Dobson and Secretary, Department of Family and Community Services [2002] AATA 399 (28 May 2002)

Last Updated: 31 May 2002

DECISION AND REASONS FOR DECISION [2002] AATA 399

ADMINISTRATIVE APPEALS TRIBUNAL ) No N1997/1646, N1997/1647

)

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL DOBSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/472

)

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL DOBSON

Applicant

And MINISTER FOR FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal The Hon R N J Purvis, QC, Deputy President

Date 28 May 2002

Place Sydney

Decision The decisions under review are affirmed.

[sgd] The Hon R N J Purvis Q.C. Deputy President

CATCHWORDS

Freedom of Information - whether access has been granted to all documents entitled under the Freedom of Information Act 1982 - documents that cannot be found or do not exist - Ministerial FOI request

Freedom of Information Act 1982 - sections 11(1), 24A

REASONS FOR DECISION

The Hon R N J Purvis, Q.C, Deputy President

the applications

1. There are presently before the Tribunal three applications of Mr Michael John Dobson ("the Applicant") each made under the provisions of the Freedom of Information Act 1982 ("the Act"). An order was made by the Tribunal that the applications be heard and determined together, the evidence in the one be evidence in each of the others.

2. By application N1997/1646 made on the date 13 February 1997 the Applicant sought review of two decisions made by delegates of the then Minister for Social Security now known as the Minister for Family & Community Services ("the Respondent") the one decided under date 12 November 1996, the other under date 21 January 1997.

decision 12 november 1996

3. On the 18 of September 1996 the Applicant sought in a request directed to the Social Security Appeals Tribunal ("the SSAT") the following information:

"Copies of any and all documents from the ministerial file re my bringing to the attention of the minister the criminal actions of Julian Gardner and any and all subsequent actions by the Minister of any and all staff as well as his own as a consequence. All and any missing and/or unaccounted for documents must be stated and full reasons for being missing etc where and why."

4. On the 18 September 1996 an internal review delegate of the Social Security Appeals Tribunal wrote to the Applicant stating:

"I have received your request dated 18/09/1996 for access under the Freedom of Information Act. Your request is for copies of any and all documents from the Ministerial file.

As the SSAT does not hold any ministerial files your request has been transferred to the Ministerial Correspondence Unit in the Department of Social Security in Canberra."

5. A decision was given on the 12 November 1996 by Ms Joan Savic in relation to the Applicant's request which decision inter alia read:

"I have enclosed copies of some letters you have written to the Department in which you have mentioned Mr Julian Gardner, but cannot locate any documentation relating to responses to these letters in relation to Mr Gardner.

I have therefore decided to refuse your request under the provisions of section 24A of the FOI Act.

...

Thorough searches of the Department's records have been undertaken and these have failed to locate any records covered by your request besides the letters you wrote to the Department. I have therefore concluded that the information you have requested is not in the possession of the Department.

For these reasons I have decided to refuse your request under section 24A of the FOI Act."

decision 21 january 1997

6. On 19 December 1996 the Applicant sought a review of the decision 12 November 1996. On 21 January 1997 a decision was given by Ms Tasha Girdler in relation to the Applicant's review request. As here relevant such decision read (T2 pp3-4):

"...

I have considered these documents and made a fresh decision.

...

I have looked through Client file 95/0034 which consists of 259 documents, Client file 96/0040 which consists of 231 documents and Client file 95/0041 which consists of 119 documents and client file 030628 FOI request dated 24/12/95 which consists of 2 documents. These documents relate to a number of issues which you have raised with this Department over a period of time.

...

As you advised me today 20 February 1997 that you are happy to receive copies of documents you requested and do not wish to inspect them, I have decided to release all but one document to you in full, copies of which are attached.

I have decided not to give you access to folios 120 and 121 from customer file 96/0040. This is a Telecom account in the name of Mr B Evans dated 15 November 1993. In withholding this document I have considered the following facts:

(1) The document concerned contains personal information about another person.

(2) You had not provided authorisation from this person to see documents about them.

...

I have decided that it would be unreasonable within the meaning of section 41(1) of the Freedom of Information Act 1982 to provide this personal information to you."

7. In his application to the Tribunal for review of the above decisions the Applicant stated as his reasons for seeking such review (T1 p2):

"Full compliance of my FOI request of 18/9/96 has not been met and I have not been supplied with all copies specifically pertaining to my original request as agreed nor have all reasonable steps been taken to find every document that could be in the Department's possession (see copy from myself dated 22/12/96)..."

8. In its schedule of documents to which claims of exemption pursuant to the Act relate and so far as now relevant (the Applicant did not pursue documents clearly within section 41(1) of the Act). It is stated:

"1...[referable to Mr B Evans]...

2...[referable to other correspondence not the Applicant's]...

3. There has been a constructive refusal to disclose all documents which cannot be found and which it is believed do not exist. The ground of public interest relied on is that all reasonable steps have been taken to find such documents and it is reasonable to conclude that they do not exist (section 24 A of the Act refers).

It is understood that this is Mr Dobson's real area of concern and that he believes that there must have been some investigation of, or action taken upon the issues he raised in his Ministerial [sic] and that such activity must be evidenced by documents."

9. By application N1997/1647 made on 27 May 1997 the Applicant sought review of two decisions made by delegates of the Respondent on 20 January 1997 and 19 March 1997.

decision 20 january 1997

10. On 31 December 1996 the Applicant sought the following information from the Respondent:

"Complete copy of the ministerial file created as a result of receipt of letter dated 13/11/96 inclusive of full actions and reasons by the Minister for non reply by the stated date in view of the extreme urgency and criminal action of persons involved with intention to SABOTAGE my AAT preparation and presentation."

11. Ms Joan Savic the officer of the department of Social Security wrote to the Applicant stating:

"...I have identified 29 documents (folios 120-136 and 169-180), on file No 96/2864, which fall within the scope of your request and I have decided to release these documents to you in full. Copies of these documents are attached.

...

The Department responded to your letter in 28 days. I understand that it took that long to obtain the papers and consider the best way to reply.

..."

decision 19 march 1997

12. The Applicant applied on 20 February 1997 for a review of the above decision of Ms Savic.

13. On 19 March 1997 Ms Tasha Girdler, the review officer having made a decision on the review application wrote to the Applicant inter alia stating:

"29 documents (folios 120-136 and 169-180), were identified on File number 96/2864 and provided to you. These fell within the scope of your request made on 31 December 1996 where you sought access under the Freedom of Information (FOI) Act 1982 to a complete copy of the ministerial file created as a result of receipt of letter dated 13/11/96.

All other documents on File number 96/2864 relate to other customers. In withholding these documents I have considered the following facts:

(1) The documents concerned contain personal information about other people.

...

I have decided that it would be unreasonable within the meaning of section 41(1) of the Freedom of Information Act 1982 to provide this personal information to you.

..."

14. In his application to the Tribunal for review of the latter mentioned decision the Applicant stated as the reasons for his application (T1/1 N1997/751):

"FULL compliance was NOT met three original FOI dated listed 21/12/96 as previously asked NOR when I've asked for a review dated 20/2/97. Decision dated 16/3/97 clearly shows blatant withholding of numerous documents eg's stated in letter dated 20/12/97. The reason supplied is clearly fraudulent from Social Security and I still require the outstanding documents which have nothing to do with any other customers but myself & the subsequent full contents and reasons for the inaction by the Minister."

15. The Schedule notation in relation to application N1997/1646 was also applicable to N1997/1647.

16. By application N1999/472 made under date 29 March 1999 the Applicant sought review of a decision made by Senator Jocelyn Newman as Minister for Family & Community Services on 9 March 1999. On 23 February 1999 the Applicant had written to the Minister stating (T2 p5 N1999/472):

"Dear Senator,

Under the FOI Act you personally are asked to disclose and supply to me all outstanding documents confirmed to exist but NOT previously supplied to me by Joan B Savic and Tasha Girdler after my making ministerial FOI request/s thru the Dept of Social Security dated 18/9/96 and 31/12/96.

Please ensure I get a full copy of your confirmation and search details to ensure your compliance under the FOI Act is genuine as both these request/s pertained to your former ministerial position and action/s initiated by both yourself and previous Minister Baldwin requiring URGENT and IMMEDIATE action/s to be taken as a result of my correspondence in alerting you both to 'criminal' actions and otherwise by members of the SSAT, etc,etc."

17. On the 9 of March 1999 the Minister having made a decision wrote to the Applicant stating:

"...

My staff have conducted a thorough search of my Parliamentary offices for any documents relating to the above correspondence which you allege exist. They have been unsuccessful in locating any such documents.

Your initial allegations were made to the Hon Peter Baldwin MP, the previous Minister for Social Security, in 1995. As you are no doubt aware, I assumed the Portfolio in March 1996 following the election of the Coalition Government. No documents were provided or have been forwarded to me by the previous Minister regarding this matter since I commenced this Ministerial position. Neither I, nor my staff have created any documentation further to your allegations.

Therefore, I am refusing your request for access to these documents under section 24A of the Freedom of Information Act (FOI Act) on the grounds that they or [sic] do not exist..."

18. In his reasons for making the application to this Tribunal the Applicant inter alia stated:

"As per hearing and directions given on 8/2/99 ... relative to matters already before the Tribunal N97/1646-47 and the FACT that the reply from the Minister was not satisfactory nor did she confirm compliance of her action/s under the FOI Act."

19. The relevant Schedule of Documents stated:

"(1) There has been a constructive refusal to disclose all documents which cannot be found and which it is believed do not exit [sic]. The ground of public interest relied on is that all reasonable steps have been taken to find such documents and it is reasonable to conclude that they do not exist pursuant to section 24A of the Act."

the hearing

20. A hearing of the 1997 applications commenced in April 1999 and with the 1999 application concluded on 2 May 2002. A number of direction hearings were held before the commencement of the hearing of the substantive applications. The applications were listed in all for hearing on nine days over the period 1999 to 2002. On some of these days the matter did not proceed or proceeded only for a short time on account of the Applicant applying on health grounds for an adjournment. The Applicant is on a Disability Support Pension having retired from the public service on medical grounds. The Tribunal sought as best it could to accommodate the requests made of it by the Applicant.

21. It is noted that the Applicant on occasions maintained that there was in effect a conspiracy of silence on the part of officers of the Respondent. The Tribunal does not find nor is it required to find that this was so. The Applicant alleged that documents and files existed but were not produced.

22. At the hearing the Applicant appeared on his own behalf. The Respondent was represented by Counsel and/or a Solicitor of the Australian Government Solicitors Office.

23. There were received in evidence the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Additional written material was tendered by the Parties and marked accordingly :

Exhibit No Description Date

A Statutory Declaration Applicant 5 February 1999

B Copies of ministerial correspondence

A1 5 pages of letters faxed to Senator Newman during her giving evidence to the AAT

1 Statutory Declaration Jack Barlow 9 March 1999

2 Affidavit Joan Savic 1 April 1999

3 Affidavit Joan Savic 1 April 1999

4 Witness Statement Tasha Daldaris (Girdler) 3 March 1999

5 Affidavit R J Nockles 29 April 1999

6 Applicant's letter to P Baldwin, MP 8 June 1995

7 Applicant's letter to P Baldwin, MP 19 June 1995

8 Applicant's letter to P Baldwin, MP 26 June 1995

9 Applicant's letter to P Baldwin, MP 29 June 1995

10 Applicant's letter to "person in charge of SSAT" 18 July 1995

11 Applicant's letter to office of the Minister for Social Security 24 July 1995

12 Applicant's letter to P Baldwin, MP 31 January 1996

24. Oral evidence was given by Mr Jack Barlow one time the Director Ministerial and Parliamentary Services, Department of Social Security, Ms Beatrice Joan Savic one time working in the Privacy & FOI section of Centrelink, Ms Tasha Daldaris formerly known as Tasha Girdler one time assistant Director in the Privacy & FOI section of Centrelink, Mr Rod J Nockles one time Chief of staff of the Minister for Family and Community Services and Ms Jocelyn Newman, one time Senator Newman, Minister Family and Community Services. The various witnesses were cross-examined by the Applicant.

statutory provisions

25. The provisions of the Act directly relevant to this application are:

Section 11(1), subject to this Act - Every person has a legally enforceable right to obtain access in accordance with this Act to:

"Right of access

11. (1) Subject to this Act, every person has a legally enforceable right to obtain

access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document."

"24A An agency or Minister may refuse a request for access to a document if:

(a) all reasonable steps have been taken to find the document; and

(b) the agency or Minister is satisfied that the document:

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

(ii) does not exist."

the evidence

26. It is convenient to consider the evidence as a whole and not endeavour to attribute some of it to one application and some to another. Indeed except for Ms Jocelyn Newman the same persons dealt with the relevant applications.

27. Mr Jack Barlow said that he was conversant with the normal practice of the Minister's office for dealing with correspondence addressed to the Minister. He spoke of the volume of correspondence received by the Minister and said that in the case of the Family & Community Services portfolio, administrative arrangements were in place to assist in handling the heavy workload involved. Such arrangements include referring correspondence to the Department and to Centrelink for the preparation of draft replies for the Minister. Pursuant to these arrangements, some correspondence including correspondence of a more routine nature was replied to on the Minister's behalf by Departmental or Centerlink officers. Mr Barlow said that in accordance with these administrative arrangements he replied on the Minister's behalf to the letter that the Applicant forwarded to the Minister under date 13 November 1996.

28. In the course of answering questions put to him, Mr Barlow said that he had not contacted the Minister in relation to the matter before the SSAT "there is an appeal process and a Minister does not get involved or intervene in individual decisions". With reference to the relevant letter forwarded by the Applicant Mr Barlow stated, that the letter had been forwarded to him from the Minister's office and he was asked to deal with it. This he said he did.

29. Ms Joan Savic was charged with the task of searching for documents as sought by the Applicant. With reference to the Respondent's schedule and matters N1997/1646 and 1647 she said :

" After a thorough and extensive search for the documents they were found not to exist. I consider that all reasonable steps have been taken to identify and locate the documents described by Mr Dobson. I also believe as a result of my searches and enquires that these documents do not exist."

30. With reference to the Applicant's request of 18 September 1996, Ms Savic said that the SSAT's internal review delegate forwarded the request to the Department "as a misdirected FOI request and the Ministerial Correspondence Unit referred it to the Legal Services Division". On 10 October 1996 Ms Tasha Girdler, according to Ms Savic requested Mr Dobson's pension file from the St Kilda office. Ms Savic had sought the assistance of the Ministerial Correspondence Unit to investigate Mr Dobson's request of the 18 of September 1996 and she also made inquires of the Legal Services Division, the FOI sections in Area West (NSW) and Area South (Victoria), the Administrative Law Section Sydney and the SSAT. She said that she was aware of three thick complaint files, which were specific to Mr Dobson 95/0034, 96/0040 and 96/0041. She said that:

"As the MCU does not routinely store replies, it was necessary to follow each letter through to the Legal Services Division, which was the division to which his correspondence was referred. It was my understanding that Mr Dobson's letters had been designated as not requiring further action when I wrote to him on 12 November 1996 enclosing copies of those of his letters which mentioned or may otherwise relate to Julian Gardner (8/6/95, 19/6/95, 26/6/95, 29/6/95, 18/7/95, 24/7/95, 3/1/96 - to all of which no specific replies could be found) and formally refusing access to documents which did not exist or could not be found.

I had concluded that DSS did not have in its possession any responses in relation to complaints made by Mr Dobson about Julian Gardner. I have no reason to believe that such responses or any other relevant documents ever existed. I believe that all reasonable steps had been taken to locate replies by way of the inquires which had been undertaken as indicated above."

31. Ms Savic continued by saying that on 3 January 1997 she forwarded to the Applicant copies of all 57 folios of the FOI file 028867 on which his FOI request of the 18 of September 1996 was actioned. The papers were passed to Ms Tasha Girdler for review. On the 15 of January 1997 Ms Savic was asked by Ms Girdler to once again go through the record of incoming correspondence identified by the MCU, to read the correspondence carefully to look for links to any other replies and to follow through to the action (if any) taken in each case to be sure that "we had picked up all replies". In due course she understood that letters referred to above had been marked for no further action and were considered to be finalised by a letter from the Secretary of the Department to the Applicant.

32. On 13 November 1996, following the Applicant having written to the Minister about actions of the SSAT and its solicitor in relation to an FOI matter being then conducted in the AAT, the Applicant applied for access to the ministerial file created as a result of that letter. On 20 January 1997 Ms Savic released copies of folios 120-136 and 169-180 of file 96/2864, which was the "multi-customer file". Ms Savic said that she had no reason to think that there were any other relevant documents which had not been disclosed.

33. In the course of her cross-examination, Ms Savic was taken through the various steps she took to ascertain the existence or otherwise of documents. She said that she checked "all places to see if there was any correspondence having contacted the Ministerial Correspondence Unit for this purpose." She said that she gave the Unit enough information to conduct appropriate searches and she received the answer already given. She said that she had "searched every avenue I could". "My searches", she said, "did not disclose any further records." "Everything" she said "led to a dead end. There was not hidden agenda. I searched in every place I could conceivable think of."

34. The Tribunal accepts the evidence of Ms Savic and has no reason to believe that she did not thoroughly search and inquire for any documents the like of those falling within the description as sought by the Applicant.

35. Ms Tasha Daldaris formerly known as Ms Tasha Girdler had the task of reviewing the primary decisions of Ms Joan Savic and then personally searching for documents. She asked Ms Savic for checks to be made on the FOI system to locate any FOI files, which might be relevant and for indexes to be made of each of the Applicant's three complaint files. She spoke to the Applicant, he having phoned her and told him about the review process being available. It was in response to this advice that the Applicant made the application for review. She inferred that the Applicant thought that there had actually been some documents in existence which the Department was now unable to locate. Ms Daldaris said that she had no reason to believe that any such documents ever existed.

36. Following Ms Savic's decision of the 12 of November 1996, Ms Daldaris initiated a further inquiry with the Ministerial Correspondence Unit as to the source of the information that no further action had been taken on the Applicant's various letters to the Minister. She asked Ms Savic to again check the outcome of each referral of the Applicant's correspondence from the Ministerial Correspondence Unit of the Department to its Legal Services Division including letters which did not relate to Julian Gardner. She asked for FOI files to be checked as well. She said that she was satisfied that nothing further relating to Mr Gardner had been located. She herself looked through the Applicant's customer complaint files and his FOI file. Although as she put it "going beyond the terms of his request", she released the documents contained in the files with the exception of folios 120 and 121 of 96/0040 which related to third parties. On the 19 of March 1997 she wrote to the Applicant affirming the decision to withhold the documents which related to other customers.

37. Ms Girdler said that in the course of handling the Applicant's matters, she saw no documents by which the Minister's office requested the Department to investigate or otherwise take action on the allegations, which the Applicant made against Mr Gardner. She said that she saw no documents to indicate that the Department initiated any such action. She saw no documents relating to the subject matter of his request other than those, which were provided to him under the FOI Act.

38. Mr Rod J Nockles said that " In accordance with the usual procedure" the Applicant's letter of 23 February 1999 was initially re-directed from the Minister's office to the Department. Neither the Minister or any of her staff would have seen the letter when it first arrived. He said that a draft reply to the Applicant's letter was then prepared by the Department, received in the Minister's office and signed. Mr Nocles said "I am informed and sincerely believe that before signing the reply the Minister required her staff to conduct a thorough search of her Parliamentary offices for any document relating to Mr Dobson's request. I am further informed and sincerely believe that no documents were discovered as a result of this search and that when informed that no documents had been located, the Minister signed the letter and it was sent to Mr Dobson."

39. Mr Nockles confirmed that from his own searches and enquires he was satisfied that no documents "which satisfy Mr Dobson's request, exist."

40. In answering a question put to him in cross-examination, Mr Nockles said that the search was conducted over a couple of hours and that he observed it being undertaken. There was an extensive search, filing cabinets were physically examined as were files themselves for relevant documents. None were discovered.

41. Ms Jocelyn Newman gave evidence and was cross-examined upon it by the Applicant. She said:

"Anything that comes into a Minister's office by normal operating procedure, standard operating procedure, goes immediately out each day to the department. A fax would be treated in the same way as a letter that came through the post. I wouldn't see that until it required an answer by which stage the department would send me a draft response and provided I was happy to sign that, well that would go out immediately, if there was a query over it, I would send it back to the department."

42. Ms Newman identified Mr Barlow as head of the Ministerial Parliamentary Services of her Department and it was he who was asked by her to handle correspondence that came in from constituents because of the volume of letters. In addition

"the Minister gets letters from parliamentarians of all the State Parliaments and the Federal Parliament which are answered usually directly by the Minister. Letters that come not via a member of one of the State or Federal parliamentary chambers they come directly to the department. They are acknowledged by someone on behalf of the Minister. In doesn't mean to say that I asked particularly for each letter as it came. It means that I gave an entitlement to Mr Barlow as head of those services to answer letters that came from constituents."

43. With reference to the preparation of replies to letters, Ms Newman said that they are not prepared in the Minister's office, and usually Ministers do not go back into the files of their predecessors. In the relevant case the reply letter was drafted in the Department came to her and she signed it. She said that she was advised by her staff that a thorough search had been held in her offices. There was a procedure for what happened to the files and correspondence when they came back from the Department. She said that she was advised by her staff that they "had a huge hunt for any such correspondence and had been unable to locate any." She said that her own personal office was not searched as she did not keep any correspondence in that place.

44. The Tribunal is satisfied on the basis of the evidence above mentioned that not only did Mr Barlow but so also did other relevant officers conduct extensive and exhaustive searches for material that would satisfy the Applicant's request. Apart from the material already identified no further documents of an agency or official documents of a Minister were located.

decision

as to application N1997/1646

45. The Tribunal is satisfied as above mentioned that extensive searches and enquires were conducted in aid of locating documents. The Tribunal is satisfied that each of the officers who conducted relevant searches and who gave evidence during the course of the hearing of the applications were diligent in the performance of their duties. The Tribunal is satisfied that in relation to this application the relevant officers did not become aware of the existence of any further documents and disclosed all documents that were located pursuant to the searches carried out by them. The Tribunal is satisfied that the decision under review should be affirmed.

as to application N1997/1647

46. In relation to this application the Tribunal is satisfied that the Respondent has caused to be disclosed to the Applicant all documents in its possession or under its control relating to the Applicant's request. The Tribunal is satisfied that the Respondent does not have further documents about any action, which the Minister may or may not have taken in response to the Applicant's letter. The Tribunal is satisfied that in relation to this application such documents as were in existence or under control of the Respondent were produced to him and that no further documents exist. The Tribunal is satisfied that all reasonable steps were taken to find the documents and that further documents cannot be found or do not exist.

The Decision under review in this application should be affirmed.

as to application N1999/472

47. The Tribunal is satisfied on the evidence before it that all the reasonable steps were taken to find documents the like of those described in the application and that it is satisfied that such document or documents cannot be found or do not exist.

Accordingly the decision under review should be affirmed.

48. Each of the decisions under review in applications N1997/1646, N1997/1647, N1999/472 is affirmed.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, QC, Deputy President

Signed: H Sim .....................................................................................

Associate

Date/s of Hearing 12 April 1999, 28/29 June 1999, 2 July 1999, 5 July 1999, 17 December 2001, 6 March 2002,

2 May 2002

Date of Decision 28 May 2002

Representative for Applicant Self-represented

Counsel for the Respondent S Elliot

Solicitor for the Respondent M Allat/S Hamer