FEDERAL COURT OF AUSTRALIA

Hamden v Campbell (No 2) [2012] FCA 460

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant issued this proceeding seeking the issue of a constitutional writ of mandamus compelling the respondent to comply with a decision of the Administrative Appeals Tribunal (AAT) made on 25 August 2011.

2    For the reasons that follow the application must be dismissed.

Facts

3    The applicant was formerly employed by Centrelink. He was dismissed from his employment. He brought a claim under the Disability Discrimination Act 1992 (Cth) in the Federal Magistrates Court against Centrelink and two of its employees alleging disability discrimination. The application was dismissed: Hamden v Commonwealth of Australia (Centrelink) [2010] FMCA 36. The applicant appealed to this Court but the appeal was dismissed: Hamden v Commonwealth of Australia [2010] FCA 924. During the hearing of the appeal evidence was adduced of an email sent by Bronwyn Szabados, the applicant’s Team Leader at Centrelink, to Stephen Marsh, a Manager at Centrelink, in which Ms Szabados wrote, “plse [sic] ignore previous attachment sent to you earlier today – this attachment supersedes.” The applicant was aware of the email which referred to the previous attachment because concurrently with the proceedings in the Federal Magistrates Court he had brought proceedings in the AAT seeking compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

4    The applicant filed a notice to produce in the appeal proceedings seeking the previous attachment referred to in Ms Szabados’ email. However, for the reasons given in the judgment on the appeal, I refused to allow the applicant to pursue the respondent for the attachment: Hamden v Commonwealth of Australia.

5    On 10 September 2010, after I had delivered judgment on the appeal, the applicant requested access to documents within Centrelink pursuant to s 11 of the Freedom of Information Act 1982 (Cth) (FOI Act). The application sought:

All emails sent by Bronwyn Szabados to Stephen Marsh for the period 3 May 2007 to 11 May 2007 inclusive, including “plse ignore previous attachment sent to you earlier today – this attachment supersedes,” refer attached copy of email.

All emails sent by Stephen Marsh to Bronwyn Szabados for the period 3 May 2007 to 11 May 2007 inclusive.

Evidence via affidavit lodged with the Federal Court in May 2010 indicates that these emails are available, refer attached copies.

6    The right to obtain a document under the FOI Act is contained in s 11(1) of the FOI Act, which provides:

11    Right of Access

(1)    Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)    a document of an agency, other than an exempt document; or

(b)    an official document of a Minister, other than an exempt document.

7    It was not contended by the respondent that the document which was sought was an exempt document.

8    Ms Scanlon, who was an Authorised Freedom of Information Officer within Centrelink, conducted a search for the relevant document and advised the applicant on 17 December 2010:

•    You have requested access to a copy of emails sent between Stephen Marsh and Bronwyn Szabados using Centrelink’s email system during the period 3 May 2007 to 11 May 2007;

•    The emails which you describe would have been sent internally i.e. Centrelink staff member to Centrelink staff member;

•    The Centrelink Lotus Notes email is backed up daily and emails held on each staff member’s ‘inbox’ is [sic] stored centrally for 6 weeks;

•    Mail on each individual staff member’s email is purged from the individual’s mailbox after 45 days;

•    The maximum ‘age’ of Centrelink internal email which is stored is 6 weeks;

•    The email records to which you seek access are in excess of 6 weeks old;

•    No back-up tapes of email over 6 weeks old are held by Centrelink;

•    I have confirmed that there are no emails such as those you describe stored on any Centrelink electronic medium.

9    On 21 December 2010 the applicant requested an internal review of Ms Scanlon’s decision. Specifically, he requested the review of her decision in relation to “copy of emails sent between Stephen Marsh and Bronwyn Szabados using Centrelink’s email system during the period 3 May 2007 to 11 May 2007.”

10    On 7 February 2011 Ms Moller, who was the Freedom of Information Review Officer for Centrelink, wrote to the applicant and said, inter alia:

Section 24A grants a person a right of access to “documents of an agency” (in this case Centrelink, the Commonwealth Services Delivery Agency). Section 4 of the FOI Act defines a “document of an agency” as being only those documents “in the possession of an agency”.

Documents which cannot be located or do not exist are considered to be not in the possession of Centrelink and are not subject to any right of access. Requests for this category of documents must therefore be refused.

I have found that all reasonable steps to locate the emails to which you requested access have been undertaken and the documents have not been located. I am satisfied that the documents do not, or no longer, exist and therefore are not in Centrelink’s possession. This is why I have decided to refuse your request under section 24A of the FOI Act.

11    On 10 February 2011 Ms Scanlon wrote to the applicant providing him with what she described as “clarification regarding my decision”. She wrote:

The documents to which I provided access were hard copies (printouts) of emails which had been attached to a paper file at some time in the past. I did not print the copies from the database as the information is no longer held on a database. This means that electronic versions of these emails are no longer in existence, so it is not possible for them to be printed and given to you.

I acknowledge that my decision letter contained some ambiguity and I apologise for any misunderstanding which this may have caused.

12    The applicant remained dissatisfied with Centrelink’s efforts to locate the documents to which he sought access, and he brought an application for review in the AAT under the FOI Act. He claimed that Centrelink’s efforts to retrieve the documents were insufficient. He said that email messages created using Australian Government systems were Commonwealth records and had to be managed in accordance with the Archives Act 1983 (Cth) (Archives Act). He also submitted that Centrelink used the National Archives of Australia approved Record Disposal Authorities, and the Administrative Functions Disposal Authority (AFDA), and that under the AFDA activities associated with the handling and resolution of grievances (including handling complaints over perceived discrimination) could only be destroyed five years after any action had been completed, which had not occurred.

13    Centrelink’s evidence was that, as had been related in Ms Scanlon’s decision, the emails would have been purged after six weeks and could not be retrieved.

14    Senior Member Dunne noted in his reasons for decision published on 25 August 2011 that the document which had accompanied the email to which the applicant sought access was a Word document. He concluded:

25.    I am satisfied that all reasonable steps have been taken to find the “original” emails sent between Ms Szabados and Mr Marsh in the period 3 May 2007 to 11 May 2007 that were stored/held on Centrelink’s Lotus Notes electronic mail system (email). As was said by Mr Hill in his evidence (which I have no reason to doubt), the longest period an internal email can exist is 87 days – 45 days in an inbox and a further 6 weeks on the backup server. I am satisfied that the “original” emails Mr Hamden is seeking no longer exist.

26.    In relation to the Word document, which is the “superseded” attachment referred to by Mr Hamden in his Freedom of Information application (Exhibit R1, T32), it would appear that no (or no reasonable) steps have been taken to locate the attachment. It may be that it cannot be found or, like the original email to which it was attached, it no longer exists. Nevertheless, I find that, in order to satisfy s 24A(a) of the Act, it is appropriate that Centrelink take steps to determine whether a Word document that was the “superseded” attachment can be found or whether, like the email to which it was attached, it has been purged from the user’s inbox and the backup server and no longer exists.

DECISION

27.    The Tribunal varies the decision under review to the extent indicated in paragraph 26 of these reasons.

15    On 23 September 2011 Ms Scanlon wrote to the applicant referring to [26] of Senior Member Dunne’s decision and said:

In conducting a search for the word document referred to in the AAT decision, I contacted the author who was able to provide me with the final version of the document as this was still in existence electronically on the computer system separately from the email to which it had been attached before being sent (the second email).

The author advised that the original (“superseded”) document which was attached to the initial email (the first email) had been amended before it was attached to the second email in its final version, and that this final version of the document was the only version still in existence on the computer system because the original (“superseded”) document had been overwritten and converted into the final version of the document. In other words, the original (“superseded”) version of document ceased to exist once the amendments were made.

Further, as the first email no longer exists, the original (“superseded”) document which was attached to the first email also no longer exists.

In [sic] On 5 August 2011, in response to a subsequent FOI request, I provided you with access to the final version of the document which was the attachment to an email sent by Bronwyn Szabados to Stephen Marsh (i.e. the second email).

16    On 26 September 2011 Mr Camilos, the Principal Legal Services Officer at Centrelink, wrote to the applicant confirming that the respondent had taken all reasonable steps to find the attachment.

17    On 27 September 2011 the applicant emailed Centrelink asserting that the AAT’s direction had not been complied with because the respondent “did not contact an appropriately qualified person … to ascertain as to whether the word document still exists on, or has been purged from, the backup server.”

18    On 18 October 2011 the applicant commenced this proceeding claiming that the respondent had failed to comply with Senior Member Dunne’s decision and that in those circumstances this Court should issue a writ of mandamus requiring compliance.

19    After this proceeding was commenced and on 24 October 2011 Ms Scanlon wrote again to the applicant asserting that she had conducted all reasonable searches for the original version of the document in question, and said:

My searches included ascertaining whether the “superseded” version of the document could still exist on the Centrelink backup server and I found that it does not exist on that server, nor does it exist anywhere else on the Centrelink computer system.

20    On 30 November 2011 Professor McMillan, the Australian Information Commissioner, wrote to the applicant in response to an application made by the applicant for the Information Commissioner to review the decision made by Centrelink under the FOI Act stating that the Information Commissioner was not inclined to review Centrelink’s earlier decision, and that it had already been reviewed by the AAT, which had resulted in the decision by Senior Member Dunne on 25 August 2011. The Information Commissioner noted that he could investigate whether Centrelink had implemented the AAT’s decision, but no such application had been made to him. He wrote:

Though it would be open to you to lodge a complaint of that nature with this Office, I should advise that, on the information presently available, we would not be inclined to conduct an investigation. I note that in response to the AAT’s direction the Australian Government Solicitor wrote to you on 1 November 2011 and informed you that Centrelink had complied with the direction. On the face of the matter it seems that Centrelink has taken reasonable steps to implement the AAT decision and that an investigation by this Office would not be warranted. It is relevant also that you initiated proceedings in the Federal Court to challenge Centrelink’s actions.

21    On 2 February 2012 Ms Scanlon wrote yet again to the applicant in the following terms:

I refer to the decision of the AAT in respect of your appeal regarding the FOI decision of 17 December 2010, as well as to my letters of 23 September 2011 and 24 October 2011.

As I previously stated in my earlier letters, I have conducted all reasonable searches for the original (“superseded”) version of the document in question and I can confirm that the digital record of the document (i.e. the electronic form of the document) has ceased to exist on the Centrelink computer system, including the backup server. In conducting these searches, I have obtained assistance as required from relevant Centrelink staff with specialist knowledge of the Centrelink computer system.

I have also confirmed that the “superseded” version of the document in question was not saved, copied or otherwise placed onto any other electronic media separate from or outside of the Centrelink computer system. In other words, the document in question was not saved, copied or otherwise placed onto any floppy disk, magnetic tape, CD-ROM, DVD, USB memory stick or any other form of electronic media.

I can also confirm, as I have previously indicated, that the original (“superseded”) version of the document in question was not printed or otherwise produced in hard copy form and so it also does not exist in that form.

Consideration of Application

22    The respondent has frequently and consistently advised the applicant that the respondent has complied with its obligations in response to Senior Member Dunne’s decision. It has repeatedly advised the applicant that it has made all reasonable searches for the document in question.

23    The respondent’s repeated reference to reasonable searches or reasonable steps to find the document reflects the provisions of s 24A of the FOI Act.

24    Section 24A 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:

(a)    all reasonable steps have been taken to find the document; and

(b)    the agency or Minister is satisfied that the document:

(i)    is in the agency’s or Minister’s possession but cannot be found; or

(ii)    does not exist.

Document not received as required by contract

(2)    An agency may refuse a request for access to a document if:

(a)    in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and

(b)    the agency has not received the document; and

(c)    the agency has taken all reasonable steps to receive the document in accordance with those contractual measures.

25    Section 24A has the effect that an agency may refuse a request under the FOI Act if all reasonable steps have been taken to find the document and the agency is satisfied that the document does not exist.

26    During the course of this proceeding the applicant has issued subpoenas in an endeavour to compel officers of Centrelink to bring the document which he seeks into Court. He also sought particular discovery pursuant to r 20.21 of the Federal Court Rules 2011. On that application he claimed, as he had before the AAT, that the document must be kept under the Archives Act, and that therefore the document existed. I held on that application that the applicant had not established that the disk, which he said the document should have been stored on, either existed or was in Centrelink’s or the respondent’s control: Hamden v Campbell (2012) 125 ALD 86; [2012] FCA 65.

27    The applicant’s main contention at the hearing of this proceeding was that the respondent has an obligation under the Archives Act to keep the document, and that because of that obligation I should infer that the document does in fact exist, which would mean that the respondent has not complied with the AAT’s order. The applicant did not articulate precisely where this obligation is to be found in the Archives Act, although s 24(1) was referred to during the hearing.

28    I do not accept the applicant’s argument. Whether the document was required to be kept by Centrelink pursuant to the Archives Act is not relevant in circumstances where the evidence from Centrelink is that the document does not exist. The inference that the applicant contends for simply does not arise in this case.

29    The officers and employees of Centrelink have consistently maintained in letters to the applicant that the Word document that was created and sent by Ms Szabados to Mr Marsh no longer exists in the form it was first sent to Mr Marsh. It was changed and as a result, because of the prevailing practice at Centrelink at the time, the original document ceased to exist.

30    It is in these circumstances that I have to decide whether the applicant is entitled to the relief sought.

31    Section 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth) invest this Court with original jurisdiction to issue a writ of mandamus sought against an officer of the Commonwealth. The purpose of a writ of mandamus is to require the person to whom the writ is addressed to fulfil a duty of a public nature which that person is required to fulfil which remains unperformed at the time of the issue of the writ: The King v The War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 242 per Rich, Dixon and McTiernan JJ. However, mandamus cannot be used to require a public officer to discharge a duty in a particular way.

32    In this case I am prepared to assume that mandamus would lie to require the respondent to comply with s 24A(1)(a) of the FOI Act and to take all reasonable steps to find the document sought, and therefore to comply with Senior Member Dunne’s decision. Centrelink’s obligations to find the document arise out of Senior Member Dunne’s decision. I am prepared to assume that mandamus would lie to require Centrelink to comply with Senior Member Dunne’s decision, even though the application has not been brought against Centrelink but the Secretary of the Human Resources Department. I am also prepared to assume, because I think that is the effect of Senior Member Dunne’s decision, that Centrelink would only comply with Senior Member Dunne’s decision if it carried out the search in accordance with the obligations in s 24A. However, as I have said, the overwhelming evidence, which includes the letters from Ms Scanlon to the applicant dated 23 September 2011, 24 October 2011 and 2 February 2012, is that the respondent has taken steps – extensive steps – to find the document, and has been unsuccessful because the document does not exist.

33    Whether the respondent has taken reasonable steps under s 24A and whether the respondent is satisfied that the document does not exist is a question for the respondent: Chu v Telstra Corporation Ltd (2005) 147 FCR 505; [2005] FCA 1730 at [14]-[16] per Finn J. It is not for this Court, where s 24A is invoked, to determine whether the steps that have been taken are reasonable or whether the agency is satisfied that the document does not exist. That said, in this case it would appear from the uncontroverted evidence that all reasonable steps have in fact been taken by Centrelink to comply with Senior Member Dunne’s decision.

34    The applicant also put a number of other arguments; first, that Centrelink had a motive for non-compliance with the AAT’s order because the document was created by Ms Szabados before she knew the applicant had lodged a complaint, and that therefore it must be damaging; secondly, that there were inconsistencies and deficiencies in the letters from Ms Scanlon to the applicant; thirdly, that I was not obliged to accept the AAT’s finding that the email that the document was attached to does not exist because there was evidence before the AAT from which it could be concluded that the email still exists; and fourthly, that Ms Scanlon did not explain properly in her letters what steps she had taken to search for the document, and did not explain to the applicant’s satisfaction why the document was not saved somewhere on Centrelink’s computer system.

35    I reject these arguments for the following reasons. In relation to the first argument, asking whether Centrelink had a motive for not complying with the AAT’s order assumes that Centrelink has not complied with that order. As I have found, there is evidence to support the conclusion that officers and employees of Centrelink have taken steps to try and find the document and that they have been unable to locate it because it does not exist. In any event, I would not be prepared to conclude, based purely on when the document was created and the fact that Centrelink now says it no longer exists, that the document was damaging or embarrassing for Centrelink or one or more of its employees, and that therefore Centrelink or the respondent had a motive for not complying with the AAT’s order.

36    In relation to the second argument, the inconsistencies and deficiencies identified by the applicant amount to no more than a criticism that Ms Scanlon did not identify clearly what steps she had taken to locate the document and when she had taken those steps. It was essentially the same argument as the applicant’s fourth argument. I reject both arguments because the clear, uncontroverted evidence from Centrelink is that various officers within Centrelink have searched for the document, undertaking what they describe as “all reasonable steps” to find the document, and that as a result of their enquiries and searches they have ascertained that the document no longer exists.

37    As I pointed out to the applicant at the hearing, Ms Scanlon’s first letter to him dated 23 September 2011 was somewhat ambiguous in that it did not make clear the extent of the steps she took in trying to locate the document. However, her two subsequent letters, dated 24 October 2011 and 2 February 2012, clarify this ambiguity. In any event, as I have said, whether the steps taken were reasonable or not was a question for Centrelink, and all the AAT’s order required was for Centrelink to take steps to determine whether the document still exists. The evidence is clear that Centrelink took steps to try and locate the document, and that it is satisfied that the steps it took were reasonable.

38    Finally, the applicant’s argument that I am not obliged to accept the AAT’s finding that the email to which the document was attached no longer exists is not to the point. First of all, the applicant did not seek to challenge that finding other than by submitting, during the course of the hearing, that I was not bound to accept it. Secondly, even if I rejected this finding of the AAT, which I do not, and found that the email still exists, I would not be prepared to infer, given the overwhelming evidence to the contrary, that the document attached to the email still exists and that therefore Centrelink has not complied with the order of the AAT.

39    It follows that I am not prepared to order that Centrelink or the respondent, who is head of the Commonwealth Department responsible for Centrelink, comply with the order of the AAT.

Conclusion

40    In my opinion, this is not an appropriate case for the issue of the constitutional writ of mandamus and the proceeding should be dismissed. The applicant should pay the respondent’s costs of the application.

Associate:

Dated:    7 May 2012