either cannot be found in the department’s records or they do not exist (section 24).
In relation to items (2) to (9) the Applicant, in discussion with the Tribunal, agreed that these items have been supplied as requested and that the Applicant had no objection to the deletions which had been made in the 17 relevant documents which were related to the protection of the privacy/identity of individuals within the department; non-disclosure of third party bank account details or the redaction of certain log-on details.
In each case, conditional exemptions exist in the Act (at 47E (c) and 47E (d)) covering such cases, and this is reinforced by the section 47F(1) provision that such unreasonable disclosure of personal information is contrary to the public interest. A Statutory Declaration sworn by Mr Glenn Mitchell (Director Intelligence and Operations in the Cyber Services Division of Services Australia) dated 14 May 2021 explains why withholding of details of staff logon details is also clearly a matter in the public interest and again, the Tribunal accepts this evidence.
In relation to item (10), the Respondent gave evidence, again supported by the Affidavit of Ms Hamilton that extensive searches for such documents as specified were made, but none were located. In her evidence at the Tribunal the Applicant agreed that this conclusion might have resulted from her specifying that what she sought was described as details of “undergraduate university enrolments” whereas what she was really seeking was more akin to records relating to claims associated with Austudy applications.
CONCLUSIONS
The Tribunal concludes that in relation to the documents sought by the Applicant in her revised application of 27 November 2019:
(i)Those sought under item (1) have been supplied to the extent that they exist within the nominated files in the specified periods and that after proper examination no other relevant documents exist;
(ii)Those sought under items (2) to (9) have been supplied either in full or with redactions which are consonant with the proper application of the conditional exemptions provided for in sections 47E(c), 47E(d) and 47F(1) of the Act;
(iii)Those sought under item (1) do not exist and thus fall under the provisions of section 24A of the Act.
WHERE DOES THIS LEAVE THE APPLICANT?
Firstly, discussion in the Tribunal indicated that the Applicant has a continuing matter with the OAIC which is unresolved. The Tribunal understands that it is a further FOI request which could either be resolved in that jurisdiction or, failing that, which might come before the Tribunal at some later date. The Tribunal is in no position to take further regard of this matter.
Secondly, the Applicant has raised certain questions about alleged incorrect information being contained in departmental files and, on the face of some of the documents presented, this could well be the case. The Applicant is concerned that the retention and possible sharing of this information could be highly prejudicial to her attempts to secure appropriate employment consonant with her skills and qualifications. There are clear procedures under Part V of the Act for applicants to seek to have official records corrected or amended where they can be shown to be in error and it is open to the Applicant to pursue such a course of action.
Thirdly, in relation to both documentary records of interactions between the Applicant and the Department after 8 October 2018 and in relation to specified documents related to the Applicant’s educational and study matters, these can be sought by further FOI applications setting out further and better particulars of those documents to which access is sought.
Fourthly, the Applicant in a variety of submissions has called for her to be provided with a written apology by the Respondent. The Tribunal has no power to make such an order and takes this matter no further.
Finally, the Applicant questioned the time taken for matters to be resolved, this process having been commenced in October 2018. However, it appears to the Tribunal that, at each stage of the process, decisions were made within the time limits prescribed by the Act. The 27 November 2018 request evinced a decision by 11 December 2019. The 26 February notification by the OAIC was responded to by 6 March 2019. The 27 March 2019 refusal by the Applicant to enter into a section 55F agreement was responded to by the provision of documents on 23 April 2019. There was then a lengthy delay, but this took place within the remit of the OAIC and the delay arising from her section 54W decision precipitated matters into this Tribunal where it was not heard until 1 June 2021. The matter has taken some time but there can be no valid criticism of the Respondent in its handling of its statutory responsibilities as they relate to timeliness. It is unfortunate that the matter had to involve the agencies of both the OAIC and this Tribunal, but that is where the principal causes of delay lie.
DECISION
The decision under review, dated 22 February 2021, is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

…………[sgd]................
Associate
Dated: 21 June 2021

Date of hearing: 1 June 2021

Applicant: In person, self-represented

Solicitors for the Respondent: Katherine Whittemore, Sparke Helmore

[2021] AATA 1825

21 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	1 June 2021
Applicant:	In person, self-represented
Solicitors for the Respondent:	Katherine Whittemore, Sparke Helmore