ZLCH and Department of Veterans’ Affairs (Freedom of information)

[2022] AATA 1032

ZLCH and Department of Veterans’ Affairs (Freedom of information) [2022] AATA 1032 (27 April 2022)

Division:FREEDOM OF INFORMATION DIVISION

File Number:2019/6959                   

Re:ZLCH  

APPLICANT

Department of Veterans’ AffairsAnd  

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:27 April 2022

Place:Brisbane

The Tribunal affirms the reviewable decision.

............................[SGD]...................................

Member D Mitchell

CATCHWORDS

FREEDOM OF INFORMATION – refusal of access to documents – whether all reasonable steps have been taken to find documents – whether documents in possession but cannot be found or do not exist – whether further processing request would be substantial and unreasonable diversion of agency’s resources – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Freedom of Information Act 1982 (Cth)

CASES

Chief Executive Officer, Services Australia and Farrell (Freedom of information) [2020] AATA 2390

Chu v Telstra Corporation Limited (2005) FCA 1730

De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770

John Singer and Comcare [2016] AICmr 63

‘KE’ and Cancer Australia [2016] AICmr 87

Khorramdel v Department of Human Services [2012] AATA 707

Re Bienstein and Attorney-General (Cth) (2008) 103 ALD 626

Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762

VMQD and Commissioner of Taxation (Freedom of Information) [2018] AATA 4619

SECONDARY MATERIAL

Office of the Australian Information Commissioner, ‘Part 3 — Processing and deciding on requests for access’, FOI Guidelines (Webpage, 25 January 2018)

REASONS FOR DECISION

Member D Mitchell

27 April 2022

INTRODUCTION

1. ZLCH (the Applicant) is seeking review of a decision made by the Respondent, dated
   

   [1]     Exhibit 1, T Documents, T13.1, pages 1064-1067, Internal Review Decision.

   24 October 2018, to partially release 86 documents in response to his Freedom of Information (FOI) request on the basis that he considers there to be further documents that have not been provided to him.[1]

2. The Applicant sought review of the Respondent’s decision by the Information Commissioner.[2] On 16 September 2019, the Information Commissioner advised that it had decided not to undertake review of the decision pursuant to section 54W(b) of the Freedom of Information Act 1982 (Cth) (FOI Act), enabling the Applicant to apply directly to the Tribunal for review.[3]

   [2]     Exhibit 1, T Documents, T14, pages 1068-1075, Applicant’s submissions to OAIC for external review of the Internal Review Decision.

   [3]     Exhibit 1, T Documents, T17, pages 1086-1093, OAIC decision and reasons in relation to section 54W of the FOI Act.

3. The Applicant, subsequently, made an application for review to this Tribunal pursuant to section 57A(1)(b) of the FOI Act.[4]

   [4]     Exhibit 1, T Documents, T1, pages 1-5, Application for Review.

   BACKGROUND

4. The Applicant served in the Australian Defence Force and has had a long and complex relationship with the Respondent outside of these FOI proceedings. The Applicant has a separate application for review on foot within the Veterans’ Appeals Division of the Tribunal. The Applicant is seeking access to his personal or case file information and documents that deal with “previous adverse decision(s) made by the department, or contributed to the process of making these decisions which has occurred over an extended period of time.”[5]

   [5]     Exhibit 1, T Documents, T7, page 40, Applicant’s reduced scope in response to section 24AB notice under the FOI Act.

5. Consequently, on 23 February 2018, the Respondent received an FOI Request from the Applicant.[6] The Applicant described the documents he wished to access as being documents from the MRCC/DVA, as set out in the attachment.[7] The attachment is titled “Documents required and not included in the Tribunal documents or currently not available as evidence for the purpose of identifying issues and arguments for my case”.[8]

   [6]     Exhibit 1, T Documents, T3, pages 7-15, Application for Access to Documents under the FOI Act.

   [7]     Exhibit 1, T Documents, T3, page 9, Application for Access to Documents under the FOI Act.

   [8]     Exhibit 1, T Documents, T3, pages 10-15, Application for Access to Documents under the FOI Act.

6. The attachment provided an overview of the sought documents as generally including the following:[9]

   Internal working documents, memos, meetings & minutes, notes, correspondence, letters, emails and any and all other documents that include or mention [ZLCH] or his case number. Between any one, including delegates or between delegates, management, other staff, third parties, ministers, internal policy teams, contact with the internal legal services, other government departments.

   [9]     Exhibit 1, T Documents, T3, page 10, Application for Access to Documents under the FOI Act.

7. The attachment also itemised 55 categories of documents, with specific documents listed for each category as being within the scope of the Applicant’s FOI Request.[10]

   [10]    Exhibit 1, T Documents, T3, pages 10-15, Application for Access to Documents under the FOI Act.

8. On 19 April 2018, pursuant to section 24AB of the FOI Act, the Respondent consulted with the Applicant on the basis that a practical refusal reason existed to refuse his application because the work involved in processing the FOI Request would substantially and unreasonably divert the resources of the Respondent from its operations.[11]

   [11]    Exhibit 1, T Documents, T6, pages 23-28, Email to Applicant regarding section 24AB consultation notice under the FOI Act.

9. In response, on 20 July 2018, the Applicant revised the scope of his request (Revised Scope of Request).[12]

   [12]    Exhibit 1, T Documents, T7, pages 39-46, Email from Client Liaison Unit attaching Applicant’s reduced scope in response to section 24AB notice under the FOI Act.

10. The Applicant outlined his Revised Scope of Request as follows:[13]

    [13]    Exhibit 1, T Documents, T7, page 41, Applicant’s reduced scope in response to section 24AB notice under the FOI Act.

    I require the following documents between 01 July 2011 to the 01 July 2018, in regard to Rehabilitation and Incapacity (please refer to the search terms listed in the provided index on p 3). Additionally, CLU, Reconsiderations, QA and provision of policy, CDDA, Legal advice not considered privileged, Complaints, Business Support and Liability & Offsetting.

    Documents should include;

    ·All paper and digitised files – this will include any available memos or records of conversation, as well as calculation sheets, email chains, case notes, file notes, meeting notes, discussion line forum, communication, referrals, assessments and reports;

    ·Email correspondence to, from and between DVA delegates/supervisors/ managers/directors – James Seitz, Simon Adler, Geraldine McKenna, Graeme Manning, Nicole Hayden and Toni Adams concerning me, during the period 01 July 2011 – 01 July 2018 with regard to any search terms included in my index;

    ·Email server dumps to remove human error and decrease workload (including deleted emails) – for the requested time period that includes the search terms and staff and third-party lists included in the indexed information;

    ·All correspondence between DVA and Andrew Hook Rehab consultant At Work OH&S (including between DVA and At Work directly);

    ·All correspondence that includes James Seitz;

    ·All correspondence that includes Simon Adler;

    ·All correspondence that includes Toni Adams; and

    ·Historical copies of policy and legislation used or relied on for determinations made in regard to, rehabilitation or incapacity between the period
    01 July 2011 – 01 July 2018.

    I would ask that the department advise me of the existence of other similar documents available. Additionally, please advise if alternative terminology is required, to avoid me missing documents held due to technicalities.

    While there is a large volume of documents I require, I do not believe it is unreasonable for me to request these. It was the department’s decision to create these and as a result, the department has access to these and I do not. Therefore, my FOI request should not be considered as being unreasonable. I hope this is an agreeable reduction in scope for this to progress efficiently.

11. The list of search terms referred to in the Applicant’s Revised Scope of Request included a five page attachment which itemised search terms for the purposes of identifying documents.[14]

    [14]    Exhibit 1, T Documents, T7, pages 42-46, Applicant’s reduced scope in response to section 24AB notice under the FOI Act.

12. The Applicant also confirmed that the following information was outside the Revised Scope of Request:[15]

    ·       His service record/history or service medical records;

    ·       Claims and determinations involving accepted liability;

    ·       Permanent Impairment documents;

    ·       Duplicate documents;

    ·       Early parts of email chains where they are captured in later parts;

    ·       Obviously exempt privileged legal advice material (this category should not include mere conversation, only specifically privileged information);

    ·       Documents provided to the department by him (unless these documents have notes or have been altered in any way); and

    ·       Documents that he had already been provided through his AAT case, totalling 2,260 pages (as long as the pages are not missed during this process due to human error).

    [15]    Exhibit 1, T Documents, T7, page 40, Applicant’s reduced scope in response to section 24AB notice under the FOI Act.

13. On 22 August 2018, the Respondent made a decision (Original Decision) relating to 86 documents,[16] consisting of 956 pages, which had been identified as responsive to the Applicant’s Revised Scope of Request, releasing all documents in part with redactions on the basis of various exemption provisions.[17]

    [16]    Exhibit 1, T Documents, T11, pages 66-81, Decision and Statement of Reasons.

    [17]    Exhibit 1, T Documents, T11.1-T11.4, pages 82-1037, Documents provided to Applicant in response to access request.

14. The Original Decision identified the following classes of documents as having been identified and released, in part, in response to the Applicant’s Revised Scope of Request:[18]

    ·       Case summary of rehab notes, including VIEW, complaint notes;

    ·       Complaint documents;

    ·       CDDA related documents; and

    ·       Documents from TRIM related to [ZLCH] – including MRCA and Incapacity.

    [18]    Exhibit 1, T Documents, T11, page 76, Decision and Statement of Reasons.

15. On 24 September 2018, the Applicant contacted the Respondent in relation to the Original Decision.[19] The Applicant submitted that there was still a lot of information missing and sought access to 48 additional documents.[20]

    [19]    Exhibit 1, T Documents, T12, pages 1046-1053, Request for Internal Review.

    [20]    Exhibit 1, T Documents, T12, pages 1046-1051, Request for Internal Review.

16. The Respondent took that contact to constitute a request for internal review.[21]

    [21]    Exhibit 1, T Documents, T12.1, pages 1054-1062, Email chain with Client Liaison Unit acknowledging receipt of request for Internal Review Request to be sent to Applicant.

17. On 24 October 2018, on internal review, the Respondent (Internal Review Decision):[22]

    ·       decided to affirm the Original Decision in relation to the 86 documents to which access was provided in part;[23]

    ·       considered the Applicant’s internal review request to have “substantially, extended the scope of [his] original revised request, in which case this should have been a [sic] treated as a new FOI request”;[24] and

    ·       undertook to make further enquiries and advise the Applicant, outside of the FOI Act, within a reasonable/practicable time.[25]

    [22]    Exhibit 1, T Documents, T13.1, pages 1064-1067, Internal Review Decision.

    [23]    Exhibit 1, T Documents, T13.1, page 1066, paragraph 8, Internal Review Decision.

    [24]    Exhibit 1, T Documents, T13.1, page 1066, paragraph 9, Internal Review Decision.

    [25]    Exhibit 1, T Documents, T13.1, page 1066, paragraph 10, Internal Review Decision.

18. On 31 December 2018, the Applicant sought review of the Respondent’s Internal Review Decision by the Information Commissioner.[26]

    [26]    Exhibit 1, T Documents, T15, page 1079, Notice of OAIC application for external review and intention to exercise discretion under section 54W of the FOI Act.

19. On 16 September 2019, the Information Commissioner decided not to proceed with its review and finalised its review under section 54W(b) of the FOI Act to enable the Applicant to seek review from the Tribunal in the interests of the administration of the FOI Act.[27]

    [27]    Exhibit 1, T Documents, T17, pages 1086-1093, OAIC decision and reasons in relation to section 54W of the FOI Act.

20. On 24 October 2019, the Applicant sought review of the Information Commissioner’s Reviewable Decision by this Tribunal.[28]

    [28]    Exhibit 1, T Documents, T1, pages 1-5, Application for Review.

21. By consent of the parties, on 3 September 2020, the Tribunal, pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), remitted the decision to the Respondent for reconsideration.

22. On 25 September 2020, the Respondent made a Remitted Internal Review Decision[29] to grant the Applicant full access to 127 document bundles and access in part, due to multiple exemptions, to 174 document bundles (totalling 2,829 pages) (Remitted Internal Review Decision).[30]

    [29]    Exhibit 2, Joint Hearing Book, Tab 2, pages 28-38, Remitted Internal Review Decision.

    [30]    Exhibit 2, Joint Hearing Book, Tab 3, pages 39-2884, Document Bundle.

23. As a result, the Applicant requested clarification and provided further information to the Respondent on 28 September 2020, 7 October 2020, 27 October 2020 and
    

    [31]    Exhibit 2, Joint Hearing Book, Tabs 15-19, pages 3623-3646, Applicant’s responses and requests for clarifications.

    12 November 2020.[31]

24. On 18 January 2021, the Respondent decided to vary the Remitted Internal Review Decision[32] to provide access in full and in part to an Additional Document Bundle[33] containing 167 document bundles (totalling 540 pages).[34] In making this decision, the Respondent provided the following note:[35]

    Note: Much of the material released in the Additional Document Bundle was located from a digitized file, as located on the Department’s electronic document management system HPE Content Manager (TRIM). This file appears to have been created through the manual printing and scanning of both physical and electronic records, as was the Department’s practice at the time.

    Specifically, some relevant email correspondence which was unable to be located through electronic searches has been identified in this digital file. However, the Department has identified and acknowledges that much of this scanned email correspondence does not include copies of the relevant email attachments. Whilst all efforts have been made to locate electronic copies of this attachment material, including extensive searches across multiple business areas and individual staff members, there are instances where the Department has been unable to do so.

    Where email correspondence attaches other email correspondence, these have been listed as separate schedule entries below. However, please note that not all document attachments have been located for each version of the identified email correspondence or document.

    In these instances, the Department considers that it has fulfilled its reasonable search obligations under the FOI Act and notes that any further searches for further material would have to involve a significant IT search effort requiring third party provider support.

    [32]    Exhibit 2, Joint Hearing Book, Tab 8, page 3484, paragraphs 7-8, Affidavit of Bronwyn Worswick (including attachments).

    [33]    Exhibit 2, Joint Hearing Book, Tab 5, pages 2928-2935, Further Remitted Internal Review Decision.

    [34]    Exhibit 2, Joint Hearing Book, Tab 6, pages 2936-3475, Further Document Bundle.

    [35]    Exhibit 2, Joint Hearing Book, Tab 5, pages 2928-2935, Further Remitted Internal Review Decision.

25. On 18 January 2021, in response to the Applicant’s further requests for clarification and replies in relation to the Remitted Internal Review Decision, the Respondent provided a table responding to 102 questions.[36] This table provided comprehensive responses outlining the searches undertaken to address issues raised by the Applicant.

    [36]    Exhibit 2, Joint Hearing Book, Tab 4, pages 2885-2927, Reply to Applicant’s clarification and reply dated

26. In response to having received the further documents and response from the Respondent, the Applicant, on 19 January 2021, asserted that there were significant and major items still missing.[37]

    [37]    Exhibit 2, Joint Hearing Book, Tab 20, pages 3647-3651, Email from Applicant – response to Further Remitted Decision.

27. On 16 March 2021, the Respondent filed a Supplementary Statement of Issues, Facts and Contentions dealing with the issue of practical refusal, together with an affidavit of
    

    [38]    Exhibit 2, Joint Hearing Book, Tab 7, pages 3476-3482, Respondent’s Supplementary Statement of Facts, Issues and Contentions (Practical Refusal) and Tab 8, pages 3483-3513, Affidavit of Ms Bronwyn Worswick (including attachments).

    Ms Bronwyn Worswick, General Counsel and Chief Audit Executive of the Respondent’s Legal Services and Audit Branch.[38]

28. The Applicant provided responses to those documents[39] and, on 3 August 2021, filed his Statement of Issues, Facts and Contentions.[40]

    [39]    Exhibit 2, Joint Hearing Book, Tabs 21 and 22, pages 3652-3659, Emails from Applicant.

    [40]   Exhibit 2, Joint Hearing Book, Tab 23, pages 3660-3679, Applicant’s Statement of Issues, Facts and Contentions.

29. On 24 October 2021, the Applicant filed further submissions.[41]

    [41]    Exhibit 2, Joint Hearing Book, Tab 24, pages 3680-3682, Email from Applicant.

30. On 21 December 2021, a Hearing was held via Microsoft Teams. The Applicant was
    self-represented and gave evidence under affirmation.

    ISSUES

31. At Hearing, the parties agreed that the issues to be determined by the Tribunal had changed throughout the course of the proceedings.[42] As agreed, the issues to be determined by the Tribunal are:[43]

    (a)whether the Respondent has undertaken all reasonable steps to locate the documents in response to the Applicant’s FOI request so as to have discharged its obligations under section 24A of the FOI Act (Issue 1 – Adequacy of Searches); and

    (b)if not, would any further processing of the Applicant’s FOI request constitute a practical refusal reason under section 24 of the FOI Act, namely that the continued processing of the request would substantially and unreasonably divert the property and efficient resources of the Respondent (Issue 2 – Practical Refusal Reason)?

    [42]    Transcript, page 6.

    [43]    Transcript, page 6.

    THE LAW

32. The objects of the FOI Act include the provision of a right of access to Government documents by the Australian community, together with the intention to increase public participation in Government processes, with a view to promoting better-informed decision-making, by increasing scrutiny, discussion, comment and review of the Government’s activities.[44]

    [44]    Section 3 of the FOI Act.

33. In this matter, there is no dispute that the Applicant has a right to access documents as a result of having, in writing, made a request for access to documents.[45]

    [45]    Sections 11, 12 and 15 of the FOI Act.

34. Section 93A of the FOI Act provides that the Information Commissioner may issue guidelines, of which regard must be given in the performance of a function or the exercise of a power under the FOI Act (FOI Guidelines). A reference in this decision to the FOI Guidelines refers to the guidelines in place as of January 2018 (which remained in place in November 2019, noting that subsequent changes to the FOI Guidelines do not impact upon the present application). While the Tribunal is not bound to apply policy of the kind referred to in the FOI Guidelines, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so.[46]

    Issue 1 - Adequacy of Searches

    [46]    Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 and VMQD and Commissioner of Taxation (Freedom of Information) [2018] AATA 4619 at [59].

1. Section 24A(1) of the FOI Act provides that an agency 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 is satisfied that the document:

   (i)    is in the agency’s possession but cannot be found; or

   (ii)    does not exist.

2. The FOI Act does not define what constitutes “reasonable steps” for the purposes of section 24A(1) of the FOI Act. The FOI Guidelines, however, provides the following commentary:

   3.88 The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.[33]

   3.89 Agencies and ministers should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office.[34] At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:

   ·the subject matter of the documents

   ·the current and past file management systems and the practice of destruction or removal of documents

   ·the record management systems in place

   ·the individuals within an agency or minister’s office who may be able to assist with the location of documents, and

   ·the age of the documents.[35][47]

   [47]    Citing the following:

   [33] De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770, applying Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138.

   [34]Chu v Telstra Corporation Limited (2005) FCA 1730 at [35], Finn J: ‘Taking the steps necessary to do this may in some circumstances require the agency or minister to confront and overcome inadequacies in its investigative processes’.

   [35]‘KE’ and Cancer Australia [2016] AICmr 87; John Singer and Comcare [2016] AICmr 63; and De Tarle and Australian Security Investments Commission (Freedom of Information) [2015] AATA 770, applying Langer and Telstra Corporation Ltd (2002) AATA 341.

3. Relevant Tribunal decisions in relation to section 24A of the FOI Act and what is considered to constitute reasonable steps were referenced, with endorsement by the Tribunal in

   
   De Tarle and Australian Securities and Investments Commission (Freedom of Information)

   [2015] AATA 770 (De Tarle) as follows:

   19.In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 at [19] Deputy President McDonald said the following in relation to s 24A of the FOI Act:

   (19)The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the Agency but cannot be found or, alternatively, does not exist. The Shorter Oxford English Dictionary provides a number of meanings for the verb to “find”, the most apt of which for present purposes is “to discover or attain by search or effort”. The Macquarie Dictionary similarly provides amongst the meanings given to the verb “to learn, attain or obtain by search or effort”. The Shorter Oxford English Dictionary provides five meanings for the word “reasonable”, of which the following is, in the opinion of the tribunal, most appropriately applied:

   ... 4.Not going beyond the limit assigned by reason; not extravagant or excessive; moderate ME. b. Moderate in price; inexpensive 1667. 5. Of such an amount, size, number, etc., as is judged to be appropriate or suitable to the circumstances or purpose, late ME. (b. Of a fair, average, or considerable amount, size, etc – 1726.

   The Macquarie Dictionary provides four meanings, including “moderate; or moderate in price ...” ...

   20.In Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762 (“Langer”) Deputy President Forgie said:

   (94)Section 24A of the Freedom of Information Act 1982 (Cth) (the FOI Act) requires the consideration of two matters. The first requires a consideration of whether the department has taken all reasonable steps to find the documents. If it has done that, the second requires a consideration of whether the documents are in the department’s possession but cannot be found or whether they exist…

   (95)It seems to me that the first limb of s 24A requires that the department take such steps to discover the requested documents as are appropriate in the circumstances. The circumstances that are relevant in determining the steps that are appropriate include the subject matter of the documents sought, the file management systems, any destruction schedules followed in Telstra and the steps that have already been taken to locate documents within the terms of the request.

   21. In Re Bienstein and Attorney-General (Cth) (2008) 103 ALD 626 Deputy President Forgie said at [48]:

   … it seems to me that the approach I adopted in Langer and in Andrews continues to be the correct approach. Whether all reasonable steps have been taken will be assessed having regard to such matters as the nature of the documents sought in the request, whether documents of that sort are usually filed in a certain category or categories and whether documents of that sort would normally be referred to a certain division, branch or section or to more than one in an agency for action. Steps that are comprehensive and that are directed to locating documents in those places will be relevant. Where documents are proving elusive, discussions with persons who would be likely to have dealt with the subject matter at the relevant time may be relevant. It may be that those people are no longer in the relevant area of the agency or of the minister’s office but contacting them may lead to an insight into where the documents could have got to. The size of the agency or of the minister’s office may also be relevant as may evidence of any practices regarding the retention of documents or, in the case of a ministerial office, the transfer of documents to the relevant department. Finally, there may be cases in which an examination of documents already found may reveal further areas in which relevant documents may be located. These are some of the matters that may be relevant in deciding whether a minister or agency has taken all reasonable steps to find a document within the meaning of s 24A(a) of the FOI Act.

   Issue 2 - Practical Refusal Reason

4. Section 24 of the FOI Act provides the power to refuse a request for access to documents if an agency, when dealing with a request, is satisfied that a practical refusal reason exists in relation to the request. In such circumstances, an agency is required to undertake a request consultation process in accordance with section 24AB of the FOI Act.

5. Section 24AA of the FOI Act provides that a practical refusal reason exists where the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.

6. It is agreed by the parties, and accepted by the Tribunal, that the Respondent has, in its processing of the Applicant’s request for access to documents, effectively discharged its requirement in accordance with section 24AB of the FOI Act to consult with the Applicant in relation to the existence of a practical refusal reason in relation to his request.[48] The Tribunal considers that the initial consultation process that led to the Applicant’s Revised Scope of Request discharged the requirement on the basis that the Reviewable Decision and Remitted Internal Review Decision as varied relate to that Revised Scope of Request and further notes the considerable amount of cooperation between the parties throughout the Tribunal process.[49]

   [48]    Section 24 of the FOI Act.

   [49]    This view is consistent with the contentions made at Hearing and by the Respondent in post-Hearing submissions dated 14 January 2022.

7. The FOI Guidelines provide the following relevant discussion of what should be considered in deciding if a practical refusal reason exists:[50]

   [50]    Office of the Australian Information Commissioner, ‘Part 3 — Processing and deciding on requests for access’, FOI Guidelines (Webpage, 25 January 2018) < 20191107030032/ The evident purpose of this practical refusal ground is to ensure that the capacity of agencies and ministers to discharge their normal functions is not undermined by processing FOI requests that are unreasonably burdensome. On the other hand, it is implicit in the objectives of the FOI Act that agencies and ministers must ensure that appropriate resources are allocated to dealing with FOI matters. This may include assigning additional temporary resources to handle a peak in the number or complexity of requests or to overcome inadequate administrative procedures. Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that processing the request would be a substantial and unreasonable diversion of resources. Similarly, although a broadly worded request is more likely to constitute an unreasonable diversion of resources than a request that is narrowly focused, the fact that a large number of documents lies within the scope of a request may not be determinative if the documents can be easily identified, collated and assessed.

   3.116 In deciding if a practical refusal reason exists, an agency or minister must have regard to the resources required to perform the following activities specified in s 24AA(2):

   ·identifying, locating or collating documents within the filing system of the agency or minister

   ·examining the documents

   ·deciding whether to grant, refuse or defer access

   ·consulting with other parties

   ·redacting exempt material from the documents

   ·making copies of documents

   ·notifying an interim or final decision to the applicant

   3.117 Other matters that may be relevant in deciding if a practical refusal reason exists include:

   ·the staffing resources available to an agency or minister for FOI processing

   ·whether the processing work requires the specialist attention of a minister or senior officer, or can only be undertaken by one or more specialist officers in an agency who have competing responsibilities

   ·the impact that processing a request may have on other work in an agency or minister’s office, including FOI processing

   ·whether an applicant has cooperated in framing a request to reduce the processing workload

   ·whether there is a significant public interest in the documents requested

   ·other steps taken by an agency or minister to publish information of the kind requested by an applicant

   ·as to a request to a minister — other responsibilities of the minister and demands on the minister’s time, and whether it is open to the minister to obtain assistance from an agency in processing the request

   3.118 The Act also specifies matters that an agency or minister must not have regard to in deciding if a practical refusal reason exists:

   ·any reasons that the applicant gives for requesting access

   ·the agency or minister’s belief as to the applicant’s reasons for requesting access

   ·any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind (s 24AA(3))

   [Citations omitted]

8. In relation to what constitutes a practical refusal reason, the Tribunal in Chief Executive Officer, Services Australia and Farrell (Freedom of information) [2020] AATA 2390, provided at [47]:

   47.Before an agency can avail itself of the practical refusal reason for failing to process a request, it must establish that doing so would substantially and unreasonably divert resources. These terms should not be interpreted in isolation from each other. To succeed with the exclusion, an agency must establish both. Accordingly, even if an application would involve the unreasonable diversion of the resources of an agency, if the diversion is not substantial then it is not possible to refuse the request for practical refusal reasons. Parliament has, in effect, set a resource-diversion threshold below which even requests that unreasonably divert resources must be processed.

   APPLICANT’S CONTENTIONS ON ISSUE 1 – ADEQUACY OF SEARCHES

9. The Applicant filed a Statement of Issues, Facts and Contentions on 3 August 2021 which outlined his contentions consistently with his previous submissions to the Respondent and Tribunal throughout the review process.[51]

   [51]    Exhibit 2, Joint Hearing Book, Tab 23, pages 3660-3679, Applicant’s Statement of Issues, Facts and Contentions.

10. The Applicant provided the following overview of his contentions:[52]

    [52]    Exhibit 2, Joint Hearing Book, Tab 23, pages 3660-3662, Applicant’s Statement of Issues, Facts and Contentions.

    Overview

    -I am seeking the following reasonable steps be undertaken by the Respondent: external IT searches and further consultation with relevant staff.

    -I believe that the Respondent simply lacks the capacity or processes for dealing with complex FOI requests, as opposed to an unreasonable diversion of resources.

    -In addition, just because an agency starts taking reasonable steps to find documents – after earlier missteps – does not automatically mean they have completed all reasonable steps and does not mean they no longer need to keep taking steps if more are available to them.

    -In this case, there are further steps that could be completed, which the Respondent clearly acknowledges. Yet has failed to reasonably justify why they should not be undertaken or why they would not be reasonable to undertake given the circumstances.

    -In this case, there are further documents which may exist (which the Respondent has also already clearly confirmed).

    -In addition, the Respondent has only focused on providing evidence toward the diversion of resources from past efforts and not justified how continued searches would substantially and unreasonably divert its recourses.

    -Put simply, the more mistakes that an agency makes when dealing with clients, the more documents which are thereby created and stored as a result. In complex matters such as these, it would stand to reason that accountability and transparency be of even greater importance to clients effected in such a manner. However, currently the size – and therefor[e] any past defective administration – acts in and of itself as a tool to reject applications. Meaning, in this case, there is less transparency not more, and these issues and mistakes will never fully be understood and therefore never resolved; leading to further systemic failures which are compounded over time and will affect more than just a single individual.

    Put simply, the more mistakes that an agency makes when dealing with clients, the more documents which are thereby created and stored as a result. In complex matters such as these, it would stand to reason that accountability and transparency be of even greater importance to clients effected in such a manner. However, currently the size – and therefor[e] any past defective administration – acts in and of itself as a tool to reject applications. Meaning, in this case, there is less transparency not more, and these issues and mistakes will never fully be understood and therefore never resolved; leading to further systemic failures which are compounded over time and will affect more than just a single individual.

    -I believe this not to be in the best interest of society as a whole, nor in meeting the purpose of the FOI Act itself (particularly post reforms). Government departments should not be able to withhold relevant material that may assist an individual challenge adverse decision(s), simply because it puts pressure on the internal resources of an agency (which they are entirely in control of).

    -Further, I believe that agencies should be completing all possible steps (to the degree of an exhaustive search if required) in situations with similar facts to this matter. I also believe that if steps are deemed as reasonable, then agencies should not be capable of refusing to complete these and suggest that reasonable steps would be unreasonable to action.

    -Further still, agencies are aware for the need to plan for the occasional large and complex request (and the Respondent has not in this case). Being under resourced and having antiquated search methods, which are themselves burdensome, are simply not legitimate reasons to deny a request.

    -20 July 2018, I summarised, at the time, why my request was not unreasonable in my revised FOI request. I would also like to draw the Tribunals attention to some of my comments then, as those reasons remain just as relevant now:

    “I am seeking access to my own personal or case file information and documents that deal with previous adverse decision(s) made by the department, or contributed to the process of making these decisions which has occurred over an extended period of time. Therefore, to a degree this request will remain 'voluminous' in nature, as there is naturally a large amount of documents relevant to my request. However, I do not believe this to be unreasonable.

    Ultimately, I have had a long and complex relationship with the department. Which naturally has resulted in the accumulation of documents created and held by the department in relation to myself. I do not see on the one hand that the department can make multiple adverse decisions, which include raising substantial debt through overpayments and reducing individual benefits. But on the other hand, tell a person seeking to look at the basis for the decisions and actions, that their request is too large. A clear example of this, is when I have emailed the department seeking answers to specific questions and it taking a further 10+ emails before the department fully answers those initial questions. This is one of many examples that then creates additional documents and adds to the voluminous nature of my file.

    …

    While there is a large volume of documents I require, I do not believe it is unreasonable for me to request these. It was the department’s decision to create these and as a result, the department has access to these and I do not. Therefore, my FOI request should not be considered as being unreasonable. I hope this is an agreeable reduction in scope for this to progress efficiently”.

    -As previously mentioned, I do not believe it to be unreasonable for an individual to seek full access to relevant information, after an agency had made multiple adverse decisions and demonstrated systemic defective administration over a sustained period.

    -However, there would also be significantly less grounds for an agency to contend that an unreasonable diversion might exist, if they were adequately resourced for the known size and volume of FOI requests handled annually, had more efficient search functions and greater processes and procedures in place for dealing with large and complex requests such as mine. The current issues faced are those of the agencies own making.

    -I am simply trying to understand and fix what has happened to me specifically, but also for these issues to be identified and, through this, improve the current situation for other veterans who will follow. So that these errors and mistakes can be avoided. This is only achievable if this information is found and released.

    -Finally, paragraph 3.113 of the OAIC Guidelines (‘the Guidelines’) relevantly explains:

    “…where an individual has been significantly personally affected by decisions of government, the agency may find it difficult to justify that a practical refusal reason exists on the basis that processing the request would have an unreasonable effect on the agency even where the FOI processing burden is substantial”.

    -I would ask that the Tribunal not condone this type of conduct and seek to hold the Respondent accountable to the terms of their legislated obligations in this matter.

    -One of the benefits of the FOI Act is that it allows individuals to access information that is relevant to them, not only the information that agencies want them to access. It is not legitimate to force an individual to agree to a process which is less revealing.

    -I urge the Tribunal to reject the proposition that what has already been provided was sufficient. An agency deciding for itself what is the best way for oversight to occur, or the best way for individuals to challenge the decisions which they have made, is not in the public interest.

1. The Applicant further provided the following background and points of clarity in support of his contentions:[53]

   [53]    Exhibit 2, Joint Hearing Book, Tab 23, pages 3663-3664, Applicant’s Statement of Issues, Facts and Contentions.

   Background and overview 

   1.110 October 2017, I made a request to the Respondent for access to documents under the FOI Act. It is now August 2021, and I am still without all relevant documents that relates to this FOI application.

   1.2This has been a protracted matter, through FOI, that has gone on for more than four years, and even longer considering my earlier attempts to access these documents (relevant to adverse decisions which took place 19 June 2015 and is currently before the Melbourne Registry); over 6 years in total.

   1.318 January 2021, I was provided with a note during the last release of documents.

   “In these instances, the Department considers that it has fulfilled its reasonable search obligations under the FOI Act and notes that any further searches for further material would have to involve a significant IT search effort requiring third party provider support” (emphasis added).

   1.4As a result, I asked the Respondent to complete these and they denied this request.

   Points of clarity

   1.5I would like to note that I remain appreciative and thankful toward Ms Tipene (acting for the Respondent), her team, and the recent efforts of those involved in searches undertaken by the Respondent. I am not in disagreement that the efforts demonstrated during the remitted IR determination and subsequent search show genuine attempts to find these relevant documents.

   1.6However, these recent efforts simply do not absolve the Respondent of their obligation to complete all reasonable steps (not some, or close to all). I believe that there are further investigations/steps which can be taken, to locate any further relevant documents or further lines of enquiry, or alternatively to establish that there are no further relevant documents still in existence.

   1.7I would also like to note that I have no wish for my requests to effect other veterans and limit or delay their issues as a result. A significant amount of the energy that drives me to challenge these decisions is not only for myself, but the veteran community as a whole. I am entirely open to working with the Respondent to find the most efficient way of searching and providing these documents. However, I am against the suggestion that my requests are what is doing that, and not simply the poor internal choices being made by the Respondent, when determining how to complete this task, which is causing them difficulty.

   1.8Further, it would appear, for which I do not have a problem, that the Respondent aims to suggest that its past failures during earlier searches should not be considered relevant now, due to its recent search efforts allegedly satisfying all reasonable steps. Whether they do or don’t is not the point of this paragraph. The point of this paragraph, and need for clarity, arises out of the Respondents continued focus on the time and resources used during these past efforts. Therefore, I would suggest that these are equally as irrelevant.

   1.9Further, I believe the Respondent should only be mentioning ‘effective’ search efforts? It would seem irrelevant the time spent or amounts of documents provided if they were not effective or relevant (resulting from its poor processes or past mistakes). The litany of statements provided by the Respondent – thousands of pages, hours of time and what staff were not able to do instead due to this – does little (in my opinion) to support any defence that it should not undertake further steps to find documents, or are not entirely accurate / realistic, and does not illuminate the actual burden (if any) that my request placed on the Respondent without such self-inflicted errors.

   1.10The Respondent should instead be providing the Tribunal with evidence specific to why additional steps would be unreasonable and why ongoing search efforts would ‘substantially and unreasonably interfere with the performance of the Agencies functions’ at this present moment.

2. In relation to the Adequacy of Searches undertaken by the Respondent, the Applicant contended that the searches were not adequate and that an appropriate step in searching for the requested documents includes third party IT searches. The Applicant provided the following:[54]

   [54]    Exhibit 2, Joint Hearing Book, Tab 23, pages 3667-3668, Applicant’s Statement of Issues, Facts and Contentions.

   All reasonable steps

   4.4The Respondent has clearly articulated that further documents may exist and that if further searches were to be undertaken that IT searches would be required (all found within the Respondents statements and affidavits).

   4.5I contend that for the Respondent to satisfy s 24A(a) of the Act, it is appropriate that the Department take further steps to search for documents.

   4.6I contend that the Respondent has failed to reasonably justify why the Tribunal should make an adverse determination against me in this issue.

   4.7I believe that third party IT searches would be considered as a ‘step’ / action toward finding documents. In fact, this is what was explained by the Respondent themselves, as required if further searches were to be conducted.

   4.8In addition, I believe that these independent IT searches would be reasonable to undertake given the circumstances.

   4.9To further assist the Respondent, I would be happy working out a staggered system for these to be undertaken, based on priority (demonstrating my continued cooperation in this matter).

   4.10Therefore, if it is considered reasonable, then the Respondent has not taken all reasonable steps to find the document(s) within my revised scope and has failed to discharge its requirements under s.24A of the FOI Act.

   4.11Subsection 24A(a) of the FOI Act, requires first that all reasonable steps have been taken to find the document before it is said an agency is permitted to refuse a request under section 24A.

   4.12Paragraph 3.88 of the OAIC Guidelines (‘Guidelines’) provides that the Act is silent on what constitutes ‘all reasonable steps’ (which it is). However, given the circumstances, I do not believe my requests to be outside of this.

   4.13The Respondent has cited a number of decisions. However, only two were of general utility. The others were very much reflective of their particular facts and should not be considered as comparable, persuasive or authorities in this case.

   4.14Further, the relevant difference of cases relied upon by the Respondent are as follows:

   De Tarle and Australian Securities and Investments Commission (Freedom of information) [2015] AATA 770. Whereby it affirmed the Tribunal’s findings in Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138. Also citing Re Langer and Telstra Corportation Ltd (2002) 68 ALD 762. Relying on Re Bienstein and A-G (cth) (2008) 103 ALD 626.

   (a)The Respondent is relying on these cases to submit that they do not impose an obligation on an agency to locate every document held in response to an FOI request. It then attempts to define every document being found, as a search considered ‘exhaustive’. This being their own opinion and commentary on these cases, which is different to the use of ‘comprehensive’ used within the cases. Suggesting there to be a difference.

   (b)However, I fail to see where these ‘authorities’ have suggested anything of the sort. In addition, comprehensive can be a synonym of exhaustive; with comprehensive also allowing for the prospect of an ‘all’ inclusive or exhaustive outcome.

   (c)Comprehensive can have 2 outcomes.

   (i)Comprehensive ‘all’ (which is the same as exhaustive)

   (ii)Comprehensive ‘nearly all’

   “Comprehensive; including or dealing with all or nearly all elements or aspects of something” (emphasis added).

   “Exhaustive; including or considering all elements or aspects; fully comprehensive”.

   (d)The authorities use of the work ‘comprehensive’ does not say which. The Respondent would have you convinced that the authorities have selected the ‘nearly all’ version and therefor the ‘all’ or synonym exhaustive version is different. However, that is simply not the case.

   (e)I am supported by the fact that the FOI Act states that functions of the Act are to be performed and exercised as far as possible.

   “The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost”.

   (f)Meaning there is no restriction or limitation as to how far an agency should go to produce documents which exist which is in line with the statements made by [insert] the FOI Act is an Act which is designed to promote disclosure and should be administered with a bias towards disclosure.

   (g)No[ne] of this suggests that an agency should not provide every document relevant to an FOI request.

3. At Hearing, the Applicant’s evidence was consistent with his contentions set out above, and he told the Tribunal that he relied on his Statement of Issues, Facts and Contentions.

4. At Hearing, the Applicant submitted the following in relation to the affidavit provided by

   
   

   Ms Worswick:[55]

   ...in addition the affidavit provided, I have no sort of issue with what was said within that however Ms Worswick wasn't the person that undertook the searches, and the affidavits weren't signed by the searchers themselves, and there's been a long history documented within the department where delegates and staff members have told supervisors and management that they've searched exhaustively and haven't found anything else, and then it's (audio malfunction) sustained any further efforts on my behalf where it's been found that that was a mistake.

   And so if you're not the person that's undertook the searches themselves, it can be simply compounding these mistakes by suggesting that we trusted our staff have done their searches correctly when there's a history that it's quite fallible at the moment, and given the nature and the suggestion that this is quite a complex matter, which I don't disagree with, I just believe that there's an issue in simply relying on the affidavit to suggest that we've done all that we can, or things like that, particularly given the history of me being told, at least a handful of times, that no further documents exist and then having to sort of go back, start over and then more and more documents continue to be produced.

   [55]    Transcript, page 18.

5. The Applicant was given the opportunity to cross-examine Ms Worswick on her evidence; however, declined to do so. The following exchange occurred at Hearing:[56]

   MEMBER:  Thank you, [ZLCH]. [ZLCH], at this point do you have thoughts as to whether or not you did want to be able to cross examine Ms Worswick?

   WITNESS:  I guess at this point it was really only - I've highlighted to the respondent multiple examples where it's said that no further documents exist, or it couldn't sort of find these and then we go back through the history of that and I read where supervisors and managers pass on their request to the delegate, the delegate does the searches, they come back, and then it's the manager and supervisor telling the next person up the chain, "We've done exhaustive searches, we've done all we can, nothing else exists", and then six months, 12 months later, we find that these original delegates have made mistakes and more documents did exist.

   Unless it's the actual individual that is stating that they've done, you know, and provided - and prepared to sign affidavits, prepared to demonstrate that every single search term was searched for, and be involved in a discussion as other cases have explained is a reasonable step for people to reach out to delegates to see if they may have a better idea of where really specific communications or documents may exist, then it just doesn't appear to me that it's being managed or handled reasonably up until this point.

   MEMBER:  Do I infer then that you don't feel the need to cross examine?

   WITNESS:  Exactly. I probably should answer your question. I saw the affidavit from Ms Worswick no differently to the supervisors as well. She's only literally reiterating what the staff doing searches have told her. I don't really - at this point I don't really think I see the need in questioning her as she wasn't the one that did the searches nor does her affidavit really justify whey these additional steps shouldn't be undertaken. I guess the reason for my interest in potentially speaking with her is if the tribunal agrees with that contention, otherwise I don't really see it as - like, if significant weight was going to be attributed to that by the tribunal then possible, but I can't see how it would be and my contention is that it's quite irrelevant in the grand scheme of the issues that are before the tribunal, that being the three possible steps; further IT searches, internal or external, as well as further consultation with specific staff.

   I would reiterate that I've already reduced my scope and what is still outstanding is only further refined as well. It is quite specific to a handful of documents and a majority of email communications and correspondence as well as really clear discussions with some key delegates as to where further searches may be, and those delegates, I think it may be a handful, maybe five or six, be the ones to provide affidavits to say that, you know, they either exist or they don't exist at that point, because I feel like there's no effect on these individuals otherwise, like I think it's only fair at this point that they be the ones to be informing the tribunal, rather than two or three people up the line as to what has hasn't happened. Yes.

   MEMBER:  All right. I guess just to address a couple of those things [ZLCH], I couldn't tell you right now what weight it is that I will put on it because just the same as I can't tell you right now what my decision's going to be because I'm not sure until I weigh back through everything. This is not a cookie cutter clear cut matter. So that's why it's important that I give you the opportunity because now is your opportunity, I guess. Obviously now I do have your submissions in relation to what weight it is that you say the tribunal should place on that affidavit, and of course that's something that I'll take into consideration when I'm thinking about it.

   WITNESS:  I understand, yes.

   [56]    Transcript, pages 50-51.

   RESPONDENT’S EVIDENCE AND CONTENTIONS IN RELATION TO ISSUE 1 – ADEQUACY OF SEARCHES

   Affidavit of Bronwyn Worswick

6. The Respondent provided an affidavit (including attachments) of Ms Bronwyn Worswick, as the General Counsel and Chief Audit Executive of the Respondent’s Legal Services and Audit Branch during the relevant FOI search periods.[57]

   [57]    Exhibit 2, Joint Hearing Book, Tab 8, pages 3483-3513, Affidavit of Bronwyn Worswick (including attachments).

7. In relation to Ms Worswick’s involvement in the Applicant’s FOI application and her ability to provide the affidavit, she outlined that:[58]

   ·       She was authorised to make the statement on the Respondent’s behalf in respect to the search and retrieval efforts of the Respondent in response to the Applicant’s access request made under the FOI Act;

   ·       Her statement was true and correct to the best of her knowledge and her review of the Respondent’s records in relation to the FOI Decision, Internal Review Decision and Remitted Internal Review Decision; and

   ·       She had been involved in providing instructions on behalf of the Respondent about the FOI Request and prior proceedings with the Office of the Australian Information Commissioner and with the Respondent’s external legal services provider in respect of the present Tribunal proceedings.

   [58]    Exhibit 2, Joint Hearing Book, Tab 8, page 3484, paragraphs 3-5, Affidavit of Bronwyn Worswick (including attachments).

8. Ms Worswick outlined the process undertaken by the Respondent in responding to the Applicant’s FOI request as follows:[59]

   [59]    Exhibit 2, Joint Hearing Book, Tab 8, pages 3484-3487, paragraphs 11-23, Affidavit of Bronwyn Worswick (including attachments).

   11.      In my experience, when an FOI request is made to the Department, an officer of the Department attached to the Department’s Information Law Team liaises directly with one or more of the Department’s business areas (relevant business area) directly involved in the subject matter to which the FOI request relates. The relevant business area then conducts a search for documents held which are responsive to the FOI request, retrieves the relevant documents from the Department’s electronic and hard copy storage locations, provides advice as to any sensitivities contained in the documents, and provides the material to the Department’s Information Law Team to make a decision under the FOI Act.

   Searches for documents responsive to the FOI Request

   12.The Applicant’s FOI Request seeks access to documents held by the Department relating to his own personal affairs and involvement with the Department, as well as some general information about the Department’s policies. I consider that the FOI Request predominantly relates to his own personal affairs.

   13.The relevant business areas of the Department that participated in search and retrieval for this matter were the Litigation Team in the Legal Services & Audit Branch (LS&A), the Client’s Benefits Division (CBD) and the Client Engagement and Support Services Division (CESS). I also approved certain targeted IT searches of the email accounts of relevant staff members who are no longer employed by the Department at the time of the remitted Internal Review Decision.

   14.This search and retrieval effort was supported by the Department’s Information Law Team and its external legal services providers Sparke Helmore Lawyers who are engaged to provide legal representation to the Department in these proceedings.

   15.The Department stores information pertaining to clients on a number of digital platforms, including HPE Content Manager (HPE Trim). The Department’s Records Management Policy (dated March 2016) confirms that HPE Trim is the official records management system in which Departmental records must be stored.

   16.Other digital platforms are used by the Department to store information include shared team drives, ‘Cadet’ and ‘Defcare’, which are both legacy systems, and the ‘Rehabilitation & Compensation Integrated Support Hub’ (also known as ‘R&C ISH’), which is a newer system, work team email inboxes and individual staff email inboxes. This is not an exhaustive list of the Department’s document storage platforms, but reflects the systems identified as holding documents relevant to the FOI Request.

   17.Not all material held by the Department will be replicated across all digital platforms as they have varying functionality and different business areas within the Department have different operations needs and practices in respect of these storage systems. The Department’s shared drives and email systems have text search functionality which enable Departmental staff members to search for relevant material. This means that individual officers with responsibility for the matters covered by an FOI request are able to conduct a search of their own and any relevant system they have access to, for documents in response to an FOI request. In many circumstances, the Department’s Information Law Team will not have access to all of these digital locations or storage systems, meaning that they are not always able to solely conduct searches in response to FOI requests received by the Department.

   18.I understand that the significant number of documents, relevant business areas and multiple document storage locations captured by the FOI Request, is a likely outcome of the Applicant’s ongoing history and involvement with the Department over a number of years. I also understand that the Applicant has been provided with material outside of the Department’s formal FOI processes over the years and in the course of legal proceedings involving the Department.

   19.I understand that at times during these Tribunal proceedings, the Applicant has provided the Department with copies of documents he holds which appear to be responsive to the FOI Request, but were not identified during the Department’s search efforts in response this FOI Request.

   20.While unfortunate from an FOI Act perspective, this is not uncommon when an FOI request is made which seeks access to a broad range of documents over a substantial period of time.

   21.In respect of this FOI Request, the scope of the FOI Request is broad, and the Applicant has had a substantial history of engagement with the Department over a significant period of time.

   22.Many of the Department’s records in relation to the Applicant have been digitised, and other older electronic records were identified and retrieved. However, because documents are stored in multiple locations across multiple systems, there can be difficulty in locating all relevant documents (depending on how they are stored in that system). This means that there may be instances where records that were created a number of years ago, can now not be easily identified or retrieved in response to an FOI request many years later.

   23.I acknowledge that there are instances where the Department can no longer identify records identified by the Applicant which he holds and considers to be responsive to the FOI Request. However, despite these inconsistencies, I am confident the Department has now, after the issuing of the remitted Internal Review Decision, engaged in a thorough and detailed search and retrieval process. I consider that all reasonable steps have been taken to locate documents in response to the FOI Request. I consider that any further efforts would have a substantial and unreasonable impact on the Department’s resources.

1. Attached to Ms Worswick’s affidavit at Annexure A is an example Search Request for Documents Minute provided to the Respondent’s relevant work areas and a subsequent response. The Minute outlined the Applicant’s Revised Scope of Request and what was required from the recipient.[60]

   Contentions

   [60]    Exhibit 2, Joint Hearing Book, Tab 8, pages 3490-3507, Attachment A, Affidavit of Bronwyn Worswick (including attachments).

2. The Respondent contended that, on the basis of the authorities referred to in De Tarle, the obligation to undertake “all reasonable steps” does not impose an obligation to exhaustively locate every document held in response to an FOI request, rather it requires an agency to undertake a comprehensive search which is directed to the relevant storage locations for documents responsive to the FOI request.[61]

   [61]    Exhibit 2, Joint Hearing Book, Tab 7, pages 3478-3279, paragraph 13, Respondent’s Supplementary Statement of Facts, Issues and Contentions.

3. The Respondent contended:[62]

   [62]    Exhibit 2, Joint Hearing Book, Tab 7, page 3479, paragraphs 14-21, Respondent’s Supplementary Statement of Facts, Issues and Contentions.

   14.      The Respondent submits that has undertaken “all reasonable searches” to locate documents held which are responsive to the FOI Request. The Respondent submits that, similar to the circumstances in Khorramdel v Department of Human Services [2012] AATA 707, while there may have been shortcomings in the search efforts originally undertaken in response to the FOI request, the Tribunal was ultimately satisfied that the Department of Human Services had discharged its reasonable searches obligations, notwithstanding that the Department’s original search effort had not discharged its reasonable searches onus.

   15.      The Department submits the same issue applies in this instance.

   16.In its Original Decision, searches were undertaken and documents located in response to the FOI Request. In undertaking the remitted Internal Review Decision, the Department has conducted a thorough and substantial search of its records in an effort to locate documents responsive to the FOI Request.

   17.As set out in the affidavit of Bronwyn Worswick dated 16 March 2021, these search efforts included:

   a.searches across a number of the Department’s document storage platforms including R&C ISH, Defcare, HPE Content Manager (HPE Trim), relevant business area shared drives and team and individual email inboxes;

   b.IT searches of the email accounts of former staff members of the Department who may hold documents responsive to the FOI Request; and

   c.searches directed to business areas who may hold documents responsive to the FOI Request including the Information Law Team, the Legal Services & Audit Branch (LS&A), the Client’s Benefits Division (CBD) and the Client Engagement and Support Services Division (CESS).

   18.These efforts to locate documents, together with the time taken to review the documents and prepare the remitted Internal Review Decision dated 25 September 2020 and 18 January 2021 have required more than 200 hours of time by staff of the Department and its external legal services provider (Affidavit paragraphs 24-32).

   19.As a result of these thorough and substantial search efforts, an additional 3,369 pages of material has been released to the Applicant.

   20.The Respondent accepts that given the scope of the FOI Request and the age of some of the records to which access is sought, it is possible the Department holds records which come within the scope of the FOI Request which it has not located. For example, the Respondent’s record keeping practices, for example the scanning and archiving of paper records has changed over the years, meaning that not all historical records may be captured on HPE TRIM or other searchable document storage processes.

   21.Nevertheless, the Respondent submits it has discharged its obligation to carry our “all reasonable searches” to locate documents responsive to the FOI Request.

4. At Hearing, the Respondent further contended that it would be incredibly unusual for an agency to discharge its reasonable search obligations by engaging a third party provider to do a search across its entire ICT platform using particular search terms and particular dates to find documents responsive to an access applicant.[63]

   [63]    Transcript, page 28.

5. The Respondent contended that such a step to respond to a FOI application is beyond what is reasonable and would be excessive. The Respondent further submitted that, from a floodgate argument point of view, if every agency had to engage an external IT provider to conduct searches for email attachments or for documents in response to an access application, it does not see how the Commonwealth would be able to continue to discharge its FOI obligations.[64] The Respondent contended that, as such, those type of searches are not directed because they are beyond what is reasonable.

   [64]    Transcript, pages 28-29.

   CONSIDERATION ON ISSUE 1 – ADEQUACY OF SEARCHES

6. It is well accepted that section 24A of the FOI Act requires a consideration of two factors: firstly, whether the Respondent has taken all reasonable steps to find the documents, and if it has, then secondly, whether the documents are in the Respondent’s possession but cannot be found, or do not exist.

7. In this matter, the Applicant acknowledged that the efforts of the Respondent during the Remitted Internal Review Decision process and subsequent search (leading to the varied Remitted Internal Review Decision) showed genuine attempts by the Respondent to locate relevant documents. The Applicant, however, contended that the Respondent has not competed all reasonable steps to find all documents that fall within his Revised Scope of Request. The Applicant contended that all reasonable steps had not been taken by the Respondent in circumstances where external IT searches, further internal IT searches, and consultation with relevant staff have not been undertaken.

8. The Respondent, on the other hand, contended that, in performing the additional searches as part of, and subsequent to, the Remitted Internal Review Decision, all reasonable steps had been taken to find documents that fall within the Applicant’s Revised Scope of Request. The Respondent noted that due to legacy system issues, the conversion from paper to electronic records and the extended timeframe within which the scope of documents lay, and the fact that the Applicant has been able to identify documents he holds but which they are unable to locate, that there may be documents of which it has in its possession, however, cannot be found.

9. In determining what are reasonable search steps, the findings of Deputy President McDonald in Re Cristovao and Secretary, Department of Social Security[65] as set out above with regards to what constitutes reasonable for the purposes of section 24A of the FOI Act, has been widely accepted. The Tribunal agrees that reasonable steps for the purpose of section 24A of the FOI Act are steps that are not going beyond the limit assigned by reason, not extravagant or excessive, but are moderate and are to such an extent appropriate or suitable to the circumstances.

   [65] (1998) 53 ALD 138 at [19].

10. The Tribunal notes the Applicant’s contentions in relation to the case law outlined above and the Respondent’s contentions in relation to how it applies to the present matter. Having considered the cases and the contentions of the parties, the Tribunal considers that section 24A of the FOI Act and the correct interpretation of what constitutes “reasonable” leads to a position where the requirement is not that the Respondent must find every single document that may be in its possession that falls within the Applicant’s Revised Scope of Request, but rather that the Respondent must have taken all reasonable steps to find such documents.

11. To find that section 24A of the FOI Act requires that the Respondent must find all documents that fall within the scope of a request would render the second requirement of section 24A nugatory. Rather, the Tribunal considers that, should it be satisfied that the Respondent undertook all reasonable steps to find the documents within the revised scope of the request, it must then also be satisfied that any documents not found are either in the Respondent’s possession but cannot be found, or do not exist. Otherwise, the Tribunal would be unable to find that the Respondent had met the requirements of section 24A of the FOI Act.

12. In considering whether all reasonable steps have been taken to find the documents that fall within the Applicant’s Revised Scope of Request, the Tribunal has had regard to the nature of the documents being sought, the file management systems of the Respondent and the steps already taken to locate the documents.

13. Based on the evidence before it, the Tribunal considers that it is not contentious that the documents being sought by the Applicant are predominately of a personal nature, in that they relate to him and his dealings with the Respondent. The Tribunal appreciates the gravity of the issues being faced by the Applicant in relation to the decision he is seeking review of in the Veterans’ Appeals Division of the Tribunal and the drivers behind why he is seeking the documents that fall within the Revised Scope of Request.

14. The Tribunal accepts the evidence of Ms Worswick and the contentions of the Respondent in relation to the Respondent’s file management systems. It is common across government departments and agencies that information is held across several different platforms, with different user access and permissions, all of which is complicated by the digitalisation of files that commenced their lives in paper form.

15. The Tribunal notes that, based on the evidence before it, the Applicant has sought to work cooperatively with the Respondent in relation to his FOI application. Unfortunately, however, given the long running relationship that the Applicant has had with the Respondent and the shortcomings in the provision of documents in relation to his FOI application, it is not unreasonable for the Applicant to question whether the Respondent has done all that it should or must do to address his FOI application. Such dissatisfaction with the present FOI process arises in circumstances where approximately 3,369 additional pages of documents have been provided to the Applicant since the Original Decision in relation to his FOI application was made.

16. However, the Tribunal is looking at the position as it is at the time of Hearing when considering whether all reasonable steps have been taken by the Respondent to find the documents that fall within the Applicant’s Revised Scope of Request. As such, the Tribunal agrees with the decision in Khorramdel and Department of Human Services[66] that, while there may have been shortcomings in the search efforts originally by the Respondent by which it had not discharged the reasonable search requirements, the Tribunal may nevertheless find that the Respondent has subsequently met those requirements.

    [66] [2012] AATA 707.

17. The Applicant, while not specifically taking issue with the contents of the affidavit provided by Ms Worswick, contended that it should be afforded little weight as she did not carry out the searches and, as such, is only reiterating what the officers doing the searches had told her. The Tribunal notes that, as set out above, the Applicant did not seek to cross-examine Ms Worswick.

18. In considering the documents provided by the Respondent throughout this matter, together with the response, dated 18 January 2021, provided by the Respondent to 102 questions raised by the Applicant and Ms Worswick’s affidavit and attachments, the Tribunal accepts Ms Worswick’s evidence that the search efforts of the Respondent included the following:[67]

    ·searches across a number of the Department’s document storage platforms including R&C ISH, Defcare, HPE Content Manager (HPE Trim), relevant business area shared drives and team and individual email inboxes;

    ·IT searches of the email accounts of former staff members of the Department who may hold documents responsive to the FOI Request; and

    ·searches directed to business areas who may hold documents responsive to the FOI Request including the Information Law Team, the Legal Services & Audit Branch (LS&A), the Client’s Benefits Division (CBD) and the Client Engagement and Support Services Division (CESS).

    [67]    As summarised by the Respondent at [17] of Exhibit 2, Joint Hearing Book, Tab 7, page 3479, Respondent’s Supplementary Statement of Facts, Issues and Contentions.

19. It is not out of the ordinary that, for reporting purposes, a Head of Branch within a Department would provide certification, based on their knowledge and investigations, that requirements of their branch had been met. In most instances, it would be impossible for that Head of Branch to have undertaken all the work underlying the requirements in question. Consequently, the operation of the public service is such that public servants are required to perform their duties in line with the Public Service Code of Conduct and APS Values. As such, where an officer provides information and confirmation that a task has been undertaken and completed in line with relevant procedures and legislative requirements, that confirmation, especially when accepted and further escalated by their manager, is reasonably relied upon by the Head of Branch (or equivalent) when giving assurances, unless, of course, there is a cogent reason for them not to do so.

20. Consequently, in considering Ms Worswick’s evidence, together with the balance of the evidence before it, the Tribunal accepts the evidence of Ms Worswick in relation to the steps undertaken by the Respondent, and that those steps were reasonable.

21. In relation to the Applicant’s contentions that further IT searches should be undertaken by an external provider, the Tribunal does not consider that such searches would ordinarily constitute reasonable steps to find documents. In some circumstances, perhaps where there has been major system crashes, conflicts or file corruption, such steps may be warranted.

22. In the present matter, however, noting the steps that have been undertaken by the Respondent as set out in the affidavit of Ms Worswick and summarised at paragraph 70 above, together with the explanations provided by the Respondent to the Applicant on

    
    

    18 January 2021 of the actions it had undertaken, the Tribunal considers that such a step would be excessive in the circumstances.

23. Further, based on the evidence before it, the Tribunal is satisfied that the Respondent has, as at the date of Hearing, undertaken, in consultation with all identified officers of the Respondent, all reasonable steps to find documents that fall with the Applicant’s Revised Scope of Request.

24. It is noted that the Respondent has conceded that there are documents that may be in its possession or were in its possession which cannot be located. Based on the evidence provided by Ms Worswick and the contentions of the Respondent, especially given the identification of examples of such by the Applicant, the Tribunal accepts this to be the case. Further, in finding that all reasonable steps have been taken to locate documents that fall within the Applicant’s Revised Scope of Request, the Tribunal is satisfied that any such documents being sought that fall outside of those provided, cannot be found, or do not exist.

25. As such, the Tribunal considers that the Respondent has undertaken all reasonable steps to locate documents in response to the Applicant’s FOI request and, as such, has discharged its obligations under section 24A of the FOI Act.

    CONSIDERATION ON ISSUE 2 – PRACTICAL REFUSAL REASONS

26. As the Tribunal has found that the Respondent has taken all reasonable steps to find the documents to which the Applicant seeks access to and that any further documents which may fall within the category of the documents being sought either cannot be found or do not exist, there is no need for the Tribunal to consider whether a practical refusal reason arises under section 24 of the FOI Act.

    DECISION

27. For the reasons set out above, the Tribunal finds that:

    (a)all reasonable steps have been undertaken to find the documents to which the Applicant seeks access; and

    (b)any further documents that may fall within the category of documents to which the Applicant seeks access cannot be found or do not exist.

28. Accordingly, the Tribunal finds that the Respondent has discharged its obligations under section 24A of the FOI Act and, as such, the decision under review is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.....................[SGD]....................................

Associate

Dated: 27 April 2022

Date of Hearing:

Date of Final Submissions:

21 December 2021

4 February 2022

Applicant:

By MS Teams

Solicitors for the Respondent:

Ms Chantal Tipene
Sparke Helmore Lawyers

27 October 2020.