ZHANG and AUSTRALIAN FEDERAL POLICE

[2011] AATA 448

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 448

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0546

GENERAL ADMINISTRATIVE  DIVISION		)
Re		YIZHE ZHANG

Applicant

And AUSTRALIAN FEDERAL POLICE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date28 June 2011

PlaceCanberra

Decision The decision under review is affirmed.

......................[sgd]........................

Mr S. Webb, Member

CATCHWORDS

FREEDOM OF INFORMATION - request for access to documents - exemptions claimed but not challenged - adequacy of searches - all reasonable steps taken - decision affirmed

Freedom of Information Act 1982 ss 22, 24A, 54, 55

Freedom of Information Amendment (Reform) Act 2010

Re Kirk and Department of Veterans’ Affairs [2005] AATA 1225

Re Ugur and Australian Federal Police [2009] AATA 405

REASONS FOR DECISION

28 June 2011 Mr S. Webb, Member         

1.Yizhe Zhang believes that he is under surveillance by the Australian Federal Police (AFP) and requested access to information concerning or in reference to himself held by the AFP[1]. A number of documents were identified. All but three documents were released in full and those three documents were released with certain allegedly exempt material deleted[2]. Mr Zhang requested that an ‘exhaustive search’ be conducted to identify all relevant documents within the scope of his request[3]. This was done[4], but Mr Zhang was not satisfied and remained of the opinion that additional documents must exist. He applied for review[5].

[1] T3.

[2] T8: parts of document 11 folios 29 and 30 and document 37 folio 82 were deleted pursuant to section 22 of the Freedom of Information Act 1982 (later amended by item 17, schedule 3, Freedom of Information Amendment (Reform) Act 2010) from materials that were released to Mr Zhang at first instance.

[3] T9.

[4] T12.

[5] T1.

2.A preliminary point concerning the Tribunal’s jurisdiction was raised at the hearing. The AFP asserted that as Mr Zhang did not challenge the exemptions claimed in respect of parts of three folios in two documents, the Tribunal is not seized of jurisdiction under section 55 of the Freedom of Information Act 1982 (the Act) as it stood prior to amendment by the Freedom of Information Amendment (Reform) Act 2010 (the Reform Act)[6]. The amending provisions of the Reform Act commenced as specified in section 2. Amendments made by items set out in Part 2 of Schedule 3 and Part 1 of Schedule 4 apply to applications or requests made after the commencement of those items[7].

[6] Item 34, Schedule 4, Freedom of Information Amendment (Reform) Act 2010.

[7] Item 39, Part 4, Schedule 3 and Item 65, Part 3, Schedule 4, Freedom of Information Amendment (Reform) Act 2010.

3.As Mr Zhang has asserted that additional documents exist than those that have been identified thus far as within the scope of his request, the Tribunal has jurisdiction to enquire whether documents to which access should have been granted do exist and whether there are grounds to exempt any such documents from release[8]. Furthermore, Mr Zhang adduced some evidence, in the form of a traffic Infringement Notice, that may found a reasonable expectation, rightly or wrongly, that additional documents may exist within the AFP’s holdings. Thus, even though Mr Zhang confirmed at the hearing that he did not seek to challenge the exemptions claimed by the AFP over the parts of the three documents that were not released in full, his case is to be distinguished from that of Re Kirk and Department of Veterans’ Affairs[9]. In Kirk’s case all of the documents within the scope of the request were released and there was no evidence any additional relevant documents existed within the Departmental holdings.

[8] Re Ugur and Australian Federal Police [2009] AATA 405 at [16].

[9] [2005] AATA 1225.

4.To my mind, it is very clear that the Tribunal has jurisdiction to review the decision made under (previous) section 54 of the Act at T12. That decision has two components: refusal to grant access to all documents in accordance with a request – parts of three documents were not released; and purporting to grant access to all documents with the request, but not actually doing so – the internal review decision-maker addressed all of the identified documents and was satisfied that “the AFP have fully and fairly undertaken all reasonable action to identify official records held by the AFP in respect of [Mr Zhang]”[10], but Mr Zhang adduced evidence of a traffic Infringement Notice – Camera Detected Offence[11] that had not been identified and, if held by the AFP, would be within the scope of his request.

[10] T12 folio 28.

[11] Exhibit 1.

5.Mr Zhang says that it is simply inconceivable that the AFP have identified all of the documents and records that are within the scope of his request. He points to the Infringement Notice as evidence that additional documents and records must exist. Furthermore, he relies on a detailed and lengthy written statement in which he makes a number of allegations[12]. It is not necessary to repeat those matters in any detail here. In Mr Zhang’s submission the AFP should be directed to conduct further searches in order to fully expose all of the documents Mr Zhang believes it holds concerning or referring to him.

[12] Exhibit 2.

6.I do not agree - Mr Zhang’s case is not made out.

7.The test to be applied in a case such as this is set out in section 24A of the Act. There are two components: all reasonable steps must have been taken to find the document; and the decision-maker must be satisfied that the document is within the agency’s holdings but cannot be found, or does not exist.

8.As will appear, I am satisfied that all reasonable steps have been taken to find relevant documents and records within the AFP’s holdings, and I am satisfied that no further relevant documents exist. Of course it is difficult to be certain about such matters. Nevertheless, if any further relevant documents are in the AFP’s holdings, I am reasonably satisfied that they cannot be found; but no such documents are apparent or pointed to by the materials before me.

9.The traffic Infringement Notice relates to a Camera Detected Offence. It appears that the Notice was issued by the Road Transport Authority of the Australian Capital Territory under the imprimatur of the Australian Capital Territory Chief Police Officer and not by the AFP. There is no evidence to suggest that the Notice would exist in the holdings of the AFP. As can be seen the penalty set out in the Notice is payable to the Road Transport Authority. The AFP asserts that it does not hold the document and that information concerning traffic infringements of this kind is stored on a Road Transport Authority database to which AFP officers have ‘read only’ access. No supporting evidence was adduced from the AFP or the Road Transport Authority on this point. Nevertheless, I accept the AFP’s submission as it is consistent with the contents of the Notice.

10.Mr Zhang’s detailed and lengthy statement does not advance the matter. I have carefully considered this statement and Mr Zhang’s oral evidence. His assertions concerning surveillance and persecution, and the involvement of his colleagues in private employment and other in those alleged activities are not supported by any reliable or probative evidence; they are not consistent with the objective facts and they are not credible. The fact that Mr Zhang firmly and persistently believes that he is under surveillance and is being persecuted by the AFP and others is troubling. But there is no reliable evidence to support Mr Zhang’s belief, and it is not established by the present materials and evidence. It is possible that Mr Zhang’s belief is not entirely rational.

11.Of course, it is not for me to determine whether or not Mr Zhang’s beliefs are rational and whether or not his allegations concerning the AFP have any merit or substance; my enquiry is simply confined to his request for access to information and whether or not all reasonable steps have been taken to find any relevant document or record within the terms of his request. There is no evidence in Mr Zhang’s statement or in his oral evidence that suggest, on any reasonable ground, that documents or records additional to those that have been identified already in relation to his request exist within the AFP’s holdings.

12.I note the evidence of Jacqueline Matan in Exhibit 3. I also note that, at my request, the AFP provided an unexpurgated copy of the documents identified within the scope of Mr Zhang’s request for access. I have carefully examined these documents and I am reasonably satisfied that their contents do not suggest the existence of other documents of relevance.

13.Considering the present evidence, on balance, I am reasonably satisfied that all reasonable steps have been taken to identify documents and records that are within the scope of Mr Zhang’s request, and each of those documents and records has been properly considered under the Act.

14.That being so, I am satisfied that Mr Zhang’s request for access to documents that have not been found or that do not exist may properly be rejected under section 24A of the Act.

15.As Mr Zhang does not dispute the exemptions claimed over parts of document 11 folios 29 and 30 and document 37 folio 82, it is not necessary for me to review those matters.

16.In conclusion, therefore, the decision under review will be affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ...................[sgd].............................................................
  H. Choi (Associate)

Date of Hearing  26 May 2011
Date of Decision                   28 June 2011
Representative for the Applicant              Self-represented

Solicitor for the Respondent  Robert Brigden