Williams and Department of Family and Community Services - [2001] AATA 848

DECISION AND REASONS FOR DECISION [2001] AATA 848

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/318

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SHARON WILLIAMS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member

Date9 October 2001
PlacePerth

Decision      The decision under review is affirmed.
  ...........(sgd S D Hotop)..........
  Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – applicant requested access to her social security file created by (former) Department of Social Security – applicant's request for access to file refused on ground that file could not be found – whether all reasonable steps taken to find file.
Freedom of Information Act 1982 ss24A, 55(5)

REASONS FOR DECISION

9 October 2001 Associate Professor S D Hotop, Senior Member

This is an application by Sharon Williams ("the applicant") for review of a decision of an officer of Centrelink, dated 6 October 1999, refusing access to the applicant of the Department of Social Security's file regarding payment of Supporting Parent Payment or Sole Parent Pension to her for the years 1989, 1990 and 1991 and comprising Volumes 1, 2, 3 and 4 ("the file"). That decision, which affirmed a decision of another officer of Centrelink dated 22 September 1999 following an internal review, was made pursuant to s24A of the Freedom of Information Act 1982 ("the FOI Act") on the ground that all reasonable steps had been taken to find the file but that it could not be found or does not exist.
At the hearing the applicant appeared in person without representation, and the Secretary to the Department of Family and Community Services ("the respondent") was represented by Mr A Jones, a Centrelink advocate. The Tribunal had before it the documents ("T documents", numbered T1 – T19, pp1-42) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and a bundle of documents tendered by the applicant (Exhibit A1, pp 1-35) and 8 affidavits tendered by the respondent (Exhibits R1 – R8). Oral evidence was given by the applicant and, on behalf of the respondent, by Ms L A Corbett and Ms E Greif.
The Relevant Evidence
Ms L A Corbett gave oral evidence by telephone from Queensland where she was then employed in the Compliance (Area Pacific Central) section of Centrelink. Ms Corbett was referred to a letter dated 24 April 1991 (Exhibit A1, pp23 – 25) whereby she, in her then capacity as Assistant Director, Control, Review and Recovery ("CR&R") section, Department of Social Security ("DSS"), Perth, referred the matter of alleged social security fraud by the applicant to the Australian Federal Police ("AFP") for investigation. Ms Corbett told the Tribunal that she did not recall the applicant's case specifically but acknowledged that she would have had access to the file at that time. She confirmed that the file would, in accordance with standard DSS practice, have been sent to the AFP under cover of her letter of 24 April 1991. She said that she had no specific recollection of the file being returned to the DSS by the AFP but that, in any event, she did not work in the CR&R section after 1991. She also confirmed that it was standard DSS practice that, after an AFP investigation had been finalized, the relevant DSS file would be returned by the AFP to the CR&R section of the DSS and it would then be forwarded to the Debt Recovery section of the DSS. She added that the standard practice was that such a file would not be destroyed until a period of 7 years had elapsed after the full recovery of the relevant debt. Finally, Ms Corbett confirmed that she was not presently aware of the location of the file.
Ms E Greif, an officer in the Freedom of Information section in Centrelink, told the Tribunal that she conducted searches for the file upon receipt of the applicant's request for access under the FOI Act. In an affidavit dated 20 July 2000 (Exhibit R1) Ms Greif described her efforts to locate the file as follows:
"According to the FLR (File Location/Request) screen (on our computer system) the files should be located at the Victoria Park Centrelink CSC.   In fact Volume 5 was located at this office and I sent a copy of it to Ms Williams.   The Team Leader of the Families section at Victoria Park could not locate the missing files in the file range, and the manager of Victoria Park could not locate the files in his office.   I also contacted various office managers, including the managers at the Cannington and Gosnells Centrelink, but the files were not there.
Because Ms Williams has been prosecuted by Centrelink, and has a debt with Centrelink, I searched the Prosecutions area, the Debt Recovery area, Privacy and FOI, and the Federal Police Liaison Officer's desk, in the Compliance Office.   I looked in staff desks, behind and in cupboards, and in the file ranges.
Although the missing volumes of Ms Williams' files are old, because there is a debt on her record the files should have been kept.   I have found no record of the files having been destroyed or archived."

In her oral evidence Ms Grief added that the office of the Director of Public Prosecutions had also been contacted, but without success, as had the AFP which confirmed that its practice is to return DSS or Centrelink files as soon as its investigations are complete. Finally Ms Greif told the Tribunal that she felt that she had taken exhaustive steps to locate the file and that she did not feel that there was anybody else she could usefully contact for that purpose.

The respondent tendered various affidavits sworn by Commonwealth officers regarding their dealings with the file, their efforts to locate the file, and their state of knowledge as to the whereabouts of the file. The contents of those affidavits are summarised in paragraphs 6 – 12 below.
An affidavit of Charles Myles of the Family Payments Team at the Victoria Park office of Centrelink, sworn on 20 June 2000, was tendered in evidence (Exhibit R2). In that affidavit Mr Myles stated that:

to his recollection, he had not personally handled the file;
he was not aware of having given any instructions to other officers regarding the file;
he did not know the whereabouts of the file;
upon receiving a request from Ms Greif in June 1999 to search for the file, he:
first checked the file location screen in Centrelink's computer system and ascertained that the file was recorded as being held at the Victoria Park office;
then checked the file range at the Victoria Park office but was able to locate only Volume 5 of the applicant's file;
searched in an alternative file storage area but found nothing;
asked each officer in that section whether they had the file and was told that none of them had it;
upon receiving a request from Ms Greif to make a further search for the file, he did so but without success.

An affidavit of Neil George Dwyer of the Milligan Street Customer Service Centre of Centrelink, sworn on 18 July 2000, was tendered in evidence (Exhibit R3). In that affidavit Mr Dwyer stated that:

he had not personally handled the file or given any instruction to any other officer to destroy, archive or cull the file;
he was not aware of the location of the file;
he had taken the following action in search of the file:
in September/October 1999 he conducted a search of the file range at the Victoria Park Customer Service Centre of Centrelink;
on 5 April 2000 he conducted a thorough search of the file range areas of the Milligan Street Customer Service Centre of Centrelink;
on 5 April 2000 he conducted a thorough search of the work space occupied by staff (including their desks and file storage cabinets) who may, in their normal duties, require access to the applicant's papers;
on 5 April 2000 he instructed staff at the offsite file storage facility in Bayswater to conduct a detailed search of the facility for the applicant's papers (staff were instructed to search throughout the file range under the letter "W" for any possible mis-filing);

but no relevant papers were located in any of those searches.

An affidavit of Kevin Patrick Koch of the Property and IT Unit of Centrelink, sworn on 6 July 2000, was tendered in evidence (Exhibit R4). In that affidavit Mr Koch acknowledged that he may have handled the file in the past in his previous capacity as Unit Manager, Recovery within Centrelink had the applicant then made a request under the FOI Act, but he added that he had no recollection of having done so, given that it would have been some 6 years ago. He also stated that, in that capacity, he would not have given any instruction to destroy, archive or cull the file, and that he was not presently aware of the location of the file.
An affidavit of Paul Gsell, formerly of the FOI Section of Centrelink, sworn on 5 July 2000, was tendered in evidence (Exhibit R5). In that affidavit Mr Gsell acknowledged that, in his former capacity as a FOI officer, he had handled some files relating to the applicant but he was uncertain whether he had handled the file in question. He added that all such files he handled were obtained in order to process the applicant's FOI requests and that, after he had completed his duties with such files, he would have retained the FOI file and returned all other files to the relevant DSS or Centrelink office that was responsible for those files. He confirmed that he had not given any instructions to any other officer to destroy, archive or cull the file, and that he was not presently aware of the location of the file.
An affidavit of Jane Avis of the Finance and Services section of Centrelink, sworn on 19 July 2000, was tendered in evidence (Exhibit R6). In that affidavit Ms Avis confirmed that she had not personally handled the file, had not given any instructions to any other officer to destroy, archive or cull the file, and was not presently aware of the location of the file. Ms Avis then gave details of the searches she had made, following a request by a FOI officer, in order to ascertain whether the Records Management section of Finance and Services had dealt with the file in the course of its archiving or culling processes. Ms Avis first noted that Records Management had been responsible for both archiving and destroying files sent to it by Centrelink Customer Service Centres only since April 1999 – prior to that date there was no centralised record-keeping of customers' files. Ms Avis then confirmed that her searches had revealed no indication that the file had either been archived or destroyed by Records Management since April 1999.
An affidavit of Cornelis Gysbert de Hoog of the Advocacy and Administrative Law Service of Centrelink, sworn on 20 July 2000, was tendered in evidence (Exhibit R7). In that affidavit Mr de Hoog stated that he did not recall personally handling the file, that he had not taken any action or given any instruction to destroy, archive or cull the file, and that he was not presently aware of the location of the file. He also stated, however, that he was aware that certain matters concerning the applicant had been before this Tribunal in the past and that the file may have been in the possession of the Advocacy and Administrative Law Team (or its predecessors) for the purpose of preparing documentation for such matters. Mr de Hoog added that, on 6 April 2000, he conducted "a thorough search of the file storage and work space area occupied by the Advocacy and Administrative Law Team in Centrelink's Area Office in Perth" and that search discovered only documents relating to two Tribunal matters involving the applicant (including the present application for review), and a Sole Parent Pension file marked "temporary" and "Vol 5" relating to the applicant, but no other documents relating to the applicant.
Finally, an affidavit of Roger James Plant of the Human Resource Programmes section of Centrelink, sworn on 28 July 2000, was tendered in evidence (Exhibit R8). In that affidavit Mr Plant stated that he had not handled, seen or archived the file. He added that, following a request to search the Human Resource Programmes area for the file, he conducted a physical search for the file, and also asked officers in that area whether they had any knowledge of its whereabouts, and he confirmed that his searches and inquiries had failed to locate the file.
The Relevant Legislation
Section 24A of the FOI Act provides:
"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."

Section 55 of the FOI Act provides for the making of an application to this Tribunal for review of various kinds of decisions specified in subs (1) thereof, including "a decision refusing to grant access to a document in accordance with a request" (para(a)). Section 55(5) provides:

"The Tribunal's power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document."

The Submissions

The applicant submitted at the hearing that Centrelink should be held accountable for the fact that the file has not been found. She went so far as to submit that Centrelink, and formerly the DSS, had conspired to prevent her from being able to access the file and that the fact that the file had not been found was no accident. She also submitted that the DSS and Centrelink were in breach of Information Privacy Principles set out in the Privacy Act 1988 and had not acted lawfully, correctly, fairly and justly in relation to the file and her right to access it.
Mr Jones (for the respondent) submitted at the hearing that the Tribunal, on the basis of the evidence before it – in particular, the oral evidence of Ms Corbett and Ms Greif and the 8 affidavits (Exhibits R1 – R8) referred to in paragraphs 4 and 6-12 above – should find that all reasonable steps have been taken to find the file and that it is satisfied, for the purposes of s24A of the FOI Act, that the file is in Centrelink's possession but cannot be found and, accordingly, should affirm the decision under review.
Subsequent Developments
Subsequent to the hearing in this matter the Tribunal, on 24 October 2000, directed the respondent to arrange for further searches for the file to be made at specified Centrelink offices and sections and to lodge with the Tribunal affidavits sworn by the relevant Centrelink officers confirming the results of those searches, and serve copies of those affidavits on the applicant. The following affidavits were duly lodged with the Tribunal by the respondent and were given the following exhibit numbers:

affidavit of Bernard Wayne Jenkinson, Debt Prevention Monitoring Officer, Centrelink, sworn on 23 November 2000 (R9);
affidavit of Vivienne Terese Pillay, Deputy Regional Manager, Milligan Street Customer Service Centre, Centrelink, sworn on 23 November 2000 (R10);
affidavit of David Arthur Armstrong, Manager of Victoria Park office of Centrelink, sworn on 16 November 2000 (R11);
affidavit of Bradley Wishart, Customer Service Officer, Innaloo office of Centrelink, sworn on 16 November 2000 (R12);
affidavit of Peter Kramer, Manager of Cannington office of Centrelink, sworn on 31(sic) November 2000 (R13);
affidavit of Christina Mae Guthrie, Manager of Gosnells office of Centrelink, sworn on 21 November 2000 (R14);
affidavit of Evlyn Dorothy Greif, Freedom of Information Officer, Compliance Section of Centrelink, sworn on 23 November 2000 (R15); and
affidavit of Murray William Bairstow, Team Leader, Records Management Section of Centrelink, sworn on 27 November 2000 (R16).

Those affidavits confirmed that further searches for the file had been made in the relevant locations, but that those searches had not located the file.

The respondent also lodged with the Tribunal a document entitled "Interoffice File Request" dated 16 June 1995 in which a request was made by the Victoria Park Regional Office of the DSS to the Cannington Regional Office of the DSS for the file to be forwarded by the latter office to the former office. That document was marked as Exhibit R17.
The parties were subsequently afforded the opportunity to make submissions in relation to Exhibits R9 – R17 but no such submissions were made.
Findings
The fundamental question of fact for the Tribunal's determination is, in terms of para (a) of s24A of the FOI Act, whether "all reasonable steps have been taken to find" the file. On the basis of the substantial oral and affidavit evidence before it, the Tribunal finds that "all reasonable steps have been taken to find" the file, within the meaning of para (a) of s24A of the FOI Act.
The question then arises, in terms of para (b) of s24A of the FOI Act, whether the Tribunal is satisfied that the file is in Centrelink's possession but cannot be found or, alternatively, that the file does not exist. As regards the latter alternative, there is no evidence before the Tribunal that the file has been destroyed or has, for any other reason, ceased to exist. On the contrary, the evidence before the Tribunal indicated that, according to standard DSS and Centrelink practice, the file should not yet have been destroyed. Accordingly, the Tribunal cannot be satisfied that the file does not exist. The Tribunal is satisfied, however, on the basis of the evidence before it, that the file is in Centrelink's possession but, despite the extensive steps that have been taken to find it (as described in the abovementioned oral and affidavit evidence), it cannot be found.
Conclusion
It follows from the Tribunal's findings stated in paragraphs 19 and 20 above that a decision refusing the applicant's request for access to the file is authorised by s24A of the FOI Act. Furthermore, in the Tribunal's opinion such a decision, given that extensive searches for the file have been made by Centrelink both on its own initiative and at the direction of the Tribunal but have failed to locate it, is the correct or preferable decision in the circumstances of this case.
Before parting with this matter the Tribunal will comment briefly on the applicant's submission that the (former) DSS and Centrelink have, in failing to locate the file, breached Information Privacy Principles set out in the Privacy Act. In the first place such a matter is not properly before the Tribunal in this case – the sole matter before the Tribunal is the review of the Centrelink officer's decision of 6 October 1999 to refuse to grant the applicant access to the file, pursuant to s24A of the FOI Act. The appropriate course for the applicant to take to pursue her claim regarding breaches of Information Privacy Principles is to lodge a complaint with the Privacy Commissioner pursuant to s36 of the Privacy Act.
The applicant is understandably concerned that Centrelink is unable to locate the file and that she is thereby effectively denied her right of access to the file under s11(1) of the FOI Act. The Tribunal is also concerned, and perplexed, that the file – which comprises 4 volumes and (apparently) several hundred folios – cannot be located by Centrelink. In the Tribunal's opinion, the failure by Centrelink to account for the file calls into question whether it has duly discharged its responsibility to take reasonable measures to ensure the security of a record containing personal information. Having said that, however, the Tribunal does not accept the applicant's submission that the (former) DSS and Centrelink have deliberately brought about this situation in order to prevent her from gaining access to the file. There is simply no evidence before the Tribunal which would support such a finding.
Decision

For the above reasons the Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop (Senior Member)
Signed:
................................(sdg S Railton)..............................
Associate
Date/s of Hearing  28 September 2000
Date of Decision  9 October 2001
Counsel for the Applicant        In person
Solicitor for the Applicant
Counsel for the Respondent    Mr A Jones
Solicitor for the Respondent    Advocacy and Admin Law Team, Centrelink

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Williams and Department of Family and Community Services [2001] AATA 848

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