"SRYY" and CEO, Centrelink [2002] AATA 73 (8 February 2002)

Last Updated: 11 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 73

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/69, N2001/70

GENERAL ADMINISTRATIVE DIVISION )

Re "SRYY"

Applicant

And CHIEF EXECUTIVE OFFICER, CENTRELINK

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date 8 February 2002

Place Sydney

Decision The decisions under review are affirmed.

..............................................

Ms S M Bullock

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION -Whether reasonable steps undertaken to find documents - Whether documents exist or destroyed

Legislation

Freedom of Information Act 1982 - ss 4(1), 11(1), 24(A), 41

REASONS FOR DECISION

8 February 2002 Ms S M Bullock, Senior Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant concerning five decisions made by the Respondent, the Chief Executive Officer, Centrelink, under the Freedom of Information Act 1982 (T11, T12, T55, T67, T79).

2. It should be noted that on 4 April 2001, the Tribunal directed that pursuant to subsection 35(2) of the Administrative Appeals Tribunal Act 1975, the Applicant is to be known as "SRYY" and the Applicant's identity is not to be disclosed except to the parties and their legal representatives and Members and staff of the Tribunal in the course of the performance of their duties.

3. A hearing was held in Sydney on 10 October 2001. SRYY provided oral evidence to the Tribunal and was self-represented. Oral telephone evidence was also provided to the Tribunal by Mr E. Morrison, Director of Organisational Strategies Team, Department of Family and Community Services, Strategic Management Branch. The Respondent was represented by Mr B Slattery, Advocate with the Department of Family and Community Services. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T99) and the following exhibits:

Exhibit No Description Date

A1 Centrelink Computer Print out "Name Summary". 17 April 1988

A2 4-page hand written notes - Aide de Memoir for Mr Castegnet, Solicitor. Undated

A3 Letter to SRYY from Mr H Byrne, FOI Operative, Area West. 17 March 1993

A4 Department of Social Security Inquiry Note. 7 April 1983

A5 Department of Social Security Office Minute, Mount Druitt Office. Undated

A6 File notes in relation to SRYY. 2, 5 November 1990

A7 Recommendations in relation to SRYY by Mr R Nolan. 3 October 1990

A8 Report on SRYY by Mr R Nolan. 26 September 1990

A9 Department of Social Security Report by Ms D Schuurman, A/Regional Manager, Mount Druitt Regional Office. 17 September 1990

A10 Letter to SRYY from Mr J Grayson, General Manager, WorkCover, NSW. 20 August 1998

A11 Photograph of SRYY and her sisters.

R1 Respondent's Statement of Facts and Contentions. 6 June 2001

R2 Letter,with attachments, from Ms P Faget, Team Leader, Privacy FOI and Ombudsman Team, Corporate Legal, Parliamentary Ombudsman Team, Department of Employment, Workplace Relations and Small Business. 12 June 2001

issues

4. The issues in this matter are whether the Respondent took all reasonable steps to find the requested documents and whether or not the documents exist in relation to:

(a) The decision of 29 September 1995 (T11) by a Centrelink Freedom of Information (FOI) officer which refused a request for access to "the two forms which have been filled in 1980, one for unemployment and the other form was filled for Invalid Pension by somebody else". The FOI officer noted that the Department of Social Security did not have any documents concerning SRYY before March 1982. The request for access to these documents was refused under section 24(A) of the Freedom of Information Act 1982.

(b) The decision of 30 April 1996 (T12), in relation to an assessment made by an occupational psychologist in 1995. The FOI officer advised SRYY that access to "test scores" was granted pursuant to subsection 41(3) of the Freedom of Information Act 1982, in that the scores would be made available to an occupational psychologist nominated by SRYY, who might then discuss the scores with SRYY.

(c) The decision of 17 June 1998 by a Centrelink FOI officer, which granted SRYY full access to her Department of Social Security/Centrelink file (T55).

(d) The decision of 7 January 1999 (T67), from a Centrelink FOI officer in which SRYY had requested:

"1. The paper that there is of the Psychologist scores.

2. The paper work, where Mr Sam Cauchi got the information that I am not allowed to go to work."

The FOI officer noted that he had had several telephone conversations about the psychologist's scores and that letters had been sent indicating that the scores be released to an occupational therapist nominated by SRYY. With the passage of time the test scores were no longer to be found in any files and the request for a copy of the scores was thus refused under section 24A of the Freedom of Information Act 1982.

In relation to Mr Cauchi's paperwork, the FOI officer noted that there are no papers on SRYY's file indicating that she was not allowed to work. Accordingly SRYY's request was refused under section 24A of the Freedom of Information Act 1982.

(e) The decision of 12 May 1999 (T79), by a Centrelink FOI officer concerning SRYY's request for:

"I want the papers that I did not get to see, the papers are in the hands of Mr Mark Pattison. These papers were'nt (sic) sent with the rest of the file to the AAT...

I want to see Mr Sam Cauchi's lies, which was said to Mr Chris Champion, which was written by Mr Chris Champion."

The FOI officer stated he had made a thorough examination of SRYY's file and papers and no documents meeting this description could be found. It was also noted that SRYY had examined her departmental file on two occasions in June 1998 with Mr Champion and again in 1999 at the Administrative Law Section premises in Sydney. The request was refused under section 24A of the Freedom of Information Act 1982, as searches could not locate the documents and there was a conclusion that the documents were not in the possession of the agency.

legislation

5. A decision in this matter requires consideration of the Freedom of Information Act 1982 ("the FOI Act").

6. Section 11 of the FOI Act deals with the right of a person to obtain access to documents and as relevant states:

"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.

..."

7. Section 24A of the FOI Act deals with an agency or Minister refusing access to a document and as relevant states:

"Requests may be refused if documents cannot be found or do not

exist

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."

..."

evidence of SRYY

8. SRYY provided evidence about each of the decisions under review.

9. In relation to the decision of 29 September 1995 (T11), SRYY noted that she had received a bundle of documents, but none related to before 1982. She was told her file had been lost.

10. In relation to the decision of 30 April 1996 (T12), SRYY stated that she had not nominated an occupational psychologist to whom her psychological test results could be sent. SRYY told the Tribunal that she was advised that she could not have access to the test results, except in the context of their being sent to an occupational psychologist of her choice. SRYY told the Tribunal that she did not wish her name to be spread around or besmirched and accordingly, did not provide the name of an occupational psychologist to whom the result could have been sent.

11. SRYY referred the Tribunal to a letter dated 9 August 1995 (T8), sent to her from the Area Deputy Manager West and which noted SRYY's concerns about the possibility of previous assessments made by the Commonwealth Employment Service ("CES") stopping her from obtaining a suitable job but urging her to consider her present situation.

12. Mr Slattery for the Respondent provided some historical context on that point, noting that in 1997, the CES' functions were taken over by Centrelink and the Job Network. During that process of enormous change, some documents and files were destroyed or not passed over to Centrelink. The test scores were in existence at one point, Mr Slattery had noted, but six years later the test scores could not be located.

13. SRYY further referred the Tribunal to Exhibit R2, which contained a letter to Mr Slattery dated 12 June 2001, from the team leader, Privacy, FOI and Ombudsman Team, Corporate Legal, Parliamentary and Ombudsman Team, Department of Employment, Work Relations and Small Business, which referred to SRYY's request for access to CES records in 1998. The letter noted that SRYY's request was partially transferred on 15 June 1998 to the then Department of Employment, Education, Training and Youth Affairs (DEETYA) in relation to CES records. The letter further noted that there had been several searches of SRYY's archive records and that she had been telephoned with the results in July 1998. SRYY was advised at that time that the Department was not able to find any records. Accordingly, SRYY's FOI request was formally refused on 14 August 1998, pursuant to section 24A of the FOI Act. Following this, SRYY indicated by telephone that she was pursuing the matter further with the Ombudsman and Centrelink.

14. SRYY stated that she did complain to the Ombudsman, the result of which was that she was informed that no papers could be found, but that the Ombudsman had spoken to various personnel about the request.

15. SRYY told the Tribunal that she was told by a departmental officer, Ms Anita Jones, that she had seen the psychologist's test scores but that they had been destroyed.

16. In relation to the decision of 17 June 1998 (T55), SRYY stated that in 1998 she had seen Mr Champion, Manager of the Parramatta Centrelink Office. SRYY had seen her Centrelink file but noted that there was nothing on it concerning the documents she had requested. SRYY spoke to an officer about the relevant documents and also about her concerns in relation to Mr Sam Cauchi. Mr Cauchi was contacted by Mr C Champion in SRYY's presence and SRYY noted that Mr Champion told her that Mr Cauchi had made a mistake about her file. SRYY referred the Tribunal to Mr Cauchi's statement of 9 January 1995 (T5), in which he referred to a Newstart Annual Review conducted with SRYY by Mr Cauchi in 1994 (T99), with SRYY in the presence of her parents. Amongst many things discussed during the review, Mr Cauchi noted that SRYY sought information about a previous visit that he had made to SRYY's home in 1980. SRYY indicated that at that time she had not wanted an Invalid Pension and wanted to know who had arranged the 1980 visit. SRYY had been informed by another officer that there were no documents available arising out of that 1980 visit. Mr Cauchi noted in his statement that SRYY scrutinised his integrity to the extent that she accused him of, in some way, releasing information by mistake to SRYY's sister, because SRYY's sister belonged to the same church as him. Mr Cauchi indicated in his statement that he could not even identify SRYY's sister. SRYY told the Tribunal that Mr Champion had told her that everyone was against her because of her sister.

17. SRYY explained to the Tribunal that she had changed her name three times from her birth name. She had changed it first in 1990 by deed poll. SRYY referred the Tribunal to Exhibit A1, which contained a Centrelink Name Summary. The Tribunal also considered the schedule of names outlined at T56. In 1990, when SRYY's sister told a Community Justice Centre that she did not know anything about the family, the whole family decided to "divorce" SRYY's sister and change their name by deed poll. In 1994, the family decided to revert to their original family name, but SRYY decided to change her first name and replace it with her previous second name. The family "divorced" SRYY's eldest sister because it was believed that this sister was representing herself to be SRYY (T69). In a letter to the Prime Minister dated 1 February 1999, SRYY wrote (T69, p174):

"When I came to Australia I passed the tests, from the immigration department and the DSS and CES giving me names like this, such as with a disability, and paranoid, and illiterate.

When I was sixteen years of age, I wasn't with the DSS, or the CES I was working, but the person who wanted to have the pension on my name, they reported that I was under age, to the Labour and Industry office, and I wasn't under age. They reported me to put me on to the DSS to do what they want on my name.

I was sixteen years of age, when this game started, and now I am going to be forty, the DSS and CES, which now you call it Centrelink, they stop me if I have a job and even if I have courses.

Why they are humiliating me like this, and naming me that I am disabled and illiterate, can some body take care of these people, of the Centrelink, of what they are completing, as every time I ask about the papers that I can show profe [sic] with, because they tell me about these papers, then they refuse to give them to me under the FOI."

18. In relation to the decision of 7 January 1999 (T67), about the psychologist's test scores and Mr Cauchi's paperwork whose contents SRYY believed contained information which prevented her from working, SRYY again referred to a memo made by Mr Cauchi on 9 January 1995 (T5). SRYY further referred the Tribunal to her letter dated 11 November 1999 to Ms E Hampton, Administrative Law Section, Centrelink, Canberra (T84), which records in detail her various concerns since 1975. SRYY recorded at T84 p200, that in a 1994 interview with Mr Cauchi at Mount Druitt, he told her that she was not allowed to work. SRYY was informed some days after the interview that he had not been able to find any papers to do SRYY's case but that he had remembered two ladies in 1999, one of whom was illiterate and another one who had helped fill a form for Disability Pension because the illiterate one was "sick with the lungs". Mr Cauchi further told SRYY that the form was filled in using SRYY's name. Mr Cauchi told SRYY to obtain the papers under FOI, which SRYY stated she had been unable to do. It is her belief that somebody has these papers and they are still being used to her detriment. In this regard, SRYY told the Tribunal that her elder sister had the ways and means to obtain pensions or benefits in SRYY's name and that in fact her sister had travelled to Malta in 1974 to obtain SRYY's Birth Certificate so that she could use it to falsify her identity.

19. The Tribunal was informed by Mr Slattery that since 1996, only two departmental officers could access SRYY's file. He further noted that in relation to SRYY's claim that an Invalid Pension had been claimed in her name, this had never been granted. Further, Mr Slattery postulated that it is common place in departmental practice, in order to test the eligibility and qualification of a person for social security benefits, to explore all possibilities. This was in all probability what occurred in SRYY's situation, in that the Department was trying to investigate whether or not she was qualified for an Invalid Pension or some other benefit.

20. In relation to the decision of 12 May 1999 (T79), regarding papers allegedly held by Mr M Pattison and also about "Mr Cauchi's lies", SRYY referred the Tribunal to Exhibit A2, which contains handwritten notes by SRYY's solicitor claimed by SRYY to have been taken during an interview in 1996 with a departmental officer. The notes refer to name changes, different files and information being sought in documents by SRYY. The notes record that documents did not exist or had been destroyed and refer to "honest mistakes" being made. The notes further detail that prior to 1983, files may have been destroyed.

21. SRYY noted also that the documents T76 and T79 are of related relevance. She stated that a senior officer, Mr Jack Barlow, had asked another officer to write to her. SRYY then referred the Tribunal to a letter of 14 May 1999, by Mr B Jackson, Manager, Customer Communications Unit, Centrelink, in which Mr Jackson referred to his previous letter of 8 March 1999 assuring SRYY that the issue of the use of her identity by another person had been properly dealt with. The letter noted that the Minister's staff had given SRYY similar assurances. Mr Jackson further noted that the Commonwealth Ombudsman had examined SRYY's claims and concluded that there was no evidence to support any allegations made by her against Centrelink or any of its staff. Mr Jackson concluded that there was nothing more he could do to add to the previous reply (T80).

evidence of mr ewan morrison

22. Mr Morrison stated that he was Director for Organisational Strategies, Department of Family and Community Services. Mr Morrison told the Tribunal that he first had contact with SRYY in 1990, then in 1991, 1992 and 1993.

23. SRYY had telephoned Mr Morrison about her social security matters and also about an issue concerning the then Telecom. Mr Morrison had been able to assist SRYY with the Telecom matter and referred her to relevant sections of the Department of Social Security in relation to her social security matters. Mr Morrison recalled that the two major social security issues related to a decision by the Mount Druitt Social Security Office concerning Unemployment Benefit. SRYY wanted to move into work and felt that this was being blocked by either the Department of Social Security or the CES. The second social security issue related to SRYY's concern that another person was claiming social security benefits using her name. Mr Morrison stated that there was no resolution of the issue of a person using SRYY's name or her belief that she was being blocked from working. Mr Morrison further told the Tribunal that he did not have anything to do with any FOI request. Mr Morrison stated that he did not know who was using SRYY's name, but stated that he believed that SRYY thought that it was her older sister.

24. Mr Morrison concluded that he knew SRYY had been concerned about these matters for more than 10 years.

submissions

25. SRYY stated that she had come to the Tribunal to obtain assistance to find out what Centrelink had done to her over the years.

26. SRYY stated that she had made various requests to find out information, which could assist her to repair her reputation and the damage caused by her older sister. SRYY submitted that her older sister had used her and her mother's name in order to obtain a pension. In the course of that activity SRYY's older sister had used SRYY's Birth Certificate. SRYY submitted that her elder sister had been undertaking illegal activities such as drug taking and stealing. By making FOI requests, SRYY submitted that she had found out a great deal about her sister's and other people's activities. SRYY referred the Tribunal to Exhibit A4, which is a public denunciation made on 7 April 1983, alleging that SRYY was in receipt of Unemployment Benefit for several years in circumstances where her parents refused to allow her to work and SRYY was making no attempt to find work. SRYY submitted that this was evidence of her sister's improper actions. SRYY's sister had also phoned the Department of Social Security to "dob" SRYY in for working when she had only been on a job for approximately four hours (T84, p196). SRYY submitted that she has had 27 years of unfair treatment and the change from CES to Centrelink has caused her problems with all her documents.

27. SRYY pointed out that as Mr Morrison had said, her documents were sent to many places including the Minister for Social Security's office, the CES, the Prime Minister's Office and the Department of Social Security. Therefore the papers could be in anyone of those places. Unfortunately, Mr Champion, who had previously dealt with SRYY and who has documents in the T-documents, was now dead and another officer, who might have been of assistance was also deceased. These people may have been able to shed more light on what has happened to SRYY over the years, including the location of her documents.

28. SRYY submitted that in 1995 she had not changed her name but knew that her sister had done that. SRYY had spoken to the Centrelink Area West Manager about this matter, but she stated that he "did not want to know". Furthermore, SRYY had asked Mr J Barlow who had made the mistakes about her and if it was not Mr S Cauchi, was it another person? Mr Barlow had not dealt with the matter himself but had asked another officer to deal with it.

29. SRYY submitted that many bad things had happened to her, such as her social security benefits being stopped and for which she sought redress from the SSAT. Furthermore, when undertaking a medical terminology course, another departmental officer, Ms Schuurman had spread "funny tales" about SRYY causing her great difficulty. Further problems were caused by the Regional Manager of Mount Druitt's CES office.

30. Referring to the Tribunal's Direction in April 2001, Mr Slattery submitted that in relation to the decision of an FOI officer made on 29 September 1995 (T11), the FOI officer had thoroughly searched for SRYY's files and documents and had concluded that the files did not exist. The Respondent therefore submitted that this remains the position to date and the decision should be affirmed.

31. In relation to a decision of 30 April 1996 (T12), Mr Slattery submitted that an assessment had been undertaken by an occupational psychologist and SRYY had been invited to nominate a psychologist of her choice to whom the results of this assessment could be sent. As SRYY did not do this and the years elapsed, the test scores could not now be found. Mr Slattery reiterated the difficulty which had occurred when in relation to this and other matters, the CES was taken over by Centrelink and many files and documents were either lost or destroyed. Mr Slattery submitted that the decision of 30 April 1996 should be affirmed as section 24A of the FOI Act was properly applied.

32. In relation to the decision of 17 June 1998 (T55), Mr Slattery submitted that this had two aspects. All of SRYY's files which could be located were released to her, but CES documents could not be found, with the conclusion that they no longer existed. Mr Slattery referred to a letter from Ms Faget of the Department of Employment, Workplace Relations and Small Business dated 12 June 2001 (Exhibit R2), which confirmed that the Department, formerly known as the Department of Employment, Education, Training and Youth Affairs, was not able to find SRYY's records. Therefore the decision to refuse the request taken under section 24A of the FOI Act was properly made and should be affirmed.

33. In relation to the decision of 7 January 1999 (T67), Mr Slattery submitted that the first part of this decision referred to the psychologist's test scores and that had been dealt with under the decision at T12. In relation to the aspect of SRYY's request concerning Mr Cauchi's paperwork, again, thorough searches could not locate any such documents and the request to refuse access under section 24A of the FOI Act should be affirmed, Mr Slattery submitted. All the Respondent had was the information contained in the T-documents, particularly at T5, which contains Mr Cauchi's file note.

34. Mr Slattery submitted that SRYY's concern about the issue of Invalid Pension should be considered in light of the fact that an Invalid Pension was never granted and searches of bank accounts indicate that there was never any payment of any moneys apart from that legitimately paid to SRYY. Mr Slattery reiterated his submission that an Invalid Pension was only discussed with SRYY as part of an attempt to clearly identify which income support benefit SRYY was qualified to receive. Furthermore, Mr Slattery submitted that there is no evidence from any files or documents that showed departmental records or conclusions that SRYY should be blocked from working. As with the decision at T67 and all the matters under review, Mr Slattery submitted that diligent and thorough searches had been made to try and identify and locate the documents referred to by SRYY, but none could be found. It is the Respondent's submission that such papers, if they did exist, do not exist any more.

35. Finally, in relation to the decision of 12 May 1999 (T79) concerning Mr M Pattison's documents and Mr Cauchi's "lies", Mr Slattery submitted that all the information had been supplied, including the file note by Mr Pattison of 15 February 1999 (T70), which detailed the extent of contact and issues discussed between Mr Pattison and SRYY. Mr Slattery referred the Tribunal to Mr Champion's file note of 12 December 1997 (T38). Mr Champion had made a thorough search of SRYY's file and no documents meeting her description could be found.

36. Mr Slattery submitted that there was no evidence that Mr Champion had said that Mr Cauchi had lied. Accordingly, Mr Slattery concluded that both requests were properly refused under section 24A of the FOI Act.

37. In summary, Mr Slattery submitted that all the papers available have been provided to SRYY and all the relevant documents were available to the Tribunal. Mr Slattery referred generally to the movement of papers and the difficulty which had occurred as a result of the closure of the CES in 1997. This process led to documents either being lost or destroyed. Mr Slattery contended that this process could have been better managed and more care should have been taken to ensure that CES files were retained by Centrelink. Despite this, Mr Slattery submitted that all of SRYY's FOI requests had been properly refused under section 24A of the FOI Act and accordingly, the decision under review should be affirmed. In so contending, Mr Slattery submitted that SRYY's files were only dealt with at the Mount Druitt or Parramatta departmental offices and therefore could not have been lost as part of the process of her changing addresses.

findings

38. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, submissions and legislation.

39. As was explained to SRYY at hearing, the Tribunal is only able to deal with matters related to the application for review concerning five decisions made by the Respondent in relation to SRYY's FOI requests. Other issues of concern to SRYY relating to the possibility of her being blocked from working, the provision or suggestions that she should have an Invalid Pension or discussion of her health status are not matters which this Tribunal is able to deal with.

40. The Tribunal has carefully considered each of the decisions concerning FOI requests. In relation to the decisions of 29 September 1995 (T11); 30 April 1996 (12); 17 June 1998 (T55); 7 January 1999 (T67); and, 12 May 1999 (T79), the Tribunal is satisfied that each of SRYY's request leading to those decisions were properly and carefully considered. The Tribunal is satisfied that in each of those matters the documents referred to by SRYY were unable to be found and the Tribunal has concluded that it is most likely that such documents do not exist. In these circumstances, the refusal of SRYY's requests were properly made under section 24A of the FOI Act. In these circumstances, the five decisions under review are affirmed.

41. In so deciding, the Tribunal is of the view that it is as a result of the transfer of responsibilities from the CES to Centrelink in 1997, that the documents were lost or destroyed. The Tribunal considers that it is not acceptable that such a loss of documents should occur. It is incumbent on bureaucracies, when undertaking such enormous change, to ensure the integrity and continuance of its records.

42. The Tribunal can understand SRYY's distress at her inability to obtain the documents but is satisfied that every effort has been made to locate them. In such circumstances, with no documents to be found and SRYY's files now only being accessed by two specific officers, there is no further remedy available from the Tribunal to SRYY in these matters.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member

Signed: .....................................................................................

Stella Vaughan, Associate

Date of Hearing 10 October 2001

Date of Decision 8 February 2002

Applicant Self-represented

Solicitor for the Respondent Mr B Slattery, Departmental Advocate,

Department of Family and Community Services