Jarosek and Department of Immigration and Citizenship [2011] AATA 379 (2 June 2011)

Last Updated: 3 June 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 379

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4629

GENERAL ADMINISTRATIVE DIVISION		)
	Re		STEPHEN JAROSEK

Applicant

And

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 2 June 2011

Place Perth

Decision

The Tribunal affirms the decisions under review.

..........[sgd S D Hotop]........

Deputy President

1. FREEDOM OF INFORMATION – requests by applicant to respondent for access to documents – requests for access refused – all reasonable steps taken to find documents falling within scope of requests – Tribunal satisfied that no such documents exist – decisions under review affirmed
   

Freedom of Information Act 1982 (Cth), s 24A

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

REASONS FOR DECISION

2 June 2011

Deputy President S D Hotop

INTRODUCTION

2. On 18 August 2010 Stephen Jarosek (“the applicant”) lodged with the Department of Immigration and Citizenship (“the respondent”) two requests for access to documents under the Freedom of Information Act 1982 (Cth) (“FOI Act”).
3. On 26 October 2010, no decision having been made by the respondent in respect of either of the applicant’s abovementioned requests for access to documents, the applicant applied to the Tribunal for review of the “deemed refusal” by the respondent to grant access to the documents which were the subject of each of those requests (see s 56(1) of the FOI Act).
4. On 16 December 2010 the respondent made a decision on one of the applicant’s requests, namely “FOI Request Number FA 10/08/00664”, whereby it decided:
   • that certain documents were to be released in full to the applicant;
   • that certain documents contained irrelevant material within the meaning of s 22(1)(a)(ii) of the FOI Act and were to be released in part to the applicant;
   • that certain documents were exempt documents under s 41(1) of the FOI Act by reason of the inclusion of “personal information” and were to be released in part to the applicant;
   • to refuse that request, insofar as it related to other documents, under s 24A of the FOI Act on the grounds that all reasonable steps had been taken to find those documents and it was satisfied that those documents do not exist.
5. On 13 January 2011 the respondent made a decision on the applicant’s other request, namely “FOI Request Number FA 10/08/00660”, whereby it decided to refuse that request under s 24A of the FOI Act on the grounds that all reasonable steps had been taken to find the documents which were the subject of that request and it was satisfied that those documents do not exist.
6. Pursuant to s 56(5) of the FOI Act, the Tribunal treated this proceeding as extending to a review of each of the abovementioned decisions of the respondent.

THE RELEVANT LEGISLATION

7. The FOI Act, as in force at all material times, relevantly provided as follows:

“ ...
Part III – Access to documents
11 Right of access
(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.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
...

15. Requests for access

(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
(2) The request must:
(a) be in writing; and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c) specify an address in Australia at which notices under this Act may be sent to the applicant; and
(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and
(e) be accompanied by the fee payable under the regulations in respect of the request.
...
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and
(b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).
...

18. Access to documents to be given on request

(1) Subject to this Act, where:
(a) a request is made in accordance with the requirements of subsection 15(2) by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is granted has been paid;
the person shall be given access to the document in accordance with this Act.
(2) An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.
...
22 Deletion of exempt matter or irrelevant material
(1) Where:
(a) an agency or Minister decides:
(i) not to grant a request for access to a document on the ground that it is an exempt document; or
(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and
(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:
(i) would not be an exempt document; and
(ii) would not disclose such information; and
(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
...
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.
...
Part IV—Exempt documents
...
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 person).
...
Part VI—Review of decisions
...

55. Applications to Administrative Appeals Tribunal

(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision refusing to grant access to a document in accordance with a request; or
(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
...

56. Application to Tribunal where decision delayed

(1) Subject to this section, where:
(a) a request has been made to an agency or Minister in accordance with section 15; and
(b) the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and
(c) notice of a decision on the request has not been received by the applicant;
the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.
...
(5) Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a decision:
(a) to grant, without deferment, access to the document in accordance with the request; or
(b) to amend or annotate the record of personal information to which the application relates;
the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part.
...
60 Parties
For the purposes of this Part and of the application of the Administrative Appeals Tribunal Act 1975 in respect of proceedings under this Part:
(a) a decision given by a person on behalf of an agency shall be deemed to have been given by the agency; and
(b) in proceedings by virtue of section 56, the agency or Minister to which or to whom the request was made shall be a party to the proceedings; and
...

61. Onus

(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
...”

THE EVIDENCE

8. The evidence before the Tribunal comprised:
   • the “T” Documents” (T1–T14, pp1–92) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • Exhibits A1–A3 tendered by the applicant;
   • Exhibits R1–R5 tendered by the respondent; and
   • the oral evidence of Ashley Smith.

BACKGROUND DOCUMENTS INCLUDED IN THE T DOCUMENTS AND EXHIBITS

FOI Request Number FA 10/08/00660

9. The applicant’s request for access to documents, FOI Request Number FA 10/08/00660, described the documents, the subject of that request, as follows:

“ Refer AAT decision W 1832 of 2008, schedule RE 0703 0050 002. I was provided with access to 2 CDs that were not on the schedule. New evidence has come to my attention suggesting existence of further CDs and documents/notes prepared by Nicholas Eid that were not on the schedule. I request access to any further docs relating to investigation VCS 105/2004.” (T7, p 73)

10. An email from Ashley Smith, FOI and Privacy Officer, Department of Immigration and Citizenship, to the Department’s Values and Conduct Section (“VCS”), sent on 1 September 2010, states as follows:

“ ...
The FOI & Privacy Policy Section has received a FOI request from Mr Stephen Jarosek which is stated as follows:
‘Refer AAT decision W 1832 of 2008, schedule RE 0703 0050 002. I was provided with access to 2 CDs that were not on the schedule. New evidence has come to my attention suggesting existence of further CDs and documents/notes prepared by Nicholas Eid that were not on the schedule. I request access to any further docs relating to investigation VCS 105/2004.’
The above AAT matter refers to an FOI request. I request that any documents fitting the description above (primarily being file VCS 105/2004) be forwarded to the FOI and Privacy Policy Section by COB Wednesday 8 September 2010. If there are problems meeting this deadline please let me know asap.
...” (T11)

11. An email from Macushla Cosgrave, VCS, to Ashley Smith, sent on 3 September 2010, states as follows:

“ ...
This file is currently with Recall, I have put in a priority request today for it to be returned so it should be back with us by early next week. The process for FOI reviewing VCS files is that a FOI staff member needs to come and review the file in the VCS office, make copies of what is required and provide VCS with a list of folios copied. We will let you know as soon as the file arrives.
...” (T12, p 83)

12. An email from Ashley Smith to Macushla Cosgrave, sent on 3 September 2010, states as follows:

“ ...
Thank you for your email and the progress so far this is very helpful.
I would be happy to come and review the file in the VCS office, once the file arrives please advise and I will come over for a look.
...” (T12, p 83)

13. An email from Emily Regueiro-McKelvie, VCS, to Ashley Smith, sent on 6 September 2010, states as follows:

“ ...
Just a reminder that the file is here when you wish to come by and have a look.
...” (T 13, pp 85–86)

14. An email from Ashley Smith to Macushla Cosgrave, sent on 11 November 2010, states as follows:

“ ...
Apologies for the lateness of my reply although I have been extremely busy with a number of other items (including some legislative changes to the FOI Act).
In my original email I had made mention to (sic) the fact if any of the information within scope of the FOI request is of (sic) existence it is required to be forwarded to me for the purpose of decision making.
In light of your response I decided to view the file which did not seem to hold the information within scope of the FOI request. As you are the subject matter experts in relation to your documents can you please confirm that there are no further documents by searching all systems and records concerning any further material that has been generated concerning investigation VCS 105/2004 (fitting the FOI request).
If you could give me a call about this that would be greatly appreciated, I will eventually require any findings via email.
If you have any questions you are welcome to contact me.
...” (T13, p 85)

15. An email from Meredith McAuslan, VCS, to Ashley Smith, sent on 23 December 2010, states as follows:

“ ...
Sorry for the delay in sending this email through.
In relation to Mr Jarosek’s request for information, I would like to advise that I have done a thorough search for further information, documents, records of interview (CDs) or records that have not already provided (sic) to Mr Jarosek that were not already seen by FOI. Unfortunately, I have been unable to locate any further information. I have searched the following areas:
The entire Values and Conduct G Drive
Hard copy file 105/2004
ASIS Case Management System (VCS database)
I can confirm that nothing except for the FOI related requests and schedule have been added to the hard copy file since Nicholas Eid (the investigator) left the section in October 2004.
Please let me know if you require anything further.
...” (part of Exhibit R4)

16. On 13 January 2011 Ashley Smith made a decision refusing to grant access to the documents which were the subject of the applicant’s request, FOI Request Number FA 10/08/00660. In the written statement of reasons for that decision Mr Smith stated:

“ ...
Under Section 24A of the FOI Act a request for access to a document may be refused if all reasonable steps have been taken to find that document and the agency is satisfied that a (sic) document cannot be found (s24A(b)(i)) or does not exist (s24A(b)(ii)).
I contacted the Values and Conduct Section (VCS) requesting any documents that fit the description of your FOI request be forwarded to me for examination. I have been advised such documents do not exist.
VCS searched for any document(s) (inclusive of paper and electronic records) within the ASIS case management system (VCS database), VCS G Drive and VCS file number 105/2004. Documents were unable to be located relating to additional information, records of interview, notes or any records not already provided to you that were not subject to your previous FOI request.
The storage databases that are used by VCS to store information are embodied within the above-mentioned systems and files. I believe a thorough search for documents subject to this FOI request was undertaken and no evidence was contrary to conclude (sic) there are no documents that fit the scope of your FOI request.
In addition to the above information it is important to note I desired (sic) to extend the search by approaching Mr Nicholas Eid to discuss your new FOI request in a hope (after 6 years) he may recall and/or contribute to this FOI request. Mr Eid left the department late 2004. File number 105/2004 was also closed on 25.10.2004.
I am satisfied with the searches conducted by VCS to locate any documents fitting the scope of your FOI request although it is evident from the searches outlined in this decision that any such document(s) does not exist (s24A(b)(ii)).” (Exhibit R3)

FOI Request Number FA 10/08/00664

17. The applicant’s request for access to documents, FOI Request Number FA 10/08/00664,described the documents, the subject of that request, as follows:

“ In vacancies advertised PS Gazette 9/Jan/2003 how did the ISAC rank the following (eg suitable), when they were promoted to their APS4 substantive positions? Were there any ‘special obligations’ upon which any of their promotions were conditional? Who were their supervisors prior to and after promotion? Rebecca Wood; Ann Morton; S Jenkins;
Also required – as above – ISAC rankings, supervisors, etc, for all APS3 → APS4 promotions arising from vacancies advertised in PS Gazette on 17 July 2003. APS3-APS4 promotions of: Wittenbaker, Richardson, Chamberlain, Maddock, Farquhar, Swann, Jones, Coney, Truong, Langlois, Jan, Weston, Merlo.” (Exhibit R1)

18. An internal email from Ashley Smith to Vidya Vasudevan, sent on 1 September 2010, states as follows:

“ ...
The FOI & Privacy Policy Section has received a FOI request from Mr Stephen Jarosek stated as follows:
‘In vacancies advertised PS Gazette 9/Jan/2003 how did the ISAC rank the following (eg suitable), when they were promoted to their APS4 substantive positions? Were there any ‘special obligations’ upon which any of their promotions were conditional? Who were their supervisors prior to and after promotion? Rebecca Wood; Ann Morton; S Jenkins;
Also required – as above – ISAC rankings, supervisors, etc, for all APS3 - APS4 promotions arising from vacancies advertised in PS Gazette on 17 July 2003. APS3-APS4 promotions of: Wittenbaker, Richardson, Chamberlain, Maddock, Farquhar, Swann, Jones, Coney, Truong, Langlois, Jan, Weston, Merlo
Additional information: Gazette records in Library – PS01 of 8/1/2004 put date of advertisement as 6/3/2003 and NOT 9/1/2003.’
I request that any documents fitting the description above be forwarded to me (I am also happy to come by and pick the documents up by hand) by COB Friday 10 September 2010 at the latest as I am bound by a legislative component to finalise this FOI request within a 30 day time frame. I also require time to view the documents and make a decision. If through the passage of time you find you are unable to meet the above deadline please advise.
If clarification is required in terms of the general scope of the above FOI request you may contact me at any time. Please note that any document broadly falling within the general scope of the FOI request should be provided to me for consideration.
I acknowledge you are the subject matter experts in relation to where documents are held/stored relating to recruitment rounds although I would assume the majority (if not all) the above information would be contained within the appropriate recruitment files (eg gazette notice, rankings, ‘special obligations upon promotion’ (embodied within recruitment letters and/or recruitment files), supervisors prior to promotion). If the recruitment files could be identified and retrieved asap that would assist us greatly.
...” (T10)

19. On 16 December 2010 Ashley Smith made a decision (as described in paragraph 3 above) granting access in full to certain documents, granting access in part to certain other documents, and refusing to grant access to certain other documents. Mr Smith’s letter to the applicant, dated 16 December 2010, notifying him of that decision states as follows:

“ ...
This letter refers to your request received on 18 August 2010, seeking access under the Freedom of Information Act 1982 (the FOI Act) to the following documents:
‘In vacancies advertised PS Gazette 9/Jan/2001 (sic) how did the ISAC rank the following (eg suitable), when they were promoted to their APS4 substantive positions? Were there any ‘special obligations’ upon which any of their promotions were conditional? Who were their supervisors prior to and after promotion? Rebecca Wood; Ann Morton; S Jenkins; ...
... Also required – as above – ISAC ranking (sic), supervisors, etc, for all APS3˃APS4 promotions arising from vacancies advertised in PS Gazette on 17 July 2001 (sic) APS3˃APS4 promotions of: Whittaker (sic), Richardson, Chamberlain, Madock (sic), Farquhar, Swam Jones (sic), Coney, Truong, Langlios (sic), Jan, Weston, Merlo. Also include Rebecca Wood, Anne (sic) Morton, S Jenkins ...
...I would thus also like to include Ms Beardsell’s name within the scope of my request ... I would like to know whether or not she was officially promoted from that same job selection round. If she was promoted, then the same questions that I raise with respect to Rebecca Wood, Ann Morton and S Jenkins also apply to her ... If Ms Beardsell was not promoted from that round, then I would like to know when (and if) her substantive promotion to the APS 4 level actually took place, and in what job selection round.’
I have released 2 letters addressed to Mr Stephen Jan and Mr Francois Langlois within my FOI release. The individuals listed (folios 8 and 6) are the results of a mail merge for these letters.
I have confirmed Ms Beardsell was promoted to the substantive classification of an APS 4 in a separate round. I have released details of when her promotion took place and in which round (in accordance with the APS Gazette).
Decision
My decision is to partially release the documents requested. A statement of reasons for my decision is in the attached Decision Record.
...” (part of Exhibit R2)

[The Tribunal notes that the applicant’s abovementioned request for access to documents in respect of “Ms Beardsell” was not included in his initial request received by the respondent on 18 August 2010 but was in fact subsequently made by him by letter to the Department dated 3 November 2010.]

20. The relevant Decision Record states as follows:

“ ...
Documents in scope
1. Departmental electronic file ADD2010/1142342 – containing 11 folios.
Information considered
I am a delegated decision maker under Section 23 of the Freedom of Information Act 1982 (the FOI Act). In reaching my decision, I have considered the following:

• The Freedom of Information Act 1982;
  • FOI Guidelines on the Department of Prime Minister and Cabinet website; and
• Departmental files and/or documents (identified above).

Reasons for decision
Section 24A
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.
Under Section 24A of the FOI Act a request for access to a document may be refused if all reasonable steps have been taken to find that document and the agency is satisfied that a (sic) document cannot be found (s24A(b)(i)) or does not exist (s24A(b)(ii)).
I have consulted the Recruitment Section within DIAC’s national office, which have liaised with the WA recruitment team. It has been confirmed the files relating to the recruitment round of Wood, Morton and Jenkins has (sic) been destroyed as per schedule on 15 August 2003 (files RCF2002/367 and RCF2003/42).
In light of the co-ordinated response received from the Recruitment Section national office, I am satisfied the appropriate research has been conducted and evidence has been provided to me that highlights the recruitment files (RCF2002/367 and RCF 2003/42) which relate to Wood, Morton and Jenkins have been destroyed.
My decision is to exempt (sic) the material relating to Wood, Morton and Jenkins on the basis the document(s) does not exist.
Section 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 person)
The documents that are exempt, in part, under section 41(1) of the FOI Act contain personal information. After careful examination of the documents relating to this FOI request I find it is not reasonable to assume that the individuals concerned would expect their personal information be disclosed to a third party individual.
Having formed the view that the documents are of a kind to which section 41(1) does apply, I am required to consider whether disclosure of the material would be unreasonable having regard, in particular, to the general interest in the public obtaining access to Government held information embodied in the FOI Act.
In assessing whether the disclosure is reasonable (sic), I weighed the factors in favour of non-release against the general public interest in access to Government held information.
It is my determination that the interest in maintaining an individual’s right to privacy of their personal information held by the department outweighs any public interest in favour of the release of the material in question in this case.
I consider that disclosure of the third party information under this FOI request would be unreasonable and it is therefore exempt from disclosure under section 41(1) of the FOI Act.” (part of Exhibit R2)

21. The Schedule of Documents to the Decision Record is as follows:
    

1. Departmental electronic file ADD2010/1157630 – containing 11 folios.

Folios	Date	Author	Description	Decision	Legislation
11	2003	DIAC	Home address of Mr Stephen Jan	Released in part	S41(1)
10-9				Released in full
8	2003	DIAC	Home address’ (sic) of a number of third parties (mail merge), third parties that are irrelevant to your FOI request	Released in part, irrelevant material	S22(1)(a)(ii), S41(1)
7	28 November 2003	DIAC	Home address of Mr Francois Langlois	Released in part	S41(1)
6	2003	DIAC	Home address’ (sic) of a number of third parties (mail merge), third parties that are irrelevant to your FOI request	Released in part, irrelevant material	S22(1)(a)(ii), S41(1)
5-2	Unknown	DIAC	Security clearance level, AGS numbers, increment levels, reporting sections and reporting position numbers	Irrelevant material	S22(1)(a)(ii)
1				Released in full

(part of Exhibit R2)

THE EVIDENCE OF ASHLEY SMITH

22. Two affidavits of Ashley Smith were tendered in evidence by the respondent.
23. An affidavit of Ashley Smith, dated 4 March 2011, states as follows:

“ 1. I am an FOI and Privacy Officer in the FOI and Privacy Policy Section of the Governance and Audit Branch of the Department of Immigration and Citizenship (‘the Department’). I am authorised to make this affidavit on behalf of the Department.

2. I make this affidavit from my own knowledge and from my perusal of the relevant Departmental documents and records.
3. On 18 August 2010, the applicant made a request under the provisions of the Freedom of Information Act 1982 (Cth) for access to various documents held on the Department’s files (‘the FOI request’). The FOI request was stated in the following terms:

Refer AAT decision W1832 of 2008, schedule RE 0703 0050 002. I was provided with access to 2 CDs that were not on the schedule. New evidence had come to my attention suggesting existence of further CDs and documents/notes prepared by Nicholas Eid that were not on the schedule, I request access to any further docs relating to investigation VCS 105/2004.

4. The FOI Section was responsible for processing the FOI request. During the course of processing the FOI request, searches were undertaken by the Values & Conduct Section (‘VCS’) who are the only designated section for Code of Conduct related matters within the Department. VCS handle both onshore and offshore Code of Conduct issues and store documents related to investigations into alleged breaches of the Code of Conduct. The investigation relating to VCS 105/2004 was undertaken by VCS.
5. On 23 December 2010 I received an email from Meredith McAuslan from VCS which advised:

‘... I have done a thorough search for further information, documents, records of interviews (CDs) or records that have not already been provided to Mr Jarosek that were not already seen by FOI. Unfortunately, I have been unable to locate any further information. I have searched the following areas:
The entire Values and Conduct G Drive
Hard copy file 105/2004
ASIS Case Management System (VCS database)
I can confirm that nothing except for the FOI related requests and schedule have been added to the hard copy file since Nicholas Eid (the investigator) left the section in October 2004. ...’
Now shown to me marked “AS-1’ is a true copy of the email I received from Meredith McAuslan on 23 December 2010.

6. I am aware that ASIS is a database limited only to the VCS concerning storage of VCS material. VCS is the only Section within the Department that can access ASIS. Any electronic material that is used throughout a VCS issue is stored within ASIS and all paper records are stored within the appropriate VCS file. ASIS has been in existence since before Mr Jarosek’s VCS matter was initiated and is still the electronic system in use today for storage of Code of Conduct matters. The VCS file number 105/2004 is the appropriate file to store any physical information surrounding Mr Jarosek’s matter as this file was created for the purposes of physical document storage.
7. Although I did not physically carry out the searches, I was satisfied from the information provided to me that the searches stipulated in ‘AS-1’ had been undertaken and that they were the appropriate searches for the purposes of the FOI request.
8. Prior to making my decision I considered whether it would be appropriate to extend my search by approaching Nicholas Eid to discuss the FOI request. However, Mr Eid left the Department in late 2004. I decided it would be unreasonable to approach a former employee of the Department in the hope that he may have some recollection, after a period of 6 years, of the existence of any other relevant documents and their possible location. I decided there would be no utility in approaching Mr Eid.
9. On 13 January 2011, I made a decision in relation to the FOI request. I decided to refuse access to the requested documents pursuant to section 24A of the Freedom of Information Act 1982 (Cth), as I was satisfied that the Department had taken all reasonable steps to locate a copy of the requested documents and that, despite those searches, the requested documents could not be found.” (Exhibit R4)
   
24. An affidavit of Ashley Smith, dated 3 May 2011, states as follows:

“ 1. I am an FOI and Privacy Officer in the FOI and Privacy Policy Section of the Governance and Audit Branch of the Department of Immigration and Citizenship (‘the Department’). I am authorised to make this affidavit on behalf of the Department.

2. The facts and matters deposed to herein are true and correct to the best of my knowledge, information and belief and are based either on my own knowledge or enquiries made by myself and other officers of the Department and my perusal of the relevant Departmental documents and records.

FOI request 10/08/00664

3. On 18 August 2010, the applicant made a request under the provisions of the Freedom of Information Act 1982 (Cth) for access to various documents held on the Department’s files (‘FOI request – 10/08/00664’). FOI request 10/08/00664 was stated in the following terms:

In vacancies advertised PS Gazette 9/01/2001 (sic) how did the ISAC rank the following (eg suitable), when they were promoted to their APS 4 substantive positions? Were there any ‘special obligations’ upon which any of their promotions were conditional? Who were their supervisors prior to and after promotion? Rebecca Wood; Ann Morton; S. Jenkins;
...
... Also required – as above – ISAC ranking (sic), supervisors, etc, for all APS3˃APS4 promotions arising from vacancies advertised in PS Gazette on 17 July 2001 (sic) APS3˃APS4 promotions of; Whittaker (sic), Richardson, Chamberlain, Madock (sic), Farquhar, Swam Jones (sic), Coney, Truong, Langlios (sic), Jan, Weston, Merlo. Also include Rebecca Wood, Anne (sic) Morton, S. Jenkins ...
... I would thus also like to include Ms Beardsell’s name within the scope of my request ... I would like to know whether or not she was officially promoted from that same job selection round. If she was promoted, then the same questions that I raise with respect to Rebecca Wood, Ann Morton and S Jenkins also apply to her ... If Ms Beardsell was not promoted from that round, then I would like to know when (and if) her substantive promotion to the APS 4 level actually took place, and in what job selection round.

4. The FOI & Privacy Policy Section was responsible for processing FOI request 10/08/00664. In processing FOI request 10/08/00664 the relevant recruitment sections conducted searches of the TRIM database. TRIM is the Department’s central electronic database and document management system. Searches conducted by Recruitment Section National Office of TRIM revealed that the files RCF2002/367 and RCF2003/42 have been destroyed. My level of TRIM access prevents me from viewing recruitment files within TRIM for security purposes. For the purposes of FOI I am granted access to screen shots and information surrounding recruitment files within TRIM. Now shown to me and marked ‘AS-1’ is a printout of the TRIM screenshots indicating both RCF2002/367 and RCF2003/42 have been destroyed.
5. During the course of processing the FOI request, searches were undertaken by the Recruitment Sections of both the National Office and WA Office. On 30 November 2010 I received an email from Mary Leong from the WA Human Resources and Recruitment Section advising that both files had been destroyed. On 1 December 2010 I received an email from Lucy Walters from the National Office Recruitment Section confirming that both files had been destroyed. Now shown to me and marked ‘AS-2’ and ‘AS-3’ are the emails from Mary Leong and Lucy Walters.
6. On the basis of the information in TRIM that was provided to me as evidence and the confirmation I received from the National and WA Recruitment Sections I was satisfied that the files had been destroyed.
7. On 16 December 2010, I made a decision in relation to FOI request 10/08/00664. I decided to refuse access to the files relating to the recruitment round of Wood, Morton and Jenkins (RCF2002/367 and RCF2003/42) which were destroyed on 15 August 2003 pursuant to s 24A as I was satisfied that the Department had taken all reasonable steps to locate a copy of the requested documents and that, despite those searches, the requested documents do not exist.
8. Subsequent to my decision and for the purposes of these proceedings I requested that an officer in the WA Recruitment Section carry out a physical search of the storage unit in which the recruitment files were stored. On 29 April 2011 I received an email from Mary Leong who advised that she conducted a search of both the Recruitment Perth and Converga Perth compactus and the files were not located. Now shown to me and marked ‘AS-4’ is Mary Leong’s email dated 29 April 2011. On 3 May 2011 I received an email from Rebecca Reid from Personnel National Office who searched the National Office basement for the files and could not locate the files. Now shown to me and marked ‘AS-5’ is Rebecca Reid’s email dated 3 May 2011.

Telephone conversation with applicant

9. In his affidavit (sic) Mr Jarosek refers to a telephone conversation with me on 23 September 2010. I recall speaking to the applicant on or around this date although I did not make a file note of this conversation.
10. In response to paragraphs [46] to [49] of Mr Jarosek’s affidavit (sic) I do not recall referring to names containing a tick next to them or names which were in bold although Folios 2–5 of Department file ADD2010/1157630 contain names with Xs next to them in a column entitled ‘HDA’. Folios 2–5 were released in part to the applicant. The redacted information is not relevant to Mr Jarosek’s request.

The CD recordings

11. I have been made aware through the Department’s legal representatives that Mr Jarosek requires confirmation that the CD recordings which have previously been provided to him are still in existence.
12. Whilst I do not consider this to properly form part of the applicant’s FOI request I can confirm that I have seen two CDs on the VCS file 105/04. I can also confirm that I have listened to the opening 30 seconds of each of the two CDs. One CD is a recording between Mr Jarosek and a VCS officer, the other CD is a recording between Mr Jose Alvarez and a VCS officer.” (Exhibit R5)
    

[The Tribunal notes that the applicant’s request for access to documents in respect of “Ms Beardsell”, referred to in para 3 of Ashley Smith’s abovementioned affidavit of 3 May 2011, was not included in his initial request received by the respondent on 18 August 2010 but was in fact subsequently made by him by letter to the Department dated 3 November 2010. The Tribunal also notes that the references, in paras 9 and 10 of Ashley Smith’s abovementioned affidavit of 3 May 2011, to an “affidavit” of the applicant are incorrect. The matters referred to are in fact contained in paras 46–49 of the applicant’s Statement of Facts, Issues and Contentions which was filed in this proceeding on 19 April 2011. Those paragraphs state as follows:

“ Telephone conversation with Ashley Smith on 23 September 2010

46. Mr Smith phoned me in the afternoon of 23 September 2010 to provide me with an update on the progress of my FOI application. He said that he was looking at a recruitment file.
47. Mr Smith said that there were a lot of names. Some of these names were ticked, some were bold. I asked him about promotion rankings (suitable, not suitable, better than suitable, etc.) He suspected that the names at the top of the list were promoted, while those lower down were not. He qualified his opinion with ‘I don’t know if you could call it an order of merit.’ He seemed to be suggesting that the list of names represents some kind decision-making (sic) process with respect to the order of merit.
48. While I have been provided with some lists of names (16 December 2010), none of these lists include any ticks against names, or any manner of distinguishing names in bold lettering. It thus seems that Mr Smith was alluding to a different list that has not yet been provided in the course of my applications.
49. Such a list within said recruitment file, distinguishing between different names in bold lettering and ticks, could provide insights into the deliberative processes of selecting applicants for promotion.”]
    
25. In his oral evidence-in-chief Mr Smith testified, by way of an amendment to para 7 of his affidavit of 4 March 2011 (Exhibit R4), that he had in fact carried out a search of the hard copy VCS file 105/2004.
26. In cross-examination Mr Smith was first questioned about paras 11–12 of his affidavit of 3 May 2011 (Exhibit R5). He confirmed that he found the two CDs in VCS file 105/2004. He could not recall the precise date but he said that he examined that file about 3–4 weeks after the applicant’s FOI request (FA 10/08/00660) was lodged on 18 August 2010 and he then noticed the two CDs in that file.
27. Mr Smith said that VCS files are kept in a “restricted area” and that a general Government Pass is not sufficient for access to that area. He said that all relevant information is kept on file as part of record-keeping management in accordance with Departmental guidelines.
28. It was put to Mr Smith by the applicant that he was not an appropriate person to swear an affidavit, for the purpose of this proceeding, regarding searches for documents carried out in response to the applicant’s FOI requests, in particular FOI Request Number FA 10/08/00660, and it was further put to him that an appropriate person to swear such an affidavit is an authorised Departmental officer with appropriate responsibilities relating to record-keeping management within VCS who actually carried out the searches or is in a position to attest that all appropriate searches had been carried out. Mr Smith responded that he was satisfied on the basis of the information provided to him by email by the relevant officers in VCS that the appropriate searches for documents had been carried out.
29. In re-examination Mr Smith was questioned, in particular, about the searches carried out in respect of VCS file 105/2004. He confirmed that he had handled FOI requests for access to VCS documents previously and he said that the searches carried out by Ms McAuslan were those that he would expect to be carried out in response to an FOI request for access to VCS documents. He added that Ms McAuslan had worked in VCS for about four years and that she was regarded as “very experienced”.

THE EVIDENCE TENDERED BY THE APPLICANT

30. The applicant tendered in evidence the following documents:
    • his affidavit, dated 29 April 2011, comprising 8 annexures which he described as follows;

“ Annexure 1 – Documents via FOI application RE 0703 0050 002, AAT application W2008/1832:
(i) Schedule of documents – RE 0703 0050 002 file VCS 105/2004;
(ii) Documents on file VCS 105/2004, as listed on the schedule – Folios (various) 15 to 146.
Annexure 2 – Record of interview conducted between Nicholas Eid and myself on 30 August 2004:
(i) CD voice recording between Nicholas Eid and Stephen Jarosek – attached as Annexure 8;
(ii) Transcript of relevant section commencing at 01:00:46 and finishing at 01:02:07;
(iii) I say on oath that at the close of his interview with me, after he switched off the recorder, Mr Eid expressed his intention to interview my colleagues who participated with me in the job selection exercises. I interpreted this as keeping me informed within the scope of transparency and natural justice.
Annexure 3 – Record of interview conducted between Nicholas Eid and Mr Alvarez on 30 Aug 2004;
(i) CD voice recording between Nicholas Eid and Jose Alvarez – attached as Annexure 9;
(ii) My transcript of recording – establishes a number of key points, being:
(a) My behaviour with respect to Mr Alvarez has always been civil, without any hostility;
(b) With the exception of investigation reports following the Curtin incident, which I’ve disputed as flawed and denying me natural justice, all other workplace performance-related reports and assessments have been positive, I am technically competent, and there was never any justification to deny me promotion (apart from Mr Alvarez’s claimed references to aforementioned flawed investigative reports).
Annexure 4 – Email received from Kathleen Beardsell on the day that I moved in to POPC, 3 May 2004, which was also the day that she moved out in order to relocate to the airport. I say on oath that it was on this occasion, in response to my question as to where she was ranked in the order of merit, that Ms Beardsell responded that she was ranked suitable – which was exactly the same rank that I had received.
Annexure 5 – Notice number 10148179, Gazette PS12 – 27 March 2003 – Official notification regarding Kathleen Beardsell’s promotion to APS4.
Annexure 6 – [deleted.]
Annexure 7 – Letter from Mr Alvarez, dated 11 December 2003, advising me of his decision to not promote me.
CD RECORDINGS
Annexure 8 – CD record of interview between Nicholas Eid and Stephen Jarosek, 30 August 2004.
Annexure 9 – CD record of interview between Nicholas Eid and Jose Alvarez, 30 August 2004.” (Exhibit A1);

• excerpt (pp 193–195) from the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau report by M J Palmer (July 2005) (Exhibit A2);
• copies of correspondence from officers of the respondent to the applicant, comprising one email and five letters in the period from 6 March 2003 to 7 January 2005, regarding his applications for advertised vacant positions (Exhibit A3).

THE ISSUE

31. At the hearing the applicant did not dispute that part of the respondent’s decision of 16 December 2010 (in respect of FOI Request Number FA 10/08/00664) which related to the release in part of folios 11, 8, 7, 6 and 5–2 referred to in the Schedule of Documents (see paragraph 20 above) pursuant to ss 22(1)(a)(ii) and 41(1) of the FOI Act.
32. The only matter in dispute between the parties, therefore, is the respondent’s decision of 13 January 2011 (in respect of FOI Request Number FA 10/08/00660) whereby the respondent refused to grant access to certain documents pursuant to s 24A of the FOI Act, and that part of the respondent’s decision of 16 December 2010 whereby the respondent refused to grant access to certain documents pursuant to s 24A of the FOI Act.
33. Accordingly, the issue for the Tribunal’s determination, for the purposes of s 24A of the FOI Act, is:
    • whether all reasonable steps have been taken to find the relevant documents; and if so
    • whether it is satisfied that those documents are in the respondent’s possession but cannot be found, or that they do not exist.

ANALYSIS

34. Pursuant to s 24A of the FOI Act, the threshold question for the Tribunal to determine is whether, in respect of the documents to which access has been refused by the respondent in its abovementioned decisions of 16 December 2010 and 13 January 2011, “all reasonable steps have been taken to find” each of those documents.
35. In Chu v Telstra Corporation Ltd [2005] FCA 1730; (2005) 147 FCR 505 Finn J said (at 514):

“ ... A person requesting access to a document that has been in [the] agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question ...”

Accordingly, for the purpose of this proceeding, it is necessary for the Tribunal to consider whether it is satisfied, on the evidence before it, that the respondent “has done all that could reasonably be required of it to find” the documents in question.

36. In the course of his submissions the applicant did not dispute Mr Smith’s affidavit of 3 May 2011 (Exhibit R5) in respect of documents which fell within the scope of his FOI Request Number FA 10/08/00664. He submitted, however, that Mr Smith’s affidavit of 4 March 2011 (Exhibit R4), in respect of documents which fell within the scope of his FOI Request Number FA 10/08/00660, should not be accepted by the Tribunal because Mr Smith is not an appropriate person to swear such an affidavit. He submitted that the appropriate person to swear such an affidavit is the officer within VCS who is responsible for the management of VCS records.

Documents within the scope of FOI Request Number FA 10/08/00664

37. The documents within the scope of the applicant’s FOI Request Number FA 10/08/00664, access to which was refused pursuant to s 24A of the FOI Act by the respondent in its decision of 16 December 2010, comprise files RCF 2002/367 and RCF 2003/42 relating to the recruitment round of Ms R Wood, Ms A Morton and Ms S Jenkins. The Tribunal notes that the applicant’s FOI request refers to vacancies advertised in January and July 2003 (see paragraph 16 above), whereas the respondent’s decision of 16 December 2010 refers to vacancies advertised in January and July 2001 (see paragraph 18 above). The applicant did not take issue with that discrepancy and the Tribunal is satisfied that it is merely a typographical error and, having regard to Ashley Smith’s email of 1 September 2010 to Vidya Vasudevan which refers to the correct dates (see paragraph 17 above), that the respondent addressed the correct timeframe in response to the applicant’s FOI request.
38. The Tribunal is satisfied, on the basis of the affidavit of Ashley Smith dated 3 May 2011 (including annexures AS-1–AS-5 thereto) (Exhibit R5), that all reasonable steps have been taken to find those documents and that, prior to the applicant’s FOI request, those documents had ceased to exist (having been previously destroyed).

Documents within the scope of FOI Request Number FA 10/08/00660

39. The documents within the scope of the applicant’s FOI Request Number FA 10/08/00660, access to which was refused pursuant to s 24A of the FOI Act by the respondent in its decision of 13 January 2011, comprise any documents relating to the VCS investigation 105/2004 other than those documents which had previously been released, either in whole or in part, by the respondent to the applicant.
40. The evidence relied on by the respondent in support of its decision of 13 January 2011 comprises the affidavit of Ashley Smith dated 4 March 2011 (including Annexures AS-1 thereto) (Exhibit R4) and his oral evidence.
41. The Tribunal notes that Ashley Smith made the abovementioned decision of 13 January 2011 and that, according to his abovementioned affidavit, that decision was largely based on information provided to him by Meredith McAuslan, an officer within VCS, in an email sent on 23 December 2010 (see annexure AS-1 to his affidavit), regarding the searches for documents carried out by her (see paragraph 14 above), although in his oral evidence he said that he had personally carried out a search of the hard copy VCS file 105/2004.
42. In the Tribunal’s opinion, Ashley Smith is not the most appropriate person to have sworn an affidavit and given evidence in this proceeding regarding all the searches for documents which could reasonably be expected to have been carried out, and all the searches for documents which were in fact carried out, in VCS in response to the applicant’s FOI request. In the Tribunal’s opinion, a more appropriate (if not the most appropriate) person to have sworn an affidavit and given evidence regarding those matters in this proceeding is Meredith McAuslan, a “very experienced” VCS officer who in fact carried out all those searches (as described in her abovementioned email of 23 December 2010 to Mr Smith). Other VCS officers who communicated by email to Mr Smith in relation to this matter include Macushla Cosgrave and Emily Regueiro-McKelvie (see paragraphs 10–13 above) and, depending on the positions they occupy in VCS (of which the Tribunal is unaware), it may be that they are also more appropriate persons than Mr Smith to have sworn an affidavit and given evidence in this proceeding. The Tribunal, however, does not regard Mr Smith as an inappropriate person to have sworn an affidavit and given evidence in this proceeding and, having regard to his position and experience as an FOI and Privacy Officer in the respondent Department, it attaches due weight to his affidavit and oral evidence.
43. Finally, it is necessary for the Tribunal to consider whether the respondent has failed to take any action to find the relevant document(s) which it could reasonably be expected to have taken. In this connection Ashley Smith, in para 8 of his abovementioned affidavit, refers to his having considered whether to contact Nicholas Eid (who conducted VCS investigation 105/2004) and to his decision not to do so and the reason therefor.
44. The Tribunal accepts the reason for Mr Smith’s not contacting Mr Eid in relation to the applicant’s request for access to documents, as stated in para 8 of Mr Smith’s affidavit. In addition, the Tribunal notes that, even if Mr Eid had retained possession of any documents relating to VCS investigation 105/2004 which were not also in the possession of the respondent, those documents would not be “documents of an agency” within the meaning of the FOI Act and would, therefore, not fall within the scope of the applicant’s FOI request under s 15(1) of the FOI Act.
45. Accordingly, the Tribunal is not satisfied that contacting Nicholas Eid is action which the respondent could reasonably be expected to have taken for the purpose of finding any documents in response to the applicant’s FOI Request Number FA 10/08/00660.
46. The Tribunal, furthermore, is unaware of any steps or action which the respondent could reasonably be expected to have taken to find any documents in response to the applicant’s FOI Request Number FA 10/08/00660, other than the searches carried out by Ms McAuslan referred to in her email of 23 December 2010 to Mr Smith and in para 5 of Mr Smith’s affidavit of 4 March 2011.
47. The Tribunal is satisfied, on the basis of the affidavit of Ashley Smith dated 4 March 2011 (including annexure AS-1 thereto) and his oral evidence, that all reasonable steps have been taken to find any further documents relating to VCS investigation 105/2004 in response to the applicant’s FOI Request Number FA10/08/00660, and that no such further documents have been, or could be, found. The Tribunal, furthermore, is satisfied, on the evidence before it, that no such document is in the possession of the respondent. Accordingly, the Tribunal infers, and is satisfied, on the basis of that evidence, that no such further documents exist.

CONCLUSION

48. The Tribunal concludes, therefore, that the correct or preferable decision in this matter is that the applicant’s requests for access to the documents referred to in paragraphs 36 and 38 above should be refused pursuant to s 24A of the FOI Act.

DECISION

49. For the above reasons the Tribunal affirms the decisions under review.
    

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

...............[sgd D Brodie]........................

Associate

Date of Hearing 6 May 2011

Date of Decision 2 June 2011

Representative of the applicant Self-represented

Counsel for the Respondent Mr A Gerrard

Solicitor for the Respondent Australian Government Solicitor