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Heffernan and Australian Nuclear Science and Technology Organisation [2013] AICmr 25 (13 March 2013)

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

Summary of case details
Applicant:

Daniel Heffernan

Respondent: Australian Nuclear Science and Technology Organisation
Decision date: 13 March 2013
Application number: MR11/00130
Catchwords:

Freedom of information — Refusal of access to documents — Documents cannot be found — Whether reasonable steps taken to find documents — (CTH) Freedom of Information Act 1982  ss 24A(1), 55G

 

  Contents

 Summary

  1. I affirm the deemed decision of the Australian Nuclear Science and Technology Organisation (ANSTO) of 5 May 2011, as varied by decisions dated 20 May, 22 June, 28 June and 1 July 2011, and 9 May, 16 May, 19 June, 19 July, 3 August, 22 August and 28 September 2012, to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act). ANSTO has taken all reasonable steps to find documents falling within the scope of Mr Heffernan's request.

 Background

  1. On 5 April 2011, Mr Daniel Heffernan applied to ANSTO for access to a range of documents relating to his employment. On 20 April 2011, Mr Heffernan clarified the scope of his request and the meaning of specific items in his FOI request.
  2. ANSTO was deemed to have refused Mr Heffernan's request for documents under s 15AC of the FOI Act on 5 May 2011, because a decision was not made within 30 days of receiving the request. On 20 May 2011, ANSTO made a decision to release a number of documents within the scope of the request with exempt and irrelevant material edited under s 22 of the FOI Act.
  3. It appears there was some delay in communicating this decision to Mr Heffernan. On 26 May 2011, Mr Heffernan sought IC review on the basis that ANSTO had not provided the information he had requested. In his application for review Mr Heffernan indicated he had not received a decision from ANSTO.
  4. On 22 June, 28 June and 1 July 2011 and 9 May, 16 May, 19 June, 19 July, 3 August, 22 August and 28 September 2012, ANSTO made further decisions under s 55G(2) of the FOI Act in relation to Mr Heffernan's original FOI request (5 April 2011). Approximately 6500 folios were released in total.

 Decision under review

  1. The decision under review is the deemed decision of ANSTO of 5 May 2011, as varied by decisions dated 20 May, 22 June, 28 June and 1 July 2011 and 9 May, 16 May, 19 June, 19 July, 3 August, 22 August and 28 September 2012, to refuse access to the documents sought by Mr Heffernan.

 Whether reasonable steps taken to find documents

  1. Mr Heffernan states that ANSTO has still not released all the documents he requested and does not seek review of ANSTO's decision to apply exemptions to the material it released. The issue in this IC review is whether ANSTO has taken all reasonable steps to find documents within the scope of Mr Heffernan's request. Section 24A(1) of the FOI Act provides:

    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:
      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.[1] The Guidelines explain:

    3.54 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.[2] 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.[3]

    3.55 Agencies are responsible for managing and storing their records in a way that facilitates finding them for the purposes of an FOI request. Whether it is necessary for an agency to conduct a search of its backup systems for documents will depend on the circumstances. For example, if the agency is aware that its backup system merely duplicates documents that are easily retrievable from its main records system, a search of the backup system would be unnecessary. On the other hand, if an agency suspected that its backup system contained relevant documents not otherwise available or if the applicant clearly included backup systems in their request, the agency would need to search that backup system (provided that it was not a substantial and unreasonable diversion of its resources – see paragraphs 3.49–3.57 below).

    3.56 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.[4]

 Searches conducted by ANSTO

  1. Mr Heffernan said the following documents fall within the scope of his request and should have been released to him:
    1. [Person A]'s electronic diaries and emails from November 2006 to the end of January 2007.
    2. [Person A]'s handwritten diaries from November 2006 to the end of January 2007.
    3. An ‘approval' email from [Person B] referred to in a document titled ‘Development Technician – Physics & Development Technician – Chemistry' (the schedule refers to this as a selection committee report).
    4. Any documents relating to a note written by [Person A] on the selection committee report referred to above.
    5. Version one of a document titled ‘Daniel Heffernan Briefing_v2'.
    6. Further entries from [Person C]'s handwritten diaries.
    7. Further documents written by [Person D].
  2. ANSTO says that to respond to Mr Heffernan's request it undertook searches of its primary record-keeping systems, including paper and electronic records and shared network files. These searches led to the identification of approximately 6500 folios within the scope of his request. These documents were released in 12 tranches between 20 May 2011 and 28 September 2012. ANSTO also attempted to access documents on backup disks of its electronic mail systems.

Item 1 – Person A's electronic diaries and emails from November 2006 to the end of January 2007

  1. ANSTO advised that Person A ceased working for ANSTO in 2009 and now lives overseas. Person A's email account, including his electronic diary from 2005 onwards, has been archived and is stored offsite on 32 backup tapes in 19 snapshots.
  2. ANSTO advised that since August 2012, its IT department has spent approximately 80 hours internally, and 30 hours externally with the backup provider, attempting to restore the data for the period requested. ANSTO says its attempts have been unsuccessful. ANSTO say that at an hourly rate of $100[5] they have already spent approximately $11,000 trying to restore this data.
  3. ANSTO submitted that after trying many different avenues of restoration it has reached the point where the only way to access these documents would be to engage an external data loss specialist, which could cost between $10,000 and $15,000. ANSTO have estimated that it will take a further 105.5 hours (approximately) to retrieve Person A's electronic emails and diaries from the backup tapes.[6]
  4. ANSTO submitted that it has undertaken all reasonable searches to access Person A's electronic diaries and emails.

Item 2 – Person A's handwritten diaries from November 2006 to the end of January 2007

  1. ANSTO says it conducted extensive searches for Person A's handwritten diaries, but was unable to find them. It seems that when he left his employment with ANSTO, Person A took his diaries with him. In response to enquiries from this office, ANSTO contacted Person A. Person A told ANSTO he has searched his records overseas and cannot find his diaries for the time requested.

Item 3 – an ‘approval' email from Person B

  1. ANSTO says that in response to a request from Mr Heffernan, its Human Resources area conducted further searches for an email from Person B around late 2006 and early 2007 but no email was located in their files. ANSTO advised that Person B ceased working for ANSTO in 2008 and his electronic diaries and emails were archived and stored on backup disks. Retrieving Person B's emails would involve the same difficulties ANSTO has experienced retrieving Person A's emails (see [12]–[13] above).

Item 4 – any documents relating to a note written by Person A on the selection committee report

  1. On 12 September 2012, Mr Heffernan asked ANSTO to provide him with any documents related to an annotation made by Person A on the selection committee report dated 22 December 2006.
  2. ANSTO's Human Resources area searched its records, both electronic and hardcopy, for any documents relating to Person A's handwritten note on the selection committee report, but was not able to find anything that had not already been released.

Item 5 – version one of a document titled ‘Daniel Heffernan Briefing_v2'

  1. ANSTO advises it undertook further searches for this document at Mr Heffernan's request. ANSTO says this involved a further search of the Human Resources shared drive. Version 1 could not be found. ANSTO believes the original version has been overwritten and no longer exists.

Item 6 – further entries from Person C's handwritten diaries

  1. Mr Heffernan states he has not been provided with all the relevant entries from Person C's handwritten diaries. ANSTO released two pages from Person C's diaries on 3 August 2012 and a further nine pages on 28 September 2012.[7]
  2. Mr Heffernan says he sent ANSTO a list of dates on which he met with or contacted Person C and asked ANSTO to give him diary entries corresponding with these dates. Mr Heffernan has not been able to locate a copy of this email. ANSTO undertook searches at this office's request. Between 14 August 2012 and 21 September 2012 Mr Heffernan sent ANSTO a number of emails about Person C's diaries. None of these listed specific dates to be searched although one email asked that a search be conducted between 1 January 2007 and 30 June 2007[8] and on 5 October 2012, Mr Heffernan told ANSTO that one page was missing from the 28 September 2012 release. On 19 October 2012 ANSTO sent Mr Heffernan a diary entry from Person C dated 8 January 2007.

Item 7 – further documents written by Person D

  1. Mr Heffernan states more documents written by Person D should have been released because Person D is the only medically qualified professional onsite (other than two registered nurses). He says Person D would have been the major contributor to ANSTO's determinations under ss 36 and 37 of the Safety, Rehabilitation and Compensation Act 1988, however his name does not appear on these. Mr Heffernan says he would also expect to see notes or communications between Person D and ANSTO's medical centre when these determinations were made.
  2. ANSTO released copies of Person D's consultation notes, medical certificates, Comcare certificates and emails and faxes to and from Person D on 1 July 2011 and 10 May, 20 July, 3 August and 28 September 2012. ANSTO also says, in response to questions asked by Mr Heffernan, that it reconfirmed with the medical centre that all relevant documents had been provided. ANSTO also advised that it had responded to an FOI request made by Mr Heffernan on 22 February 2011 for medical information by releasing five tranches of documents. ANSTO say there was some overlap between the documents requested on 22 February 2011 and the request dated 5 April 2011.
  3. ANSTO advised that Person E is the site Rehabilitation Case Manager and the delegated Rehabilitation Authority for ANSTO. Person E is authorised under s 36 of the Safety, Rehabilitation and Compensation Actto refer claimants to an independent medical assessment and to make determinations in relation to return to work under s 37. ANSTO says Person D was not involved in referring Mr Heffernan for an independent medical assessment under s 36 and his only involvement was to advise Mr Heffernan of the outcome of the s 37 determination. ANSTO advises that any discussions between Person D and Person E were verbal and not recorded in documentary form. ANSTO says they have released all documents relating to Person D that fall within the scope of the request.

 Findings

  1. It is clear from his submissions to this office, and his numerous emails to ANSTO, that Mr Heffernan is dissatisfied with the way ANSTO processed his FOI request. His emails to this office indicate he does not trust ANSTO's explanations as to why further documents are not forthcoming, despite ANSTO releasing approximately 6500 folios.
  2. It took ANSTO almost 18 months to process Mr Heffernan's FOI request. While there were regular releases of information between 5 April 2011 and 1 July 2011 and between 9 May 2012 and 28 September 2012, for 10 months between July 2011 and May 2012 little action appears to have been taken on this FOI request. This delay is regrettable and has contributed to Mr Heffernan's belief that ANSTO has deliberately delayed providing him with information and has withheld information that should have been released.
  3. I acknowledge that Mr Heffernan's request was voluminous. ANSTO's release of 6500 folios is evidence of this. It appears that ANSTO did not recognise how large the request was until the statutory time period for processing the request had expired. It also appears that Mr Heffernan had a better understanding than ANSTO about the documents that were created and where they may be located. This does not reflect well on ANSTO's record-keeping practices.
  4. Throughout the processing of this FOI request ANSTO has undertaken numerous additional searches at Mr Heffernan's request and staff have been responsive to his suggestions regarding further searches that could be undertaken. This has resulted in the release of many documents that ANSTO had previously not located.
  5. The Guidelines provide that an agency must undertake ‘a reasonable search' for documents falling within the scope of the request.[9] The Guidelines further provide that what is reasonable will depend upon the circumstances of the case.
  6. I am satisfied that ANSTO has taken all reasonable steps to search for the documents.
  7. In relation to Person A's electronic diaries and emails and the approval email from Person B referred to in a selection committee report dated 22 December 2006, ANSTO has already spent approximately $11,000 attempting to access these archived records. These attempts have been unsuccessful. ANSTO advises that it may have to spend a further $10,000–15,000 to access the archived information, before reindexing the tapes and restoring the relevant snapshots. This work is not guaranteed to result in restoration of the electronic records. I do not think it would be reasonable to require ANSTO to continue to search for these records or to incur this additional expense.
  8. I am satisfied that ANSTO has taken all reasonable steps to locate Person A's handwritten diaries, including by contacting Person A overseas. I do not consider there are any further steps ANSTO could reasonably take to locate these documents. Similarly, I consider that all necessary searches have been undertaken to locate any documents relating to Person A's note on the selection committee report dated 22 December 2006 and Person B's approval email.
  9. I am satisfied there are no further documents written by or relating to Person D. In forming this view, I have taken into account the large number of documents relating to Person D that have already been released and ANSTO's explanation of Person D's limited role in relation to matters involving Mr Heffernan. I am also satisfied there are no further entries from Person C's handwritten diaries that fall within the scope of Mr Heffernan's request.
  10. I consider that ANSTO has conducted all reasonable searches to find version one of a document titled ‘Daniel Heffernan Briefing_v2'. The evidence suggests version one was overwritten and no longer exists.
  11. For the purposes of s 24A(1), I am satisfied that ANTSO has taken all reasonable steps to find further documents that fall within the scope of Mr Heffernan's request and either those documents cannot be found or they do not exist.

 Decision

  1. I affirm the deemed decision of ANSTO of 5 May 2011, as varied by decisions dated 20 May, 22 June, 28 June and 1 July 2011 and 9 May, 16 May, 19 June, 19 July, 3 August, 22 August and 28 September 2012. ANSTO has taken all reasonable steps to find documents falling within the scope of Mr Heffernan's request.

Toni Pirani
Acting Freedom of Information Commissioner

13 March 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.

[2]Chu v Telstra Corporation Limited (2005) 89 ALD 39 at 35, Finn J: ‘Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes.'

[3]Parnell and Minister for Infrastructure and Transport [2011] AICmr 3, applying Langer and Telstra Corporation Ltd (2002) AATA 341.

[4] See ‘G' and Australian Taxation Office [2012] AICmr 9 and ‘H' and Australian Broadcasting Corporation [2012] AICmr 10.

[5] This figure is the amount ANSTO's internal IT section quotes for work performed.

[6] ANSTO says that should it be able to restore the data on the backup tapes, each tape will take approximately three hours to reindex, and when the tapes are reindexed, each mailbox will take about 30 minutes to restore per snapshot.

[7] The handwritten diary entries are dated 15 February 2007, 6 March 2007 (two pages), 7 March 2007, 25 May 2007, 2 June 2007, 27 June 2007, 14 December 2007, 30 May 2008, 5 February 2009, 2 February 2009, 4 May 2009 and 10 July 2009.

[8] As a result of conducting this search ANSTO identified the nine additional pages released on 28 September 2012.

[9]Guidelines [3.54].