Wenzel and Secretary, Department of Defence
[2005] AATA 1174
•4 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1174
ADMINISTRATIVE APPEALS TRIBUNAL )
) NoA2004/271
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID WENZEL Applicant
And
SECRETARY, DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Mr JW Constance, Senior Member Date 4 November 2005
Place Canberra
Decision 1. The decision under review being the decision of the Department of Defence made 20 August 2004 is varied so as to provide that the Applicant have access to the following material which forms part of the documents specified in the Schedule to this decision:
· Document 2 – first paragraph under ‘Scott’;
· Document 3 page 1 – first 3 sentences of 1st email, the text on the 8th line after the 8th word and the text on the 9th and 10th lines of the 3rd email (excepting the name of the person referred to) and the 2nd, 3rd and 4th sentences of the 5th email;
· Document 4 page 1 – last 6 sentences of the 4th email, excepting the name of the person referred to;
· Document 4 page 2 – 3rd and 4th sentences of email of 15 April 2003;
· Document 11 page 4 – material on 17th line of text after the 3rd word and all text on lines 18 to 24 excepting the name of the person referred to; 2nd , 3rd and 4th sentences of the email of 15 April 2003 at 1.34pm;
· Document 13 page 3 – all the deleted material with the exception of the name;
· Document 13 page 4 – the 2nd, 3rd and 4th sentences in text below ‘Bernie’;
· Document 28 page 2 – last word of the 15th line of text and first 3 words of the 16th line of text in the last email on the page;
· Document 41 – the 1st line of text in 2nd paragraph, except the final word;
· Document 49 page 2 – 1st sentence of 2nd paragraph of text of email of 27 June 2003 at 8.21 am;
· Document 61 – all the deleted material;
· Document 75 – all the material after 9th sentence, except the last line of the page;
· Document 100 page 3 – the 12th-17th sentences in the 3rd email on the page with the exception of the name;
· Document 100 page 4 – the 2nd-4th sentences in the 1st email on the page;
· Document 102 page 4 – the 12th-17th sentences in the 2nd email on the page with the exception of the name;
· Document 102 page 5 – the 2nd-4th sentences in the 2nd email on the page;
· Document 205 page 1 – the last paragraph in the 2nd email on the page;
· Document 286 page 7 – the 5th-7th sentences in the last paragraph on the page;
· Document 288 page 2 – all of the material;
· Document 288 page 3 – all of the material except the material in the last paragraph on the page;
· Documents 264, 265, 284, 291, 295, 296, 298, 300, 301 and 302.
This decision does not take effect until 5 December 2005.
2. The Tribunal refuses the application that the Department be required to conduct further searches for documents pursuant to his application made 4 February 2004.
3. The Tribunal does not have jurisdiction to review the decision of the Department not to waive the application fee in respect to the application lodged by the Applicant on 4 February 2004.
4. The Tribunal refuses the application that the Tribunal recommend to the Attorney-General that the costs of the Applicant be paid by the Commonwealth.
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Senior Member
CATCHWORDS
ADMINISTRATIVE LAW – Freedom of Information – scope of request – exemptions from disclosure – irrelevant information – personal information – sufficiency of search – refund application fee – costs.
Freedom of Information Act 1982 s 4, 22, 30A, 41, 54, 55, 61 and 66
Colakovski and Australian Telecommunications Corporation (1991) 100 ALR 111
Re Bienstein and Minister for Justice and Customs [2004] AATA 895
Re Chu and Telstra Corporation Limited [2004] AATA 1127
Re Langer and Telstra Corporation Limited (2002) 68 ALD 762
Re Radar Investments Pty Ltd and Others and Health Insurance Commission (2004) 80 ALD 733
Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 at 692
Re Timmins and National Media Liaison Service (1986) 9 ALN 196
Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645
REASONS FOR DECISION
INTRODUCTION
1.
Mr Wenzel is a member of the Australian Defence Forces. In 2003 he was the one of the subjects of a report by Mr McVeigh as to a number of incidents which had occurred in Mr Wenzel’s workplace. On 4 February 2004
Mr Wenzel sought access to documents held by the Department concerning this report and the incidents which led up to it. Some documents have been released but a number of deletions which the Department has made remain in dispute.
SCOPE OF THE REQUEST
2.Mr Wenzel’s request was detailed and accompanied by background information and comments to assist the Department in determining the documents being requested. The Department has provided the Tribunal with the following interpretation of the request which it used in making the necessary searches:
a. “emails and other forms of correspondence, SMS messages, voice messages, threats and other things” from [a third party] and her husband;
b. documents relating to alleged ”continuing adverse administrative consequences” for the applicant in relation to his employment;
c. all material collected and used for the purposes of the McVeigh report; and
d. the documents to which access is sought in ‘reference C’ (copy at T3, pg 18), being the applicant’s letter requesting copies of documents dated 19 September 2003.” [1]
[1] Respondent’s written submission dated 3 August 2005.
3.A request for access to documents under the Freedom of Information Act 1982 (Cth) should be interpreted broadly and in a commonsense way and not restricted by rules of construction: Re Timmins and National Media Liaison Service (1986) 9 ALN 196. I do not understand Mr Wenzel to have any dispute with the interpretation adopted by the Department and I am satisfied that it is a proper interpretation of the documents being requested.
4.However, there is a dispute as to the period over which the search should extend. Mr Wenzel lodged his request with the Department on 4 February 2004. He did not lodge the required application fee at this time but he did request a waiver of the fee. Correspondence between the parties followed and by letter of 16 March 2004 the Department advised that processing of the request would not begin until the fee was paid. The Department did not deal with the waiver request and by virtue of subsection 30A(1B) it was deemed to have been refused. Mr Wenzel paid the fee on 13 April 2004.
5.Mr Wenzel argues that as the Department did not deal with his request for waiver and did not commence to process the request until 13 April 2004 he is entitled to disclosure of documents which came into existence up until that date. The evidence is that the Department only conducted searches until 4 February 2004.[2]
[2] Evidence of Mr Nelson.
6.An agency is required to consider a request only in relation to documents in its possession at the time of the request: Re Radar Investments Pty Ltd and Others and Health Insurance Commission (2004) 80 ALD 733. The fact that an application is not accompanied by a fee (whether or not there is an application for waiver) does not make the application a nullity as is evidenced by the provisions in the Act which provide for the review of a decision relating to the non-waiver of a fee. The only reasonable interpretation of the time of receipt of the application in this case is 4 February 2004 and it follows that the Department is not required to search for documents which may have come into existence beyond that date.
7.This does not mean that Mr Wenzel is prevented from seeking access to documents created after he lodged the application being considered. He can make a further application. I note that in his submissions Mr Wenzel indicated that he did not think that a continuation of the search after 15 February 2004 “would be meaningful or beneficial.”.
CLAIMED GROUNDS FOR EXEMPTIONS AND DELETIONS
8.The Department’s claims are based on 1 or both of 2 grounds:
1) that the deleted material “would reasonably be regarded as irrelevant” to the request: subsection 22(1) (a) (ii);
2) that disclosure of part or the whole of the document “would involve the unreasonable disclosure of personal information” about a person: subsection 41(1).
These grounds are set out in full in the Schedule to these Reasons for Decision.
9.In deciding the material which should properly be regarded as irrelevant I am guided by what Deputy President Forgie said in Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 at 692:
“As s15 gives an applicant a broad indication only of how he or she may frame a request and as the documents requested may be described in broad terms also, it follows that a request cannot be interpreted with the same degree of precision as one would approach a piece of legislation or even a set of pleadings.
……The request cannot be considered solely in isolation but must be considered in the context in which it is made. Part of that context is formed by the events leading to the request.”
10.The question of when a disclosure of “personal information” is unreasonable, is more difficult.
11.“Personal information “ is defined in subsection 4(1) as meaning:
”information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
12.Public interest considerations are at the core of determining what is an unreasonable disclosure; one looks to determine whether the material has a “demonstrable relevance” to the affairs of Government: Colakovski and Australian Telecommunications Corporation (1991) 100 ALR 111.
13.In applying these principles, on both questions, it is necessary to keep in mind that the object of the Act is “to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth……” [3] There must be clear grounds for exempting part or all of a document.
[3] Subsection 3(1).
14.The onus of establishing that a decision in respect of the request and which is adverse to Mr Wenzel is on the Department: section 61.
Consideration of particular documents
15.The material in issue is set out in a schedule prepared by the Department.[4] A copy of this schedule is reproduced as a schedule to these Reasons for Decision.
[4] Exhibit R12.
16.Applying the principles I have referred to I am not satisfied that all of the material which the Department claims is irrelevant to the request should properly be deleted. Statements by the third person involved in the investigation as to her state of health which she has alleged was affected by Mr Wenzel are relevant to Mr Wenzel’s seeking to redress damage which he considers has been caused to his career. For the same reason I state later in relation to other documents I am not satisfied that the disclosure of this material, which is clearly personal information, is unreasonable.
17.The material which should be disclosed is:
·Document 2 – first paragraph under ‘Scott’;
·Document 3 page 1 – first 3 sentences of 1st email, the text on the 8th line after the 8th word and the text on the 9th and 10th lines of the 3rd email (excepting the name of the person referred to) and the 2nd, 3rd and 4th sentences of the 5th email;
·Document 4 page 1 – last 6 sentences of the 4th email, excepting the name of the person referred to;
·Document 4 page 2 – 3rd and 4th sentences of email of 15 April 2003;
·Document 11 page 4 – material on 17th line of text after the 3rd word and all text on lines 18 to 24 excepting the name of the person referred to; 2nd , 3rd and 4th sentences of the email of 15 April 2003 at 1.34pm;
·Document 13 page 3 – all the deleted material with the exception of the name;
·Document 13 page 4 – the 2nd, 3rd and 4th sentences in text below ‘Bernie’;
·Document 28 page 2 – last word of the 15th line of text and first 3 words of the 16th line of text in the last email on the page;
·Document 41 – the 1st line of text in 2nd paragraph, except the final word;
·Document 49 page 2 – 1st sentence of 2nd paragraph of text of email of 27 June 2003 at 8.21 am;
·Document 61 – all the deleted material;
·Document 75 – all the material after 9th sentence, except the last line of the page;
·Document 100 page 3 – the 12th-17th sentences in the 3rd email on the page with the exception of the name;
·Document 100 page 4 – the 2nd-4th sentences in the 1st email on the page;
·Document 102 page 4 – the 12th-17th sentences in the 2nd email on the page with the exception of the name;
·Document 102 page 5 – the 2nd-4th sentences in the 2nd email on the page;
·Document 205 page 1 – the last paragraph in the 2nd email on the page;
·Document 286 page 7 – the 5th-7th sentences in the last paragraph on the page;
·Document 288 page 2 – all of the material;
·Document 288 page 3 – all of the material except the material in the last paragraph on the page;
18.All the deleted material in documents 264, 265, 284, 291, 295, 296, 298, 300, 301, and 302 should be disclosed as I am not satisfied that this would involve the unreasonable disclosure of the personal information of the third person referred to in the documents. I have taken into account that the allegations which appear to have been made against Mr Wenzel are serious and that he is seeking material to endeavour to address concerns he has as to possible effects upon his career and employment.
19.I am satisfied that the deletions set out in the schedule, other than those referred to in the preceding 2 paragraphs, are reasonably regarded as being irrelevant to Mr Wenzel’s request. They do not relate to his employment nor to any allegations against him.
SHOULD THE DEPARTMENT BE REQUIRED TO CONDUCT FURTHER SEARCHES FOR DOCUMENTS?
20.Mr Wenzel seeks such a direction which can be made by the Tribunal under subsection 55(5) of the Act. It is his argument that searches made prior to April 2005 were inadequate and there are documents that “must” be in existence but which have not been disclosed. Mr Wenzel concedes that searches conducted since April 2005 “were conducted with integrity.”
21.Section 24A of the Act provides that a request for access may be refused if all reasonable steps have been taken to find the document and it cannot be found or it is determined that the document does not exist. In determining if all reasonable steps have been taken one looks at what is appropriate in the circumstances. This includes the subject matter of the documents, file management systems and document destruction schedules; Re Langer and Telstra Corporation Limited (2002) 68 ALD 762. It is not for the Tribunal to inquire into the adequacy or otherwise of the Department’s record keeping: Re Chu and Telstra Corporation Limited [2004] AATA 1127.
22.The Department provided extensive evidence as to the searches conducted to locate the documents to which Mr Wenzel has requested access.
23.Evidence was given as to the general record keeping practices of the Department[5], its IT system and the management and retention of electronic records.[6] There was also evidence of searches carried out within the following specific areas of the Department:
[5] Ex. R13.
[6] Ex. R10.
· the Defence Security Authority [7];
· the Defence Community Organisation [8];
· the Director of Naval Offices’ Postings [9];
· The Defence Force Pay Accounting Centre [10] ;
· The Section which maintains telephone and SMS records [11] ;
· Information Systems Security ACT/NSW [12];
· HMAS Harman [13];
· Defence Corporate Services and Infrastructure [14];
· Defence Legal Service [15];
[7] Ex. R5.
[8] Ex. R6.
[9] Ex. R7.
[10] Ex. R8.
[11] Ex. R9.
[12] Ex. R10.
[13] Ex. R11.
[14] Ex. R13.
[15] Evidence of Mr M Nelson.
24.I am satisfied on the basis of both the affidavit evidence and the oral evidence that all reasonable steps to identify and locate all documents relevant to Mr Wenzel’s request have been made. There is no basis to justify the making of a direction that further searches be conducted.
CLAIM FOR A REFUND OF THE APPLICATION FEE
25.Mr Wenzel has sought a review of the decision of the Department to refuse to waive the application fee. Under subsection 30A(1B) this decision was deemed to have been made as the Department did not make a decision in fact within the time required by the Act. The Tribunal cannot deal with this request as there is no provision dispensing with the requirement in the Act that there be an internal review before the Tribunal can review the decision; subsection 54(3) does not apply to a deemed decision under subsection 30A(1B): Re Bienstein and Minister for Justice and Customs [2004] AATA 895.
CLAIM FOR COSTS
26.Section 66 gives the Tribunal a discretion to recommend to the Attorney-General that the Commonwealth pay the Applicant’s costs in relation to proceedings where the Applicant has been “successful, or substantially successful” in the application. Without limiting the matters to be considered the section provides for regard to be had to financial hardship to the Applicant, whether there has been benefit to the general public, whether there has been commercial benefit to the applicant and the reasonableness of the decision under review. The discretion relates only to those costs in relation to the Tribunal proceedings and not those costs incurred prior to those proceedings: Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645.
27.Mr Wenzel has sought that the Tribunal make such a recommendation to the Attorney-General. I have decided that this is not an appropriate case in which to do so, even though the Department concedes that at least, Mr Wenzel has been substantially successful.
28.I am not satisfied that the payment of costs would cause Mr Wenzel financial hardship. Mr Wenzel has represented himself throughout the proceedings before the Tribunal and gave evidence that the Department has arranged for him to receive some legal assistance at no cost to him. Mr Wenzel has not put forward evidence of particular financial hardship which has been, or would be, caused to him.
29.There is nothing to suggest that the decision will be of benefit to the general public and no question of commercial benefit arises. On the question of the reasonableness of the decision I am not satisfied that the decision under review has been shown to be unreasonable. Even though I have decided that the decision under review should be varied in relation to a number of documents I take into account that the Department was faced with a situation involving information of a particularly personal nature the release of which was opposed by some of the individuals concerned.
30.There have been no other matters put to me to which I should have regard on this issue.
DECISION
31.The Tribunal makes the decisions set out in the following 4 paragraphs.
32.The decision under review being the decision of the Department of Defence made 20 August 2004 is varied so as to provide that Mr Wenzel have access to the material set out in paragraphs 17 and 18 of these Reasons and which forms part of the documents specified in the Schedule to this decision.
This decision does not take effect until 5 December 2005.
33.The Tribunal refuses the application of Mr Wenzel that the Department be required to conduct further searches for documents pursuant to his application made 4 February 2004.
34.The Tribunal does not have jurisdiction to review the decision of the Department not to waive the application fee in respect to the application lodged by Mr Wenzel on 4 February 2004.
35.The Tribunal refuses the application of Mr Wenzel that the Tribunal recommend to the Attorney-General that the costs of Mr Wenzel be paid by the Commonwealth.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member
Signed: .....................................................................................
AssociateAmended pursuant to a direction of 23/11/2005
Dates of Hearing 6-7, 12-13 July 2005 and
12 September 2005
Date of Decision 4 November 2005
Applicant Self-represented
Counsel for the Respondent Justin Hyland
Solicitor for the Respondent Sarah McCarthy
Australian Government Solicitor
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