WESTBROOK and CHIEF EXECUTIVE OFFICER, CENTRELINK

[2010] AATA 836

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 836

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2009/4974

GENERAL ADMINISTRATIVE DIVISION		)
Re		WARREN REGINALD WESTBROOK

Applicant

And CHIEF EXECUTIVE OFFICER, CENTRELINK

Respondent

DECISION

Tribunal Senior Member K Bean

Date28 October 2010

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

FREEDOM OF INFORMATION – Request for copy of tape of interview – Reasonable steps taken to find tape – Tribunal satisfied that tape does not exist – Decision under review affirmed.

Freedom of Information Act 1982 s 24A

REASONS FOR DECISION

28 October 2010   Senior Member K Bean      

1.      In November 2006 the applicant, Mr Westbrook, and his wife, Mrs Westbrook, were selected by Centrelink for what is known as a “random sampling interview”.  The interview was conducted on 15 November 2006 and they each participated fully in it. 

2.      Mr Westbrook appears to have formed the impression, either at the time of that interview or subsequently, that the interview was tape recorded by the Centrelink officers who conducted the interview.  In June 2009 he made what was construed by Centrelink as a request under the Freedom of Information Act 1982 (the FOI Act) for a copy of the tape of the interview.

3.      That request was refused by Centrelink both at first instance and on review, on the bases that the tape could not be found, and also that it did not exist[1].

[1] T 7/20 & T 2/9

4.      Mr Westbrook has now sought review by this Tribunal of Centrelink’s decision that it was unable to provide him with a copy of a tape recording of the random sampling interview.

relevant legislation

5. The provision of the FOI Act which is most relevant in these circumstances is s 24A, which provides as follows:

“24A    Requests may be refused if documents cannot be found or do not exist

An agency or Minister 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 or Minister’s possession but cannot be found; or

(ii)        does not exist.”

The Evidence

6.      In relation to steps taken to find the document sought, the evidence before me included an affidavit of Ms Jane Mihalopoulos, a Freedom of Information Review Officer employed by Centrelink.  In that affidavit, she stated that the steps taken by her in response to Mr Westbrook’s request included reviewing his Centrelink paper file and conducting a search of all documents in the name of Mr and Mrs Westbrook on “Centrelink’s on-line document recording system”. However, notwithstanding those searches, Ms Mihalopoulos said she was “unable to locate any reference to a tape recording of the interview conducted on 15 November 2006”.  She also stated in her affidavit that she had contacted Ms Tracey Shrowder, whose name and signature appeared on the random sample survey dated 15 November 2006, who informed Ms Mihalopoulos that the interview was not recorded on tape.  She had also contacted the random sample survey co-ordinator for South Australia, who confirmed that the random sample survey team “does not tape record responses during interviews”.

7.      At the hearing, oral evidence relevant to this issue was given by Mr Westbrook, Mrs Westbrook and also by the two Centrelink officers who conducted the random sampling interview,  Ms Tracey Shrowder and Mr Paul Lillie.

8.      Mr Westbrook gave evidence that at the commencement of the interview conducted on 15 November 2006, he was asked whether it was alright for the Centrelink officers conducting the interview to tape the interview and he agreed to this.  He said they then placed on the kitchen table at his home a device similar to a mobile phone.  He said he was therefore sure that the interview had been tape recorded.

9.      Mrs Westbrook, who was also present at the time of the interview, was less confident of her recollection of the interview, acknowledging that it was now quite a long time ago.  However, she said she was “fairly certain” that she and her husband had been asked for permission to tape record the interview, and that the male Centrelink officer had placed something on the table, although she was not sure what this was. 

10.     In his evidence, Mr Lillie stated that he had been employed by Centrelink for 22 years and, although he had moved to a different position approximately a month before the hearing, prior to that he had worked in the area which conducted random sampling interviews since 1999.  He estimated that he had conducted in excess of 2,000 random sampling interviews.  When asked whether it was his practice to tape record such interviews, he replied “no, never”.  He stated that at no time during the period when he conducted those interviews was it his or Centrelink’s practice to tape record such interviews.  He stated that he would not have asked Mr and Mrs Westbrook for permission to record the interview, as such interviews were never recorded. 

11.     As to whether he may have placed a device on Mr and Mrs Westbrook’s kitchen table, he stated that he may have placed a mobile phone on the table, or a digital camera which he and Ms Shrowder had with them for the purpose of taking digital images of identification documentation.  He said that he recalled this particular interview with Mr and Mrs Westbrook as the interview took in excess of two hours and Mr Westbrook was “very vocal” in relation to a range of topics.

12.     Ms Shrowder gave evidence to the same effect.  She stated that she was now a complex assessment officer, but had previously been with the random sample survey team for approximately 18 months.  She said she had never tape recorded an interview, although she had done approximately 60 to 70 interviews every four months during her time with the random sample survey team.  She also stated that she recalled the particular interview with Mr and Mrs Westbrook.  She recalled that Mr Westbrook believed that he had been targeted and did not seem to believe that the interview was in fact random.  She said that she was present during the whole of the interview and that Mr Lillie did not say at any time that the interview would be tape recorded.  She explained that it was necessary for her and Mr Lillie to take copies of identification documentation and that they had a digital camera with them for this purpose.  This was the only thing she could think of which Mr and Mrs Westbrook may have thought was a tape recorder.

consideration

13.     In light of the affidavit of Ms Mihalopoulos, I am satisfied that reasonable steps have been taken to attempt to locate any tape recording of a random sample interview conducted on 15 November 2006 with Mr and Mrs Westbrook. 

14.     In light of the consistent evidence of Mr Lillie and Ms Shrowder, and the fact that they both specifically recall their interview with Mr and Mrs Westbrook, I am also satisfied that the interview was not tape recorded. 

15.     In relation to Mr Westbrook’s evidence, whilst I accept that this evidence was honestly given and he genuinely believes that the interview was tape recorded, I am satisfied that his recollection in this respect is mistaken.  Whilst she was less confident in her recollection of the interview being tape recorded, to the extent that Mrs Westbrook has a recollection of the interview being tape recorded, I have also concluded that she honestly holds that recollection, but that it is mistaken. 

16.     It follows that I am satisfied that the material sought by Mr Westbrook does not exist. 

17. In light of these conclusions, and having regard to the terms of s 24A of the FOI Act, I have decided to affirm the reviewable decision the subject of this application.

Decision

18.     The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed          .............................................................................
  Associate

Date/s of Hearing  22 April 2010     
Date of Decision  28 October 2010
Advocate for the Applicant        Self         
Advocate for the Respondent   Anthony Parker