Yabsley and Australian Postal Corporation (Freedom of information)

Yabsley and Australian Postal Corporation (Freedom of information) [2018] AATA 1291 (29 March 2018)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2017/2536
Re:William Yabsley
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:29 March 2018
Date of written reasons: 17 May 2018
Place:Hobart

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
...............................[sgd].....................................
A G Melick AO SC, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – Freedom of Information Act 1982 – exemptions claimed – whether documents requested exempt – document lost or non-existent – requirement to take all reasonable steps to find document – written reasons requested – decision affirmed.
LEGISLATION
Freedom of Information Act 1982 (Cth) ss 24A
Criminal Code Act 1995 (Cth) s 471.12
Australian Postal Corporations Act 1989 (Cth)
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982
REASONS FOR DECISION
A G Melick AO SC, Deputy President
17 May 2018

The applicant, Mr Yabsley, seeks a review of the decision of the Information Commissioner dated 6 April 2017, which affirmed a decision by the respondent dated 6 September 2016. The question to be determined is whether reasonable steps had been taken to locate documents in accordance with s 24A of the Freedom of Information Act 1982 (Cth) (the Act).
Section 24A reads as follows:
24A Requests may be refused if documents cannot be found, do not exist or have been received
Document lost or non‑existent
(1)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.
Document not received as required by contract
(2)An agency may refuse a request for access to a document if:
(a)in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and
(b)the agency has not received the document; and
(c)the agency has taken all reasonable steps to receive the document in accordance with those contractual measures.
Although I have set out the provision in full, the relevant subsection for the purposes of this decision is s 24A(1).
Many of the documents covered by this application have been the subject of previous requests and determinations. The first request was made by the applicant in May 2013 and a decision not to provide the documents was affirmed by an internal review decision dated 7 November 2013.
The applicant made a second application on 2 May 2014. On 29 May 2014 the respondent determined that it was satisfied that the s 24A requirements had been met, refusing the application. A third application was made on 16 February 2016 and, after an internal decision by the respondent dated 6 September 2016, was referred to the Information Commissioner for review. The decision made by the Information Commissioner on 6 April 2017 is the subject of this application for review. The documents requested were deemed to fall within s 24A.
BACKGROUND
In 2013, the applicant was found guilty of one count of using a postal service to harass and several counts of using the postal service to cause offence. Since then he has been trying to gain access to documents which he claims will prove that his prosecution was, inter alia, commenced and conducted without due authority.
I also note that in the course of these proceedings, the applicant has attempted to establish various other imputations or allegations. It is not appropriate for this Tribunal to examine those matters as the issue for determination in this application is whether the Information Commissioner made the correct decision.
As noted above, the applicant has made numerous attempts to obtain from the respondent what he claims are relevant documents. Many of the documents were not produced by the respondent, either because it claimed that they did not exist or, if they did exist, that they were not in its possession.
In addition, the respondent indicated some instances where it was unable to ascertain whether the documents existed because of the lack of specificity in the description of the documents. I note the respondent released two documents that were not strictly in the terms of the applicant’s request, but which it nevertheless regarded as satisfying the subject matter of that request.
CONSIDERATION AND FINDINGS
In making my decision, I have had regard to the decision sought to be set aside, as well as the following matters, which were also appropriately considered by the Information Commissioner. The matters that I considered were:
(a)the Act, in particular s 24A as set out above;
(b)the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, to which an agency must have regard when performing a function or exercising a power under that Act, in particular paragraphs 3.80 to 3.84; and
(c)the respondent’s decision dated 6 September 2016 and the reasons for that decision.
I have also considered the submissions of the parties, as well as the evidence adduced at this hearing, which primarily consisted of the oral evidence of a former investigator for the respondent, Mr Otto, who conducted the initial investigation into the applicant.
Timeline of Events
There appears to be much conjecture as to how the investigation into the applicant commenced. A letter from the Hobart Office of the Australian Federal Police (AFP) to the Ipswich Criminal Investigation Branch (CIB) was tendered at the hearing by the applicant (Exhibit 2). I find that a combination of that letter and Mr Otto’s evidence establishes the following timeline.
A complaint was initially made by Ipswich Grammar School to the Queensland Police in relation to potential offences by the applicant under s 471.12 of the Criminal Code Act 1995 (Cth). This complaint was forwarded to the Brisbane Office of the AFP, following which Mr Cross, of the AFP’s Operations Monitoring Centre in Hobart, arranged a meeting with Mr Otto. Mr Otto was part of the corporate security group in the respondent’s Hobart office. I infer that there must have been a communication from the AFP’s Brisbane office to their Hobart office. As a result of that meeting, it was agreed that Mr Otto would investigate and ‘prosecute’ the matters. I note that, after investigating the matter, effectively all Mr Otto could do would be to refer it to the Commonwealth Director of Public Prosecutions (CDPP) to then determine whether to commence prosecution.
The referral to Mr Otto was the subject matter of the first of the items requested by the applicant who insisted it must have been a written document. Mr Otto indicated that he could not recall a written referral, but that if one existed, it would be in the CDPP file. He was extensively cross‑examined by the applicant as to the existence of a written referral and reference was made to evidence he gave upon the applicant’s prosecution, which seemed to suggest there may have been something in writing.
Prior to the hearing, the applicant was directed to file any further documents that he considered relevant to the application. The Tribunal received a large bundle of documents, which were tendered as Exhibit 3 at the hearing. An undated communication from Mr Cross to the applicant (Exhibit 3, p 398) states:
Mr YABSLEY [sic],
This matter, in the first instance was referred to Queensland Police by Ipswich Grammar School. Queensland Police then elected not to further investigate this matter and referred the matter to the Australian Federal Police (AFP) Brisbane office. AFP Brisbane office then passed this matter onto AFP Hobart Office in February 2008.
The AFP ‘nationally’ considers all referrals in line with the provisions as set out in the AFP’s Case Categorisation and Prioritisation Model … … Although this model is updated from time to time the basic provisions for the consideration of all matters has not changed.
In this circumstance, the complaint lodged by Ipswich Grammar School was passed to Australia Post as they possess the ability to investigate and prosecute offences associated with the misuse of the postal service within Australia.
Accordingly, I can advise you that this matter was passed to Australia Post to ‘Investigate & Prosecute’. Please find attached the advice provided to Queensland Police (in this regard), as they (Queensland Police) were the first entry point (within the law enforcement arena) for this complaint from Ipswich Grammar school.
In addition, I have provided you with a copy of the receipt for the handover of the documents to Australia Post.
I find that the Ipswich Grammar School complaint mentioned in Exhibit 3 above was referred to in the correspondence dated 6 February 2008 referred to in Exhibit 2 (the letter dated 13 March 2008 from AFP Hobart reporting back to Queensland Police). I am not able to determine whether a copy of the complaint was actually attached, but it no doubt existed and therefore the relevant consideration becomes whether it still exists and is able to be produced.
Mr Otto’s Evidence
I found Mr Otto to be an honest and reliable witness, noting that he was being asked to recall matters that occurred in 2008. I will summarise the relevant parts of Mr Otto’s evidence as follows:
(i)He was the only investigator in the respondent’s Hobart office and he did not have a specific duty statement, although he was aware there was a generic duty statement applicable to all Australia Post investigators throughout Australia. Mr Otto also noted that he had participated in appropriate courses, although he could not specifically remember particular dates or the nature of such courses.
(ii)After investigating any matter, he would, if appropriate, refer the file to the CDPP who would then have taken over all his documents and file.
(iii)Mr Otto recalled receiving two folders containing relevant information early in the investigating stage, although could not recall whether they were red folders. I am satisfied that they were red folders, but their colour is not relevant because it was conceded that the two folders actually existed. The information contained therein would have been provided as part of the brief to the CDPP and any evidence by way of exhibits would have been held by the Court until after the relevant appeal period and then returned to the CDPP.
(iv)Mr Otto assumed that the file would then be returned to the respondent where it would have been stored and/or archived. However, he was not in a position to say what had occurred as he retired in 2011, prior to the trial which was conducted in 2013.
(v)Mr Otto was adamant there was no audio-visual equipment in the room when he interviewed the applicant and the interview was not so recorded. I accept this evidence and find that no such equipment was in the room at the time.
Documents Requested by the Applicant
I now turn to the specific documents which were the subject of the applicant’s request. First, I note the respondent’s evidence as to all the consultations it undertook to find the documents that the applicant argued existed. The respondent contends that this is not a matter of whether documents have been destroyed, but if they were ever created or available to be produced, and whether some of the documents were ever the respondent’s documents or in its possession or control.
The respondent also contended that if the documents had been in its possession, the relevant searches had confirmed that they were in fact no longer in its possession. An example of this would be the two folders of documents Mr Otto recalled receiving, but which he said would have been passed on with the brief to the CDPP.
Item 1
Item 1 refers to a referral letter from the AFP to the respondent’s investigator. The respondent contends their enquiries established that the only formal referral was from the AFP’s Brisbane office to its Hobart office. However, I am satisfied that this document, as conceded by Mr Otto, did exist. I also accept the evidence of Mr Otto that it would have formed part of the brief given to the CDPP. That brief appears to no longer be in the respondent’s possession because none of the searches by the respondent have been able to locate the file.
Item 2
The applicant also requested the ‘two red folders’ attached to the referral letter. In its decision, the respondent indicated that the relevant folders had been tendered in evidence during the applicant’s trial and that it no longer held those documents.
Mr Otto gave evidence that those folders were part of the file given to the CDPP, but that he would have expected they would have, at some stage, been returned to the respondent. As to whether they were returned and what has happened to them, I am unable to determine. Regardless, I am satisfied that the respondent has made all relevant inquiries and cannot locate the documents and therefore they cannot be produced.
Throughout the hearing Mr Yabsley contended that the respondent’s statements as to the people it had spoken to were hearsay and not evidence. However, I am satisfied that those statements constitute evidence of adequate searches undertaken by the respondent. As to the adequacy of the searches, as noted above, this was the third in a series of applications and each time the respondent has gone to extensive time and trouble to locate documents, even though they may have been searched for on a previous occasion.
Item 3
The third item was a copy of a letter sent by the investigator to the applicant, inviting him to attend an interview on 13 May 2008. The respondent indicated that its search had failed to identify such a letter. However, it did locate a letter dated 29 April 2008 from the state manager of the respondent’s Corporate Security Group, inviting the applicant to contact the investigator to advise whether he intended to participate in an interview. A copy of that letter was given to the applicant.
Item 4
The fourth item requested were documents relating to an audio-visual camera used during the interview with the applicant on 13 May 2008, including the audio-visual tape and the serial number, make and model of the camera. As already indicated, I accept the evidence of Mr Otto that no such equipment was in the room at the time and therefore that this item is not available to be produced.
Item 5
The fifth item requested by the applicant was a copy of the investigator’s duty statement. As I have previously noted, Mr Otto gave evidence to the effect that he did not recall ever having a specific duty statement with his name on it, but that there was a generic duty statement available to all investigators throughout Australia. The respondent stated that whilst a specific duty statement for the investigator was not available, it had located a general duty statement for a person in the position of investigator in or about 2008. A copy of that duty statement was given to the applicant.
Item 6
The next item requested was a copy of the investigator’s qualifications relating to Commonwealth investigations. I accept the evidence of the respondent in regard to the investigator’s qualifications, namely that enquiries with the Corporate Security Group indicated the investigator’s qualifications would have been sighted at the time of employment, but not retained. The respondent noted that its Corporate Security Group had advised that it does not maintain a file for employee qualifications and, in addition, that a copy of the investigator’s qualifications was not available on his personal file.
Item 7
Item 7 related to advice provided to the investigator by his superior with reference to a specific part in the transcript of the trial. The respondent contended that the relevant part of the transcript did not give rise to the inference that any written advice was given. It submitted that its searches had failed to identify any documents relevant to this request and noted that the investigator may have acted on verbal instructions. Mr Otto gave evidence that, as far he could recall, the instructions were given verbally and a consideration of the transcript and his evidence satisfies me that there was no written advice. Therefore, I find that this document is not available to be produced.
Item 8
Item 8 consisted of various documents relating to an educational institution. This included a copy of any investigation report on crimes allegedly committed by the board of the educational institution, advice about charging the board, witness statements, the educational institution’s reporting obligations under state legislation, and the investigator’s efforts to inquire about the applicant’s reporting obligations.
In the reasons for its decision, the respondent stated that the Australian Postal Corporations Act 1989 (Cth) governed its function and that its investigator was not empowered to undertake an investigation of the kind claimed by the applicant. The respondent further stated that the investigator’s role was limited to the issue of the use of the postal service in the context of broader AFP investigations and prosecutions by the CDPP. I find that to be a correct statement of the law and the resources available to the respondent.
I note that the applicant seemed to suggest that Mr Otto was not qualified to undertake the investigation that led to the applicant’s prosecution and conviction. This seems contrary to his suggestion that the respondent should have been investigating the matters set out in item 8. In any event, I find that it is common practice throughout the Commonwealth for individual agencies, rather than the AFP, to carry out investigations and to then provide the results of such investigations to the CDPP.
The respondent tendered a document at the hearing, Exhibit 4, which referred to the CDPP’s partner agencies and set out matters such as brief advice, assessment and preparation, and liaising with investigating agencies. It also lists some 76 agencies as partner agencies. Obviously, the AFP cannot investigate all such matters and I consider the practice undertaken for many years by the Commonwealth (to rely upon investigators within partner agencies) to be appropriate.
Other Documents
The applicant also requested access to documents (other than the red folders) referred to by the investigator, documents relating to the investigator’s efforts to ‘corroborate any matter provided to him as true’ and documents setting out questions posed by the AFP, which seemed to be attached to the AFP’s initial provision of the red folders.
The Information Commissioner’s decision stated that his case officers wrote to the applicant and requested a further description of these items, but received a reply which reiterated that he sought access to a referral letter from the AFP to the investigator, the audio-visual recording of the interview, the investigator’s qualifications as well as various documents relating to the educational institution. I have dealt with those matters above.
During that correspondence, the applicant clarified that he sought access to documents proving the relevance of the Crown witnesses and to the notes made by the investigator determining that the applicant’s actions reached the requisite criminal standard. As appropriately noted in the Information Commissioner’s reasons, the CDPP decided there was sufficient corroborative evidence to proceed to a prosecution and this was not a matter for the investigator.
The applicant also requested documents proving that the investigator was not acting in a corrupt manner as well as documents justifying why the investigator was able to ignore the law. The applicant has not been able to indicate what documents he believes exist that would provide the proof he seeks, nor has he indicated why he believes any such documents would exist. The Information Commissioner noted that in that regard the applicant acknowledged in his response there had never been any specific reference to any of the requested documents and so identifying them would be difficult. The applicant also stated that he suspected that very few of them ever existed.

I am satisfied, as was the Information Commissioner, that the respondent has given the applicant access to documents that satisfy the subject matter of particular aspects of the request and that no other such documents exist.
DECISION
Having regard to the parties’ submissions, both written and made orally during this hearing, I am satisfied that the respondent has taken all reasonable steps to find the documents that are within the scope of the request. Accordingly, I find that the respondent has complied with s 24A of the Act and that the requested documents either no longer exist or cannot be found, even if they were or may still be somewhere in the respondent’s possession. The decision under review is affirmed.

I certify that the preceding 38 (thirty- eight) paragraphs are a true copy of the written reasons for the decision herein of A G Melick AO SC, Deputy President

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Associate
Dated: 17 May 2018

Date(s) of hearing: 28 & 29 March 2018

Applicant: In person

Solicitors for the Respondent: Legal Services Group, Australian Postal Corporation

Counsel for the Respondent: Mr S Staunton SC

[2018] AATA 1291

29 March 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date(s) of hearing:	28 & 29 March 2018
Applicant:	In person
Solicitors for the Respondent:	Legal Services Group, Australian Postal Corporation
Counsel for the Respondent:	Mr S Staunton SC