Collection Point Pty Ltd and Commissioner of Taxation [2011] AATA 909 (19 December 2011)

Last Updated: 20 December 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3828

GENERAL ADMINISTRATIVE DIVISION		)
	Re		COLLECTION POINT PTY LTD

Applicant

And

COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Dr G. Hughes, Member

Date 19 December 2011

Place Melbourne

Decision The Tribunal affirms the decision under review.

[sgd] Gordon Hughes
Member

TAXATION – whether document deemed to be in agency's possession if a week's programming is required to produce it – relationship between section 17(1)(c) and 17(2) of the FOI Act – whether reference in section 17(1)(c) to computers contemplates hardware but not software.

Freedom of Information Act 1982 sections 17, 24A, 38, 41

Freedom of Information Amendment (Reform) Act 2010

Dimitrijev v Department of Education [1998] QICmr 14

Halliday v Corporate Affairs (1991) 4 VAR 327

Re Petroulias and Others and Federal Commissioner of Taxation [2006] AATA 333

Steadfast Group Pty Ltd v Workcover NSW [2010] NSWADT 23

REASONS FOR DECISION

19 December 2011

Dr G. Hughes, Member

DECISION

1. This application related to the extent of the respondent's obligation to make a document available to the applicant pursuant to the Freedom of Information Act 1982 (the FOI Act). Specifically, the issue was whether a document existed for the purpose of section 17 of the FOI Act and, if it did, whether it was exempt from disclosure by virtue of the secrecy exemption in section 38, or the personal information exemption under section 41 (as it then was).

BACKGROUND

2. On 22 December 2009, the applicant applied to the respondent for a copy of the unclaimed superannuation money register.
3. On 16 February 2010, the respondent rejected the applicant’s request pursuant to section 24A of the FOI Act, on the basis that the respondent was incapable of generating a whole register report as requested.
4. In a letter to the applicant dated 16 February 2010, the respondent advised that it currently had two registers, a Provider (superfund) enquiry register and a Super (on line) register.
5. In contrast to its application of 22 December 2009, the applicant applied on 17 March 2010 for:

(a) The name, address of each person listed in the "Provider (superfund) enquiry register" together with the amount of unclaimed money in respect of each of them.; (b) The name and address of each person listed on the "Super (on line) register" together with the amount of unclaimed money in respect of each of them.

6. The application of 17 March 2010 was clearly framed to reflect the wording used by the respondent in its rejection of the earlier request on 16 February 2010.
7. The respondent rejected the applicant's request on 5 May 2010, again under section 24A of the FOI Act. And essentially on the same grounds – the respondent did not have a register capable of generating whole register reports and could only access the registers on an individual basis.
8. On 26 May 2010, the applicant sought an internal review of the decision pursuant to section 54 of the FOI Act. On 8 July 2010, the respondent advised the applicant that it had affirmed the original decision to refuse access.

LEGISLATION

9. Section 17 of the FOI Act describes circumstances in which an agency may be required to prepare new documents in response to a freedom of information request.

(1) Where:
(a) a request (including a request in relation to which a practical refusal reason exists) is made in accordance with the requirements of subsection 15(2) to an agency;
(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and
(c) the agency could produce a written document containing the information in discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or
(ii) the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.
(2) An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.

10. Section 24A(1) of the FOI Act provides an exemption in the case of missing documents.

(1) 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.

11. Section 38(1) of the FOI Act contains an exemption in relation to secrecy.

(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.
(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.

12. Section 41(1) of the FOI Act, which was repealed by the Freedom of Information Amendment (Reform) Act 2010 with effect from 1 November 2010 (when it was replaced by section 47F), provided an exemption in the case of documents containing personal information:

(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).

DISCUSSION

THE APPLICANT'S BUSINESS

13. The applicant’s sole director, Domenico Giovanni Crupi, provided evidence on affidavit as to the nature of the applicant's business.
14. Mr Crupi explained that the applicant provides paralegal services such as title searching and process serving. In addition, the company assists clients to retrieve unclaimed moneys from various entities. The applicant's services include the retrieval of unclaimed superannuation from accounts where the superannuation fund cannot identify the person entitled to the account.
15. Previously, the applicant had had access to the publicly available Unclaimed and Lost Superannuation Register, maintained by the State Revenue Office in Victoria. However, responsibility for that register had recently been transferred to the Australian Taxation Office (ATO). The ATO does not publicly disclose sufficient information to allow retrieval companies like the applicant to locate the owners of unclaimed superannuation. Therefore, the applicant was seeking access to equivalent information to that which was previously available from the Victorian State Revenue Office.
16. Mr Crupi explained further that the applicant's purpose in seeking the information was to enable it to locate potential claimants, using the same procedures as it employs for other unclaimed money.
17. The respondent did not dispute this description of the applicant's business or the applicant's objective in seeking access to the information in question.

AVAILABILITY OF DOCUMENTS

18. The information that the applicant sought was held on the respondent's Legacy database.
19. The nature of the Legacy database was explained in an affidavit by Louie Markovski of the ATO, product manager with responsibility for Lost Superannuation, Unclaimed Superannuation, Super Guarantee and Superannuation Holding Account special account. He explained that unclaimed money records are held in the Legacy system. The Legacy database is created by incorporating data from various ATO information systems sourced from the ATO Client Register and information sourced from superannuation providers.
20. The parties agreed that the applicant's entitlement to a document from Legacy containing the information that the applicant sought turned primarily on an interpretation of sections 17(1)(c)(i) and 17(2) of the FOI Act.
21. The effect of section 17(1)(c)(i) is that an agency must produce a written document in response to a freedom of information request, if such a document can be produced by the use of a computer or other equipment ordinarily available to the agency for retrieving or collating stored information.
22. The effect of section 17(2) is that an agency is excused from compliance with the requirement to produce a document in such circumstances, if to do so would involve a substantial and unreasonable diversion of resources.
23. Sections 17(1)(c)(i) and 17(2) are distinct. If the respondent can demonstrate that a document containing the requested information cannot be produced by the use of a computer or other equipment ordinarily available to the agency for retrieving or collating stored information, then that is the end of the matter. The question of substantial and unreasonable diversion of resources, under section 17(2), would not arise.
24. If, on the other hand, it can be demonstrated that a written document can be generated using a computer or other equipment ordinarily available to the agency for retrieving or collating stored information, then an agency may nevertheless be excused from producing that document if to do so would involve a substantial and unreasonable diversion of resources.
25. Section 17(2) serves to emphasise that, for the purposes of section 17(1)(c)(i), a diversion of agency resources will not necessarily be fatal to an request to access a document. The diversion must have a substantial and unreasonable impact on the agency's resources.
26. The issue of a diversion of resources relates to the process of accessing a computer or other equipment which is ordinarily available to the agency. The extent of the diversion is not relevant to the process of defining ordinarily available – it is only relevant once it has been determined that the computer or other equipment is ordinarily available.
27. For the purposes of section 17(1)(c)(i), the specific issues are, first, whether the information that the applicant requested can be made available in a document produced with the use of a computer or other equipment and secondly, whether that computer or other equipment is ordinarily available to the respondent.
28. The applicant contended that the words computer or other equipment were a reference to hardware, and not software. The applicant thought this was significant because, there was no question that the hardware on which that software would have to be run was readily available. However, it was clear that some software programming effort would be required in order to generate the information that the applicant sought.
29. In support of this proposition, the applicant cited from the Report by the Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978. However, the Tribunal finds no support in the Report for the applicant's contention. Paragraph 8.33 of the Report, as discussed below, may have some relevance to the question of whether a computer or other equipment is ordinarily available but it does not assist on the question of whether the reference to computer or other equipment is confined to hardware as opposed to a system involving hardware and software.
30. The applicant advanced other bases upon which an interpretation of computer or other equipment should be interpreted as a reference only to hardware. Most persuasively, the applicant contended that this interpretation fitted most logically with the language used in section 17.
31. While the Tribunal has some sympathy for the applicant's contention that a literal interpretation of the expression computer or other equipment connotes only hardware, and not software, it does not accept that this could have been the intention behind section 17(1)(c). A reference to the availability of computer hardware in isolation from the availability of software applications to run on that hardware would make no sense. Computer hardware is useless without software. The clear intention of section 17(1)(c)(i) is to embrace circumstances where a computer system, comprising hardware and software, is ordinarily available.
32. On the assumption, therefore, that section 17(1)(c)(i) refers to a computer system comprising hardware and software, the next question is whether such a system is ordinarily available to the respondent for retrieving or collating stored information.
33. The respondent contended that the documents that the applicant requested could not be produced by equipment ordinarily available, since it would be necessary to create a program specifically for this purpose.
34. Though the two clauses are distinct, the requirements of section 17(1)(c)(i) must, to some extent, be considered in conjunction with section 17(2). Section 17(2) contemplates that even if a document could be produced by the use of a computer which would ordinarily be available, an exemption exists if compliance would involve a substantial and unreasonable diversion of the agency's resources. It follows that disclosure may be required under section 17, in circumstances where computer facilities can be made available notwithstanding a diversion of an agency's resources, as long as that diversion is less than substantial and unreasonable.
35. This in turn means that any evidence as to the process of extracting the information and creating a document must be assessed: first, to determine whether it involves a diversion of agency resources at all; and, secondly, whether that diversion involves an amount of effort which is substantial and unreasonable. If there is a diversion of agency resources in relation to the use of facilities ordinarily available, but not to the extent of being substantial and unreasonable, then the document must be produced pursuant to section 17(1)(c)(i), and the exemption under section 17(2) will not apply.
36. Simon Cheehung Cho, Director of Superannuation Systems at the Enterprise Applications Branch of the ATO, provided affidavit evidence relevant to this issue on the respondent’s behalf. . Mr Cho is responsible for providing information technology support to products such as Unclaimed Superannuation, Super Guarantee and the Superannuation Contributions Surcharge.
37. Mr Cho said that he had been asked on 24 January 2011 to advise on the steps which the respondent would have to take to enable the information that the applicant sought to be provided in a discrete form. He said it would be necessary to write a computer program to extract the information from Legacy.
38. The applicant did not dispute Mr Cho's evidence. It was common ground, therefore, that the information could not simply be downloaded. It might be asserted that as the necessary program does not exist, it constitutes a facility which is not ordinarily available. As explained above, however, the requirements of section 17(1)(c)(i) can still be satisfied if facilities can be made available with effort that is nevertheless something less than a substantial and unreasonable diversion of the agency's resources.
39. Mr Cho estimated that it would take a programmer approximately five days to understand, analyse and confirm the requirements needed to transfer information from the Legacy database into a discrete format that would enable the data to be loaded onto a CD or DVD. The programmer would need to design, write and test the computer program to enable a report to be produced. It would take an additional two days to convert the report into an Excel spread sheet, which could be loaded onto a CD or DVD. The total cost would be approximately $7,000. This sum did not include the cost of the work which would then have to be done to review the report and check the details for accuracy, or the cost of any administrative work involved in obtaining approval and scheduling the relevant tasks.
40. Mr Markovski agreed that it would take approximately seven days, at a cost of approximately $7,000, for a programmer to produce the report. Furthermore, it would take four junior administrative officers approximately three months to review the material, at a cost of approximately $60,000.
41. The applicant obtained expert evidence from Dr Leonard Whitehouse. The respondent did not challenge his qualifications as an expert. In his affidavit, Dr Whitehouse said the estimate by Simon Cho of $7,000 for the programming involved in the project was accurate, this being a typical cost in the computer industry for small programming projects. However, Dr Whitehouse opined that the estimate of $60,000 by Louie Markovski, as the cost of checking the data, could not be justified. The same function would effectively be performed by the testing process incorporated into the software development effort that Mr Cho described.
42. The three witnesses therefore agreed that it would be necessary to write a program to retrieve the information and that it would take a week to do so. Mr Markovski considered the process beyond that point to be far more complex – an assertion which the applicant strongly disputed. However, for the purposes of section 17(1)(c)(i) it may not be necessary for the Tribunal to decide this point.
43. Given the agreement between the three witnesses, the first question is whether the writing of a computer program over one week in order to satisfy a freedom of information request represents the use of agency computer facilities which are ordinarily available. If not, it is not necessary to proceed to section 17(2). If, on the other hand, this does represent a use of facilities which are ordinarily available, it remains open to the respondent to assert that the use of those facilities nevertheless involves a substantial and unreasonable diversion of resources and hence is subject to an exemption under section 17(2).
44. The respondent referred to Re Halliday v Corporate Affairs (1991) 4 VAR 327, a case before the Victorian Administrative Appeals Tribunal (as it then was) involving a request under section 19(1)(c) of the Victorian legislation, which is expressed in the same terms as section 17(1)(c) of the FOI Act. Member Rosen observed that:

In my view, there are circumstances where an existing program could be easily modified to satisfy subs 19(1)(c) ...
However, the evidence in this case is that a wholly new program would have to be written to provide the information and the computer then used to collate the information requested. In these circumstances it is my view that the respondent is not required to supply the information under s 19.

45. The respondent also referred to Dimitrijev v Department of Education [1998] QICmr 14, a Queensland decision in which Information Commissioner Albietz observed, in relation to section 30(1)(i) of the Queensland Act (which is expressed in terms similar but not identical to section 17(1)(c) of the FOI Act ) that:

The term "usually available" imposes a significant qualification on the entitlement of an FOI access applicant to seek specific information from a computer database or other repository of stored information. It means, in effect, that it must be possible to retrieve or collate the information requested by an FOI access applicant using equipment (including computer programmes or software) already in place, or otherwise usually available, to undertake the performance of the agency's functions. In other words, section 30(1)(e) imposes no requirement on an agency to obtain additional equipment or re-program existing equipment, or (for example) write a specific program to enable a database to be integrated, in order to respond to an FOI access application.

46. A third decision that the respondent referred to was Steadfast Group Pty Ltd v Workcover NSW [2010] NSWADT 23, a matter in which the New South Wales Administrative Decisions Tribunal considered section 23 of the New South Wales Act (which, again, is expressed in terms similar but not identical to section 17(1)(c) of the FOI Act). Molony P observed that:

... I read s 23 as providing that documents which could be created by collation or retrieval from a computer system, (for example by querying a database or searching a document management system), are documents which an agency is taken to hold. I accept that the interrogation or search of a computer system to create such a document should be able to be undertaken using the equipment usually available to the agency. Thus, s 23 would not require an agency to have a special program written to interrogate its systems ...

47. The respondent acknowledged that these decisions were not Commonwealth cases but maintained that they should be regarded as persuasive, as they dealt with equivalent state legislation.
48. The applicant conceded that these cases provided some support for the respondent's position but asserted that they should not be followed by this Tribunal. The applicant pointed out that the legislation in each of the decisions referred to above did not include the equivalent of section 17(2) of the FOI Act. This was significant, according to the applicant, as without qualification by the equivalent of section 17(2), the words ordinarily available could be read literally.
49. The Tribunal does not agree that a literal interpretation of subsection (1) advantages the applicant. The absence of section 17(2) in equivalent state legislation does not directly affect the question of whether the facilities are ordinarily available. Rather, it is primarily relevant to the question of whether, if the facilities are in fact ordinarily available, the effort involved in extracting the information from those facilities is excessive. Furthermore, the absence of the equivalent of section 17(2) removes the inference that computer facilities may be deemed ordinarily available if the use of those facilities involves a degree of programming which is less than a substantial and unreasonable diversion of agency resources. The consequent literal interpretation of subclause (1) would suggest that any programming effort required by the respondent is potentially fatal to the application – a conclusion consistent with the state authorities cited by the respondent.
50. The cases that the respondent cited, while not binding on this Tribunal, deal with the same issue which confronts the Tribunal in the context of section 17(1)(c)(i). The Tribunal is inclined to the same conclusion as was reached in those decisions.
51. The Tribunal considers that, in the present case, a computer and other equipment was not ordinarily available for use in connection with the retrieval or collection of the information that the applicant sought. The information did not exist in discrete form. To produce a document as requested by the applicant, it would be necessary to write a computer program. Each of the witnesses acknowledged that this would take at least a week, regardless of the methodology adopted, and the cost would be a significant sum in the vicinity of $7,000.
52. It is the Tribunal's opinion that, in the circumstances, this effort and cost could not be interpreted as the utilisation of facilities ordinarily available to the agency. The scenario would not involve a simple modification of existing software but the creation of a new computer program. For these reasons, the Tribunal accepts the respondent's contention that section 17(1) of the FOI Act has no application. It follows that the document to which the applicant seeks access does not exist and, pursuant to section 24A of the FOI Act, the respondent has no obligation to comply with the applicant's request.
53. Having reached this conclusion, it is not necessary for the Tribunal to consider the exception which otherwise had been relied upon by the respondent, namely, section 17(2). It may be helpful, nevertheless, for the Tribunal to make one observation in this regard.
54. If the Tribunal concluded that a week's programming constituted the use of facilities ordinarily available to the respondent, the next question would have been whether the amount of effort involved constituted a substantial and unreasonable diversion of agency resources.
55. In this regard, it would have been appropriate to give greater consideration to the divergent views held by the various witnesses on this point. Having said this, it would not necessarily have been essential to resolve those differences. It would have been possible for the Tribunal to conclude that the agency's facilities were ordinarily available with the benefit of a week's programming effort but that even one week's programming effort involved a substantial and unreasonable diversion of agency resources for the purposes of section 17(2).
56. As it is not necessary for the Tribunal to determine whether the respondent could successfully rely upon the exemption in section 17(2), however, the Tribunal makes no further finding in this regard.

SECRECY

57. The respondent contended that in the event that the Tribunal considered that the documents should be made available pursuant to section 17(1), and were not exempt under section 17(2), the document would nevertheless still be exempt under the secrecy provisions of section 38 of the FOI Act. It is not necessary for the Tribunal to decide this point, in view of its findings in respect of section 17.

DISCLOSURE OF PERSONAL INFORMATION

58. At the applicable time, section 41 of the FOI Act provided that a document was exempt if its disclosure would involve the unreasonable disclosure of personal information about any person. Again. it is not necessary for the Tribunal to reach a conclusion on this point in view of its earlier findings but it refers to the observations it made above.

DECISION

59. For the reasons stated above, the Tribunal is of the opinion that the document to which the applicant seeks access does not exist and that, pursuant to section 24A of the FOI Act, the respondent has no obligation to comply with the applicant's request.
60. Specifically, the Tribunal is of the opinion that the information sought by the applicant cannot be produced in discrete form by the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information. Hence, by virtue of section 17(1)(c)(i) of the FOI Act, no such document is deemed to be in the respondent's possession.
61. Given the above findings, it has not been necessary for the Tribunal to determine whether the respondent was exempt from making the document available pursuant to section 38 or section 41.
62. The Tribunal affirms the decision under review.

I certify that the sixty two [62] preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr G. Hughes, Member

Signed: Dianne Eva

Clerk

Dates of Hearing 7 November 2011

Date of Decision 19 December 2011

Counsel for the Applicant Mr P. Herzfeld

Solicitor for the Applicant Mr D. Buchanan, Christopher Bunnett Lawyers

Solicitor for the Respondent Ms E. Arduca, Australian Government Solicitor