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'G' and Department of Human Services [2013] AICmr 16 (28 February 2013)

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Decision and reasons for decision of Acting Freedom of Information Commissioner, Toni Pirani

Summary of case details
Applicant:

'G'

Respondent: Department of Human Services
Decision date: 28 February 2013
Application number: MR11/00169
Catchwords:

Freedom of information — 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 Department of Human Services (the Department) of 6 May 2011 to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act) on the basis that the documents cannot be found. The Department took all reasonable steps to find documents falling within the scope of the applicant's request.

 Background

  1. On 14 March 2011, the applicant applied to the Department for access to 'a psychiatric report from 1984 prepared by the Centrelink psychiatrist when [the applicant] was granted the Invalid Pension (now Disability) housed at [a specified address]'.
  2. On 18 March 2011, the Department refused the applicant's request under s 24A of the FOI Act because it had taken all reasonable steps to find the document but it could not be found.
  3. On 31 March 2011, the applicant sought internal review of the Department's decision. The applicant provided the Department with additional information, including a copy of a letter, dated 27 June 1984, from the Department's predecessor (the Department of Social Security) to a psychiatrist requesting an assessment of the applicant's eligibility for the Invalid Pension.
  4. On 6 May 2011, the Department affirmed its decision to refuse the applicant's request because the document requested could not be found. The Department advised the applicant that it had undertaken extensive searches for the document. As a result of these searches, the applicant's file for the period of 1993 onwards was located, but not his file prior to 1993 or the psychiatric report requested.
  5. By letter dated 22 June 2011, the applicant sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

  1. The decision under review is the decision of the Department on 6 May 2011 to refuse the applicant's request because the document could not be found.

 Whether reasonable steps taken to find a document

  1. The issue in this IC review is whether the Department has taken all reasonable steps to find the document. Section 24A(1) of the FOI Act provides:

    24A Request 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:
      1. all reasonable steps have been taken to find the document; and
      2. the agency or Minister is satisfied that the document:
        1. is in the agency's or Minister's possession but cannot be found; or
        2. does not exist.
  2. 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 records 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.[1]

 The searches conducted by the Department

  1. The Department advised the OAIC that, between 1984 and 1993, the applicant moved between a number of different locations within Australia, as well as living overseas.
  2. During this period, the file storage system used by the Department's predecessor was different to that currently used by the Department. Under the previous file storage system, each customer had a hard copy file which was stored in the Departmental office for the area in which the customer lived. A customer's file would be transferred to another Departmental office on request when the customer moved. The file transfers took place manually and there was no tracking system.
  3. The Department also advised that, since 2003, customer files are no longer stored at the customer's local Departmental office and are instead stored in State-based Records Management Units. Further, since 2004, the Records Management Units have been supported nationally by the Total Records and Information Management (TRIM) electronic database.
  4. The applicant has made five previous FOI requests to the Department for access to his file, including medical information and medical reports.[2] As a result of these requests, the Department conducted searches of its offices in Redfern, Mildura, Haymarket, Marrickville and Hobart. In each FOI decision since 1993, the Department advised the applicant that his file for the period between 1984 and 1992 could not be located.
  5. Following the applicant's FOI request of 14 March 2011, the Department conducted a search of the applicant's Departmental file, Medical Information Paper file and its Records Management Units. The Department advised the applicant that the document sought could not be found or did not exist.
  6. Following the applicant's request for internal review of the Department's 18 March 2011 decision, the Department undertook additional searches of its Redfern, Mildura, Haymarket and Hobart offices and its national Records Management Unit. The Department again advised the applicant that the document could not be found or did not exist.
  7. In the context of this IC review, the Department conducted further searches, including a search by the national Records Management Unit of FileNet, which maintains electronic copies of scanned documents, and searched its microfiche records. The Department did not locate a copy of the document.
  8. The applicant has suggested that the document may be located on a separate file related to social security fraud allegations investigated by the then Commonwealth Police and the subject of a judicial inquiry in the 1980s. The Department advised that there was no evidence to suggest that the applicant had been involved in that investigation and, if it had been, the investigation would not have affected the location of his file.
  9. The document sought by the applicant is now 29 years old. The file in which it would have been stored has not been located by the Department despite a number of attempts to locate it over a 20 year period.
  10. Given the extensive searches undertaken to date and the length of time that the file has been missing, I am satisfied that there are no other searches that could reasonably be conducted to locate the applicant's file, including a copy of the psychiatrist report.
  11. I am satisfied that the Department has taken all reasonable steps to find the document and that the document, along with the file from the period between 1984 and 1992, cannot be located, if it still exists.

 Findings

  1. For the purposes of s 24A(1), I am satisfied that:
    • the Department has taken all reasonable steps to find the document within the scope of the applicant's request, and
    • this document
      • is in the Department's possession but cannot be found, or
      • no longer exists.

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's decision of 6 May 2011.

Toni Pirani
Acting Freedom of Information Commissioner

28 February 2013

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 $816, 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] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982,[3.43–3.45], footnotes omitted.

[2] Requests were made to the Department on 21 September 1993, 29 November 1994, 3 April 1995, 8 October 1998 and 3 February 2011.