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‘G’ and Australian Taxation Office [2012] AICmr 9 (29 March 2012)

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

Summary of case details
Applicant: 'G'
Respondent: Australian Taxation Office
Decision date: 29 March 2012
Application number: MR11/00053
Catchwords: Refusal of access to documents – Whether reasonable steps taken to find documents – (CTH) Freedom of Information Act 1982s 24A(1)

 

Contents

 Summary

1. I affirm the decision of the Australian Taxation Office (the ATO) of 3 March 2011 to grant access to documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). The ATO took all reasonable steps to find documents falling within the scope of the applicant's request.

 Background

2. The applicant says that, in a telephone conversation with an officer of the ATO in July 2008, the applicant was told that the ATO's records indicated that he was born outside Australia. The applicant also says that this was repeated to him when he attended an office of the ATO in July 2009. The applicant says that he was born in Australia.

3. On 13 January 2011, the applicant applied to the ATO for access to ‘all the personal information you have on me.' He referred to the July 2008 telephone call, and asked the ATO to send him ‘the name of the person who gave you the information [that he was born outside Australia] and the name of the organization they belong to'.

4. On 18 February 2011, the ATO wrote to the applicant clarifying the scope of his request. He replied on 24 February 2011, indicating that he was interested in ‘personal information' that the ATO held about him but not ‘tax information'. The ATO conducted a search for any documents or record of contact that indicated that the applicant was not born in Australia.

5. On 3 March 2011, the ATO advised that a search of its computer systems revealed no record of any contact from a third party providing information to the effect that the applicant was born outside Australia. The ATO provided the applicant with:

  • a copy of his ‘Client Identity Profile' screen from its system (the ‘arrival in Australia' field on this screen was blank which, the ATO says, indicates that the applicant was born in Australia), and
  • records of the ATO's contact history with the applicant including copies of ‘screen dumps' recording updates to addresses in 1993, 1995 and 1998.

6. By letter dated 22 March 2011, the applicant sought IC review of the ATO's decision.

 Decision under review

7. An application for IC review must be made in relation to either an ‘access refusal decision' (s 54L of the FOI Act) or an ‘access grant decision' (s 54M). Section 4(1) provides that those terms have the meaning given by ss 53A and 53B, respectively.

8. The ATO has granted the applicant access to what it claims are all of the documents that it holds that fall within the scope of the applicant's FOI request. Nonetheless, this is not an access grant decision: it does not fall within s 53B, and the applicant is not an affected third party who can apply for IC review under s 54M.

9. Section 53A provides that (amongst other decisions) ‘a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates' is an access refusal decision.[1] The applicant asserts that the ATO holds documents that fall within the scope of his request, but to which it has not given him access. Accordingly, this is an application for IC review under s 54L of the FOI Act: the access refusal decision under review is the ATO's decision of 3 March 2011 to provide the applicant with only the documents itemised at [5] above.

 Whether reasonable steps taken to find a document

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

11. 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.

12. 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.[2]

 The search conducted by the ATO

13. The Office of the Australian Information Commissioner (the OAIC) sought information from the ATO about the searches that it had conducted for documents containing the information sought by the applicant.

14. The ATO advised that searches had been made of its current electronic records system (Siebel) and previous electronic records systems: the ATO Integrated System and the National Taxpayer System. These systems are (and were) used to record telephone and shopfront contacts with taxpayers, and note access to taxpayer records by ATO officers. These systems would ‘also indicate the existence of any paper file of which', the ATO says in this case, ‘there were none'.

15. The ATO also advised that its procedures require that the types of telephone and shopfront interactions that the applicant says he had with the ATO be recorded in the Siebel system.

16. There are a number of discrepancies between what the applicant alleges occurred in communications between him and the ATO, and the ATO's records of its contact with the applicant. One discrepancy relates to the question whether the applicant was born in Australia. The ATO has stated to the OAIC that it has never recorded the applicant as having been born outside of Australia.

 Findings

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

  • the ATO 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 ATO's possession but cannot be found, or
    • do not exist.

 

Decision

18. Under s 55K of the FOI Act, I affirm the ATO's decision of 3 March 2011.

Dr James Popple
Freedom of Information Commissioner

29 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] See also s 24A(1), set out at [11] below.

[2] 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.