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'Y' and Airservices Australia [2013] AICmr 4 (23 January 2013)

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

Summary of case details
Applicant:

'Y'

Respondent: Airservices Australia
Decision date: 23 January 2013
Application number: MR11/00109
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 decisions of Airservices Australia of 25 February 2011 and 13 May 2011 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. Airservices Australia took all reasonable steps to find documents falling within the scope of the applicant's request.

 Background

  1. On 8 February 2011, the applicant applied to Airservices Australia for:

    ... a copy of MSDS sheets for Du Pont chemicals used in the Darkroom from MSDS Registry held by the [occupational health and safety] Officer, between 1980 and 1995. This should include all types of ‘fixers' and ‘developers', used in the Du Pont automatic film processor.

The applicant's FOI request provided details about the MSDS sheets (the data sheets) and where he believed that they could be found.

  1. According to submissions from Airservices Australia, the data sheets recorded all chemicals used within the organisation and the required safety precautions that needed to be followed in relation to each chemical. Various chemicals were used in darkrooms operated by Airservices Australia's predecessor during the 1980s. With the advent of digital photography, Airservices Australia no longer uses darkrooms or those chemicals.
  2. On 25 February 2011, Airservices Australia refused the applicant's request under s 24A of the FOI Act. It said that it had taken all reasonable steps to find the data sheets, but that they could not be found.
  3. On 10 March 2011, the applicant wrote to Airservices Australia. He provided additional detail and indicated that he believed that the data sheets could be found in the Brisbane office. Airservices Australia treated this as a separate FOI request, rather than as a request for internal review of its decision of 25 February 2011. It conducted additional searches and inquiries. Then, on 13 May 2011, Airservices Australia refused the applicant's second request, again on the basis that the data sheets could not be found.
  4. On 16 May 2011, the applicant sought IC review under s 54L of the FOI Act. It is not clear whether the applicant was aware of the second FOI decision of 13 May 2011 when he applied for IC review. The applicant has since confirmed that he seeks IC review of both FOI decisions. As both requests deal with the same subject matter, it is appropriate that they be dealt with together in this IC review.

 Decision under review

  1. The decisions under review are the decisions of Airservices Australia of 25 February 2011 and 13 May 2011 to refuse the applicant access to the data sheets on the basis that they could not be found.

 Whether reasonable steps taken to find a document

  1. The issue in this IC review is whether Airservices Australia has taken all reasonable steps to find the data sheets. 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]

 The search conducted by Airservices Australia

  1. In response to the applicant's first request, Airservices Australia conducted desktop searches of its Workplace Safety System Unit and its Safety, Risk and Analysis Branch. A search was also made of its electronic records management database. No documents were found.
  2. At the time that the documents sought by the applicant would have been created, the functions of both Airservices Australia and the Civil Aviation Safety Authority (CASA) were performed by a single agency, the Civil Aviation Authority. Airservices Australia contacted CASA which conducted a search of its records management unit. No documents were found.
  3. In his second request, the applicant indicated that he believed the sheets could be obtained at the Brisbane office. In response, Airservices Australia made further enquiries of long-term staff members who worked in the Brisbane office and conducted a search of the Brisbane Aeronautical Charting Unit's records. It also requested that the Department of Infrastructure and Transport undertake a search for relevant documents. No documents were found.
  4. In his IC review application, the applicant provided the names of two people, whom he believed to be former employees of the predecessor agency to Airservices Australia. The applicant told the Office of the Australian Information Commissioner that these two people might have information about the location of the data sheets. The OAIC passed this information on to Airservices Australia, which conducted further searches. No documents were found.

 Findings

  1. For the purposes of s 24A(1), I am satisfied that:
    • Airservices Australia has taken all reasonable steps to find any documents that it holds that fall within the scope of the applicant's request, and
    • those documents:
      • are in Airservices Australia's possession but cannot be found, or
      • do not exist.

 Decision

  1. Under s 55K of the FOI Act, I affirm Airservices Australia's decisions of 25 February 2011 and 13 May 2011.

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.