FEDERAL COURT OF AUSTRALIA
Neeson v The Chief Executive Officer of Centrelink [2006] FCA 1107
FREEDOM OF INFORMATION - request to amend and annotate documents - request refused on basis that documents could not be annotated due to technical limitations -Administrative Appeals Tribunal held refusal was reasonable - whether Tribunal erred in point of law by disposing of matter upon a basis for which the Act makes no provision
Administrative Appeals Tribunal Act 1975 (Cth): s44
Freedom of Information Act 1982 (Cth): ss 50, 51, 51A, 51B, 55
Cachia v Hanes (1994) 179 CLR 403 followed
Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 93 FCR 288 followed
NEESON v THE CHIEF EXECUTIVE OFFICER OF CENTRELINK
VID 324 OF 2005
JESSUP J
22 AUGUST 2006
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 324 OF 2005 |
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BETWEEN: |
CHRIS NEESON Applicant
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AND: |
THE CHIEF EXECUTIVE OFFICER OF CENTRELINK Respondent
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JESSUP J |
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DATE OF ORDER: |
22 AUGUST 2006 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The title of the proceeding be amended so as to substitute for the existing title of the respondent the following: The Chief Executive Officer of Centrelink.
2. The appeal from the Administrative Appeals Tribunal be allowed.
3. The decision of the Tribunal dated 15 March 2005 be set aside.
4. The matter be remitted to the Tribunal for re-determination in accordance with the reasons for judgment of the Court published this day.
5. The respondent pay the applicant’s disbursements in connection with this proceeding.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 324 OF 2005 |
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BETWEEN: |
CHRIS NEESON Applicant
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AND: |
THE THE CHIEF EXECUTIVE OFFICER OF CENTRELINK Respondent
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JUDGE: |
JESSUP J |
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DATE: |
22 AUGUST 2006 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal made on 15 March 2005. That decision disposed of an application made on 8 April 2004 by the applicant under s 55 of the Freedom of Information Act 1982 (Cth) (“the FOI Act”) for a review of a decision made within an agency concerned in the administration of social welfare payments, Centrelink.
2 The applicant was in receipt of social welfare payments when he was injured at work in May 2001. It would seem that, by some time in early 2002, the relevant workers’ compensation insurer agreed to commence making payments of compensation to the applicant with respect to this injury. Receipt of such payments would have affected the applicant’s entitlement to continue to receive payments from Centrelink. However, the applicant alleges, and it is not denied, Centrelink anticipated the receipt of compensation payments and reduced the applicant’s social welfare payments before the making of compensation payments by the insurer commenced. This led to a series of communications between the applicant and Centrelink, and to a series of entries on the applicant’s file at Centrelink, in March 2002 and thereafter. It was these records that became relevant to the applicant’s application under the FOI Act.
3 The applicant made the following applications to Centrelink:
(a) On 18 September 2003, he applied for a change to a document about himself, which he claimed was incomplete, misleading and “not there”. This was a request by the applicant that Centrelink “create notes” for three phone calls made on 1, 18 and 19 March 2002.
(b) On 22 September 2003, he again complained that certain documents were incorrect and “not there”, namely, a note of a fax sent on 10 April 2003 and a note of a phone call made on 20 November 2002.
(c) On 17 December 2003, he requested the insertion of a new annotation upon an electronic contact note made by a Centrelink officer on 19 March 2002. In his words, the applicant requested “an addition immediately after the 19th March Note BEFORE the Annotates”, and thereafter set out the terms of the insertion which he proposed.
(d) On 17 December 2003, he requested the insertion of an additional annotation to an existing annotation, made on 5 April 2002, to the electronic contact note of 19 March 2002 previously referred to. He requested this because, he said, the existing annotation was false.
4 It appears that Centrelink did not deal with the applicant’s applications of September 2003 in a timely way and, by correspondence dated 23 December 2003 (six days after the third and fourth applications referred to above), the Freedom of Information Officer in the Centrelink Area Office, North-Central (“the FOI Officer”) apologised for the delays which the applicant had experienced, and said that she was endeavouring to finalise the applicant’s request as soon as possible. She said that an unusually high number of requests, staff absences and the complexity of the applicant’s request would make it difficult to finalise the matter before the end of January 2004.
5 The FOI Officer wrote to the applicant again on 17 March 2004. Her letter contained the following passage:
“You requested that some of your version of events be inserted between some of Tefta’s annotations, however the computer system does not allow me to annotate anywhere except for at the end of a document or its other annotations.
In addition, the document you wished me to annotate/alter had dropped out of your current document display due to space shortages into the “historical document display” which cannot be annotated or altered. Because of this I have added an extra document to your current document record with a note to alert staff that it is to be read in conjunction with the original document of 19/3/02 and its annotations. This is the best I can do given the computer system limitations as described above.”
The FOI Officer enclosed a copy of the “extra” document which she had added to the applicant’s current document record. The printed version of that document as it appeared in evidence before the Tribunal was as follows:
“Name: (M) MR CHRISTOPHER, J, NEESON DOB: 16 OCT 1954
CRN: 305 250 555L Page: 1
Printed by: YFI Date Printed: 22 Jul 2004
---------------------------DOC 1 OF 1 ------------------------------------------
Receipt date: 17 MAR 2004
Storage date: 17 MAR 2004; OFF
Region: AME
Summary: FOI/PLS READ THIS DOC WITH DOC DATED 19/3/02/. SECTION 51B ANNOTATIONS
Extra Detail: Doc Converted 19/06/04
Txt: FOI / PLS READ THIS DOC WITH DOC DATED 19/3/02. SECTION 51B ANNOTATIONS
THIS DOC ADDS CUSTOMERS VERSION OF EVENTS AS AN ANNOTATION TO HISTORICAL DOC OF 19/3/02. MADE UNDER SN 52B OF FOI ACT.
Customer believes parts of doc are FALSE as follows:
1/ Cust received monies from CGU on Mon 8/4/02, NOT Frid 5/4/02.
2/ It was actually CGU who did not provide paperwork needed to restart benefits, not customer,
3/ Copies of docs received by Tefta sighted re CGU’s interpretations of surgeons report,
4/ Following custs appeal of 18/3/02, CGU issued notices re nil entitlements to their benefits,
5/ CGU sent letter reducing benefits following their request for another med exam on 8/4/02,
6/ CGU letter advised Comp that their benefits NOT reduced.
CUSTOMER STATES THAT INFO PROVIDED BY CGU AS DOC’D BY TEFTA WAS FALSE. SEE ALSO DOC BY DANNY FROM COMP DATED 19/2/04.
Customer believes parts of the original doc are MISLEADING as follows:
1/ cust states CGU had not provided paperwork yet, alth doc says it had
2/ letter of 18/3/02 Tefta refers to in doc according to cust is about CGU not sending him the relevant paperwork yet and that it was using this as an excuse not to pay him benefits,
3/ cust states he rang & advised this to Tefta on 18/3/02,
4/ cust states he also advised Tefta on 1/4/02 & 7/4/02 that CGU had NOT sent him the paperwork,
5/ AFTER Appeal request to CGU (18/3/02) but BEFORE paperwork sent to cust, CGU sent him a notice for another med exam plus a letter withholding ALL benefits,
6/ cust states he thought an ARO review would follow, that review was due 5/4/02 and that Tefta rejected his offer of documentation on 18/02.
CUST’S NOTES RE THIS ISSUE ARE LENGTHY. DOC OF 19/2/04 OUTLINES CENTRE LINKS ODM DECISION PLUS MR NEESON’S VERSION OF EVENTS AND SHOWS THAT CGU HAVE SINCE PAID HIM FOR THE PERIOD IN DISPUTE. ALSO CUST IS SEEKING AN ARO REVIEW AS PER DOC OF 19/2/04. CUSTOMERS LETTERS STATING HIS VERSION OF EVENTS AND ALLEDGING CENTRELINK AND CGU HAVE BEEN RECODING EVENTS FALSELY OR MISLEADINGLY HAVE BEEN ADDED TO HIS FILE AND ABOVE.
GLENDA FOI ANC X 339235”
6 On 8 April 2004, the applicant applied to the Tribunal under the AAT Act for a review of the decision of the FOI Officer to proceed in the way that she had. However, to this point there had not been an internal review as provided for in s 54 of the FOI Act. Centrelink thereupon caused an internal review to be conducted by a Freedom of Information Review Officer (“the FOI Review Officer”) and his decision, communicated by letter dated 13 May 2004, was to leave the original decision unchanged. In his decision, the FOI Review Officer said:
“After discussions with you on the phone and after sending you a copy of the section of the FOI Manual relevant to amendments and annotations Ms Maxwell received several more lots of faxes/letters from you. None stated exactly what you wanted to be put on your records in a concise manner. Centrelink On-Line Document (ODR) guidelines state that documents should be a concise history of a customers interaction with Centrelink. It should NOT repeat absolutely everything said to or by the customer. The FOI Manual states that annotations may be refused if they are irrelevant, defamatory or unnecessarily voluminous. Your request for annotations was not refused, rather it was summarised to the best of Ms Maxwell’s ability. The decision was made not to further consult with you about the wording of these annotations as this could have caused even further delay. In addition, as stated by Ms Maxwell in her decision letter, there are computer system restriction which do not allow older (historical) documents to be annotated which is why she had to place a new document cross-referencing to that of 19/3/02 rather than annotating it. Following FOI Guidelines, the document designed to annotate the original doc of 19/3/02 was cross-referenced, a copy of all your information and your request plus a copy of Ms Maxwell’s decision letter were placed on your paper file. Your rights if appeal were included in Ms Maxwell’s letter as also required by law.
You also asked for amendments to your records (without deleting the original notes made by Tefta), providing very detailed and lengthy details of your version of events stating that these are fact. The FOI manual states that there is no guidance in the FOI Act to state how much investigation is required by a decision maker. Ms Maxwell noted that investigation of facts was being conducted by Anthony Rutter, the ARO reviewing your case at the time and so, again, due to the volume of information you provided plus her lack of technical knowledge in the area she decided to add your version of events in an extra doc rather than go through each point you had raised to check its correctness.”
The matter proceeded before the Tribunal as an application for review, in effect, of the decision of the FOI Review Officer, notwithstanding that this decision was made subsequent to the commencement of proceedings in the Tribunal. Neither party made any point of this oddity, and I am inclined to think that there was substantive irregularity involved.
7 During the interlocutory stages in the Tribunal, the Tribunal made a number of directions, one of which was that the applicant file in the Tribunal, and serve on Centrelink, a written statement setting out the amendments which he wished Centrelink to make to his records. The applicant complied with that direction and on 1 October 2004 he filed and served a statement which constituted a more precise and, if I may say so, more manageable articulation of the changes which he desired to have made to the records which Centrelink maintained about him. It is apparent, from a reading of the applicant’s statement of 1 October, that the applicant desired to have annotations added to the existing records, rather than to have those records amended.
8 Sequentially, the next event is one which did not involve the applicant. On 7 October 2004, Mr Anthony James, an employee of Centrelink in what was described as the “Capability Systems Better Project Solutions team”, wrote a letter to Mr Michael Todd, of the Centrelink Service Recovery team, in the following terms:
“I currently work in the Capability Systems Better Project Solutions team where the responsibility for the maintenance and enhancement of the On-line Document Recording system is held. This is the tool that enables Centrelink staff to record customer interactions and decisions through on-line document recording.
An on-line document is recorded on the customer file via the Centrelink mainframe. Annotations may occur from creation of the on-line document until the document is archived. Documents with a last updated date of 12 months or longer are set out to be archived. Once archived the documents go to the Archive and Culling Engine where further annotations cannot occur. Previously on-line documents where archived to the Centrelink Archive and Retrieval System where further annotations also couldn’t occur.
The On-line Document Recording system has no business requirements/specifications to allow for archived on-line documents to be annotated. From a technical point of view, the reason staff cannot annotate an archived document is that there is no facility or option to do this.
I take that this supports the information required. Please contact on the above numbers if you require further clarification.”
There is no evidence, and there was no suggestion, that this letter, or a copy of it, was shown to the applicant at any time before the events to which I next refer.
9 The applicant’s application under the AAT Act came before the Tribunal on 1 March 2005. Centrelink was represented by Mr Todd (the addressee of the letter from Mr James dated 7 October 2004), who said that the “time frames” were well outside the accepted standards that Centrelink would hope would apply. He continued:
“The difficulty that, however, presents for us is the technical issue as was set out in a statement obtained from Anthony James who is part of what is described as the Capability Systems Better Project Solutions team. … the difficulty is … DOCS on the system are transferred over - … after 12 months they go into an archive system and annotations to those particular documents themselves are just not physically possible.”
Mr Todd said that it was correct, in the circumstances, for the FOI Officer to have placed “a new document on the system”. Mr Todd tendered as an exhibit a document which he said he had “placed on the computer system so that is now an existing document”. He said he had so placed the document that morning, 1 March 2005. The document was in the following terms:
“Name: (M) MR CHRISTOPHER, J, NEESON DOB: 16 OCT 1954
CRN: 305 250 555L Page: 1
Printed by: YFI Date Printed: 01 MAR 2005
------------------------------------DOC 1 OF 1 ----------------------------------------
Receipt date: 01 MAR 2005
Storage date: NIL
Region: ALM
Summary: CSP CSP APL
Extra Detail: Neeson statements
Txt: Centrelink Specialist Officer actioned record on 1 MAR 2005 regarding Centrelink Specialist Contact for Appeals. Information was obtained via Internal. Document created by YFI on 1 MAR 2005.
Doc for 19/3/02 byD3Y
1. This is falsely misleading this staff member had advised back on 1/3 that CGU would start paying benefits next week cust had reminded this staff on 7/3 CGU hadn’t started benefits but CGU had only just started using the excuse of paperwork for not starting. (paperwork turned out to be a direct dep auth and tax dec’n) but CGU hadn’t sent this paperwork to cust. Cust had informed staff of this on p2 of fax prev day and in phone call to him prv eve (ref doc 18/3) this staff didn’t not mention that prev day’s phone call
6. Cust states staff member said they went with the ins co said (in rejecting his appeal for reinstatement_ staff asked if he wanted their decision reviewed by an ARO and he said yes (her letter didn’t mention type of review) she told him there were 5 others ahead of him cust told staff he wanted her to send him review forms he told staff CGU’s Julie had threatened to stop benefits (which hadn’t started)
7. staff letter set end date of 5/4 for review
Annotated doc 5/4
1. This is false/misleading
The cust had not received his money on 5/4 at all (on this day CGU only reg’d the cust in its payrin Money only arrived on Mon 8/4)
2. The bundle she’d just annotated as received included copies of CGus 19/3 formal withhold of benefits falsely claiming a med cert incorrectly filledout – CGU’s eventual cover letter for “paperwork” ref’d in CGU’s original rejection of his claim against the advice of its own surgeon (& custs) CGU’s acceptance of his claim on 17/10/01 CGUs 12/2 false advice to VWA. About custs pre-injury payrates CGUs acceptance of his claim & increased rate on 25/1/02
3. D3Y did not verify CGUs latest misleading allegatrion with cus nor correct false entry 19/3 entry (as erquired by priv prin 8)
4. incidentally CGU had also issed notice of med reassessment of work cover entitelemtn to cust 18/3/02 (day he appealed for allowance back) 168/3/02 ph call from Tefta
Cus states Tefta phone late on Mon18/3/02 (that morning he’d faxed an appeal for return of full allowance because CGU and not started) weekly benefits) Tefta said she had phoned CGUs Julie who’d said that she only wanted to help him asked why cust didn’t want to talk to CGU by phone preferring written communications
Cust explained CGU had used phone deceptively but CGU had rej his claim after its own surgeon reported a knee cartilage injury attributed to work – said perhaps Tefta needed to look at CGU’s actions rather than their words he’d most recently asked CGU for written conmm’ns on back on 20/2 but CGU’s Julie had left phone msg last thing prev Fri start without having sent it to him (Testa expressed surprise at that but it was much of p2 of fax) Tefta said that if they reinstated his allowance they’d have t redo recovery process later when CGU started benefits Cust offered to sho Tefta the doco of CGU’s deceptions supporting his appeal but she said no (lodged with Mod C at Watergardens as Tefta told 1/3/02)
20/??????? Phone call Danny McCartin
Danny asked cust what he wanted done with his 3/2 appeal, he’d come back to pile of reviews Cust said that he thought we were at ARO already past appeal
Danny said that the ARO had sent cust’s letters straight back to Sunshine he checked and said that the records on system said Bendigo staff had sent his review doc to COW because his review hadn’t been formalised – there were no legislative grounds for appeal on reinstate or compensation if he wasn’t happy he could complain to ombudsman or Cust complaints unit.
Cust said he wasn’t happy with Tefta’s declaration that they went with what the ins co said given he’d lodged copies of CGUs misreps with his Mod C – he wanted comp for debts incurred while his allowance was reduced & CGU withheld weekly benefits – he wanted formal result from review process he could take higher (no matter what level)
10/4 Fax to Comp Rec
He sent this fax to an Antonella after call prev day from Fiona Fitzgerald on understanding that Ant. Was approp for follow on docs this fax never replied to or logged on online doc system (leaving impression that cust had never followed up prev day’s call from Fiona) it turned out 10/4/02 entry was by Teftas Boss Danny and misrepresented my 5/4 fax to Bendigo as arriving on 10th (after CGU had gotten the outstanding benefits into my account on 8/4 and incidentally after CGU notice of benefit reduction later telling VWA conc’n that they weren’t reducing benefits)
9/4/03 Fiona Fitzgerald doc
This is false. Cust’s complaint was not given to Nola Battey Fiona asked what he wanted (allowance back because CGU kept withholding benefits) – repeatedly declared that it wasn’t their problem that they’d reduced his allowance and CGU didn’t pay weekly benefits for long periods, cust should go to CGU (he told her they’d had problems meeting expenses and finished up separated and without independent accommodation – that it would be months between raising unpaid benefits at Vic Comp Conc and an actual session) Cust fax had already included 3 pages of details about mistreatment and he’d understood that an Antonella expected info relevant to his appeal. By another coincidence CGU decided to include the penalty interest it currently owed but had not paid in that night’s payrun.
It was asserted on behalf of the respondent before me, and not resisted by the applicant, that the substance of this document placed onto the system on 1 March 2005 corresponded with the substance of the applicant’s statement filed on 1 October 2004 in compliance with the directions of the Tribunal.
10 The Tribunal published its decision on 15 March 2005. In that part of the decision which dealt with the evidence before it, the Tribunal stated:
“In relation to his request for annotations to computer documents more than 12 months old, the applicant said that he had had considerable experience in information technology mainframes some time ago, and disagreed that annotations could not be made to such records.”
Under the heading “Consideration of the Issues” the Tribunal noted Centrelink’s submission that its technology “prevented the annotation of on-line documents more than 12 months old” and that the delegate had acted appropriately in placing a document on the system “recording her summary of the applicant’s version of events”. The essence of the decision of the Tribunal itself is to be seen in the following passage:
“The Tribunal accepts that the applicant is most unhappy with his overall treatment by the respondent in its handling of his files and its dealings with his various applications. The Tribunal notes that the applicant has a background in information technology and is knowledgeable in certain areas that are relevant to the storage of documents and information on the respondent’s computer system. However, he was unable to provide any evidence to support his claim that annotation of archived on-line documents is possible in the present circumstances. In the absence of such evidence, the Tribunal accepts the respondent’s evidence, contained in the letter from Mr James, that on-line documents, sent to be archived after 12 months, once archived cannot be annotated under the respondent’s system.
For this reason the Tribunal finds that the respondent’s refusal to comply with the applicant’s request for annotations to archived on-line documents was reasonable. In the circumstances, the Tribunal also finds that the action of the delegate in summarising the issues identified by the applicant was reasonable. The Tribunal acknowledges that at the hearing Mr Todd indicated that detailed annotations dated 1 March 2005 (Exhibit R1), provided by the applicant, (which include many of the issues relevant to this application for review) have been placed on the respondent’s computer system.”
11 The applicant’s rights, and Centrelink’s obligations, in relevant respects are the subject of Pt 5 of the FOI Act. Relevantly, s 48 of the FOI Act provides:
“Where a person claims that a document of an agency … to which access has been lawfully provided to the person … contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency … for an administrative purpose;
the person may apply to the agency … for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency ….
Section 49 sets out the requirements of an application for an amendment, and s 51A sets out the requirements of an application for an annotation. In the latter case, par (c) of s 51A requires that the application for an annotation –
… be accompanied by a statement by the applicant that specifies:
(i) the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(ii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iii) the applicant’s reasons for so claiming; and
(iv) such other information as would make the information complete, correct, up to date or not misleading ….
Assuming a complying application, s 50 specifies how the agency must respond to an application for an amendment, and s 51B specifies how it must respond to an application for an annotation. In the former case –
… where the agency … to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency … and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency … for an administrative purpose;
the agency … may amend the record of information.
Here two things may be noted. First, the power to amend arises only if the agency, in effect, agrees with the applicant that the information is incomplete, incorrect, out of date or misleading. Secondly, even if it does, there is no obligation to amend: the discretion to do so appears to be unfettered, other than, presumably, that it must be exercised in a way that is in general harmony with the objects of the legislation. That there will be cases in which the agency will, notwithstanding being satisfied of the existence of the stipulated preconditions, decline to amend is confirmed by the terms of s 51 of the FOI Act. That section relevantly provides:
(1) Where an agency … decides not to amend a document … wholly or partly in accordance with an application under section 48, the agency … must:
(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and
(b) subject to subsection (2), annotate the document … concerned by adding to it the statement so provided.
(2) Paragraph (1)(b) does not apply if the agency … considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.
I have referred to the terms of par (c) of s 51A above. The effect of s 51 is that an unsuccessful application for an amendment is turned into, and then treated as, an application for an annotation. At this point, subject only to subs (2), the agency has no discretion: it must make the annotation in the terms provided by the applicant. The only other provision to note is s 51B which, as I have said, specifies how the agency must respond to an application which is for an annotation in the first instance. In such a case –
… where the agency … to whom such an application is made is satisfied that the record of personal information to which the request relates is contained in a document of the agency … the agency … must annotate the document … by adding to it the statement provided by the applicant under paragraph 51A(c).
Under s 51B, unlike the corresponding situation under s 50, the agency’s obligation to add the statement provided by the applicant is not conditioned upon first being satisfied that the information is incomplete, incorrect, out of date or misleading. Subs (2) of s 51B does, however, introduce the same proviso as is contained in s 51(2).
12 How did the applicant’s series of applications fit within this statutory framework? His applications of 18 and 22 September 2003 were at most applications for annotations. Arguably, they were applications for neither amendments nor annotations of existing documents, but requests for the creation of new documents. This is not, however, a matter I need to decide. His first request of 17 December 2003 – “please alter this annotate with an append that it is false” – could be viewed as an application for either an amendment or an annotation. His second request of 17 December 2003 – “what I want is an addition immediately after the 19th March Note, BEFORE the Annotates” – is fairly clearly an application for an amendment. Ultimately, it is not for the Court to decide, at least in the first instance, how these applications should best have been characterised: that was a matter for Centrelink and, on review, for the Tribunal.
13 The task facing Centrelink when it received these applications from the applicant was, it seems to me, more or less as follows. The first task was to characterise each application as to whether it was for an amendment or for an annotation. If for an amendment, the next question was whether the application complied with s 49 of the FOI Act. If it did, Centrelink then had to exercise its discretion under s 50 of that Act. If there were grounds reasonably conformable with the objects of the legislation, Centrelink could have declined to make the amendment requested. It would then have moved to the next stage, which was to treat the application as an application for an annotation. Under s 51(1)(a), it would have been required to enable the applicant to provide a statement of the kind mentioned in s 51A(c). In the present case, it may have considered the statements already provided by the applicant as fulfilling that role. At this point, the deemed application for an annotation would proceed in the same way as the other applications (if any) which, from the outset, had been characterised as applications for annotations.
14 In relation to the applicant’s applications for annotations – actual or deemed – Centrelink would have been obliged, first, to consider whether the statements provided by the applicant were disqualified by being irrelevant, defamatory or unnecessarily voluminous, secondly, to identify the document to which each application related and, thirdly, to add the statement to the document. Other than such as may be implicit in the judgments involved at the first stage, the task of Centrelink involved no element of discretion or choice.
15 How does the procedure in fact followed by Centrelink upon receipt of the applicant’s applications align with the procedure ordained by the FOI Act as described above? In her letter of 17 March 2004, the FOI Officer described the applications as requests for changes “in the form of amendments and/or annotations to your records”. There was, it seems, no attempt to characterise the applicant’s requests as applications for amendments, on the one hand, or applications for annotations, on the other hand. The FOI Officer did, however, head the document added to the applicant’s current record “Section 51B Annotations”. She also stated that that document “adds customer’s version of events as an annotation to historical doc of 19/3/02”. But, in her decision itself, she stated that the document which the applicant sought to have annotated “cannot be annotated”. What she actually did, as she made clear, was to add an extra document to the applicant’s current document record. If this had been the factual situation which subsisted at the time the Tribunal made its decision the Tribunal would have been obliged to consider whether the course adopted by the FOI Officer amounted to annotation by addition as required by s 51B of the FOI Act. The Tribunal did not, however, consider the legality of that course, either with respect to that question or generally. The situation which confronted the Tribunal was one in which Centrelink had, by then, placed another document on the applicant’s document record. I shall refer to that circumstance below. It was the new situation created thereby that was the object of the Tribunal’s attention, and rightly so.
16 Insofar as the FOI Officer was declining to amend, it is not for me to decide whether the reason she gave was conformable with the objects of the FOI Act and therefore permissible under s 50: I shall assume that it was, and that no error was shown on the part of the FOI Officer in declining to amend for the technical reasons she proposed. However, as I have attempted to make clear above, this required all the applicant’s applications to be treated as applications for annotations, in which respect it is clear that those technical reasons did not constitute a sufficient basis for declining to annotate under s 51(1)(b), or s 51B, of the FOI Act. Strange as it may seem, the FOI Act provided, in the circumstances which appear to have obtained here, that the statements forwarded by the applicant must be made by adding those statements to the relevant documents. That this could not be done for technical reasons – if that were indeed the case – was and is no sufficient basis for refusing to comply with the statutory command.
17 In his letter of 13 May 2004, the FOI Review Officer noted that a requirement of Centrelink guidelines was that “the documents should be a concise history of a customer’s interactions with Centrelink”. He also noted (correctly) that “annotations may be refused if they are irrelevant, defamatory or unnecessarily voluminous”. He continued: “Your request for annotations was not refused, rather it was summarised to the best of [the FOI Officer’s] ability.” From this last statement, it seems that the FOI Review Officer was not exercising, himself, the power to decline to annotate on the grounds of irrelevance, defamatory content or unnecessary volume, but rather placing an interpretation on the FOI Officer’s original correspondence. I do not believe that that correspondence is reasonably open to the construction that the FOI Officer acted in the way she did because the applicant’s statements had been unnecessarily voluminous. Besides, even if she had, or even if the FOI Review Officer’s letter might be viewed as involving his own judgment to that effect, in such a situation the FOI Act does not contemplate that the document of which the applicant complained might be annotated by adding, not the applicant’s own statement, but a summary of the FOI Officer’s own drafting. The only outcomes permitted by the FOI Act in the circumstances were either that nothing was added to the document because the view was taken that the applicant’s statement was irrelevant, defamatory or unnecessarily voluminous, or that that statement was added verbatim.
18 In other respects the FOI Review Officer in effect confirmed the FOI Officer’s reliance on technical limitations, which he described as “computer system restrictions”, as a basis for refusing to annotate. He endorsed what he described as the cross-referencing which the FOI Officer had done. As explained above, this is not a permissible basis for declining to annotate under the FOI Act.
19 When the matter came before the Tribunal on 1 March 2005, the Tribunal was obliged to approach the question of amendment and/or annotation in the same way as I have described above for the original FOI Officer. It is apparent from the relevant extracts from the decision of the Tribunal to which I have referred that the Tribunal accepted the approach which had been taken by Centrelink. This approach involved the following elements: first, to recognise that the applicant had an entitlement to have the relevant records annotated in accordance with his request; secondly, to accept the physical reality, as propounded by Centrelink, that such annotations could no longer be effected, because the records had been sent to archives; and thirdly, to affirm the decision under review on the ground that Centrelink had acted in a way which was “reasonable”. Although this course may have been attractive to the Tribunal as a pragmatic one, for the reasons I have set out above, it is not a course which was open either to Centrelink, or to the Tribunal, under the FOI Act. At the point of consideration whether a document should be annotated, it matters not whether a refusal to annotate is reasonable. Subject only to the specific statutory exceptions to which I have referred, the FOI Act does not allow for an agency in the position of Centrelink to refuse to annotate in accordance with the terms proposed by an applicant.
20 In disposing of this matter upon a basis for which the FOI Act makes no provision, the Tribunal erred in point of law, and the applicant’s appeal must be allowed.
21 I can, of course, appreciate that Centrelink might regard itself as caught between a rock and a hard place, in the sense that, in circumstances where the placement of an annotation onto a document is no longer physically possible, legislation by which it is bound provides that such annotation must be made. It is not necessary for me to resolve this difficulty. It is sufficient to observe that the Tribunal did not recognise the mandatory obligation, in relation to annotations, for which the FOI Act provided, and did not dispose of the case before it on the basis of the existence of such an obligation. Had it done so, it might have caused more thoroughgoing investigations to be made into the assertion in Mr James’ letter of 7 October 2004 that records sent to archives could no longer be the subject of annotations. It might also have formed the view that the method by which Centrelink maintains its older records is such as would preclude it from complying with the law. In the way that the Tribunal in fact disposed of this matter, however, it has left Centrelink without any indication that its archiving practices may not be consistent with its obligations under the FOI Act. It has, in effect, set up a new criterion, not to be found in that Act, of reasonableness where requested annotations of old documents are concerned.
22 It is implicit in what I have said above that the course adopted by Centrelink on 1 March 2005 was not obviously an annotation of the documents which contained the records of which the applicant complained. In the proceedings before me, it was submitted on behalf of the respondent that “a further annotation was put on the system on 1 March 2005”. In those submissions, it was assumed that what Centrelink had done on 1 March was to make an annotation which complied with the FOI Act. I do not think that this is self-evident. The obligation, both under s 51(1)(b) and under s 51B, of that Act, is to make the annotation to the existing document “by adding to it the statement” which the applicant had provided. Whether what the FOI Officer, and later Mr Todd, did was “adding” an annotation to an existing document was a question for the Tribunal. How the question was to be resolved where the document took, as it did, an electronic, rather than a paper, form ought to have been a matter of some importance before the Tribunal. It is not necessary that I rule on it at this point, and perhaps it would be undesirable to opine on the subject in the absence of full argument. It is sufficient to conclude, as I do, that the matter before the Tribunal was disposed of on the basis that an annotation could not be made, and had not been made in the circumstances.
23 I shall set aside the decision of the Tribunal published on 15 March 2005 and remit the case to be heard and decided again in accordance with these reasons.
24 As a litigant in person, the applicant is not entitled to his costs to the extent that they are referable to his own time, including the amount of any income lost as a result of attending to the prosecution of this proceeding: Cachia v Hanes (1994) 179 CLR 403. He is, however, entitled to his disbursements: Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 93 FCR 288. I shall order that he have his disbursements, by which I intend the taxing officer to be guided by Boswell as qualified by Cachia.
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I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. |
Associate:
Dated: 22 August 2006
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Counsel for the Applicant: |
The Applicant appeared in person |
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Counsel for the Respondent: |
G.Livermore |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
2 August 2006 |
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Date of Judgment: |
22 August 2006 |
