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Mullen and Department of Broadband, Communications and the Digital Economy [2010] AATA 7 (8 January 2010)

Last Updated: 11 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 7

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1633

GENERAL ADMINISTRATIVE DIVISION
)

Re
SEAN MULLEN

Applicant
And
DEPARTMENT OF BROADBAND, COMMUNICATIONS AND THE DIGITAL ECONOMY

Respondent

DECISION

Tribunal
Dr KS Levy, RFD, Senior Member

Date 8 January 2010

Place Brisbane

Decision
The Tribunal finds as follows:
(1) In respect of document 44, the decision under review is affirmed.
(2) Documents 5A and 39A are not within the scope of the request framed by the applicant.
(3) The search to locate missing documents 11 and 19 involved taking all “reasonable steps” and those documents are likely to be no longer in existence or cannot be found.
(4) The Tribunal consents to “Additional Document 1” being added to the decision under review. This document is partially exempt as claimed by the respondent.
(5) The relevant documents provided to the Tribunal under s 64 of the Freedom of Information Act 1982 and s 35(2)(b) of the Administrative Appeals Tribunal Act 1975 are to be returned to the respondent. The confidentiality order over those documents is then to be regarded as lifted.


.................[Sgd].............................
Senior Member

CATCHWORDS
FREEDOM OF INFORMATION – Access to document – Document would disclose matter in the nature of advice prepared in the course of the deliberative process – Public interest considerations favour disclosure – Personal details of third parties exempt – Decision under review affirmed.


FREEDOM OF INFORMATION – Access to documents – Documents do not refer to or contain personal information about the Applicant – Documents do not fall within the scope of the Applicant’s request for access.


FREEDOM OF INFORMATION – Missing documents – Department has taken all reasonable steps in respect of the documents – Missing documents likely to be no longer in existence or cannot be found.


Administrative Appeals Tribunal Act 1975 (Cth), ss 26, 34J, 35(2)(b), 37

Freedom of Information Act 1982 (Cth), ss 3, 4(1), 11, 24, 24A, 36, 41, 42, 43, 55, 61, 64, 55(1)(a), 55(1)(aa)


Chu v Telstra Corporation Ltd [2005] FCA 1730; (2005) 147 FCR 505

Fisse v Secretary, Department of the Treasury (2008) 172 FCR 513

McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

Re Anderson and Australian Federal Police (1986) 11 ALD 355

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

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

Re Hart and Commissioner of Taxation [2002] AATA 1190; (2002) 36 AAR 279

Re Langer and Telstra Corporation Ltd [2002] AATA 341; (2002) 68 ALD 762

Re Russell Island Development Association Inc and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683


REASONS FOR DECISION


8 January 2010
Dr KS Levy, RFD, Senior Member

  1. Mr Sean Mullen has applied for review to this Tribunal under ss 55(1)(a) and (aa) of the Freedom of Information Act 1982 (“the Act”). He makes this application in respect of the internal review decision of the respondent, the Department of Broadband, Communications and the Digital Economy, dated 19 February 2009.
  2. The parties have consented to this matter being determined “on the papers”. Such consent having been given, a hearing may be dispensed with if the Tribunal is satisfied that the issues for determination can be adequately determined in that manner: s 34J of the Administrative Appeals Tribunal Act 1975. Having considered the material and inspected the documents in dispute, I am satisfied that it is appropriate to determine this review without holding a hearing.
  3. The issues in dispute are limited to the availability of documents and whether they should be released to the applicant. The term “document” is defined broadly in s 4(1) of the Act and the parties are not in dispute that the documents in question all fall within that definition.

ISSUES

  1. The issues before the Tribunal were clarified following a telephone directions hearing on 27 November 2009. The issues are:

BACKGROUND AND EVIDENCE

  1. The facts of this matter are not in dispute. However, the parties contest the availability and content of the relevant documents.
  2. Briefly, the applicant first made a request under the Act to the Department of Broadband, Communications and the Digital Economy (“the Department”) by letter dated 9 May 2007. The request was broadly stated, the applicant wanting access to “all documents in any form and no matter how old, containing personal information about me”. From the material lodged with the Tribunal, that request clearly relates to projects for the supply of internet and other services to Cairns and the Atherton Tablelands. In addition to the broad nature of the original request, it is apparent that the applicant was also interested in documents that may have had some relevance to a former business which he conducted and in a category of files referred to as “casualties of Telstra” (“COT”) files.
  3. Correspondence (primarily about the estimate of processing charges) ensued between the parties until the Department’s letter of 27 July 2007, which informed the applicant that processing charges would be imposed in the amount originally estimated. After that, a hiatus in activity occurred.
  4. The request was revived by a letter from the applicant dated 9 April 2008. He subsequently made application to the Tribunal on 20 June 2008. The issue of charges to access the documents was resolved by the Tribunal’s decision of 14 November 2008. The matter was then steered through the Tribunal’s conference registrars. A refined scope was subsequently agreed between the parties at a preliminary conference held with a Tribunal conference registrar on 7 August 2008 to include the following:
  5. However, the following were excluded from the application’s scope:

RELEVANT DOCUMENTS

  1. Of the documents lodged with the Tribunal, an unsigned and undated submission (apparently from the applicant) received by the Tribunal on 10 August 2009 is particularly relevant. That submission attaches correspondence, including a previous response by the Department to the applicant’s claims. Also, the Department has lodged “T-Documents” pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
  2. The Department has provided the Tribunal with its letter to the applicant and decision (with brief reasons) dated 6 July 2009 advising of documents not released or not released in full. The Department has also lodged its letter of 4 September 2009, to which is attached a list of 84 documents it determined to release to the applicant in full.
  3. I have also had the benefit of the affidavit of Ms Jade Catherine Austin dated 10 September 2009 deposing to the departmental systems, the process used in searching for relevant documents and the outcome of searches. I have also written submissions of the Australian Government Solicitor dated 11 September 2009, on behalf of the respondent Department.
  4. The documents relevant to this review are either in hard copy or electronic form. Not in dispute are 12 documents the Department has decided should be released, as listed in the affidavit of Ms Melinda Janette Teasdale of 20 July 2009. The applicant’s written submission for a hearing on the papers was not entirely consistent with the more recent submission by the respondent (which indicated concessions by the applicant and/or documents released to the applicant). A telephone directions hearing on 27 November 2009 clarified these apparent inconsistencies and confirmed that which the respondent had essentially included in paragraph 6 of its submissions of 11 September 2009.

CONSIDERATION

  1. As a result of the directions hearing of 27 November 2009, the applicant and the respondent lodged further submissions (dated 2 and 3 December 2009, respectively). The respondent also lodged those documents agreed by the parties at that time as being within the scope of this review. I have examined the documents in dispute and considered all the submissions of the parties.
  2. I note the respondent has made further submissions, dated 16 December 2009. These submissions concern claims Mr Mullen made in his letter of 2 December 2009. The claims in Mr Mullen’s letter are as set out below:
  3. Paragraph 7 of the respondent’s 16 December 2009 submissions asserts that the document referred in document 44 (see also paragraph 33 of Ms Austin’s affidavit) is a brief prepared for the Minister dated 24 April 2006. This was disputed by Mr Mullen when he responded in writing on 17 December 2009. As a consequence of the applicant’s written submission, a further directions hearing was arranged for 18 December 2009, however he was not available to attend. Nevertheless, in order to ensure procedural fairness to the applicant, I directed the whole of the Ministerial brief dated 24 April 2006 be provided to the Tribunal (it had not previously been provided). The respondent had, I note, undertaken earlier to release the document with some exemptions. However, the Tribunal was not in a position to properly assess Mr Mullen’s claims or objections without inspecting the document.
  4. The respondent having provided the Ministerial brief of 24 April 2006 to the Tribunal, both parties consented to that document being added to the decision under review under s 26 of the Administrative Appeals Tribunal Act 1975. Mr Mullen forwarded a copy of his signed consent to the respondent by email dated 6 January 2010; a copy of that consent was also received by the Tribunal on 7 January 2010. The Ministerial brief is referred to in the schedule to that consent as “Additional Document 1”.
  5. In the course of these proceedings, I ordered, under s 64 of the Act and s 35(2)(b) of the Administrative Appeals Tribunal Act 1975, that documents in dispute provided to the Tribunal remain confidential and their disclosure be prohibited (to the extent they had not already been released) until the determination of this application.
  6. The Act relevantly states that its object is, as far as possible, to make available to the public information about the operations of Departments and Public Authorities. The Act creates a general right of access to information in documentary form that is in the possession of Ministers, Departments and Public Authorities. Discretions conferred by the Act should be exercised to facilitate and promote the disclosure of information at the lowest reasonable cost: s 3 of the Act. Every person has, subject to restrictions specified in the Act, a legally enforceable right to access documents of an Agency: s 11 of the Act. Such access is, however, to be an ordered and logical process. Some requests may be refused: s 24 of the Act. When requests are refused, it is a requirement under s 24A of the Act that:
(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.

  1. The Act includes exemption provisions at Part IV. The exemption in s 36, which refers to “internal working documents”, is relevant to the present application. Such documents are exempt under subs (1) if:
  2. Section 41 of the  Act provides, relevantly, that:

41 Documents affecting personal privacy

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased peson).

(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

  1. Section 41(1) of the Act provides for an exemption if there would be “unreasonable disclosure” about any person. Subsection (2) is subject to subsection (3). Based on the facts provided, s 41(3) is irrelevant to the present matter. However, subsection (2) provides that subsection (1) is to have no effect in relation to a request for access to a document by reason only of inclusion of matter relating to the person. The broad provision of subsection (2) is made more complex by a twist of logic contained in s 3(1)(b) of the Act, which creates a general right of access. However, the application of those provisions was elucidated by DP Hall in Re Anderson and Australian Federal Police (1986) 11 ALD 355 at 365 [40]:

Where the information relates solely to the applicant's personal affairs, there is usually no difficulty in identifying the documents or parts of documents to which access may be granted. But where ... the applicant's personal affairs may be inextricably interwoven with the personal affairs of other persons ... there is a nice question as to how s 41 was intended to operate.

At 367 [49], the learned Deputy President reasoned:

There will be circumstances where disclosure of the third party's affairs as part of the applicant's affairs may well involve an “unreasonable disclosure” within the meaning of s 41(1).


  1. Section 42 of the Act exempts documents subject to legal professional privilege. The respondent originally claimed this exemption was relevant to some of the documents; those documents, however, are no longer in dispute. Section 43 of the Act deals with documents relating to business affairs, that is, documents the disclosure of which would provide information of commercial value or would in some way be harmful to the business or professional affairs of a person or organisation. This exemption provision was previously said by the respondent to be relevant in some respects. I note the respondent no longer relies on ss 42 or 43 of the Act as the applicant is not now pursuing the documents to which these sections are relevant. I note also that s 61 of the Act places an onus of proof on the respondent to show why the Tribunal should give a decision adverse to the applicant.
  2. I have considered the remaining documents in issue as set out below.

DOCUMENT 5A

  1. This document is an attachment to document 5 (previously released). The affidavit of Ms Austin identifies 5A as an email letter that refers to the Networking the Nation (“NTN”) Project. Ms Austin states that the document does not refer to the applicant.
  2. I have examined document 5A and am satisfied with the statement made by Ms Austin. I find that document 5A is either irrelevant to the present claim (see Re Russell Island Development Association Inc and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683 at 692 [35], [36]; Re Hart and Commissioner of Taxation [2002] AATA 1190; (2002) 36 AAR 279 at 282 [13]) or does not fall within the scope of the applicant’s request as there is no personal information about Mr Mullen in that document - nor does it refer to him.

DOCUMENT 39A

  1. The applicant states that document 39A, like document 5A, is part of a larger document. The original decision determined to release document 39 but not 39A. The affidavit of Ms Austin says that document 39 refers to the NTN Project but does not relate to the applicant. It refers to another email, dated 13 September 2000. Document 39A has been provided, which is the combination of two emails between ministerial advisers, a departmental officer and an external party. I have examined the content of document 39A (a substantive one page document with two lines of internet reference on a second page) and can find no reference to Mr Mullen. That document is therefore not within the scope of his request.

DOCUMENT 44

  1. Mr Mullen acknowledges he has been provided with a copy of this document with certain details deleted. The affidavit of Ms Austin states that a document referred to in document 44 was not initially located, although a further search proved successful. According to Ms Austin, the found document contains information about COT cases although most of the document does not refer to the applicant.
  2. Document 44 is a departmental document, a memorandum to the (then) Minister, and should be considered in the context of s 36 of the Act (exemption based on the deliberative process - see above). The document deals with ongoing deliberations in relation to the COT disputes and raises options for the Department to receive an independent assessment of these disputes. The disputes were between business owners who had supplied telecommunication services on behalf of Telstra. The names of third parties are included.
  3. I am satisfied that document 44 contains an opinion by its writer or a declaration of strategies the Department was considering. I am satisfied that these legitimately fall within the “deliberative processes” referred to in s 36(1) of the Act. However, for this document to be an exempt document, the second limb of that section requires any disclosure to be contrary to the public interest. In McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at 428 [5], Gleeson CJ and Kirby J noted that determining that issue will require judgment of the balancing factors, which will be viewed “in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents ...”. In Fisse v Secretary, Department of the Treasury (2008) 172 FCR 513, the Court held there were three factors which indicated the public interest factors relevant under this section:
  4. I note the factors addressed by the original decision maker. The public interest factors in favour of disclosure were identified in respect of all three of the documents in question and are similar to those mentioned above in Fisse 172 FCR 513. Public interest factors against disclosure are as follows:
  5. The applicant’s submissions of 2 December 2009 asserts that the final paragraph of page 3 in document 44 refers to further requests by the Department to Telstra for information about the applicant. That reference is, in fact, qualified by the clause “but it has not yet been received”. No further evidence has been produced. The applicant is suspicious of the non-production of any further documents. However, while there is a gap in that evidence, I am not satisfied there is any evidence to conceal documents. I deal later with the credibility of the process that has been used to attempt to locate documents.
  6. Having considered document 44 in the context of public interest considerations, I find that public interest factors against disclosure do not outweigh those in favour of disclosure.

ADDITIONAL DOCUMENT 1

  1. This document is referred to in paragraph 17 (above). It relates to the submission of the respondent of 18 December 2009 claiming exemption under s 41 of the Act. The respondent asserts in paragraph 7 of its submission of 16 December 2009 that this document may be the document referred to in document 44. I cannot see how that can be so as it was prepared on 24 April 2006, some six months after the date of preparation of document 44 (18 October 2005). Nevertheless, there seems no other information available to determine with any certainty the document referred to in paragraph 7 of the respondent’s submission of 16 December 2009.
  2. I have, however, examined the full document of “Additional Document 1” (the Ministerial brief dated 24 April 2006 - comprising 89 pages - as well as the schedule outlining the exemptions claimed by the respondent). I have verified that personal information is contained within the document. In terms of s 41(1) and (2) of the Act, the disclosure of those personal affairs would be unreasonable. In any event, even though no claim has been made by either party to these proceedings under s 43 of the Act, there may also be legitimate claims relating to the commercial value of “business or professional” affairs of the third parties whose personal information is contained within the document. For that reason also, the release of the personal information of the third parties identified would be unreasonable without further detail. Therefore, as the document contains personal details of other parties, I agree that “Additional Document 1” should be released in the way proposed by the respondent, with deletions/exemptions in relation to the personal affairs of the third parties.

DRAFTS OF DOCUMENTS 11 AND 19

  1. The applicant argues that drafts of documents 11 and 19 were undoubtedly created and that the Department should locate and produce those documents.
  2. The respondent points to departmental policy not requiring such documents to be kept and, in fact, requiring them to be destroyed. The respondent’s answer to the applicant’s claims is that these documents cannot be located. They are not addressed in the affidavit of Ms Austin. The Department merely points to the records management manual which is an attachment to the affidavit of Ms Austin.

The applicant’s other challenge to the respondent’s responses

  1. In previous correspondence, particularly his submission of 2 December 2009, the applicant asserts that the respondent inappropriately interpreted personal information, disregarded relevant documents and misled the Tribunal. I have not found a basis in law to conclude that any of these grounds have been substantiated.

“Reasonable Steps” to locate the missing documents

  1. The applicant also claims that the respondent should be able to produce other documents. I have reviewed the evidence and the policy contained in the records management manual referred to earlier.
  2. Under s 24A of the Act, a request for access to a document may be refused only after the Department has taken all “reasonable steps” to find the missing documents. If that precondition is satisfied, I must be satisfied either that the missing documents are in the Department’s possession but cannot be located or that they do not exist. In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, DP McDonald undertook a detailed analysis of a number of dictionary definitions to determine what would amount to taking all “reasonable steps” to find the documents. DP McDonald said that “reasonable steps” implied a moderate approach, not one that is extravagant or excessive; or an approach which is judged to be appropriate or suitable to the circumstances or purpose (Shorter Oxford English Dictionary). In Re Langer and Telstra Corporation Ltd [2002] AATA 341; (2002) 68 ALD 762 at 763, DP Forgie said that “[t]he 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”.
  3. I was referred in submissions for the respondent to the case of Chu v Telstra Corporation Ltd [2005] FCA 1730; (2005) 147 FCR 505, where Finn J discussed what is required for all reasonable steps to be taken to find the documents sought. His Honour said at 514 [35] that “[t]aking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised”. I was also referred to the decision of DP Forgie in Re Bienstein and Attorney-General (Cth) (2008) 103 ALD 626 at 639 [48], which provided a similar observation.
  4. Here, there is evidence dating from 2008 of an apparently comprehensive process. I have taken account of the systems and documents of the Department’s recording systems and processes described in Ms Austin’s affidavit and attachments. I accept the evidence contained in that affidavit of an independent and thorough search being made with the relevant officers of the Department and of their files or filing systems being examined, where necessary. It is apparent that Ms Austin did not search the NTN online system as it had ceased operating. But she searched other systems and was satisfied that others, such as Ms Elizabeth Forman, had done so too. Ms Austin located document 54 in hardcopy files and document 55 outside the hardcopy files. She found documents 3, 4, 5 and 39. She did not locate document 44 initially, but further inquiries led to the discovery of a document answering its description. A comprehensive list of documents has been produced, which includes a small number of documents not discovered, as requested by the applicant.
  5. I am satisfied that the search process adopted by various departmental officers, particularly Ms Austin, was an analytical process, and that all documents either in existence or ascertainable by reasonably diligent search have been found. This enables me to conclude that all reasonable steps have been taken in respect of the documents the subject of this application.

CONCLUSION

  1. In the circumstances, I find as follows:

(1) In respect of document 44, the decision under review is affirmed.

(2) Documents 5A and 39A are not within the scope of the request framed by the applicant.

(3) The search to locate missing documents 11 and 19 involved taking all “reasonable steps” and those documents are likely to be no longer in existence or cannot be found.

(4) The Tribunal consents to “Additional Document 1” being added to the decision under review. This document is partially exempt as claimed by the respondent.

(5) The relevant documents provided to the Tribunal under s 64 of the Act and s 35(2)(b) of the Administrative Appeals Tribunal Act 1975 are to be returned to the respondent. The confidentiality order over those documents is then to be regarded as lifted.


I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member.


Signed: ......................[Sgd].......................................................

Mátyás Kochárdy, Research Associate


Hearing on the Papers 16 December 2009

Date of Decision 8 January 2010
Applicant was self-represented

Solicitor for the Respondent Mr Avinesh Chand, Australian Government Solicitor


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