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‘H’ and Australian Broadcasting Corporation [2012] AICmr 10 (30 March 2012)

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Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple

Summary of case details
Applicant: 'H'
Respondent: Australian Broadcasting Corporation
Decision date: 30 March 2012
Application number: MR11/00258
Catchwords: Refusal of access to documents – Whether reasonable steps taken to find documents – (CTH) Freedom of Information Act 1982 s 24A(1)

 

Contents

 Summary

1. I affirm the decision of the Australian Broadcasting Corporation (the ABC) of 19 July 2011 to grant access to documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). The ABC took all reasonable steps to find documents falling within the scope of the applicant's request.

 Background

2. On 17 June 2011, the applicant applied to the ABC for ‘any documents in any format the [ABC] may hold which make direct or indirect but identifiable reference to myself.' He wrote:

Without limiting the materials disclosed, I am particularly interested in any representations about me which may have been available to or have informed the various selection committees or their delegates or other interested parties in their determination not to short list me for interview for any and all of the positions for which I have applied, since my involuntary retirement by the ABC in 2003.
Appropriate materials might include: reasoning made by committees in determining the merit of my applications including reasonings not to proceed to interview, annotations on documents, references to/and points of view on capacities, abilities, personal and professional qualities etc., file notes providing guidance on the treatment of applications from myself, including any notes to refer to particular officers, employees or agents of the ABC in such circumstances.

3. The ABC sought further information from the applicant about the positions that he had applied for. The applicant replied on 28 June 2011 with a list of 12 positions that he had applied for at the ABC in the period 2003–2011.

4. On 19 July 2011, the ABC made a decision on the applicant's FOI request. Two documents were identified as falling within the scope of his request, being records of the notes made by selection committee members while reviewing his applications for two positions. These documents were edited to remove the names of the committee members, but were otherwise released in full.

5. In its decision letter, the ABC advised the applicant that it only held documents relating to the three most recent of the positions he had listed. The ABC stated that all documents relating to vacancies before 2010 had been destroyed in accordance with the ABC's former archiving and record management policies, which required that recruitment documents be held for only 12 months.[1]

6. On 5 September 2011, the applicant sought IC review of the ABC's decision under s 54L of the FOI Act.

 Decision under review

7. The decision under review is the ABC's decision on 19 July 2011 to provide the applicant with only the documents identified at [4] above.[2] The applicant does not seek review of the ABC's application of exemptions to the two documents to which it has given him access. The applicant asserts that the ABC holds documents that fall within the scope of his request, but to which it has not given him access.

 Whether reasonable steps taken to find a document

8. The applicant contends that the ABC failed to provide him with documents that it held, and which are within the scope of his request, because the ABC conducted an inadequate search of its records.

9. Section 24A(1) of the FOI Act provides:

24A Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non-existent
(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.

10. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines explain that:

The FOI Act is silent about what an agency or minister must do in terms of searching for documents that may be relevant to a request. Agencies should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency's environment. At a minimum, an agency or minister should take comprehensive steps to locate a document, having regard to:
  • the subject matter of the documents
  • the current and past file management systems and the practice of destruction or removal of documents
  • the record management systems in place
  • the individuals within an agency who may be able to assist with the location of documents, and
  • the age of the documents.
...

The Information Commissioner considers that, as a minimum, an agency should conduct a search by using existing technology and infrastructure to conduct an electronic search of documents, as well as making enquiries of those who may be able to help locate the documents.[3]

 The search conducted by the ABC

11. The Office of the Australian Information Commissioner sought information from the ABC about the searches that it had conducted for documents containing the information sought by the applicant. The ABC described its initial search as follows:

The ABC conducted a search of all formal recruitment records contained within the National Recruitment Unit in both hard copy files and electronic eRecruitment files.

...

  • No recruitment documents exist prior to October 2010. All documents from that period were destroyed in accordance with the record management processes in place at that time.
  • The Administrative Functions Disposal Authority ... has been revised to reflect an increased retention period for recruitment records to seven years. This new document retention regime has been in place at the ABC since March 2011.
  • Since February 2010, all ABC recruitment records have been maintained in the eRecruitment system. All documents in that system relating to [the applicant] were provided to him.

12. The ABC also undertook additional searches, including: asking the convenor of the selection committee, for each listed position in 2010 and later, whether such documents existed; and searching emails to and from those convenors within a three-month range of the date of recruitment for any reference to the applicant. No relevant documents were located.

13. The applicant says that the ABC ‘limited its document search to particular files (active selection committee reports) and by this action refused me access to documents or parts of documents that might be held elsewhere in the organisation'. He claims that the ABC, ‘by limiting its response to formal records held within the recruitment section, refused me access to additional records which might be held or available to delegates making recruitment decisions but not recorded in the recruitment process or by the recruitment section'.

14. The applicant's initial request was for ‘any documents in any format the [ABC] may hold which make direct or indirect but identifiable reference to myself.' It is likely that the work required to process that initial request would have been a ‘practical refusal reason' for the purposes of s 24 of the FOI Act: it would have substantially and unreasonably diverted the resources of the ABC from its other operations.[4] Section 24A(1), quoted above, requires that reasonable steps be taken to find the documents requested. The Administrative Appeals Tribunal has explained that ‘reasonable steps' in this context means ‘[n]ot going beyond the limit assigned by reason; not extravagant or excessive; moderate ... judged to be appropriate or suitable to the circumstances or purpose'.[5] I think it was reasonable for the ABC, in this case, to have restricted its initial search to the recruitment records relating to the 12 positions that the applicant identified.

15. The ABC's initial search would not have been adequate on its own. As the Guidelines explain, an agency should also make enquiries of those who may be able to help locate the documents.[6] But the additional searches that the ABC undertook (enquiring of the convenors of the selection committees, and searching their emails) met that requirement.

16. I make no comment on the appropriateness of the ABC's previous policy, under which the recruitment documentation for most of the 12 positions was destroyed. But given that that policy was in place before March 2011, it is not surprising that the ABC found only two documents that fell within the scope of the applicant's request. That does not support an argument that the ABC's search was inadequate.

 Findings

17. For the purposes of s 24A(1), I am satisfied that:

  • the ABC has taken all reasonable steps to find any further documents that it holds that fall within the scope of the applicant's request, and
  • those documents:
    • are in the ABC's possession but cannot be found, or
    • do not exist.

 Decision

18. Under s 55K of the FOI Act, I affirm the ABC's decision of 19 July 2011.

Dr James Popple
Freedom of Information Commissioner

30 March 2012

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $777, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] The ABC advised that its policy was amended in 2011 and that it now retains recruitment records for seven years (see [11] below).

[2] This is an access refusal decision: see ‘G' and Australian Taxation Office [2012] AICmr 9, [7]–[9].

[3] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (2010) [3.43], [3.45], footnotes omitted.

[4] Section 24AA(1)(a)(i) of the FOI Act. See also ss 24, 24AA and 24AB.

[5] Cristovao and Secretary, Department of Social Security [1998] AATA 787, [19]. See also Re Langer and Telstra Corporation Ltd [2002] AATA 341, [94]; (2002) 68 ALD 762, 763; Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301, [188]; (2003) 78 ALD 645, 705; Ford and Child Support Registrar [2007] AATA 1242, [74], (2007) 45 AAR 166, 181.

[6] Guidelines [3.45] (see [10] above).