Webster and Commonwealth Superannuation Corporation (Freedom of information) - [2023] AATA 4137

Webster and Commonwealth Superannuation Corporation (Freedom of information) [2023] AATA 4137 (14 December 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number:2021/1724
Re:Cyril Ken Webster
APPLICANT

Commonwealth Superannuation CorporationAnd
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:14 December 2023
Place:Brisbane

The Tribunal affirms the reviewable decision.
...............................[SGD]................................
Member D Mitchell
CATCHWORDS
FREEDOM OF INFORMATION – whether all reasonable steps have been taken to find documents –– decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
CASES
De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770
Chu v Telstra Corporation (2005) FCA 1730
John Singer and Comcare [2016] AlCmr 63
‘KE’ and Cancer Australia [2016] AlCmr 87
Khorramdel and Department of Human Services [2012] AATA 707
Langer and Telstra Corporation Ltd (2002) AATA 341; 68 ALD 762
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Bienstein and Attorney-General (Cth) (2008) 103 ALD
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
VMQD and Commissioner of Taxation (Freedom of Information) [2018] AATA 4619
SECONDARY MATERIAL
Office of the Australian Information Commissioner, ‘Part 3 — Processing and deciding on requests for access’, FOI Guidelines
REASONS FOR DECISION
Member D Mitchell
14 December 2023
INTRODUCTION

On 23 April 2018, Mr Cyril Ken Webster (the Applicant) made a request for access to documents under section 11 of the Freedom of Information Act1982 (Cth) (FOI Act).[1]
[1] Exhibit 1, T Documents, T3, page 94, Applicant’s FOI Request.
The Respondent has made eight separate releases of documents since the Applicant’s initial request. Those releases include:[2]
(a)an initial release on 24 May 2018, being the Respondent’s initial decision in response to the Applicant’s FOI request (First Release);
(b)a second release on 20 February 2019, being a revised FOI decision made by the Respondent pursuant to section 55G of the FOI Act (Second Release);
(c)a third release on 28 September 2021, made as a result of a decision made by the Tribunal, at the request of the parties altering the decision under review pursuant to section 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (Third Release);
(d)a fourth release on 8 September 2022, made as a result of a decision made by the Tribunal, at the request of the parties altering the decision under review pursuant to section 26(1)(b) of the AAT Act (Fourth Release);[3]
(e)a fifth release on 3 November 2022, made following the first day of the Hearing (Fifth Release);[4]
(f)a six release on 4 May 2023, made as a result of a decision made by the Tribunal, at the request of the parties altering the decision under review pursuant to section 26(1)(b) of the AAT Act (Sixth Release);[5]
(g)a seventh release on 20 September 2023, made as a result of a decision made by the Tribunal, at the request of the parties altering the decision under review pursuant to section 26(1)(b) of the AAT Act (Seventh Release);[6] and
(h)an eighth release on 29 September 2023, made as a result of a decision made by the Tribunal, at the request of the parties altering the decision under review pursuant to section 26(1)(b) of the AAT Act (Eighth Release).[7]
[2]     Exhibit 11, Hearing Book, HB9, page 6025, Respondent’s Supplementary Submissions, paragraph 2.
[3]     Exhibit 11, Hearing Book, HB3, pages 122-472, Fourth Release.
[4]     Exhibit 11, Hearing Book, HB4, pages 473-4578, Fifth Release.
[5]     Exhibit 11, Hearing Book, HB5, pages 4579-5686, Sixth Release.
[6]     Exhibit 11, Hearing Book, HB6, pages 5687-5824, Seventh Release.
[7]     Exhibit 11, Hearing Book, HB7, pages 5825-5968, Eighth Release.
The Applicant sought review by this Tribunal of the Respondent’s decision in relation to his FOI request pursuant to section 57A(1)(b) of the FOI Act.[8]
[8] Exhibit 1, T Documents, T1, pages 1-11, Application for Review.
As a result of the information releases outlined above, the reviewable decision before the Tribunal encompasses the totality of those releases.
BACKGROUND
By way of letter dated 23 April 2018, the Applicant made the following request for information under the FOI Act:[9]
I understand that much of this information is personal and would be made available without a formal request. However, I seek all information, both personal and that made between the Commonwealth Superannuation Corporation with any other Department, Authority or any other person or entity.
I seek any records or communication including those in writing, by email, diary notes, telephone contact notes, meeting records, internal notes, internal instructions or opinions relating to my superannuation or affairs in any way since my joining the CSS/PSS to the present date.
I seek copies of all documents or records held by the Commonwealth Superannuation Corporation now or in its previous iterations, RBO, ARIA.
[9] Exhibit 1, T Documents, T3, page 94, FOI request made by the Applicant.
On 24 May 2018, the Respondent made a decision in relation to the Applicant’s FOI request (First Release) that:[10]
(a) identified 208 documents, totalling 2177 pages, falling within the scope of the request;
(b) granted access to 155 documents in full; and
(c) determined that 53 documents were exempt in full or in part under sections 42 (legal professional privilege) and 47C (personal privacy) of the FOI Act.
[10] Exhibit 1, T Documents, T4, pages 95-104, FOI decision made by the Respondent.
On 17 July 2018, the Applicant sought review of that decision by the Information Commissioner.[11]
[11] Exhibit 1, T Documents, T5, pages 105–115, Email from Applicant to OAIC requesting OAIC review and attachments.
On 20 February 2019, the Respondent made a revised decision pursuant to section 55 of the FOI Act (Second Release) that:[12]
(a) identified 226 documents, totalling 1873 pages, falling within the scope of the request;
(b) granted access to 158 documents in full;
(c) determined that 23 documents were exempt in full and 45 documents were exempt in part under sections 42 and 47F of the FOI Act; and
(d) deleted irrelevant material under section 22(1)(a)(ii) of the FOI Act, noting that a number of duplicate documents had been removed from the bundle of documents provided as part of the decision.
[12] Exhibit 1, T Documents, T2, pages 67-93, Decision made under section 55G of the FOI Act and attachments.
On 24 February 2021, the Information Commissioner decided not to proceed with its review of the application and finalised its review under section 54W(b) of the FOI Act to enable the Applicant to seek review from the Tribunal in the interests of the administration of the FOI Act.[13]
[13] Exhibit 1, T Documents, T1, pages 59-66, OAIC decision and reasons in relation to section 54W of the FOI Act.
On 16 March 2021, the Applicant sought further review of the reviewable decision by this Tribunal.[14]
[14] Exhibit 1, T Documents, T1, pages 1-66, Application for Review and attachments.
On 28 September 2021, in response to a request from the parties, the Tribunal, pursuant to section 26(1)(b) of the AAT Act altered the decision under review allowing for a further release of documents to the Applicant. The newly released documents (Third Release) included:[15]
(a) Twenty-three documents responsive to the FOI Request.
(b) A further 60 documents containing the names of staff employed by the Respondent and other Commonwealth government agencies were overlaid with their initials and thereby excluded from the scope of the review.
(c) The documents comprising 1873 pages, as identified in the schedule to the Second Release were re-released to the Applicant.
[15] Exhibit 11, Hearing Book, HB9, pages 6027-6028, paragraph 15.1, Respondent’s Supplementary Submissions.
On 8 September 2022, in response to a request from the parties, the Tribunal, pursuant to section 26(1)(b) of the AAT Act altered the decision under review and the Respondent released 26 documents from the Applicant’s TRIM file (comprising of 351 pages) to him in full,[16] except for telephone numbers and with initials overlaying names (the Fourth Release).[17]
[16] Exhibit 11, Hearing Book, HB3, pages 122-472, Fourth Release.
[17] Exhibit 11, Hearing Book, HB9, page 6028, paragraph 15.2, Respondent’s Supplementary Submissions.
On 16 September 2022, a Hearing was held.[18] The Applicant was self-represented and was supported by his wife. Both the Applicant and his wife, Mrs Marianne Webster (Mrs Webster) swore an affirmation. The Respondent was represented by Ms Elena Arduca of the Australian Government Solicitor.
[18] Exhibit 11, Hearing Book, HB 13, pages 6066-6133, Transcript.
The Applicant outlined his contentions which were centred around the adequacy of the searches undertaken by the Respondent. The Applicant raised concerns with the format in which Releases One and Two were provided, in particular the fact that he had calculated that there was a discrepancy of 304 pages between the releases. The Applicant’s contentions at the Hearing were consistent with the written submissions he filed in the lead up to the Hearing.[19]
[19] Exhibit 4, Applicant’s Statement of Facts, Issues and Contentions; Exhibit 5, Applicant’s Amended page 26 of his Statement of Facts, Issues and Contentions; Exhibit 8, Applicant’s Submissions in Reply and Exhibit 9, Applicant’s email and attachments.
The Respondent provided a Statement of Facts, Issues and Contentions ahead of the Hearing seeking to rely on the evidence of Ms Alice Richardson (Ms Richardson) (who at the time of swearing the affidavit was the Senior Manager, Information Release and Internal Review in the Respondent).[20] The Respondent contended that it had undertaken comprehensive searches for documents within the scope of the Applicant’s FOI request at the time of its original decision made on 24 May 2018 and its revised decision made on
[20] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions.
20 February 2019.
By virtue of Release Four the documents previously redacted in relation to legal professional privilege were released in full and were no longer in dispute. As such, the written contentions and evidence in relation to those documents was no longer in issue before the Tribunal.
At the Hearing, Ms Richardson gave evidence under affirmation by MS Teams.[21] Her evidence was consistent with her affidavit dated 14 April 2022[22] and the letter she jointly authored with Adam Ivancic, Parliamentary and Information Release Coordinator.[23]
[21]    Exhibit 11, Hearing Book, HB 13, Transcript, pages 6088-6120.
[22]    Exhibit 6, Affidavit of Alice Richardson dated 14 April 2022.
[23]    Exhibit 2, Supplementary T Documents, ST3, page 175, Letter regarding the Tribunal Proceeding – Evidence by Adam Ivancic and Alice Richardson.
Ms Richardson outlined the steps taken in responding to the Applicant’s FOI request and stated that TRIM was the only record-keeping system used by the Respondent and that the Applicant had been provided with a full copy of his TRIM file. She provided explanation of the difference in the number of pages released under Release One and Release Two.[24]
[24] Exhibit 6, Affidavit of Alice Richardson dated 14 April 2022, pages 2-4, paragraphs 10-21.
Ms Richardson told the Tribunal that she was confident that all documents relevant to the Applicant’s FOI request were in his TRIM file, she maintained her view that this was the case and that the Respondent had undertaken all reasonable steps to collect the types of documents the Applicant sought. On re-examination by the Respondent, Ms Richardson agreed that she was aware that Mr Ivancic in addition to identifying documents in TRIM also sent an email to all business groups asking them to check their share drives for any relevant documents. This was new evidence not previously provided in any of the material before the Tribunal and as such was uncorroborated.[25]
[25] Exhibit 11, Hearing Book, HB 13, Transcript, pages 6088-6120.
The Tribunal found Ms Richardson to be hostile in response to questions she was asked both by the Tribunal and Mrs Webster.
Ms Richardson expressed frustration in relation to questions asked of her by Mrs Webster and the Applicant with regards to the reconciliation of documents provided in Releases One and Two.[26]
[26] Exhibit 11, Hearing Book, HB13, Transcript, pages 6110-6111.
At the end of her evidence Ms Richardson offered to provide the Applicant with a complete copy of his TRIM record intact given that privilege had been waived on all of the documents.[27]
[27] Exhibit 11, Hearing Book, HB13, Transcript, pages 6114-6115.
At the parties request, the Hearing was adjourned to allow the parties time to go away and continue discussion about potentially resolving the matter. Under direction the Tribunal gave the parties time to advise whether the matter had resolved or if not, to provide an agreed set of proposed directions in relation to the progression of the matter.
The parties advised the Tribunal that the matter had not resolved and undertook for the Respondent to provide any further evidence and submissions on which they intended to reply by 31 March 2023 and the Applicant to do the same by 29 May 2023.
A resumed Hearing was listed for 3 October 2023. In the lead up to the resumed Hearing:
(a) On 3 November 2022, a fifth release (Fifth Release) of documents were provided by the Respondent to the Applicant containing his full TRIM file up to
September 2022, containing 4106 pages.[28] In releasing the documents the Respondent decided not to claim an exemption for legal professional privilege under section 42 of the FOI Act or any other applicable exemption and to release the entire file in full.[29]
[28]    Exhibit 11, Hearing Book, HB4, pages 473-4578, Fifth Release.
[29]    Exhibit 11, Hearing Book, HB8, page 5971, paragraph 15, Affidavit of Linda Glover
(b) The Respondent filed an affidavit of Ms Linda Aileen Glover (Ms Glover) dated 30 March 2023[30] and Supplementary Submissions dated 31 March 2023.[31]
[30]    Exhibit 11, Hearing Book, HB8, pages 5969-6024, Affidavit of Linda Glover.
[31]    Exhibit 11, Hearing Book, HB9, pages 6025-6034, Respondent’s Supplementary Submissions.
(c) On 4 May 2023, in response to a request from the parties, the Tribunal, pursuant to section 26(1)(b) of the AAT Act altered the decision under review to allow for a further release of documents to the Applicant. The newly released documents (Sixth Release):[32]
[32]    Exhibit 11, Hearing Book, HB5, pages 4579-5786, Sixth Release.
(i)    Contained 106 documents amounting to approximately 1108 pages resulting from additional searches undertaken of the applicable shared drives and staff email Outlook accounts and the use of additional search terms.[33]
[33]    Exhibit 11, Hearing Book, HB10, pages 5975-5978, paragraphs 41-54, Affidavit of Linda Glover.
(ii)   Had the name of a third party in identified documents overlaid with a pseudonym as it was not requested by the Applicant.
(iii) Redacted remaining details of a third party in six documents as the Respondent decided they were irrelevant to the Applicant’s FOI request.
(d) On 23 June 2023, pursuant to the agreement of the parties, the Applicant requested that the Tribunal review the redacted information (other than the name of the third party).[34]
[34]    Exhibit 13, Applicant’s Request for Tribunal review of redacted information.
(e) The Applicant filed Supplementary Submissions dated 28 May 2023[35] together with supporting documents.[36]
[35]    Exhibit 11, Hearing Book, HB1, pages 1-35, Applicant’s Supplementary Submissions.
[36]    Exhibit 11, Hearing Book, HB2, pages 36-121, Supporting documents to the Applicant’s Supplementary Submissions.
(f)    The Respondent filed a further affidavit of Ms Glover dated 14 September 2023[37] together with submissions dated 14 September 2023 in reply to those filed by the Applicant on 28 May 2023.[38]
[37]    Exhibit 11, Hearing Book, HB10, pages 6035-6057, Affidavit of Linda Glover.
[38]    Exhibit 11, Hearing Book, HB11, pages 6058-6062, Respondent’s submissions in reply to the supplementary submissions of the Applicant filed 28 May 2023.
(g) On 19 September 2023, in response to a request from the parties, the Tribunal, pursuant to section 26(1)(b) of the AAT Act altered the decision under review to allow for a further release of documents to the Applicant. The newly released documents[39] (Seventh Release):
[39]    Exhibit 11, Hearing Book, HB6, pages 5687-5824, Seventh Release.
(i)    Contained twenty-seven documents amounting to approximately 38 pages resulting from searches from email Outlook accounts of additional employees and further term searches. In making the decision to release the additional documents, the Respondent decided that an additional 41 documents that were located in the searches were not relevant to the Applicant’s FOI request.[40]
[40]    Exhibit 11, Hearing Book, HB10, pages 6039-6041, paragraphs 36-46, Affidavit of Linda Glover.
(ii)   Had the names of two third parties in identified documents overlaid with a pseudonym as it was not requested by the Applicant.
(iii) Redacted remaining details of the two third parties in two documents as the Respondent decided they were irrelevant to the Applicant’s FOI request.
(h) On 19 September 2023, pursuant to the agreement of the parties, the Applicant requested that the Tribunal review the redacted information (other than the names of the third parties).[41]
(i)    The Respondent filed a further affidavit of Ms Glover dated
28 September 2023.[42]
(j) On 29 September 2023, in response to a request from the parties, the Tribunal, pursuant to section 26(1)(b) of the AAT Act altered the decision under review to allow for a further release of documents to the Applicant.[43] The newly released documents (Eighth Release):
(i)    Contained forty documents amounting to approximately 43 pages resulting from a review of the documents located in the Seventh release.[44]
(ii)   Had the names of third parties in identified documents overlaid with a pseudonym, which was not requested by the Applicant.
(iii) Redacted remaining details of the third parties in two documents as the Respondent decided they were irrelevant to the Applicant’s FOI request.
(k)   On 29 September 2023, pursuant to the agreement of the parties, the Applicant requested that the Tribunal review the redacted information (other than the names of the third parties).[45]
[41]    Exhibit 15, Applicant’s Request for Tribunal review of redacted information.
[42]    Exhibit 11, Hearing Book, HB12, pages 6063-6065, Affidavit of Linda Glover.
[43]    Exhibit 11, Hearing Book, HB7, pages 5825-5986, Eighth Release.
[44]    Exhibit 11, Hearing Book, HB12, page 6064, paragraphs 6-11, Affidavit of Linda Glover.
[45]    Exhibit 17, Applicant’s Request for Tribunal review of redacted information.
The Hearing resumed on 3 October 2023. The Applicant was self-represented with assistance from Mrs Webster, they both gave a further affirmation. The Respondent was represented by Mr Samuel Walpole, of counsel who was instructed by Ms Caitlin Emery of the Australian Government Solicitor.
At the resumed Hearing, Ms Glover, Manager, Dispute Resolution & Casework, in the General Counsel Team of the Respondent gave evidence under affirmation. Ms Glover’s evidence was consistent with her affidavits dated 30 March 2023,[46] 14 September 2023[47] and 28 September 2023.[48]
[46]    Exhibit 11, Hearing Book, HB8, pages 5969-5978, Affidavit of Linda Glover.
[47]    Exhibit 11, Hearing Book, HB10, pages 6035-6042, Affidavit of Linda Glover.
[48]    Exhibit 11, Hearing Book, HB12, pages 6063-6065, Affidavit of Linda Glover.
ISSUES

The outstanding issue to be determined by the Tribunal is whether the Respondent has undertaken all reasonable steps to locate documents in response to the Applicant’s FOI request so as to have discharged its obligations under section 24A of the FOI Act.
The Tribunal notes that as a result of the parties agreements in relation to the Sixth, Seventh and Eighth Releases the Respondent provided the Tribunal with unredacted copies of the documents in dispute.[49] Having reviewed the unredacted documents, as discussed at the Hearing, the Tribunal formed the opinion that the redacted information in those documents was not relevant to the Applicant’s FOI request and were properly redacted. The Tribunal came to this view having a clear understanding of the scope of the Applicant’s FOI request which relates to information held by the Respondent in relation to his account and dealings with the Respondent and their predecessors. The redactions related to a third party and their particular circumstances.
[49] Exhibit 14, Unredacted documents in dispute from the Sixth Release; Exhibit 16, Unredacted documents in dispute form the Seventh Release and Exhibit 18, Unredacted documents in dispute from the Eighth Release.
Further, the Tribunal notes that the Applicant raised a number of issues in relation to the Respondent’s file management and the actions taken through the assessment and review processes. As explained at the Hearing, the Tribunal’s jurisdiction does not extend to consideration of such matters and as such they will not be engaged with in this decision. This, however, does not mean that the Tribunal is saying that the Applicant’s concerns and observations are not valid, they are simply matters of which it is not appropriate for the Tribunal to make findings about. It is open to the Applicant to complain to the Information Commissioner or the Ombudsman[50] about the Respondent’s processing of his FOI request.
[50] Part VIIB of the FOI Act.
THE LAW
The objects of the FOI Act include the provision of a right of access to Government documents by the Australian community, together with the intention to increase public participation in Government processes, with a view to promoting better-informed decision-making, by increasing scrutiny, discussion, comment and review of the Government’s activities.[51]
[51] Section 3 of the FOI Act.
In this matter, there is no dispute that the Applicant has a right to access documents as a result of having made a written request for access to documents.[52]
[52] Sections 11, 12 and 15 of the FOI Act.
Section 93A of the FOI Act provides that the Information Commissioner may issue guidelines, of which regard must be given in the performance of a function or the exercise of a power under the FOI Act (FOI Guidelines). A reference in this decision to the FOI Guidelines refers to the guidelines in place as of December 2021 (which were consistent with those in place from June 2018 at the time the Applicant made his FOI request). While the Tribunal is not bound to apply policy of the kind referred to in the FOI Guidelines, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so.[53]
[53] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 and VMQD and Commissioner of Taxation (Freedom of Information) [2018] AATA 4619 at [59].
Section 24A of the FOI Act goes to the issue of the adequacy of searches for documents. Section 24A(1) of the FOI Act provides that an agency 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 possession but cannot be found; or
(ii) does not exist.
The FOI Act does not define what constitutes ‘reasonable steps’ for the purposes of section 24A(1) of the FOI Act. The FOI Guidelines, however, provides the following commentary:
3.88 The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.[33]
3.89 Agencies and ministers should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office.[34] At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:
·the subject matter of the documents
·the current and past file management systems and the practice of destruction or removal of documents
·the record management systems in place
·the individuals within an agency or minister’s office who may be able to assist with the location of documents, and
·the age of the documents.[35][54]
[54] Citing the following:
[33] De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770, applying Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138.
[34]Chu v Telstra Corporation Limited (2005) FCA 1730 at [35], Finn J: ‘Taking the steps necessary to do this may in some circumstances require the agency or minister to confront and overcome inadequacies in its investigative processes’.
[35]‘KE’ and Cancer Australia [2016] AICmr 87; John Singer and Comcare [2016] AICmr 63; and De Tarle and Australian Security Investments Commission (Freedom of Information) [2015] AATA 770, applying Langer and Telstra Corporation Ltd (2002) AATA 341.
Relevant Tribunal decisions in relation to section 24A of the FOI Act and what is considered to constitute reasonable steps were referenced, with endorsement by the Tribunal in

De Tarle and Australian Securities and Investments Commission (Freedom of Information)
[2015] AATA 770 (De Tarle) as follows:
19.In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 at [19] Deputy President McDonald said the following in relation to s 24A of the FOI Act:
(19)The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the Agency but cannot be found or, alternatively, does not exist. The Shorter Oxford English Dictionary provides a number of meanings for the verb to “find”, the most apt of which for present purposes is “to discover or attain by search or effort”. The Macquarie Dictionary similarly provides amongst the meanings given to the verb “to learn, attain or obtain by search or effort”. The Shorter Oxford English Dictionary provides five meanings for the word “reasonable”, of which the following is, in the opinion of the tribunal, most appropriately applied:
... 4.Not going beyond the limit assigned by reason; not extravagant or excessive; moderate ME. b. Moderate in price; inexpensive 1667. 5. Of such an amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose, late ME. (b. Of a fair, average, or considerable amount, size, etc – 1726.
The Macquarie Dictionary provides four meanings, including “moderate; or moderate in price ...” ...
20.In Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762 (“Langer”) Deputy President Forgie said:
(94)Section 24A of the Freedom of Information Act 1982 (Cth) (the FOI Act) requires the consideration of two matters. The first requires a consideration of whether the department has taken all reasonable steps to find the documents. If it has done that, the second requires a consideration of whether the documents are in the department’s possession but cannot be found or whether they exist…
(95)It seems to me that the first limb of s 24A requires that the department take such steps to discover the requested documents as are appropriate in the circumstances. The circumstances that are relevant in determining the steps that are appropriate include the subject matter of the documents sought, the file management systems, any destruction schedules followed in Telstra and the steps that have already been taken to locate documents within the terms of the request.
21. In Re Bienstein and Attorney-General (Cth) (2008) 103 ALD 626 Deputy President Forgie said at [48]:
… it seems to me that the approach I adopted in Langer and in Andrews continues to be the correct approach. Whether all reasonable steps have been taken will be assessed having regard to such matters as the nature of the documents sought in the request, whether documents of that sort are usually filed in a certain category or categories and whether documents of that sort would normally be referred to a certain division, branch or section or to more than one in an agency for action. Steps that are comprehensive and that are directed to locating documents in those places will be relevant. Where documents are proving elusive, discussions with persons who would be likely to have dealt with the subject matter at the relevant time may be relevant. It may be that those people are no longer in the relevant area of the agency or of the minister’s office but contacting them may lead to an insight into where the documents could have got to. The size of the agency or of the minister’s office may also be relevant as may evidence of any practices regarding the retention of documents or, in the case of a ministerial office, the transfer of documents to the relevant department. Finally, there may be cases in which an examination of documents already found may reveal further areas in which relevant documents may be located. These are some of the matters that may be relevant in deciding whether a minister or agency has taken all reasonable steps to find a document within the meaning of s 24A(a) of the FOI Act.
EVIDENCE OF MS LINDA GLOVER
Ms Glover provided three affidavits ahead of providing oral evidence under Oath at the Resumed Hearing.
In her affidavit of 30 March 2023,[55] Ms Glover outlined that she had assumed responsibility for the FOI decision-making at the Respondent on 1 July 2022.[56] Ms Glover outlined that at the conclusion of the first day of the Hearing on 16 September 2022, the Respondent had agreed to:[57]
(a) release the Applicant’s entire TRIM file held by the Respondent; and
(b) to conduct further searches for documents responsive to the Applicant’s FOI request that may be located outside of his TRIM file.
[55]    Exhibit 11, Hearing Book, HB8, Affidavit of Linda Glover, pages 5969-6024.
[56]    Exhibit 11, Hearing Book, HB8, Affidavit of Linda Glover, page 5970, paragraph 4.
[57]    Exhibit 11, Hearing Book, HB8, Affidavit of Linda Glover, page 5971, paragraph 12.
Ms Glover proceeded to outline the steps taken with regards to the Fifth Release, being the release of the Applicant’s full TRIM file as at September 2022 and the reason the page count for that release was 4,106.[58] She also outlined the steps taken to conduct further searches for relevant documents in share drives and employee email accounts[59] and provided relevant FOI Search Minutes.[60] These steps led to the Sixth Release being made to the Applicant.
[58]    Exhibit 11, Hearing Book, HB8, Affidavit of Linda Glover, pages 5971-5973, paragraphs13-26.
[59]    Exhibit 11, Hearing Book, HB8, Affidavit of Linda Glover, pages 5973-5978, paragraphs 27-54.
[60]    Exhibit 11, Hearing Book, HB8, Affidavit of Linda Glover, pages 5991-6007 and 6019-6024.
Ms Glover stated that:[61]
[61] Exhibit 11, Hearing Book, HB8, Affidavit of Linda Glover, pages 5973-5975, paragraphs 31-32 and 37-40.
31 The searches that I ultimately caused to be undertaken have been informed by the following aspects of the record-keeping and other systems operated by the CSC;
31.1 the CSC does not maintain paper records and all records relating to the Applicant would be held electronically;
31.2 the following hard copy files maintained in relation to the Applicant were digitised on a number of different dates, and paper copies of these hard copies would have been destroyed in accordance with the General Records Authority 31 issued by the National Archives of Australia under s 24(2)(b) of the Archives Act 1983 (Cth):
31.2.1 Mainframe print on 25 April 2002;
31.2.2 MD/06/91031 on 9 October 2006;
31.2.3 MD/09/250217 on 13 May 2009;
31.2.4 MD/10/264095 on 30 April 2010;
31.3 member files are maintained in TRIM in individual files – and the Applicant’s TRIM file has been released to him;
31.4 the only other locations in the CSC’s systems in which documents relevant to members are in:
31.4.1 the “F” Shared Drive;
31.4.2 the “G” Shared Drive; or
31.4.3 staff email Outlook accounts.
32 The distinction between the “F” and “G” Shared Drive came about from CSC’s merger with ComSuper in 2015. The “F” Drive came from the CSC side and “G” Drive from the ComSuper side. They perform a similar function and we are in the process of aggregating them into a single shared network location. Both the “F” and “G” Drives are shared locations accessible via the CSC network. Access to the “F” and “G” Drives are restricted to users on a need to know basis.
…
CSC’s Information Management systems
37 The CSC’s “F” and “G” Shared Drive are utilised for the storage of documents created by the CSC’s General Counsel team. The “F” Shared Drive is used by lawyers in the Dispute Resolution Team, relating to specific member claims, external disputes, or internal legal advice. The “G” Shared Drive is used by members of the broader General Counsel team.
38 Microsoft Outlook accounts belonging to CSC staff hold records of emails to and from the CSC from 2013 onwards. We also have a system called “Barracuda” which keeps a track of sent emails, with the oldest email being from 2013. These are then moved to an archive after 2 years. I am told these are not moved out of Outlook and remain in the archive which is also on Outlook.
39 The CSC has a number of other information management systems, including:
39.1 ComSAS (member contribution and benefits system for civilian members);
39.2 ePass (system for employers to report contributions and member contribution data);
39.3 CapWeb (member contributions and benefits system for military members), Finance 1 (for contractors to enter timesheets); and
39.4Barracuda (used for tracking sent emails).
40 However, these are not used for member records. The only system used for member records is TRIM. All files, information, or other materials relevant to a member are required to be stored and managed in their unique TRIM container. This is to ensure there is a single and comprehensive record of the member’s superannuation affairs should any party require access to it. All staff at CSC are trained in these record keeping practices to ensure a member’s TRIM file remains the single source for information, evidence and any other relevant files. As explained in paragraph [30] above, it is only if a legal claim or FOI request is made that documents may be created and saved outside TRIM.
In her second affidavit dated 14 September 2023,[62] Ms Glover corrected some typographical errors,[63] provided further explanation of the steps taken that led to the Fifth and Sixth Releases.[64]
[62]    Exhibit 11, Hearing Book, HB10, Affidavit of Linda Glover, pages 6035-6057.
[63]    Exhibit 11, Hearing Book, HB10, Affidavit of Linda Glover, pages 6035-6036, paragraphs 5-8.
[64]    Exhibit 11, Hearing Book, HB10, Affidavit of Linda Glover, pages 6063-6039, paragraphs 9-35.
Ms Glover also outlined that as a result of a further submission received from the Applicant further searches were undertaken of additional employee’s email accounts which led to the Seventh Release. She outlined the steps taken that located those documents and provided the relevant FOI Search Minute.[65]
[65] Exhibit 11, Hearing Book, HB10, Affidavit of Linda Glover, pages 6048-6050 and 6055-6057.
In her third affidavit dated 28 September 2023, Ms Glover corrected some typographical errors and provided explanation in relation to the steps taken that led to the Eighth Release.
The Tribunal considers that at the Resumed Hearing Ms Glover responded openly and professionally to all questions put to her. She confirmed and expanded on the information outlined above in her affidavits.
Ms Glover’s evidence was clear, in that she was unable to explain the differing number of pages produced in relation to the release of the Applicant’s full TRIM file and the initial Release. Her evidence was that the Fifth Release was taken from the Applicant’s TRIM file and everything was downloaded in its entirety and nothing was removed.
APPLICANT’S CONTENTIONS
The Applicant’s submissions during the Tribunal process have been very detailed and methodical in outlining his contentions. In particular the Applicant provided graphs and analysis of the different releases of information and page variations in support of his contention that the Respondent has not provided him with all documents that fall within the scope of his FOI application.[66]
[66]
As outlined above, a number of the Applicant’s contentions go to matters that are not within the Tribunal’s jurisdiction, as such they will not be outlined or discussed in this decision.
The Applicant’s submissions at the resumed Hearing were consistent with his written submissions and the associated supporting documents filed on 28 May 2023.[67]
[67]
The Applicant contended that the eight releases of documents did not establish that all relevant documents had been found or that all reasonable searches had been conducted. He contended that the searches after the initial Hearing were a consequence of him “pulling threads” that indicated other documents existed.
The Applicant contended that the Respondent had on a number of occasions made different assertions that all documents had been found and that all searches had been undertaken, however there continued to be further documents found and released to him. The Applicant drew the Tribunal’s attention to the evidence of Ms Richardson that the only file management system and only place relevant documents would be stored was TRIM however that proved not to be the case. The Applicant also raised concerns that Ms Glover’s first affidavit outlined that all documents had been found, however her second and third affidavits led to the locating of further documents.
The Applicant told the Tribunal that there was a discrepancy in the number of pages released that had not been explained and of which he says raises suspicion that further documents relevant to his FOI request exist.
The Applicant contended that he had not been provided with his full TRIM file despite the Fifth Release.
The Applicant contended that he was not confident that the Respondent had undertaken all reasonable searches as each release was shadowed by something else and he believes that there are a number of pages not identified and a number of pages that were deleted.
The Applicant contended that the Tribunal should direct the Respondent to release to him the full TRIM file of 2186 pages.
RESPONDENT’S CONTENTIONS
The Respondent contended that as a result of the eight releases of documents to the Applicant it has complied with its obligation under the FOI Act to conduct all reasonable searches for documents responsive to the FOI request. The Respondent sought to rely on the evidence provided by Ms Glover.
The Respondent’s submissions at the Resumed Hearing were consistent with those set out in the Supplementary Submissions filed on 31 March 2023.[68] The Tribunal notes that those submissions were filed ahead of the Sixth, Seventh and Eight Releases, however the Respondent continued to rely on the principles outlined therein.
[68] Exhibit 11, Hearing Book, HB9, pages 6025-6034, Respondent’s Supplementary Submissions.

The Respondent contended that:[69]
[69] Exhibit 11, Hearing Book, HB9, pages 6030-6032, paragraphs 29-39, Respondent’s Supplementary Submissions, pages 6030-6038.
29. The Respondent initially limited searches for documents responsive to the FOI Request to the Applicant’s TRIM file, for the reasons deposed to by Ms Glover. Having regard to:
29.1. the fact that the entire TRIM file relating to the Applicant has now been released as the Fifth Release;
29.2. the reality of the record keeping systems and records maintained by the Respondent, and the limitations upon those systems and records; and
29.3. the additional searches undertaken by the Respondent as discussed at [31] to [39] below,
“all reasonable steps” have been taken in relation to documents located on TRIM.
30. Accordingly, the question is whether those additional searches, together with the steps taken in relation to the TRIM file, amount to the Respondent undertaking “all reasonable steps”. In the Respondent’s submission, the Tribunal ought to hold that it has undertaken “all reasonable steps”. This is plain from the evidence of Ms Glover about the additional searches undertaken.
31.As the evidence of Ms Glover reveals, in the light of the questions raised on the first day of hearing, the Respondent has now undertaken additional searches through the other record systems, in addition to TRIM, that may contain documents responsive to the FOI Request. Those additional searches have located 106 further documents.
32.The formulation of the additional searches that were then undertaken was informed by:
32.1. the nature of the documents sought by the Applicant, the age of the documents and the organisational changes in the Respondent and its predecessor agencies over this time;
32.2. the reality of the record-keeping systems maintained by the Respondent and the limitations of such systems, including:
32.2.1. the fact that the Respondent does not maintain hard copy records;
32.2.2. the electronic systems in which documents relevant to members are actually stored by the Respondent – which, in addition to TRIM, are comprised of particular Shared Drives and staff email accounts;
32.3. for the purposes of searching staff email accounts, the legal staff of the Respondent known to be involved in the Applicant’s SCT application and Act of Grace Application;
33.The matters considered in formulating the additional searches to be undertaken were consistent with the FOI Guidelines as set out at [27] above.
34.As Ms Glover’s evidence demonstrates, the additional searches were then carried out.
35.Appropriate and reasonable search terms, sufficient to capture documents responsive to the FOI Request, were used.
36.The outcome of the additional searches was to identify 106 further documents responsive to the FOI Request, comprised of:
36.1. 101 further documents identified in the “Legal Team Sharedrive”, one of the Shared Drives in which information relevant to members is stored by the Respondent;
36.2. 5 emails located in staff Outlook email accounts;
37.The Respondent has offered to release the 106 further documents to the Applicant – as the Proposed Sixth Release – and is awaiting confirmation from the Applicant that he consents to a direction being made under s 26(1)(b) of the AAT Act in these terms.
38.Having regard to:
38.1. the formulation of the additional searches;
38.2. the manner in which the additional searches have been undertaken; and
38.3. the prior release of the Applicant’s entire TRIM file,
it is submitted that the Tribunal ought to conclude that the Respondent has now undertaken "all reasonable steps" to identify documents responsive to the FOI Request.
39.All locations within the Respondent’s record keeping systems that may contain member information have been searched. The evidence of Ms Glover does not indicate any other relevant locations that the Respondent has not searched.
[Footnotes omitted]
CONSIDERATION
It is well accepted that section 24A of the FOI Act requires a consideration of two factors: firstly, whether the Respondent has taken all reasonable steps to find the documents, and if it has, then secondly, whether the documents are in the Respondent’s possession but cannot be found, or do not exist.
The Applicant and Mrs Webster were as the Tribunal understands it long term Commonwealth public servants and as a result have file management and administration expertise. Such was demonstrated by the data and analysis outlined in the Applicant’s submissions, which were well drafted and clearly considered.
Difficulty has arisen in this matter due to the strained relationship between the parties, the process undertaken in identifying documents that are relevant to the FOI request and the fact that to get to the present point there have been eight releases of documents to the Applicant. This has understandably led to the Applicant’s suspicion and scepticism that he has been provided with all relevant documents by the Respondent.
At the point of the conclusion of the initial Hearing, it was clear to the Tribunal and became clear to the Respondent (hence the Sixth, Seventh and Eighth Releases) that the Respondent had not undertaken all reasonable steps to find the documents to which the Applicant’s FOI request related.
Between the initial Hearing and the Resumed Hearing, a further four releases of documents were provided to the Applicant. Those releases related to the provision of what the Respondent submitted was the Applicant’s complete TRIM file and further searches undertaken of relevant share drives and employee email accounts.
The Applicant contended that he had not been provided with his complete TRIM file and that further documents exist of which he says must be held by the Respondent and if not, they should endeavour to hold to ensure his file is complete.
The Respondent on the other hand contended that the Fifth Release provided the Applicant with a complete copy of his TRIM file and that based on the evidence of Ms Glover all reasonable searches and steps to find documents applicable to the Applicant’s FOI request have now been undertaken.
In determining what are reasonable search steps, the findings of Deputy President McDonald in Re Cristovao and Secretary, Department of Social Security[70] as set out above with regards to what constitutes reasonable for the purposes of section 24A of the FOI Act, has been widely accepted. The Tribunal agrees that reasonable steps for the purpose of section 24A of the FOI Act are steps that are not going beyond the limit assigned by reason, not extravagant or excessive, but are moderate and are to such an extent appropriate or suitable to the circumstances.
[70] Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 at [19].
The Tribunal considers that section 24A of the FOI Act and the correct interpretation of what constitutes ‘reasonable’ leads to a position where the requirement is not that the Respondent must find every single document that may be in its possession that falls within the scope of the Applicant’s FOI request, but rather that the Respondent must have taken all reasonable steps to find such documents.
To find that section 24A of the FOI Act requires that the Respondent must find all documents that fall within the scope of a request would render the second requirement of section 24A nugatory. Rather, the Tribunal considers that, should it be satisfied that the Respondent undertook all reasonable steps to find the documents within the revised scope of the request, it must then also be satisfied that any documents not found are either in the Respondent’s possession but cannot be found, or do not exist. Otherwise, the Tribunal would be unable to find that the Respondent had met the requirements of section 24A of the FOI Act.
In considering whether all reasonable steps have been taken to find the documents that fall within the scope of the Applicant’s FOI request, the Tribunal has had regard to the nature of the documents being sought, the file management systems of the Respondent and the steps already taken to locate the documents.
Based on the evidence before it, the Tribunal considers that it is not contentious that the documents being sought by the Applicant are predominately of a personal nature, in that they relate to him, his dealings with the Respondent and the Respondent’s dealings in relation to his file. The Tribunal appreciates the gravity of the issue the Applicant is seeking to get to the bottom of in relation to his superannuation account and the drivers behind why he is seeking the documents that fall within the scope of his FOI request.
The position of this matter at the conclusion of the Resumed Hearing was markedly different to that at the conclusion of the Initial Hearing in relation to the steps now taken by the Respondent to locate the documents through searches conducted of locations not limited to the Applicant’s TRIM file.
While the Tribunal can appreciate the frustration and concerns ventilated by the Applicant, it accepts the evidence of Ms Glover. The Respondent’s file management system is fully digitalised to include previous hard copy files and is predominately managed through the TRIM program. The Tribunal appreciates that despite best endeavours for all customer related documents to be stored in a case management system, documents will still be saved in share drives and employee email accounts.
The Tribunal found Ms Glover to be a creditable witness who undertook to assist the Tribunal in its endeavour of making the correct and preferable decision in this matter. While it acknowledges that the second and third affidavits of Ms Glover each corrected in part her previous affidavit, her evidence as set out in her affidavits and provided at the Hearing outlined the extensive steps that had as of the date of the Resumed Hearing been undertaken by the Respondent to locate documents within the scope of the Applicant’s FOI request.
The steps outlined by Ms Glover acknowledged that a complete copy of the First Release was not on file and she was unable to explain fully the differing number of pages across some of the releases. Ms Glover’s evidence outlined a methodical and comprehensive search across TRIM, relevant share drives and employee email accounts, using an appropriate range of search terms (as largely guided by the Applicant) and provided copies of the relevant FOI Search minutes.
While acknowledging the multiple releases of documents and the steps taken by the Respondent to find documents, the Tribunal is looking at the position as it is at the time of the Resumed Hearing when considering whether all reasonable steps have been taken by the Respondent to find the documents that fall within the scope of the Applicant’s FOI request. As such, the Tribunal agrees with the decision in Khorramdel and Department of Human Services[71] that, while there may have been shortcomings in the search efforts originally by the Respondent by which it had not discharged the reasonable search requirements, the Tribunal may nevertheless find that the Respondent has subsequently met those requirements.
[71] Khorramdel and Department of Human Services [2012] AATA 707.
Consequently, in considering Ms Glover’s evidence, together with the balance of the evidence before it, the Tribunal accepts the evidence of Ms Glover in relation to the steps undertaken by the Respondent.
Further, based on the evidence before it, the Tribunal is satisfied that the Respondent has, as at the date of the Resumed Hearing, undertaken, in consultation with all identified officers of the Respondent, taken all reasonable steps to find documents that fall within the scope of the Applicant’s FOI request.
It is noted that the Respondent conceded at the Resumed Hearing that its record keeping was imperfect over time which it says is a reality of record keeping systems. As such, in finding that all reasonable steps have been taken to locate documents that fall within the scope of the Applicant’s FOI request, the Tribunal is satisfied that any such documents being sought that fall outside of those provided, cannot be found by the Respondent, or do not exist.
As such, the Tribunal considers that the Respondent has undertaken all reasonable steps to locate documents in response to the Applicant’s FOI request and has, therefore, discharged its obligations under section 24A of the FOI Act.
DECISION
For the reasons set out above, the Tribunal finds that:
(a)all reasonable steps have been undertaken to find the documents to which the Applicant seeks access; and
(b)any further documents that may fall within the category of documents to which the Applicant seeks access cannot be found by the Respondent or do not exist.
Accordingly, the Tribunal finds that the Respondent has discharged its obligations under section 24A of the FOI Act.
The decision under review is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........................[SGD]...............................
Associate
Dated: 14 December 2023

Dates of Hearing:

16 September 2022
3 October 2023

Applicant: In Person

Counsel for the Respondent:
Mr Samuel Walpole

Solicitors for the Respondent:
Ms Elena Arduca
Ms Caitlin Emery
Australian Government Solicitor

Exhibit 11, Hearing Book, HB1, pages 1-35, Applicant’s Supplementary Submissions and HB2, pages

36-121, Supporting Documents to the Applicant’s Supplementary Submissions.

Dates of Hearing:	16 September 2022 3 October 2023
Applicant:	In Person
Counsel for the Respondent:	Mr Samuel Walpole
Solicitors for the Respondent:	Ms Elena Arduca Ms Caitlin Emery Australian Government Solicitor