Herdman and Centrelink [2003] AATA 103 (21 January 2003)

Last Updated: 6 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 103

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/896

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Michael HERDMAN

Applicant

And

Centrelink

Respondent

DECISION

Tribunal

Ms N Isenberg, Member

Date 21 January 2003

Place Sydney

Decision

For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 affirms the decision under review.

[SGD]Member

CATCHWORDS

SOCIAL SECURITY - Freedom of Information - access to pension income details - reasonable steps taken to find the documents - existence of documents - decision affirmed

LEGISLATION

Freedom of Information Act 1982 - s 24A

Archives Act 1983 - s 24

REASONS FOR DECISION

21 January 2003

Ms N Isenberg, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally.

2. The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify this and the preceding paragraphs are a true copy of the decision and reasons for the decision herein of Ms N Isenberg, Member

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

Associate

Date of Hearing 21 January 2003

Date of Decision 21 January 2003

Representative for the Applicant Self- Represented

Representative for the Respondent Ms R Quinn, Departmental Advocate

DRAFT JUDGMENT

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N02/896

By MS N. ISENBERG, Member

M. HERDMAN and CENTRELINK

SYDNEY TUESDAY 21 JANUARY 2003

On 29 January 2002, Mr Herdman made a request under the Freedom of Information Act 1982 for access to pension income details for the period 15 March 1966 to 9 November 1974. At that time he was in dispute with the New South Wales Housing Commission which was trying to increase his rent. He needed to demonstrate that he was on a fixed income and so was unable to pay any increase. Although he had provided all the information he had, that Department was still not satisfied and continued to pressure him for increase in his rent. He thought additional information from Centrelink might assist.

Unfortunately, Centrelink was unable to provide information in relation to that period and advised Mr Herdman accordingly in a letter dated 3 April 2002. Perhaps confusingly for the reader the FOI co-ordinator who wrote the letter said that Centrelink was denying the request for access to the documents. The letter does go on to say why this was the case and referred to section 24A of the Freedom of Information Act.. That section says that:

24A Requests may be refused if documents cannot be found or do not exist

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 FOI co-ordinator went on to say that her decision to refuse access was on the basis that the documents no longer exist. Ms Quinn for Centrelink tendered a copy of an affidavit by a Ms Hartup who was the assistant manager of Centrelink Compliance in the South Metropolitan area. She said that on three occasions Centrelink had searched its records, its computer records, its files and its microfiche records and no document had been located for the period referred to.

Ms Quinn told me that Centrelink is authorised by section 24(2)(b) of the Archives Act 1983 to dispose of records. She tendered a disposal schedule and suggested that Mr Herdman's records were likely to have been destroyed but she wasn't able to say when. Attention was invited to several scheduled entries including one where action in relation to a Centrelink customer is finalised and the customer had returned to work. In those circumstances the schedule authorises destruction after one year.

Mr Herdman said that he first became a customer of Centrelink, previously the Department of Social Security, in 1966 when he went on invalid pension. At that time and until 1970 he worked in a sheltered workshop and received invalid pension. From 1970 to 1976 he worked in a number of jobs and was unassisted by Centrelink. In 1978 he attended the Queen Elizabeth II Rehabilitation Centre for two months and went onto the Disability Support Pension. He has been on the Disability Support Pension ever since.

It was likely in my view that following Mr Herdman's commencement of work in 1970 after he left the sheltered workshop his Centrelink records were destroyed as he was no longer a Centrelink customer. He did not become a customer again until 1978. So it is unlikely that there were ever any records from 1970 to 1978. Mr Herdman said that he did not dispute Centrelink had destroyed his records in accordance with the Archives Act. What he objected to was that it had been done without his consent.

Ms Quinn submitted that the Archives Act does not require the consent of the person to whom the records relate and I agree with this interpretation. I find that Centrelink was correct in refusing Mr Herdman's request for access to his pension income details from 15 March 1966 to 9 November 1974. I find that on the basis of the evidence of Ms Hartup all reasonable steps have been taken to find the documents and that the documents no longer exist.

Mr Herdman said that in 1979 he became a foundation member of the organisation `People with Disabilities' and has recently been made a life member. That organisation has a disability complaints service and the disability complaints service has a policy of seeking written consent of people before their documents are destroyed. He thinks Centrelink should have a similar policy. Mr Herdman tendered a copy of a report entitled `Getting Real' which was the final report of the review of the Commonwealth State Disability Agreement.

One of the features of that report was that governments, both Commonwealth and State have pursued an approach that people with disabilities should be entitled to the same rights as other citizens.

I can only observe that neither the Archives Act nor the Freedom of Information Act in any way single out people with disabilities in the matter of, respectively, destruction of documents, nor access to documents. That is to say, a person with a disability has the same rights of access to their documents as everyone else. Similarly, their documents will be destroyed in accordance with the same principles as everyone else.

The decision under review is affirmed.