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'X' and Australian Research Council [2013] AICmr 3 (23 January 2013)

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

Summary of case details
Applicant:

'X'

Respondent: Australian Research Council
Decision date: 23 January 2013
Application number: MR11/00100
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 Australian Research Council (the ARC) of 25 March 2011 (as varied) to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act) on the basis that the documents do not exist. The ARC took all reasonable steps to find documents falling within the scope of the applicant's request.

 Background

  1. The ARC funds research and researchers under the National Competitive Grants Program. The Futures Fellowships scheme is part of that program. The applicant applied for Fellowship funding from the ARC in 2009 and 2010. In each instance, the applicant was unsuccessful.
  2. On 17 November 2010, the applicant applied to the ARC for access to the following:
    1. All documents the ARC is holding about myself or contain[ing] my name. These should include but not [be] restricted to all internal and external correspondences with anybody that include[s] my name or any information that refer[s] to myself.
    2. ... all individual assessors' reports showing the scores I got for all proposals submitted to the ARC and contain[ing] my name.
  3. On 27 January 2011, the ARC advised the applicant that it had identified 628 documents within the scope of his request. The ARC granted full or partial access to 627 documents and refused access to one document under s 42 of the FOI Act (legal professional privilege).
  4. On 28 January 2011, the applicant sought an internal review of the ARC's decision. On 25 March 2011, the ARC affirmed its original decision but advised that it had identified two additional documents within the scope of the request. It released both of those documents in full to the applicant.
  5. On 27 March 2011, the applicant sought IC review of the ARC's internal review decision under s 54L of the FOI Act. Following correspondence with the Office of the Australian Information Commissioner, the ARC varied its decision, under s 55G, on:
      • 30 August 2011, providing the applicant with access to part of the document to which access was previously refused
      • 15 February 2012, providing partial access to three further additional documents it had identified as falling within the scope of the applicant's request
      • 15 March 2012, providing additional parts of documents provided on 15 February 2012, and
      • 1 June 2012, providing additional documents (some edited) newly identified as falling within the scope of the request. 

 Decision under review

  1. The decision under review is the ARC's internal review decision of 25 March 2011 (as varied, most recently on 1 June 2012), to provide the applicant with only the documents identified above.
  2. The applicant does not seek review of the ARC's application of exemptions. The applicant asserts that the ARC 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

  1. The issue in this IC review is whether the ARC has taken all reasonable steps to find documents within the scope of the applicant's request. 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:

    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 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]

 Searches conducted by the ARC

  1. The OAIC sought information from the ARC about the searches it had conducted in processing the applicant's request.
  2. The ARC advised that, before making its initial decision (27 January 2011), it had conducted searches of its databases, electronic and paper-based records and electronic drives. Before making its internal review decision (25 March 2011), the ARC conducted additional searches and located two additional documents. The ARC advised that one of these documents was not located in the earlier search because it was a computer-generated response from its database that would not have been kept as either a paper or electronic file.
  3. The ARC undertook additional searches in February 2012 and located three further documents. The additional documents were ministerial briefings and funding recommendations for the Future Fellowships scheme in 2010. The ARC advised that the documents were not located during the earlier searches because:
    • those earlier searches focused on grant funding and project documents and documents held in the original decision maker's office
    • the documents were not previously identified as existing because the applicant's name ‘appears only once', and
    • ARC staff undertaking the earlier searches did not consider documents of that nature to be within the scope of the applicant's FOI request.
  4. The ARC undertook additional searches in May 2012 and located 30 additional pages falling within the scope of the request. These additional documents were ministerial briefings and funding recommendations for the Future Fellowships scheme in 2009, as well as ministerial briefing and funding recommendations relating to another research funding scheme for which the applicant had applied. The ARC advised that these documents were not located in the earlier searches for the same reasons that applied to the February 2012 searches.
  5. The applicant claims that the ARC continues to withhold relevant information. In particular, the applicant says that the ARC has failed to provide the written reports of two of the assessors who reviewed his 2010 Futures Fellowship application.
  6. The ARC advised that, of the four assessors who reviewed the applicant's 2010 Future Fellowships application, two produced written reports and two provided scores only. The ARC attempted to contact the two assessors who had not provided written reports to determine whether further records existed in relation to their assessment of the applicant's 2010 Future Fellowship application. The ARC advised that it has made a number of attempts to contact the assessors, including approaching universities that employed them at that time. On 15 November 2012, the ARC advised that it had received no response from the assessors.
  7. I am satisfied that the ARC has taken all reasonable steps to contact the two assessors who, it says, did not provide written reports. In the absence of contrary information from those assessors, I am satisfied that written reports of those assessors do not exist.
  8. The ARC's initial search would not have been adequate on its own. Each of the three subsequent searches undertaken by the ARC identified additional documents relevant to the applicant's request. I find it puzzling that some documents were not initially found because the applicant's name appeared only once (see [13] above) given that that search would appear to have been conducted electronically. However, I am satisfied that, as a result of these additional searches, the ARC has now taken all reasonable steps to find documents within the scope of the applicant's request.

  Findings

  1. For the purposes of s 24A(1), I am satisfied that:
    • the ARC 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 do not exist.

 Decision

  1. Under s 55K of the FOI Act, I affirm the Department's decision of 25 March 2011 (as varied).

James Popple
Freedom of Information Commissioner

23 January 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.